By Brian P. Wolk, Attorney at Law
As unemployment rates rise in this tough economy, many studies have shown that criminal activity will also increase. Even worse, as property owners face difficulties with their mortgage payments, they may skimp on spending money on security related maintenance or criminal background checks. They may also be so anxious to rent the property that they approve renters who fail applicant screening tests. This type of thinking will cost the property owner more money in the long run, as resident retention will plummet, and the property value will spiral downward, while civil liability for crimes committed on your property could zoom out of control.
The Starting Point: Screen your residents!
Elizabeth has just arrived at your leasing office. She fills out the rental application and lists her previous landlord as a reference. She also represents on the application that she has never been convicted of a felony and has never been evicted. You verify that there has been no felony conviction, and that the resident has never been evicted. Is this a strong screening process? We say no! Why, you ask? To start with, no telephone call or other contact was made with the former landlord. Maybe that "reference" would have turned out to be anything but a "reference." Perhaps they would have told you about prior conduct problems that the tenant had. Make sure your application contains language authorizing the prior landlord to divulge all information in its residential file to you.
If Elizabeth was served with a Seven Day Termination Notice for drug possession by the prior landlord, it is possible that you would have learned of it by simply making a phone call. We always advise our clients to use diligence to determine whether the prior landlord is real, and not just a friend of the applicant, so that you are not "conned" by the applicant. Suppose that the prior landlord discovered "crystal meth" inside Elizabeth’s apartment and issued her a Seven Day Termination Notice. If Elizabeth bailed from the unit before an eviction was started, the eviction action would not have shown up on the prior eviction screening report that you ran, because there was no eviction in the first place; the resident skipped out. In fact, even if an eviction lawsuit is commenced, if there is no final judgment of eviction, the tenant’s prior eviction action may not show up at all on the report.
At our seminars, we also urge all property managers to access to public records to see if there have been prior eviction actions started. Maybe your "hot" prospect is under eviction now! Another mistake you made here is not requiring Elizabeth to inform you if there has ever been an "Adjudication Withheld." While this might sound like some fancy legal language, it is easy enough to understand. "Adjudication Withheld" simply means that the criminal conduct likely took place, but the court is not entering a conviction. The judge sets forth conditions that must be met, and if those terms are satisfied, the conviction is not entered. For example, Elizabeth was arrested for drug possession. The judge may order her to attend a treatment program. As a property manager, you want to have the right to exclude from your community applicants who have had an ‘Adjudication Withheld" on their record. You also should have checked the website of the Florida Department of Law Enforcement (FDLE) to see if there is a criminal history. You should also be very diligent in researching whether any sexual offenders or predators are living on the premises. You can access that information on the FDLE website. Our article about sexual predator or offender laws should be reviewed carefully.
Enforce your lease, and team up with your attorney
Word travels quickly through an apartment community if the property manager is reluctant to enforce the terms of the lease regarding conduct because the manager does not like confrontation. Do not let the "inmates run the asylum." A property manager needs to fight crime head on and evict the "rotten apples" from the community. If the property manager is aggressively fighting crime, that message will also spread fast, and some of your problem residents may move out on their own without the time or expense involved in an eviction. When a resident engages in criminal conduct in violation of your lease, you should already have an attorney in place that works fast, efficiently and is very reachable, so that you can respond swiftly to the situation.
Work with your attorney to build your case, so that the appropriate seven day notice of lease termination can be issued to the resident. You will need PROOF! Often police reports will be needed, along with a list of residents who are willing to testify against the resident, in the event an eviction action is contested and a hearing is scheduled. The important thing is not to act impulsively. Disregarding your attorney’s advice will only enable the criminal resident to remain on your property longer, and even may make you accountable and liable to pay the resident’s attorney’s fees and costs in the event that the judge rules against you in court. When it comes to lease enforcement, the property manager should regularly inspect. You would be surprised how many criminal violations are discovered in this way. You should also have an "open door" policy for your other residents, so that they report criminal behavior to you. You want to learn about all lease noncompliances, not just ones that you discover. Neighborhood Watch programs may also be an effective way for your residents to take back control of your community.
Use Courtesy Officers
A property manager should consider using a "Courtesy Officer," as that may have a positive impact on the crime rate at your community. Criminals usually do not like additional people looking over their shoulders and may end up leaving your community voluntarily. The "Courtesy Officer" can respond to many types of prohibited conduct, including but not limited to late night/early morning disturbances. They can also contact police to report criminal activity, monitor your pool area and can tag illegally parked cars. There are many other security measures that a proactive property manager can take. To learn more, our article is a must read. With regard to "Courtesy Officers," never give the impression to your residents that you "have security," as a judge could find that you gave the resident a false representation, since "Courtesy Officers" have limited responsibilities. For instance, they might just roam around the apartment community or answer complaints. It is vital that you sign a written agreement with the "Courtesy Officer" which sets forth the understanding of all parties. Your "Courtesy Officer" agreement should list the responsibilities of the "Courtesy Officer." It should contain something similar to this: "The Courtesy Officer’s responsibilities are the enforcement of federal, state and local laws, to protect life and property, to keep the peace and to notify the property manager as soon as possible after learning of any safety or security issues, even if unrelated to law enforcement." You should also have the "Courtesy Officer" acknowledge that there is no employer-employee relationship, and not treat the officer like an employee. The "Courtesy Officer" should be listed as a vendor in your records. Your company should also have language in the agreement allowing the "Courtesy Officer" and property manager to terminate the agreement at any time. If the "Courtesy Officer" is living in your apartment community, then you should be using a normal market rent lease along with a Courtesy Officer Addendum.
Crime-Free Lease Addendum
Florida Statutes surprisingly do not specifically state that a resident who commits a crime on or near the premises is subject to termination. If the resident has signed a Crime-Free Lease addendum in which he agrees not to participate in any criminal conduct or allow any criminal activities to occur on or near your property, a judge will likely be more inclined to approve the eviction of the resident who has committed a crime on or near your property. There are Multi-Family crime free programs available that are free of charge. The International Crime Fee Association is one of them. Both the property and the property manager can receive certification under the program if certain requirements are met. As part of your crime free program, it may be advisable to contact your local police department to take advantage of free services that they may have. For example, a police department may agree to hold a "SWAT" training exercise in the parking lot one night in front of a building where you suspect drug activity is taking place. Now, that is one great message to send to your criminal resident!