Reposted by HomeQwest Realty Group, LLC
The numerous storms in Florida over the past few years have resulted in many new legal issues between the landlord and the tenant. Unfortunately most landlords were not prepared for the myriad number of problems, and often decisions were made which ended up in litigation. Common problems included the tenants taking it upon themselves to secure the property and in the process damaging the property. In many cases the premises were substantially damaged, and the tenant was allowed a rent rebate or some concession which ended up not satisfying the tenant and becoming a problem later. Construction workers often were not able to complete repairs in a timely manner. In severe damage situations, the tenants refused to vacate the premises and also refused to pay rent. Who is liable for protecting the tenant and his personal property? Can we make a tenant leave if the premises cannot be repaired quickly, or it is necessary to have the tenant leave the premises to have the repair properly made? What about generators? In a multi-family environment such as an apartment community, the misuse of a generator can put people and property at great peril. Can we prohibit them? The following discussion is preliminary at best and is meant to give you some ideas which you may wish to implement in your lease or an addendum to your lease. It is by no means complete, but it is a start.
What are the Landlord’s obligations?
Many leases contain clauses reminding the tenant that the landlord is not responsible for their personal property, and the tenant agrees to this. Surprisingly, these clauses are not always upheld in court for situations in which damage to the tenant’s personal property was not due to any fault of the tenant. If there is a pipe break, and the tenant’s personal property is damaged or destroyed, this clause may not hold up. In the event of a storm, if there were some simple steps that the landlord could have taken to help preserve the personal property of the tenant from damage, things are not as clear. The duty of the landlord to secure the premises is not spelled out anywhere in Florida law. We recommend the following clause.
LANDLORD’S OBLIGATIONS: Tenant agrees Landlord has no obligation to install storm shutters and/or take measures to prevent wind, rain and/or other objects or projectiles from entering the premises in the course or event of a windstorm, flood, hurricane, hailstorm, tropical storm, or any other act of nature (hereinafter “Storm”) that may strike in the area of or affect the premises rented by Tenant from Landlord. Tenant agrees Landlord has no duty to advise Tenant as to evacuation orders, potential or current storms, safety measures, storm-preparedness procedures, or storm recovery resources. Tenant agrees to use due diligence in keeping informed of the current and future weather.
What about the tenant’s personal property?
Florida law does not prohibit or specifically allow a landlord to require a tenant to get insurance for her personal property, commonly known as “renter’s insurance”. There also is no affirmative duty on the landlord to secure the tenant’s personal property, which may be in accessible areas such as balconies or lanais. It is possible that a particular area of the outside of the premises is subject to flooding. The landlord may have a duty to warn tenants of this if the landlord has knowledge of a low section of the property or prior flooding. Many tenants are not aware that the typical insurance policy that a landlord has on a rental property in no way includes coverage on any of a tenant’s personal property or coverage for any other loss that may occur to a tenant other than personal injury or death due to the landlord’s negligence. We recommend the following clauses:
TENANT’S OBLIGATIONS REGARDING PERSONAL PROPERTY: Tenant agrees the rental premises are located in an area that may be subject to storms, and as a result, it is necessary to take steps to protect one’s personal property, including but not limited to securing objects that may become projectiles, keeping important documents in a location safe from damage, providing for the safekeeping of keepsakes, and obtaining appropriate insurance. Tenant understands that, even with precautions, damage to personal property, including vehicles, may occur.
RENTER’S INSURANCE: Tenant understands and agrees Landlord’s insurance if any DOES NOT cover injury or death to Tenant’s person or loss of any kind to Tenant’s personal property or expenses incurred by Tenant due to a storm, including but not limited to, loss of perishables, interruption of water, electric, cable or other utility service, relocation expenses and/or temporary or permanent housing. Tenant agrees he or she has an affirmative obligation to obtain renter’s insurance to cover losses in the event loss should occur to Tenant’s person and/or personal property due to a storm. Failure by Tenant to obtain renter’s insurance is done at the complete and total risk of the Tenant.
LIABILITY OF LANDLORD : Tenant waives any liability or duty on the part of the Landlord for any damage to person or property should any occur due to a storm. Tenant agrees to indemnify Landlord should any third party institute an action for damages against Landlord due to damages caused to person or property by Tenant’s personal property and/or Tenant’s actions or inactions relating to such personal property. Such indemnity shall include attorney’s fees and costs of Landlord incurred in any actions for damages by a third party.
Storm preparation actions by the tenant
Certain steps should be taken by a tenant to minimize the risk of harm to the tenant, personal property belonging to the tenant, and property belonging to others due to the tenant’s personal property becoming a projectile or otherwise causing damage to another’s property. At the same time, a landlord does not want a tenant to drill holes in the premises, put nails into the premises or take steps to protect the tenant’s personal property which could cause damage to the premises in the process. We recommend the following clauses:
STORM PREPARATION : Once a tropical storm, hurricane, flood watch or warning is issued for a particular area and/or at the request of Landlord, Tenant agrees to take storm preparedness actions. Any injury to Tenant arising from storm preparation is the sole responsibility of the Tenant and not of Landlord. In the event of damage to Landlord’s property due to Tenant’s storm preparations, that damage will be the responsibility of Tenant. Tenants shall remove all authorized and unauthorized objects from the immediate premises that may become projectiles in a storm, such as deck chairs, potted plants, patio benches and any items on a balcony, lanai, patios and/or breezeways of the rental premises. These items should be placed inside the apartment and returned to the outside only when it is safe to do so. In no event, shall any motorcycle, scooter, gas grill, or other item containing gasoline or other fuel, be stored inside in the rental premises. These items must be removed completely from the premises.
MODIFICATIONS TO THE PREMISES: Tenant agrees no modification shall be made to the premises including but not limited to attaching storm shutters, plywood or other items over doors or windows, taping duct tape or any other type of tape to windows or screens or making any other modifications or attaching any item to the premises. If Tenant fails to abide by this provision, Tenant shall be in breach of the lease agreement, shall be responsible for any damages to the premises and subject to eviction by Landlord.
Are storm shutters required?
In some areas, storm shutters are required for new construction, but most existing housing does not have any form of storm shutter system, be it removable or permanent. The tenant needs to understand that the landlord is not under an obligation to purchase storm shutters or to secure the windows and doors of the premises. Storm shutters can also give tenants a false sense of security, and the tenant needs to understand that storm shutters are simply one method to help minimize damage. If storm shutters are on the premises, the lease needs to address whose responsibility it is to engage these shutters, put them in place or remove them after a storm or a threat of a storm occurs. We recommend the following clause:
STORM SHUTTERS: If the premises are not equipped with storm shutters, Tenant understands that no storms shutters will be provided and/or no measures shall be taken by Landlord to secure doors and or windows unless Landlord, in its sole discretion, decides to perform these tasks. Tenant agrees to hold Landlord harmless for any damage to person and or property due to the lack of storm shutters or Landlord’s decisions to secure or not secure doors and/or windows. If storm shutters have been installed at the premises, or if Landlord secures door and/or windows, this shall not relieve the Tenant of the obligation of looking to his or her renter’s insurance for coverage of any damages to property or person. Tenant agrees that installation of storm shutters or other means of securing doors and windows are not guarantees in any way that damage to the premises due to a storm will be minimized or will not occur.
The generator problem
The landlord must decide if a gas powered generator will be allowed on the premises. Gas generator dangers are huge. Every year fires are started and individuals die of carbon monoxide poisoning due to generator misuse. In a single family home situation, the landlord may not have a problem with allowing the tenant to use a generator, but in multi-family housing the risks are multiplied greatly and are severe. Let us assume that an apartment community prohibits generators, but the tenant purchases and uses one on the premises. Can the landlord remove or disable the generator without liability? We are not sure, but we have created a clause which your attorney may want to review and give you his or her opinion. We are not by providing this clause stating that this clause will definitely be upheld in court or will not create liability on the landlord, so you have been warned.
GENERATORS AND FLAMMABLE LIQUIDS : Tenant agrees that NO GENERATOR(s) WHATSOEVER shall be permitted to be used by Tenant on, in or near the premises. Severe hazards are associated with storing and operating a generator at the property, including injury and death to persons and damage to property. Tenant agrees that NO FLAMMABLE LIQUIDS shall be permitted to be stored on, in or about the premises including but not limited to gasoline, kerosene or propane.
REMOVAL OF OR DISABLING OF GENERATORS BY LANDLORD: In the event Landlord is made aware that Tenant is in possession of or using a generator on, in or near the premises, Tenant by this document gives Landlord absolute permission to disable the generator and/or remove the generator from the premises without notice or further permission of the Tenant. Tenant agrees to hold Landlord, its agents, employees and assigns harmless for any damages suffered as a result of Landlord disabling and/or removing the generator from the premises. This includes damages to Tenant’s personal property due to lack of electricity and /or damages to or loss of the generator itself.
Notifications to the tenant
Nothing in Florida law requires a landlord to notify the tenant of an impending storm. It is good in multi-family housing though for the landlord to have a policy and procedure in place, as it only makes sense that the landlord take steps to notify tenants who may not be aware of the situation. A landlord cannot force a tenant to vacate the premises. We recommend the following clauses:
EVACUATION OF PREMISES: In the event a governmental entity orders an evacuation of the area, Tenant agrees to follow such evacuation orders. In the event Tenant fails to follow the evacuation orders, Tenant agrees that Landlord shall not be liable in any way for injury or death of Tenant or damage or destruction of Tenant’s personal property, including vehicles.
The damaged property Catch-22
The most common problem our office deals with in the aftermath of a storm is the damaged unit. The destroyed unit is easy. The tenants are gone and can’t move back in. The damaged unit creates serious issues. Does the landlord have to repair? Can the landlord timely repair? Is there water damage causing mold? Can repairs be made with the tenant present? Does the tenant have to pay rent? When a unit is damaged, we like the landlord to have the pure absolute option to terminate the tenancy and evict the tenant if necessary. We don’t need any arguments about the rent, reductions in rent, rent withholding, interference with repairs or any other problems from the tenant. We want the landlord to simply say “Get Out”, serve the tenant proper notice and file an eviction if the tenant fails to vacate. Proper lease wording is crucial. We recommend the following clause.
DAMAGE OR DESTRUCTION OF PREMISES: In the event the premises are damaged or destroyed by a storm, and in Landlord’s sole judgment it is necessary for Tenant to vacate the premises due to a dangerous condition on the premises or for repair, reconstruction or demolition, Tenant agrees that Landlord may terminate the tenancy. Tenant shall vacate the premises within the time period as designated by Landlord, and Tenant shall not be liable for any further rent under the terms of the lease agreement.
Contact with your attorney
Probably the most important thing you can do after a storm is to contact your attorney before releasing a tenant, giving a rent concession or making any deals or arrangements whatsoever with the tenant. Emotions are running high, situations often are emergent in nature, and anything you do with the tenant can have long lasting legal consequences. We urge you to examine your storm policies and procedures and have all preparations in place not just with the properties that you own or manage, but also your personal business. Many of our clients completely lost their offices in the past 3 years and were not prepared to be up and running again quickly. While this article dealt with your agreement with the tenant, you need to have a full meeting of the minds in writing with the owners of homes if you are a manager of single family homes, duplexes and the like. This topic will be examined more in depth in a future newsletter.
by Harry Anthony Heist, Attorney at Law
HomeQwest Realty Group, LLC
homeqwestrealty@gmail.com | O. 239.770.5429 | http://www.homeqwest.com
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