On September 4, 2020, the Center for Disease Control and Prevention (CDC) issued a moratorium on evictions nationwide. Since that time, several extensions of the moratorium have occurred; however, in its recent majority opinion, the Supreme Court of the United States in the case, Alabama Association of Realtors, et al. v. Department of Health and Human Services, et al., held that the CDC, which is a federal agency, exceeded its legal authority. The Court ruled, “[i]f a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.”
The Court observed that the CDC’s moratorium (which Congress did not recently extend) intrudes into an area that is the “particular domain of state law: the landlord-tenant relationship.”
In light of this latest development, it is helpful for Property Managers to be mindful of the following areas.
Eviction Moratorium Status
- Congress may decide to act and re-institute an eviction moratorium. Factors including the latest surge in Covid cases, as well as new variants of concern, may impact Congress’ timeframe and desire to act. Any such federal moratorium may or may not include criteria relating to geographic area, and individual tenant circumstances.
- Florida does not currently have a state-wide eviction ban.
- Federal aid has been designated to assist tenants who qualify. Distribution of that aid is underway, but not complete.
Property Management Agreement Updates
- Review and be familiar with your Property Management Agreement (“PMA”). If not on current agreements, all new and renewal PMAs should contain a comprehensive hold harmless/indemnification language to protect the property manager. The protections will include indemnification for attorney’s fees expended by the Property Manager in defending a claim.
Steps for Property Managers to Take Now
- Require the landlord to provide a certificate of liability insurance for a sufficient amount (typically no less than $250,000) and have the Property Manager added as an additional named insured on the policy.
- Maintain a “habitable property” as determined by statute and any regional or local regulations, and also under the doctrine of “implied warranty of habitability.” A landlord, through the Property Manager, must:
- Keep the structural elements of the building, including stairs and roofs, safe and intact
- Keep the electrical, plumbing, heating, ventilating, and air-conditioning systems operating safely
- Must supply cold and hot water
- Must exterminate rodents and other vermin such as bed bugs.
- Also, the landlord, at commencement of the tenancy, “must ensure that screens are installed in a reasonable condition.”
- If the property manager is put on notice by the tenant of a condition making the property uninhabitable, the manager must take prompt action to cure the problem and make the premises habitable again. If an eviction action is filed for failure to pay rent, a tenant may be able to raise a defense to that action on the grounds of the Landlord’s “material noncompliance” with the Florida statute governing maintenance obligations.
- Carefully and precisely follow the eviction procedures set forth in Chapter 83, Florida Statutes. Under the terms of the PMA, overseeing the eviction process is delegated to the Property Manager.
- However, the property manager may only file an uncontested residential eviction for non-payment of rent, using forms approved by the Supreme Court of Florida. The manager must have written authorization from the landlord, and cannot file suit in its own name or seek a money judgment.
- If the eviction is contested, (for example if a defense based on the Landlord’s “material noncompliance” with maintenance obligations), a hearing will be required. In that event, the manager cannot take any further action. Only an attorney is authorized to handle contested evictions on behalf of a landlord. If the landlord and property manager wish to pursue a judgment for damages, including unpaid rent, as opposed to simply seeking to legally regain possession from a non-paying tenant who remains in the premises, it is likely that the problematic file will need to be handled by an attorney. If the manager is just seeking a judgment of eviction and the issuance of a “writ of possession” to be executed upon by the Sheriff’s office, an attorney is not necessarily needed.
- Similarly, there is a strict statutory procedure that must be followed if a claim is to be made on a security deposit, and also regarding the disposition of the tenant’s personal property. Using a checklist both when a tenant moves in and moves out of a rental, and providing a detailed and complete written security deposit itemization when the tenant leaves will help lessen disputes.
- Be familiar with, and be sure to comply with anti-discrimination laws. It is important for Property Managers to know what they can say and do when selecting tenants. This includes how a rental is advertised, interviewing an applicant, and the questions contained on a rental application. Carefully following the law can avoid costly discrimination complaints and lawsuits. An applicant can be rejected based upon factors such as bad credit history or negative references from a previous landlord. However, landlords cannot discriminate against prospective tenants based on their race, religion, national origin, sex, or physical or mental disability, as those are “protected categories” under the federal Fair Housing Act.
- Covid regulations, including those concerning landlord-tenant lease relations, can change at any time. It is important to stay connected to local real estate licensee associations, and continually check the news on Covid developments. Two helpful websites that provide regular Covid updates are the Florida real estate licensees Association at https://www.floridarealtors.org/, and the Florida Department of Health site at: https://floridahealthcovid19.gov/.
James R. Myers & Jessica A. Teitelbaum
NOTE that the information contained in this document is for general education and knowledge. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem or claim. Additionally, the situation surrounding COVID-19 is evolving and the subject matter discussed herein may change on a daily basis. Please contact an attorney for timely advice as to any specific issue that may arise.