Disclosure of All Facts Prior to Eviction
by Harry Heist, Attorney at Law
reposted by: homeqwest realty
Sometimes after we have filed an eviction, we find out that a client “withheld” certain information from us, and that act of withholding ends up having a serious impact on the outcome of the eviction case. Of course, most clients claim that it was unintentional or an accident, and that they simply forgot to tell us some crucial little factoid about the situation. Withholding information will not make your eviction more successful no matter how good your attorney is. In fact, it could cause you to not only lose a case, but cause you to become embroiled in a major contested eviction or worse. Never forget that when you file an eviction, the resident can counterclaim, and now you are getting sued.The Intentional Failure to Disclose
Occasionally a property manager will know something that could be damaging to an eviction action and will choose not to disclose the information, fearing that the attorney will not take the case. This is very dishonest and unethical. You could end up putting your attorney into a position where he or she is forced to ask the court for permission to withdraw from the case. You would then be required to hire another attorney to continue the case for you, or maybe have to drop the case altogether. Dropping the eviction case, or “dismissing” the case (in legal terminology) is really no huge deal, unless the resident has retained an attorney. If the resident has an attorney, you could end up being liable for the resident’s attorney’s fees, which could be substantial. Can you imagine an eviction costing up to $20,000? We can show you cases in which property management companies and owners had judgments against them for an amount this high, simply because they lost the eviction action. Intentionally withholding information is dead wrong, and when we find out that a client does this, we usually will refuse to work for that client ever again. It is not fair to yourself, the property owner, your attorney or anyone else to be dishonest.
Just File the Eviction, I KNOW They Will Move!
We have heard this many times from clients, and often the client is 100% correct. Sometimes all it takes is having the eviction filed with the courts and served on a person for the resident to pack up and move. Let’s face it, most residents don’t put up a big fight. Usually they have nothing much to fight about, so they just buy a little time and move. Does this strategy always work? No, so you cannot depend upon the resident just moving. Sometimes, a mild-mannered resident can surprise you with a real bulldog attorney who wants to take the case to the proverbial Supreme Court.
The Unintentional Failure to Disclose
While no less dangerous, we understand that our clients sometimes do not intentionally withhold important information. It was either by accident or lack of knowledge. The main problem is that our client did not know the information was relevant or could have any impact on the case. You would hate to have to answer a 100-item questionnaire before each case, so you need to know what to look for, and what we look for. This article will discuss a number of issues that can cause a case to be seriously jeopardized and items and facts that need to be disclosed to the attorney BEFORE the case is filed. By disclosing, you are being honest and can give the attorney the ability to possibly help you get possession of a unit without even filing an eviction at all. There are all kinds of strategies that can be used in the resident removal process. Eviction is only one option. Sometimes, we are able to get a resident to leave without having to use the court system, and this is always preferable.
You Accepted Rent after the 3-Day Notice or 7-Day Notice Expired
If you accept rent after the expiration of the 3-day notice or 7-day notice, and we don’t know this, the allegations in the eviction complaint will be inaccurate. A defective 3-day notice is an excellent way to lose an eviction action, and similarly, accepting rent after a 7-day notice the basis of the eviction action will likely result in the eviction being denied.
You Served Another Notice after the 3-Day Notice
If you serve any payment demand notices after the 3-day notice, the last notice you serve can void out the prior 3-day notice. When we file the eviction, we need the most recent 3-day notice, not one from last month when you just served 20 more 3-day notices on the property yesterday. We receive a case to file on the resident, and the day before, the assistant manager served everyone, including the resident now under eviction, with the current month’s 3-day notice.
You Gave the Resident a Verbal Extension of Time
The 3-day notice has expired, and the resident is begging you for more time. You give him a few more days, but the few more days ends up being a week, and in the meantime, the resident has had conversations with other staff members in your office about more extensions. Your kindhearted extension of a few days becomes what the resident claims was a two-week extension, and the entire case becomes a, “he said, she said” mess.
The Resident has Made Habitability Complaints
Sometimes a resident does not pay rent because of habitability problems in the residence. The habitability issues will often come out in court; trust us on this. Will the judge have sympathy for the resident? Quite possibly. We don’t want to hear about the resident’s 3- month old mold issue in court. If the resident has had problems in the unit, we need to know.
You Received a Rent Withholding Letter
By law, if a resident serves you with a written notice of a serious habitability issue, and you do not rectify this within 7 days, the resident may be able to break the lease or withhold rent. In some cases, the rent withholding letter is a complete defense to the eviction. When requesting an eviction, it is imperative that your attorney be notified of any rent withholding notice.
You were Contacted by an Attorney
Attorneys usually write letter to owners or property managers, and sometimes they even will call you. You may even speak with the attorney, giving that attorney information that could be seriously damaging. It could be misconstrued by the attorney, or twisted and used against you later. Your attorney needs to know if you had any contact with an attorney, when, why, the nature of the communication, and your attorney will want to examine any written correspondence you may have received from the resident’s attorney. Don’t talk to the resident’s attorney, even if that attorney is very nice to you on the phone.
You or the Prior Company May Have Filed an Eviction on the Resident Previously
We have clients come to us sending over what looks like a basic eviction, only to find out that a prior attorney filed an eviction on the resident 3 months ago and possibly lost or dropped the case. Not only can we not work magic, but sometimes the older eviction is still open in the court system, and maybe there can even be money in the court registry in the old eviction case. It is possible that your owner owes attorney’s fees to the attorney who represented the resident in the last eviction. While we may be good at what we do, those problem are hard to overcome.
You Had a Drop Box Theft
In the past two years, many of our clients had thefts of checks and money orders from their drop box. Many now don’t even have a drop box, as it is so dangerous to use this system. We have clients send over cases for nonpayment of rent without telling us that the case involved a resident who had or claims to have had the rent stolen from the drop box. Judges are not too sympathetic to property managers who have drop box issues.
Resident is in Bankruptcy
Some property managers do not understand that if a resident is an active bankruptcy case, not only can you not file an eviction against that resident without bankruptcy court approval, you cannot even serve a 3-day notice on that resident. If we are not told this, we have no idea the resident is in bankruptcy; we file the eviction, and you could end up being sanctioned by the federal bankruptcy court for violating federal bankruptcy law. This will cost you money and is illegal.
Resident is in the Military
Just because a resident is in the military does not mean that the resident does not have to pay rent. BUT, the court must be advised by way of an affidavit if you know the resident is in the military. If you remotely think the resident is in the military, you must find out, or you can get into serious trouble. An eviction against a person in the military is not the same as the typical eviction; additional expenses will often be incurred, and the eviction can take much longer than normal. When seeking a default against the resident for not responding to the lawsuit, not disclosing to the court that the resident is active military is a federal crime.
You Signed a Rent Assistance/Social Services Form
There are many social services organizations, some public and some private, that provide rent assistance to people in need. In order to get that assistance, the owner or property manager often must sign a form provided by organization providing rent assistance. These forms will often have some fine print under which the owner or property manager is agreeing to hold off on an eviction for a period of time. If you agree to hold off and wait for the money that may or may not come, you are stuck with this. We have filed cases in which the resident defended on the basis that the landlord signed such a form, only to have the judge deny the eviction. You must be careful never to sign this type of document unless you know exactly what it is, understand the ramifications, and most importantly, keep a copy of it to show your attorney.
The Resident has Died
What? Is this possible? Yes. We have had property managers not tell us before and more often during an eviction that the last remaining resident in the unit has died. The manager is thinking that maybe by telling us, the eviction may have to stop, or things will get complicated. The manager is right. Evict a dead person, and see the trouble you will get in when the heirs find out you tossed all their dead relative’s belongings onto the street.
The Manager Who Prepared and Served the 3-Day Notice no Longer Works at the Property
If a resident tries to claim that the 3-day notice was not received according to the certificate of service section completed “Mary”, or the resident tries to claim the rent was paid to “Mary” in the office, and “Mary” no longer works for you and left on bad terms, the lack of “Mary” in court could be the end of the eviction case. If a staff member involved in any way with rent collection or notice serving on the account in question is no longer is working at the property, we need to know.
You are no longer Working for the Owner after the Eviction
You are either done working for an owner because of some problem that you have with that owner, or because of some problem the owner has with you. You have no intention of working for the owner after the eviction is over. Will we get paid for that eviction? Doubtful. Your owner won’t want to pay anyone you had any dealings with. Moreover, if your intent is to terminate management as soon as the eviction action is filed, or if the owner has terminated your services prior to (or during) the eviction action, we need to know.
Your Owner is Broke
Many property owners are completely broke. They could be in foreclosure, near foreclosure or on the verge of bankruptcy. You know your owner far better than we do. If we file the eviction for you, the chances of us getting paid are slim to none. It is not fair or right to do this to any vendor. On top of this, often the resident will refuse to pay rent when he or she knows the owner is not making the mortgage payments.
Failure to Register your Fictitious Name
You took over an apartment community a few months ago and no one in your company bothered to register the fictitious name with the state. Most of the time, no one in the company even knows what this means. If you look at www.sunbiz.org, not only are you under new ownership, but the new name you have for the apartment community is not even registered. An eviction defense? Absolutely. As soon as you take over a property or change the name, it is crucial to properly register your fictitious name, as it is actually a misdemeanor to file an eviction, and this can result in your case being delayed or dismissed.
You have been Negotiating with the Resident
Your resident had flood damage that was not the resident’s fault. You received authorization from the owner to reduce the rent by $200 for one month, but what did the resident want? MORE. So now you are going back and forth, and the resident then decides to take it upon himself to deduct the $350 from the rent money and you accept the partial payment with the deduction. Does this mean you have a deal? Are you stuck with this? Some judges feel this way. We need to know this before we file an eviction, not after. Any deals on rent reductions or reimbursements are extremely important, and they become promises and contract modifications in some cases.
The Resident is on Section 8
We can evict Section 8 residents, but there are some special procedures that must be followed, and in addition, many Section 8 evictions get contested. If a resident loses Section 8 eligibility due to an eviction, it is quite a big deal to that resident, as Section 8 assistance is worth a lot of money over time. Section 8 residents under eviction routinely go to their local legal aid office, and often the Section 8 employees do not properly follow the rules when they cut off Section 8 residents. Often we cannot tell by looking at the lease that you are accepting Section 8 on a resident, and this needs to be disclosed.
Your Resident Subleased
Many residents will sublease or get a permanent “roommate” and not tell you. As long as you are receiving the rent, you sometimes will know and just ignore this. When the rent stops flowing in, we have to file against the resident who is long gone. This can cause an extremely complicated and failed eviction, especially if it turns out that you have accepted rent from that roommate or sublessee. Let us know if there are any unauthorized people living in the unit before we file, and most importantly, let us know if you ever accepted rent from anyone other than the named residents.
The Resident was or is Receiving Rent Credits for Work or Repairs
Occasionally, you allow the resident to receive rent credits for work done on the side, or repairs or work done in the residence, despite our strong recommendation against any such exchange. Perhaps the resident is a former courtesy officer who was receiving reduced or free rent, and you have decided to terminate that arrangement. Disagreements about the level of compensation or current rent amount often arise, and this is a great way to lose an eviction; we need to know about any such arrangement.
Some Final Words
As you can see, a lot of “stuff” happens behind the scenes. We need to know about this “stuff”. Just as it is dangerous to withhold information from your doctor, you can see how withholding information from your attorney can cause you problems. An excellent property manager is honest and engages in full disclosure, but that manager also needs to know what to disclose. Come back to this article on occasion, as we are going to add more information to it. You have an idea of something that we missed? Shoot us an email at: homeqwestrealty@gmail.com
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