Landlord & Tenant
If a tenant has not been around for over 6 months and not paid any rent, can I clean out the apartment and re-rent it?
Yes. You can get an eviction order for non-payment. The sheriff will move the tenant`s belongings out.
- What can I do about a negative cash flow?
The obvious answer is to increase income or cut expenses, but you have probably thought of that. First & foremost: Are you collecting all the rent due you? Usually the market dictates how much rent you can charge, (see raising rents) and government often dictates a large part of your expenses. One other answer to negative cash flow problems is new financing, with either lower interest or a longer amortization period. Newcomers to our business usually panic at humongous mortgages spread out over two lifetimes. But professional real estate investors usually don`t worry about the size of the debt or the length of the term. Cash flow and value appreciation are the name of the game.
- Does it make sense to offer to rent a property to a tenant with an option to buy?
Perhaps. Every investment should be for sale at the right price. You should love, but never a rental property. If the sale price and option terms are favorable, and the tenant is one you would otherwise rent to, why not?
- Is it legal to ask prospective residents to see their current residence?
Yes, if it is for the purpose of seeing how they keep up their house both inside and out. And that is an excellent idea. Fair housing laws set up a number of protected classes but poor housekeepers aren`t covered. You can discriminate on that basis, and you can on their ability to pay rent. You MUST, though, have a consistent policy and treat all prospective residents equally. If you inspect one applicant`s present home, you`d better be ready to inspect them all. Otherwise you could run into charges that you were screening on the basis of religion, race, sex, and children in the family or other forbidden grounds.
- Could refusal to rent available units qualify as discrimination?
Perhaps. Discriminating against a potential tenant who is a member of a protected class, including: Race, Color, Religion, Gender, National origin, Familial status or Mental or physical handicap is prohibited by the Federal Fair Housing Act. In some states discriminating on the basis of a person`s ancestry, military background, profession, sexual preference and children is also against the law. In general a landlord must have a good and legal reason for refusing to rent a vacancy to an otherwise qualified tenant applicant. For example, a landlord could reject a tenant who has bad credit, inadequate income or because they wanted to share a two-bedroom apartment with five other people, two large dogs and another pet in a property which does not allow for other than guide dogs. There are exceptions, to the Fair Housing Law, however.
- Can a landlord charge a late fee if the rent is overdue?
Yes, but only if a provision of the lease or rental agreement addresses it, and state law permits it. If nothing in writing specifies the late fee and its amount, the landlord can`t later decide they want to collect a late fee. Many states require that a late fees or penalty reflect actual costs incurred by the landlord, or at least that such charges be reasonable. (See State Landlord Tenant Law) States, like Massachusetts (M.G.L., c. 186, sec 15B), extensively regulate all aspects of late fees. In that state, landlords may not charge even interest or penalties until the rent is at least 30 days past due. It is also illegal for a landlord to reduce the rent if it is paid on time because the state considers it an attempt to circumvent their law, and that it is just a creative approach to collecting late fees. In Rhode Island, you can`t even send a late rent notice until the payment is at 15 days late.
- What is rent control?
Rent control is a unique legal fiction. It presumes an ability to control the price of something without having the same ability to control the cost of providing it. Rent control devastates housing and the housing market where ever it is implemented. Such laws actually date back to World War II when the federal government tried to regulate the price of things in short supply, including butter, gas and housing. The federal rent control law expired in 1950, but rent-controlled housing continues to exist. The laws in some states even allow a rent-controlled unit to be passed on in a family as an asset. The rent in these dwellings may be increased only by an amount set by the government.
- What can be done about noisy neighbors?
There are countless stories of abuses in rent controlled apartments, and the negative impact such laws have had on affordable housing, but the political will to change them cannot ever be realized without landlord and intelligent tenant activism within the system.
- Can a landlord be held responsible for break-ins?
Not normally. However, in some places local law requires that landlords take certain safety and security measures, like: making sure that doors and windows lock properly, and the use of window screens. If a lock is broken and the landlord knew about the problem but failed to fix it, then he might be found negligent and thus responsible for the tenant`s losses. Landlords must always look over their shoulder for problems lurking in the shadows, who believe that a landlord`s lifetime of work should be a risk for any small injury to anyone anytime for any reason. It may pay well to make certain that windows and doors close properly, yards and common areas are well lighted, and security systems are operable. Diligence may mitigate your damages, if you are the subject of a suit.
- If a landlord suspects a tenant of doing something wrong, can he go in and look around?
No. A tenant has a right to quiet enjoyment of their home. A landlord is bound by the constitution too. Even a police officer may not search without probable cause and a warrant. A landlord is only entitled to inspect rental property periodically to make sure everything is in order, but even then the tenant must have reasonable notice of intent to enter. Entering rental property in a non-emergency situation without the tenant`s permission should be considered trespassing. The manner and timeliness of a notice to enter depends on state law.
- How much of a security deposit can a landlord require?
It varies from state to state. The customary amount is one month. Some states allow a month and a half`s rent, and some allow the landlord to ask for as much as he wants. Check your state law. When the property is rented with furnishings, the landlord may usually request an additional deposit to cover the value of the furnishings. The landlord should return the deposit--less deductions for cleaning and repair--within a reasonable time after the tenant moves out, usually 30 to 45 days. In some states, a landlord will be penalized with punitive damages if the security deposit is not handled according to the law.
- What can a landlord do with a tenant`s security deposit?
Many states require that landlords place security deposits in a separate, interest-bearing bank account and to notify the tenant of the name and address of the bank where the money is held. Some states allow a landlord to keep any interest, in others interest belongs to the tenant. The interest is usually not paid until the tenant moves out. But in some states, if the tenant wants it, the landlord may have to pay the interest at the end of each year. In states where tenants own the interest, sometimes a landlord is entitled to withhold a reasonable fee for handling charges.
- Can a landlord refuse to return a security deposit?
Yes, but only by following state law. A landlord can always deduct payment for back rent, tenant utilities and when the tenant has damaged the premises in a way that devalues the property. However, if the problems are considered normal wear and tear, the tenant cannot be penalized. Many states require that an inventory, or move in condition, check list be filled out and signed by all parties at the time of possession, to help determine what damage can be charged to the tenant when they vacate. When a tenant leaves damages, the landlord should
- My tenant is an irresponsible person. Should I bother with a money judgment, or just go after possession?
Why did you rent to an irresponsible person? Don`t you screen your tenants? You will the next time, right? To answer your question, always get a money judgment if you can. There are countless ways you may get your money sometime in the future.
- Do military personal have special rights as tenants?
Yes. See the Soldiers` & Sailor`s Civil Relief Act of 1940.
- What is rent stabilization?
A modern term for rent control. Every sane person knows that price controls only work to reduce the supply, so several states have passed rent regulation schemes called stabilization, as if changing the name will change the inevitable outcome. Rent stabilization laws were a politically correct response to a shortage of affordable housing that actually worsened the problem they were enacted to solve. The laws typically cover multiunit buildings and usually exempt one and two-family houses. They:
o Set-up rent stabilization boards who attempt to regulate the market through edict
o Regulate when and how much rent can be increased
o Require that landlords continue to provide essential services (even if at a loss)
o Define how, when and why a lease may be terminated
Areas that have rent control have also seriously exacerbated the affordable housing shortage. However, the tenants who enjoy the unreasonably low rents in controlled apartments have demonstrated a political will to protect their favored treatment at any cost to the rest of the community.
To find out the rules where you live, contact the agency that oversees housing matters in your state. A rental housing association or local tenant`s group will also have the information.
- What is a landlord`s best source for help and information?
We sincerely believe that every landlord should also belong to their local rental housing association. The groups offer a great many services to both mom and pop landlords and the big time operators, many of which cannot be acquired from any other source. Typically they offer:
o Meetings with your peers
o Newsletters containing important local information
o Low cost credit reports
o Local eviction Lists
o State approved forms
o Local Discounts
o Reliable tradesmen
o Political action
We also believe that a businessperson can never have too much information about their business and they should use every source available to them. As a result, we will grow, evolve and provide you with everything we can, but we will also link to every other site that we believe will be helpful to some aspect of rental housing. Including:
o Specific State information with landlord/tenant handbooks
o Landlord/Tenant Law
o Books, Tapes and Periodicals reviewed by RHOL.
o Government Information Sources on the web.
- When Can A Landlord End A Lease?
o At the end of a written lease.
o When a tenant does not pay rent.
o When a tenant damages the property.
o Landlord can end a month-to-month lease at any time but landlord must give a one-month written notice to tenant.
o When a tenant violates a condition of a written lease.
- How would a tenancy at will arise?
Tenancies at will may arise in any of the following ways:
o Entry into the dwelling under a void oral contract,
o Entry into the dwelling under a void written lease,
o Entry into the dwelling while negotiations for a lease are pending, and
o Remaining in possession of the dwelling after rescission of a contract of sale.
- What are the tenant`s responsibilities during the tenancy?
In general, under landlord-tenant law, a tenant is required to:
o Follow the terms of the lease or rental agreement.
o Pay rent, and any utilities agreed upon.
o Comply with any requirements of city, county or state regulations.
o Keep the rental unit clean and sanitary.
o Dispose of garbage properly.
o Pay for fumigation of infestations caused by the tenant.
o Properly operate plumbing, electrical and heating systems.
o Not intentionally or carelessly damage the dwelling.
o Not engage in or allow any gang-related or drug-related activity.
o Not permit waste (substantial damage to the property) or nuisance (substantial interference with other tenants` use of their property).
o When moving out, restore the dwelling to the same condition as when the tenant moved in, except for normal wear and tear.
- Can a landlord ever terminate a tenant's right to use and possess the rental property?
Yes, in many cases. The more common reasons why a landlord may terminate a tenant`s right to use and possess residential rental property include:
o Failure of the tenant to pay rent when due.
o Waste to the rental property caused by the tenant.
o Possession of pets in violation of the rental agreement.
o Occupancy of the rental property by persons not named on the lease or rental agreement.
o Material disturbances of other tenants (such as extreme noise).
- How often can the rent be raised?
That is usually not a landlords decision. The answer is dictated by several factors totally outside your ability to control. (Also see: raising Rents)
o Local market conditions
o Tenants ability to pay
If you have a vacancy in a high demand market, start near the top, then if necessary; work your way down until you get the ideal tenant. However, when for rent signs out number trees, it might have been better if you asked: how often can I lower the rent? Remember that when you lower your rents a much larger number of tenants will want to rent from you. That allows you to pick from those who are most likely to stay a long time and take good care of your property. Both of which have a greater impact on your profit than does the gross scheduled rent amount that appears on your rent roll. A 10% rent increase that causes a turnover will likely cost you money for at least a year.
We believe that the bottom line always goes to a tenants ability to pay. If housing costs more than 35 to 40% of a tenants income, they will eventually fall behind and landlords will lose more in the cost of non-payment evictions and re-renting the unit than they make with higher rents that are beyond what the local market can support.
- Can a tenant ever terminate their legal obligations of a lease during its term?
Yes, there are three ways:
o Termination due to the legal misconduct of the landlord;
o Replacement in the premises by a new tenant, or
o By agreement between the landlord and tenant.
If the landlord does not maintain the premises, this may constitute legal misconduct. Local laws may provide for lease termination if there are undisclosed code violations or there are problems accessing the premises by the tenant.
If another tenant has moved in and is paying the full amount of rent, the first tenant`s obligation is ended. A landlord cannot legally collect rent from more than one tenant for the same premises.
The landlord and tenant can always end their lease obligations by mutual agreement.
- Is the landlord responsible for maintaining rental property and complying with local housing codes?
Yes. Landlords have the responsibility to maintain residential rental property and repair any defects or problems. Under most state law, there is an implied warranty of habitability; that is, a landlord not only must deliver residential rental property to the tenant in a habitable condition, but s/he remains responsible for maintaining the property in a habitable condition during the term of the lease. Habitability is typically defined in local housing codes. It is usually defined as the minimum standard for decent, safe, sanitary housing suitable for residential purposes. Most communities have local housing codes. The codes are local ordinances or laws that require owners of real property, including landlords, to maintain the property and make any necessary repairs. These codes typically require that any residential rental property offered by a landlord must meet the minimum standards established in the code. The landlord`s responsibility is not only to deliver the rental property to the tenant in compliance with the housing codes but also to maintain compliance with the housing codes throughout the term that the tenant has use and possession of the rental property.
- What Repairs Must A Landlord Make?
Landlords must make repairs that city housing laws require. Apartment building landlords must repair stairs, halls, walks, porches, cellars, plumbing, elevators, yards and other places used by all tenants. House landlords may not have to make repairs. A written lease agreement can require the landlord to make repairs.
- What is constructive eviction?
Constructive eviction occurs when residential rental property is an uninhabitable condition. The uninhabitable condition makes the property unsuitable to live in. When residential real property is uninhabitable, it creates a condition under which the tenant has been constructively evicted; the facts and circumstances are such that the tenant is unable to have full use and possession of the rental property and thus, in reality, has been evicted. To claim constructive eviction, thereby relieving the tenant from the obligation to pay rent to the landlord, the tenant must serve the landlord with written notice of the constructive eviction and provide the landlord with a reasonable amount of time to cure the defects. If the landlord does not correct the defects within a reasonable amount of time, the tenant may then be able to leave the rental property and not be responsible for payment of rent that would have been due under the lease or rental agreement. Habitability is typically defined in local housing codes. It is usually defined as the minimum standard for decent, safe, sanitary housing suitable for residential purposes. Most communities have local housing codes. The codes are local ordinances or laws that require owners of real property, including landlords, to maintain the property and make any necessary repairs. These codes typically require that any residential rental property offered by a landlord must meet the minimum standards established in the code. The landlord`s responsibility is not only to deliver the rental property to the tenant in compliance with the housing codes but also to maintain compliance with the housing codes throughout the term that the tenant has use and possession of the rental property.
- What Happens If A Tenant Does Not Pay Rent When Due?
The landlord will demand the rent. If rent is not paid, landlord will file suit in court. The tenants can appear in court and pay all of the back rent and late fees at that time and remain in the leased premises. If the judge decides in favor of the landlord or if the tenant does not pay the back rent and late fees, the sheriff will come and put the tenant`s furniture, clothes and other property outside and keep the tenant from going inside.
- Can I accept a partial payment of the total that the tenant owes on the notice?
YES! Now, make another three-day notice to pay or quit for the out standing balance. Careful to still enumerate by the month and show a total. NO LATE FEES.
- Can I charge late fees in the notice?
In most localities, you can get your late fees later but not on the notice. NOTE: Only rent can be claimed on the three-day notice to pay rent or quit. The amount of rent arrearage cannot exceed twelve months. Each month must be enumerated (i.e.: January 1 to January 31, 2000 = $300.00.) If the tenant paid a partial payment and is in default for other prior months, the notice must show month by month each amount due and must show a total amount the tenant must pay to avoid eviction.
- Can I file unlawful detainer in small claims court?
Yes! Though not recommended. The process can add months to the process of regaining possession.
- Can I make a deal with the tenant to move out rather than go through the eviction process?
Yes. Most tenants hold over because they do not have the money to rent another property. This may not be a good practice, if the arrears are great.
- Can I still use the three-day notice to pay rent or quit if I have an oral agreement?
The notice is prepared the same. Care should be taken to name all persons, including children, over the age of eighteen. Excluding any person from the notice means that you must start over without regard to what stage of eviction you are in.
- Do I have to accept the amount of rent due if offered within the three days?
You must, only if the total amount is tendered. The landlord can dictate the terms and conditions of payment.
- How many copies do I make?
Always keep the original (original signature) to go with the unlawful detainer, one copy for each tenant NOTE: DO NOT USE COLORED PAPER (i.e., RED)!
- Do I have to have the notice served by a law enforcement officer or process server?
NO. It`s best is to hand the notice to the tenant(s). If this is not feasible, tack the notice to the door and mail the tenant(s) a copy. Anyone over the age of eighteen can serve the notice and must sign a proof of service.
- Do I place all of the occupants on the notice?
All tenants named on the rental agreement and persons over the age of eighteen, listed or not.
- What do I do with my tenant after fire or flood?
If the tenant is displaced by fire or flood, all states have specific laws that govern this. The tenant must be placed in temporary housing by the landlord. Consult your local and state laws. Generally, the temporary housing rental factor cannot exceed the amount that he pays at the time of the loss.
- What happens to a tenant`s deposits when the rental is abandoned?
When the landlord leans of the abandonment, the landlord is responsible for either returning a tenant`s deposit or providing a statement of why the deposit is being kept.
- What if all tenants (Defendants) do not respond to the court with an answer?
The non-responding defendants are defaulted. At this point, the non-responding tenants have no say in the court.
- Should a co-signer on a rental agreement be named in the unlawful detainer (law suit)?
Yes. For several reasons. The co-signer is generally a relative of the tenant and will not want to be named in a lawsuit and the co-signer is attachable, that is to say, you have someone to take judgment against that could be satisfied.
- What if I fail to name all tenants on the unlawful detainer?
Leaving a tenant or any person over the age of eighteen out of the notice and unlawful detainer would not allow the court to remove the unnamed person from the premises.
- What type of criteria can a landlord use in selecting an applicant?
Unless otherwise prohibited by federal or state laws or regulations in publicly financed housing projects, landlords may use factors such as credit standing, employment history, rent-income ratios, personal references and rental history in selecting tenants.
- When do I serve the notice?
If the rent is due on the first of the month, a notice should be served on the second. If your agreement with the tenant has a grace period, you must honor that period.
- When do I use a three-day notice?
Any time that an action is needed against a tenant.
- When does the notice time expire?
The day after service is the first day of the three-day notice. If the notice is served on Monday the notice expires at the close of the business day on Thursday and the tenant is in default on Friday.
- Who must serve the unlawful detainer (lawsuit) to the tenant(s)?
Any person over the age of eighteen, sheriff/marshal, process servers. The person perfecting service cannot be a party to the action. That is to say, the plaintiff cannot serve the lawsuit himself, but a person or the above not named as plaintiff can.
- Why are some unlawful detainer forms printed upside down?
This is called tumbling. The forms that are filed with the court must be copied in this manner. In a file folder court clerks and the judge can review the forms without turning the entire file around. Note: the forms that are served to the tenant(s) do not have to tumble.
- Why are three days allowed in the Three Day Notice?
This allows the tenant enough time to cure this breach (non-payment of rent) in the rental agreement.
- Why do I use a three or thirty day notice?
The very foundation and the first building block of the eviction process and the legal path to regaining your property back, is the three or thirty day notice. A three-day notice is primarily used for breaches in the covenant of the rental agreement that are curable. The thirty-day notice is generally used for termination of possession.
- Several commercial tenants occupy a building I am considering. If I buy the building, can I evict them?
Generally not. If a tenant has a legally valid tenancy and is current on the rent and all other lease obligations, the law usually lets the tenant remain in possession until the end of the lease, regardless of who owns the building. Your best bet is to ask the owner for the legal status of each tenant since your ownership of the building will be subject to those leases. You may need a lawyer`s help in evaluating how to deal with the tenants.