[RPPTL LandTen] FW: Release of Property to Designated Person etc. 12/29/08

Mon Dec 29 20:20:20 PST 2008

I have a few problems with the way this is written. For one, there seems to be an assumption that the lease is terminated when a tenant becomes incapacitated.  This seems unfair. Who decides when the tenant becomes "disabled/incapacitated?" Does a medical doctor's notice have to be included? I believe there is lot to think about here. Some tenants may want to stay in the unit until death even if they have had a stroke or something. Level of incapacity? Any ideas about that... Perhaps there are some broad legal terms that may have to be incorporated into this proposed bill. 

Another problem I can anticipate is that I can see a lot of unnecessary litigation being initiated by long lost relatives(but direct heirs in the Will) if the deceased tenant writes over the property to his/her legal heirs and but decides for whatever reason to let a "good friend/neighbor" in the neighborhood take all the personal property away upon his/her death per the lease. I can see "hurt" relatives creating a raucous and rushing to sue the landlords even if there is a valid release... it will just breed a lot of problems. I think that there may have to be some correlation with the tenant actually giving over this responsibility to the PR(Personal Representative) designated in the tenant's Will. If the Tenant has no Will and just does not want to write one, then may be there should be additional safeguards in there to protect any misunderstanding between long lost relatives who just fly to FL to see their deceased relatives rental unit hoping they have some money lying around to grab and the landlord who may act in real good faith and take the tenants word for it.

I will try to ask my Estate Planning attorney friends what they think...

Happy New Year to you all!

Roshani Gunewardene

Date: Mon, 29 Dec 2008 09:44:43 -0500From: NShoter at shutts.comTo: safrank at arnstein.com; landten at lists.flabarrpptl.org; gmeyer at carltonfields.com; mjgelfand at gelfandarpe.com; brutonb at gtlaw.comCC: AMenor at shutts.comSubject: [RPPTL LandTen] FW: Security Deposit issue

If anyone has any comments on the string below, please let me know asap.  I received this email relative to a change in law being requested by the Florida Association of Homes and Services for the Aging to allow the tenant while alive to designate someone to get the personal belongings in the event of the tenant 's incapacitation or death.

Any comments?

Neil B. Shoter Partner  

Shutts & Bowen LLP 1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL 33401 Direct: (561) 650-8535 | Fax: (561) 822-5525E-Mail | Biography | V-Card | Website

From: Mary Ellen Early [mailto:meearly at earthlink.net] Sent: Sunday, December 28, 2008 10:25 PMTo: harry at evict.com; 'Jeff Rogo'Cc: 'Janegale Boyd'; Neil B. Shoter; 'Carol A. Berkowitz'Subject: RE: Security Deposit issue

Thank you Harry!  Since I am not a lawyer, I am not familiar with this area of law. Therefore, I cannot draft the language. I am not working this week, but I will check my e-mail for ideas from you all. I want to use the bill slot that is being saved for us so I am working on another unrelated idea as well.  We do not have a senate sponsor yet, but I am sure we can put our heads together and find one if this works out.

How about this concept as a starter?  -- 83.59 (3)(d) A landlord may obtain a signed statement from a tenant when the lease is signed or any time thereafter that identifies the tenant’s personal representative or another person to contact to remove and provide safe keeping for the tenant’s personal property in the event of the tenant’s death or incapacity due to an illness that results in the termination of the lease. The person identified in the statement may remove the tenant’s personal property and provide for safe keeping thereof in accordance with the tenant’s will or written or oral wishes.

Mary Ellen

Mary Ellen K. Early
Senior Vice President of Public Policy
Florida Association of Homes and Services for the Aging
2303 Pin Oak Dr.
DeLand, Florida 32720
386/738-0503 (Deland)
850/671-3700 (Tallahassee)
meearly at earthlink.net

From: harry at evict.com [mailto:harry at evict.com] Sent: Sunday, December 28, 2008 6:24 PMTo: 'Mary Ellen Early'; 'Jeff Rogo'Subject: RE: Security Deposit issue

Dear Mary Ellen,

Anything that helps us get possession of a unit as soon as possible after death is appealing to our industry.

The problem is that you cannot accomplish something in a document prior to death regarding personal property as this is part of the estate and there may be no estate opened up. In other words, you cannot bypass the probate or estate process. If the Bar does not mind, I am all for it.

As for incapacity, I see no problems. 

I copied Jeff and let's run it by the Bar. I belong to the Real Property and Trust Law section of the Bar.

We need to explain the problem we all face, come up with the wording and have their blessing.

Jeff, possibly we need to make this a priority this week.  It will help our industry.

Harry

LAW OFFICES OF HEIST, WEISSE & DAVIS, P.A.PH: 1 800 253 8428FAX: 1 800 367 9038"Serving the Property Management Professional"Website:  www.evict.com Email: harry at evict.com
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From: Mary Ellen Early [mailto:meearly at earthlink.net] Sent: Saturday, December 27, 2008 12:13 PMTo: harry at evict.comSubject: RE: Security Deposit issue

Dear Harry,

A house member saved us a bill slot. If we want to use it, we must have bill language to her by 1/2/09.  Do you have any language to address this issue that will not upset the probate section of the bar? Could we add a couple of sentences to current law that says,  In conjunction with signing a lease or any time thereafter, a tenant may provide the landlord with the name and contact information for a person responsible for removing and providing safekeeping for the tenant’ personal possessions in the event of the death of the tenant or incapacity due to an illness that results in the termination of the lease. The landlord may release the tenant’s personal possessions to the designated person. 

Please let me know by this Monday if you are interested in pursuing a change in the law and if this language will work. We do not have a senate sponsor and we would need the support of the Apartment Association and the Probate section of the Florida Bar to make this work.  

Thanks,
Mary Ellen

Mary Ellen K. Early
Senior Vice President of Public Policy
Florida Association of Homes and Services for the Aging
2303 Pin Oak Dr.
DeLand, Florida 32720
386/738-0503 (Deland)
850/671-3700 (Tallahassee)
meearly at earthlink.net

From: harry at evict.com [mailto:harry at evict.com] Sent: Tuesday, October 07, 2008 5:23 PMTo: 'Mary Ellen Early'; 'Jeff Rogo'Cc: 'Gail Matillo'; 'Colleen Bloom'Subject: RE: Security Deposit issue

Dear Ms. Early.

We had the same concerns.  At the time I believe the amendment was proposed, we did not oppose the amendment because we wanted to get the bill passed. We were told that you were able to get possession in 15 days if federally funded.  I disagreed with that as it conflicts with probate law but we just let it slide.

I copied Jeff Rogo and possibly we can address it.

We all have the same concerns with getting back possession without having to go through the time-consuming and expensive probate procedure.  Maybe we can clean it up next year. I am a member of the Real Property and Probate Section of the Bar and on the Landlord/Tenant Law Committee this year.

Harry Heist

LAW OFFICES OF HEIST, WEISSE & LUCREZI, P.A.PH: 1 800 253 8428FAX: 1 800 367 9038"Serving the Property Management Professional"Website:  www.evict.comEmail: harry at evict.com

From: Mary Ellen Early [mailto:meearly at earthlink.net] Sent: Tuesday, October 07, 2008 11:55 AMTo: harry at evict.comCc: 'Gail Matillo'; 'Colleen Bloom'Subject: RE: Security Deposit issueImportance: High

Dear Harry,

I looked up the section of law Jeff Rogo referenced -- 83.59 (3)(d).  I do not have his e-mail address to respond so please forward this e-mail to him.

We had concerns about 83.59 (3)(d) when it was amended in 2007. A sentence was added for us to exempt HUD financed communities from the subsection because we were not sure the change would help. Most of our affordable housing members are governed by federal law. We are researching the process that they must follow when a resident dies and leaves possessions in the apartment. We know they have 14 days to get the unit ready for the next tenant. We don’t know if they can obtain information on the next of kin at the time of move-in and also get written verification from the tenant that they want their property released to that person should they die. 

How would you propose changing the law? How about authorizing the landlord to obtain a signed statement from the tenant with instructions on who to call and what to do with personal possessions in the event of death? Can they do that now or do they have to wait for probate?  I am not an attorney so I don’t know what the legal issues would be related to a will that identifies other heirs. When the law talks about a personal representative, I am assuming it means a personal representative named in the will.  Do you know?  Your association is more familiar because of the research that went into the 2007 law changes. 

We are interested in the issue and would like to work with your association, but we need to do more research ourselves on federal law governing our HUD housing members.

Thanks,
Mary Ellen

Mary Ellen K. Early
Senior Vice President of Public Policy
Florida Association of Homes and Services for the Aging
2303 Pin Oak Dr.
DeLand, Florida 32720
386/738-0503 (Deland)
850/671-3700 (Tallahassee)
meearly at earthlink.net

From: harry at evict.com [mailto:harry at evict.com] Sent: Sunday, October 05, 2008 7:23 PMTo: Gail Matillo; 'Jeff Rogo'; 'Kelly Mallette'Subject: Security Deposit issue

Dear Gail,

This was forwarded to me by Jeff Rogo, Governmental Affairs Director for the Florida Apartment Association.

Since you mentioned legislation, one issue that I deal with especially with seniors is the death of the senior in the apartment. While we can now wait 60 days and dispose of any abandoned personal property due to the law change 2 years ago, we cannot ever let relatives into the unit after a death unless a probate estate is opened and a personal representative appointed. Unless the senior is wealthy, no estate is ever opened and it really causes a problem. I would love to see some legislation that would allow a senior tenant or any tenant for that matter to designate in the lease or on a separate document, a person who could enter a unit after death and at the same time not have the landlord liable for what the relative may do to the personal belongings. It is a heart wrenching time when a relative flies in from New Jersey only to be denied access by the landlord. Often all they want is to get some sentimental personal belongings or find a will.  Maybe we can all think about something like this and work together.

Have a wonderful week,

Harry Heist
General Counsel to FAA

From: Gail Matillo [mailto:gmatillo at fahsa.org] Sent: Friday, September 26, 2008 5:03 PMTo: Kelly MalletteSubject: 2009 Legislative session

Dear Kelly:Are you planning to file any substantial bills in 2009?

Does any of the members of the Apartment Association ever have problems with refunding interest from security deposits?

We are working on our public policy agendas and I wanted to report if you were planning any bills, etc. for 2009.

Thank you,
Gail

Gail G. Matillo
Director of Housing and Program Development
Florida Association of Homes and Services for the Aging (FAHSA) 
1812 Riggins Road
Tallahassee, FL  32308
(850) 671-3700 Fax: (850) 671-3790
Direct: (850) 702-0308
Cell: (850) 294-3415
http://www.fahsa.org

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--Forwarded Message Attachment--Subject: Possible change to Landlord Tenant ActDate: Sun, 28 Dec 2008 18:36:07 -0500From: harry at evict.comTo: AMenor at shutts.com; NShoter at shutts.com; jeff.rogo at gmsgroup.org; meearly at earthlink.net

Dear Art, Neil, Mary Ellen and Jeff,

By this email I am putting you all together regarding the change put forth by the Florida Association of Homes and Services for the Aging.

I will let Mary Ellen and Jeff explain further but we are still having difficulties when a tenant dies in a unit. This change to the law is seeking to allow the tenant while alive to designate someone to get the personal belongings in the event of the tenant 's incapacitation or death.

We are under a deadline.

Jeff is the Government Affairs Director for the Florida Apartment Association
Mary Ellen is Senior Vice President of Public Policy Florida Association of Homes and Services for the Aging
Art/Neil (not sure), is the head of the landlord/Tenant Section of the RPPTL section of the Bar

Thanks,

Harry

LAW OFFICES OF HEIST, WEISSE & DAVIS, P.A.PH: 1 800 253 8428FAX: 1 800 367 9038"Serving the Property Management Professional"Website:  www.evict.com Email: harry at evict.com
THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY.  ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED.

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