Tenants who have demonstrated unwillingness to follow the rules and terms of the lease should be viewed with strict scrutiny, meaning that “excuses” given by the tenant for not being able to comply with the lease should not be assumed true or as a legitimate reason.
Tenants who have demonstrated a good track record for complying with the lease, paying rent, caring for the property, and treating us with due consideration should be considered for an arrangement to resolve a problem, as long as the tenant meets reasonable conditions. Failure to meet those conditions should preclude the tenant from special arrangements.
TYPES OF PROBLEMS
Failure to Pay Rent
The following are guidelines in consideration of whether or not to make an arrangement with a tenant for late payment of rent or not. If you choose to allow a tenant to explain an undue hardship, you should require the tenant to:
present credible and substantial evidence to prove the claim that their failure to pay rent was not due to their own negligence, was unexpected/sudden, and was unavoidable.
Require tenant to provide relevant documentation (when appropriate).
show the ability to make the current payment by a required date and the ability to pay the upcoming payment timely.
Violations of the Lease
Examples of common violations are as follows:
failure to keep lawn to standards
vehicles parked on the grass/unauthorized areas
Violations must never be overlooked. Notice and demand must be given to the tenant.
TYPES OF VIOLATIONS AND NOTICES
There are two types of violations: (1) curable and (2) non-curable. Non-curable violations should be treated formally always and from the beginning. Non-curable violations mostly include intentional destruction of property or injury to person. Curable violations should be assessed on a case-by-case basis.
Once a 7 day notice to cure has been given, second or subsequent violation within 12 months is deemed a “non-curable” violation, and a 7 day notice to terminate can be delivered.
Curable violations are potentially less-serious (e.g. remove a pet, cut the grass, etc.), and may be dealt in two ways:
informal notice of violation and demand to cure, and
formal 7 day notice to cure.
Informal notice can be given to the tenant if the violation is “minor” and curable, meaning, it is easily curable and not likely to cause damage or liability to anyone. The informal notice can be an email notifying the tenant of the violation with a short time to cure the violation.
Formal notice should be given when the violation is non-curable, serious or continual in nature and when the tenant did not cure the violation when informal notice was sent.
FAILURE TO PAY
Soon after after the late fee date, email the past-due tenant of the past-due rent, but for tenants with a history of problems, you should immediately deliver to that tenant 3 Day Notice to Pay or Vacate.
3 Day Notice to Pay
One day after the date that you email an informal notice, for all past-due tenants, email three (3) notice to pay or vacate
If tenant pays in full rent within 3 days, no further action is required, and you must accept the full payment if it is within the 3 day notice period.
If tenant does not pay in full, proceed to next step
PARTIAL PAYMENT ATTEMPT? If a tenant attempts to make partial payment during 3 day period, do NOT accept partial payment if you know that you want to evict that tenant.
ACCEPTED PARTIAL PAYMENT? If you accept of partial rent, you must either deliver a new 3 Day Notice to Pay or provide the tenant with a receipt stating the date and amount received and the agreed upon date and balance of rent due before filing an action for possession, pursuant to F.S. 83.56(5)(a).
Risk Level Assessment
When a tenant poses problems during the tenancy, you should assess the risk level of tenant to determine whether you want to evict or make an offer of settlement with tenant. Relevant factors could include:
- History of late rent
- Maintenance problems
- History of lease/law violations
- Illegitimate complaints from tenant
- Ease to work with tenant
- Extraordinary circumstances
If the tenant "qualifies" for an offer of settlement, your attempts could include:
Tenant must make tenant application for settlement agreement (to discover tenant’s current financial and other situations)
Prepare terms of settlement and get approval from your attorney
Tenant must sign an updated lease agreement (if Tenant is not already on one)
Settlement payment schedule to be prepared, including
Past due payments
Other fees to compensate us for our time and inconvenience
e.g. property to be brought to good standards
Remove any other lease violations
OTHER LEASE VIOLATION
Notice to Cure
If a tenant does not cure as required in an informal notice (e.g. email), deliver written seven (7) day notice to cure (note: for any notice emailed, you must add 5 days to the notice period to ensure compliance with the Florida Mailbox Rule).
If tenant timely cured default, no further action needed
If tenant did not cure, proceed to next step
Is the tenant one that you KNOW we want to evict? If so, begin eviction proceedings.
If tenant is not one that you KNOW you want to evict, did the tenant make good faith, substantial attempts to cure, but still not in full compliance?
If so, soon after the expiration of the 7 day notice, inspect the premises to ensure compliance and make sure no other violations are occurring on the premises
If tenant in total compliance, no further action needed
If tenant not in total compliance, go to next step
Risk Assessment (see above)
Settlement Offer (see above)