The Law in Your Life

Consumer Rights

Landlord/Tenant Issues

As with other areas of law, state law governing this area in each state will vary. Inthis particular area, the time periods and remedies are critical in each state, and may be completely different. Sometimes even cities have their own Rent Control laws, so it is imperative that you check with your local Plan Attorney before proceeding. This section can only be a general guide and if you have a serious landlord-tenant problem, it is advisable to seek help immediately from a lawyer.

Understanding your rights as a landlord or tenant can assist you in avoiding problems should you decide to rent instead of purchase your home.

AGREEMENTS

If you are a landlord, you should have your lease agreement drafted by a lawyer and periodically reviewed. This will protect you and your tenants from most unforeseen contingencies during the course of the lease term. If you are a tenant, you should take your lease agreement to an attorney if you have any questions about any term in the agreement. Remember, even if the landlord makes a statement during negotiations, unless the statement is set forth in the agreement, it will be difficult to prove later, especially if the building changes managers or owners.

Assume that you are about to sign a lease, and the landlord specifically states that the apartment complex is quiet and never has any problems with noise. When asked where this is stated in the rental agreement, you retort, "The landlord is a nice older man, and he seems honest, I believe him." Only after the lease is signed do you learn that three rock bands practice in the complex for hours each afternoon and night.

TERMS

Any agreement should set forth the terms by which the premises will be leased, such as a time period, and the monthly rental. Any agreement not specifying a term will in many states be construed to be a 30-day term. That means either the tenant or the landlord can, for any reason, terminate the lease by giving the other party thirty days written notice of termination.

In major metropolitan areas, where a shortage of housing exists, Rent Control ordinances may apply which will not allow landlords to evict tenants, except for specified reasons. For example, Santa Monica, California, has what many consider to be one of the most tenant-favorable Rent Control standards in the United States. Tenants may only be evicted for specific reasons set forth in the Rent Control ordinance, such as the landlord wants to move his/her family into a particular unit. Many of the usual landlord-tenant principles of law do not apply in such areas.

LANDLORD'S DUTIES

Generally a landlord's duties are to provide the unit rented in reasonably habitable shape for the tenant, and to include such periodic repairs as may be necessary. For instance, the landlord must supply a unit which meets the Building and Safety Codes as well as local Health Codes.

The landlord usually has a duty to make reasonable repairs but not to repair every single item which may be considered unnecessary. Also, the landlord is generally not required to make any improvements that a tenant desires during the lease term. Once rented, the landlord has a further duty to provide "quiet enjoyment" of the premises to the tenant. This means that the landlord cannot enter the premises at will, and must respect a tenant's right to privacy. If the landlord does not honor this implied or expressed covenant, the tenant may have a course of action for invasion of privacy.

This also includes a duty on the part of the landlord to make sure that each tenant respects the right of quiet enjoyment expected by each other tenant. This does not mean that the building must be free from noise, however, and generally, absent a special ordinance or statute, the standard use to measure any disturbance is whether each tenant is being reasonable. Tenants should be aware that at the expiration of any written lease, the tenant will be expected to have fully and completely moved from the premises. Any "holdover" even if it is one day, may subject the tenant to penalties or even rent charges.

TENANT'S DUTIES

  1. Rent. First and foremost, the tenant's first duty is to pay rent in the full amount owed and on the day specified. Failure to do so, depending upon the terms of the lease, or the lack of terms, can subject the tenant to eviction procedures. Landlords who are overly technical might even commence such proceedings if the rent is one day late!

    Should the premises need necessary repairs, e.g., leaking pipes, broken windows, defective toilet, etc., the tenant should make a demand to the landlord to fix the problem and give the landlord a reasonable time to make repairs. If the landlord does not do so, the tenant is permitted to fix the problem and withhold, or "abate" the rent.

    Rent abatement is an exception to the tenant's duty to pay rent in full. If you are going to abate the rent be sure whatever you are doing is reasonable. For example, obtaining three estimates on the cost to fix a problem is more reasonable then obtaining one estimate. It is advisable, but not necessary, to obtain the advice of an attorney before you decide to abate your rent, if you believe it is necessary. Your Plan Attorney will be able to assist in determining the reasonableness of your actions.


  2. Damages. Generally, unless specified, a tenant is liable for any damages caused to the premises, except normal wear and tear and those caused by problems such as water leaks, etc. Thus, any tenant or any guest of any tenant, who causes any damages whatsoever to the premises will be responsible to make repairs that return the premises to the condition in which they were found. This is whether or not the damages were intentional or accidental.

    Should the premises be damaged in any manner, a landlord is able to deduct an amount equal to the amount of repairs from a tenant's security deposit; and if the damage is in an amount greater than the security deposit, the landlord will have a cause of action to sue the tenant for the cost of repairs.


  3. Nuisances. Tenants are also requested to keep the premises free of any and all nuisances to the other tenants, their guests, the landlord, as well as any neighbors from outside the building. Thus, loud stereos which disturb other tenants will create a nuisance. In some cities, such as Los Angeles, local ordinances may be enacted to control these nuisances and provide a manner by which violators may be subjected to criminal penalties. Thus, in such cities, a loud stereo played during the day may be enough to violate the noise abatement ordinance, and subject the tenant to not only civil action for the nuisance, but possible criminal penalties for violating the statute.

EVICTION ISSUES

Most tenants have interest in the eviction procedures set forth so as to avoid being unjustly evicted. Most states have laws which will provide certain procedures to ensure that each tenant is accorded due process of law. Thus, a tenant usually does not have to worry about coming home, only to find his/her belongings on the street and someone else living in his/her unit.

The problem with an analysis of landlord-tenant law is that it is statutory in nature and each state has different laws, procedures and time limitations. You should thus consult your Plan Attorney if you: (1) want to evict a tenant; or (2) are being evicted, and you want to contest the eviction. These laws are further complicated by local Rent Control Ordinances which may provide more restrictions than the statutory scheme covering evictions.

The basic procedures, using one state as an illustration, are discussed herein:

  1. Three-day Notice - Generally a three-day notice is given to any tenant who has not paid the full rent in a timely fashion. When it is personally served upon the tenant, the tenant has three days in which to pay the rent, or the landlord can opt to commence an eviction. Tendering payment during this three day period will serve to forestall any eviction proceedings based solely upon non-payment of rent.

    Naturally, you must be personally served with the Notice, or it must be contemplated to be delivered to you, in order for this Notice to be effective. What you should be careful of in this area is a landlord who may hire an agent to serve the Notice and rely upon the representations of such an agent that you were personally served. You may be in the middle of eviction procedures before you have a chance to prove that you were not served properly.


  2. Thirty-day Notice - As indicated above, any tenant or landlord who does not have a written lease for a specified time period, e.g., 6 months, generally is presumed to have a 30-day tenancy. Thus, in many cases a landlord or a tenant can give thirty days notice to the other signaling the end of the term of the lease. Once again Rent Control Ordinances may restrict the landlord's right to give thirty days notice.

    This notice is generally given in writing and personally handed to the other party. Once it is given, the tenant must move out within thirty days. Any "holdover" after expiration of this time period may subject a tenant to the eviction process, or extra charges and/or damages, in the event another tenant is scheduled to move into the premises.


  3. Summons & Complaint - In order to remove a tenant, either after a three day or a thirty day notice [many states do not require that both a three day, and a thirty day notice be served first], the landlord must have prepared a Summons and Complaint and have personally served these upon the tenant. If the landlord has made repeated attempts to serve the tenant and has been unsuccessful, he/she may utilize a procedure called substituted service, usually consisting of: (1) repeated attempts, (2) posting the Summons and Complaint on the door of the premises, and (3) sending a copy of the Summons and Complaint to the tenant, at the premises, via First Class mail.

Answer. Once served, the tenant has only a certain number of days [in our example it is 5 days] in which to file a formal Answer with the clerk of the court listed on the Complaint. This Answer must specify what allegations in the Complaint are denied, and set forth any Affirmative Defenses. If an Answer is not filed within this time period, the landlord can obtain a default at a hearing. This default means the tenant must move, and the default will usually award the landlord any monetary damages he/she can prove to the court. Such a default can become a judgment against the tenant, and the landlord can pursue the tenant for the money, for up to 10 years.

It is not a good idea, despite common "tenant folklore," to default, since it can harm your credit, cause you to have problems renting in another building, and subject you to a judgement against you for actual money damages. Also, many landlords in major cities subscribe to weekly or monthly services detailing the actions of "problem" tenants. Being placed on this list may significantly impact your chances of leasing in the future. To file an Answer means you will contest the proceedings. You do not have to have a lawyer, but it is probably a good idea to be represented by a Plan Attorney, since you may not be familiar with the court proceedings and state or local rules of procedure. Not knowing these rules can cause problems for your case. Once the case is before the court, a judge makes a determination of whether the tenant or the landlord may win. The winner may also receive an award of damages, and attorneys' fees in some instances.

Usually, the cost of defending yourself is a substantial obstacle to tenants, since landlords usually have "attorneys on retainer" to handle their evictions. And, while most court proceedings favor the landlord overwhelmingly, if your state is one which provides an award of attorneys' fees, this may give you a significant weapon. Many Plan Attorneys who specialize in this area, can recover the attorneys' fees which you might have to expend to defend yourself. While no award can ever be guaranteed by an attorney, in many instances, if you have a strong case, you may wish to seek the counsel of a lawyer and determine the prospects of winning. Attorney fees may not be the barrier you originally thought, especially with your Plan Attorneys' rates.

The law in many states is significantly different than the illustration above, so be careful to keep this in mind when you are handling your own case. However, the availability of your Plan Attorney, and the initial consultation benefit, can be a valuable aid in deciding when to proceed in a landlord-tenant matter.

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