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LANDLORD
TIP OF THE
MONTH
|
Welcome to the page of
Landlord Lawyers Online
where you can review
tips for landlords
that could save you
time and money.
|
DISCLAIMER: TIP OF THE MONTH is presented for general
information purposes only and is not intended nor should it be construed as providing any
legal advice. Please consult a qualified lawyer for legal advice regarding any
subject addressed herein.
LANDLORD TIP OF THE MONTH presents an excerpt from
Landlord Law Report |
Guest Cannot Be Held Criminally Liable
For Deliberate Damages To An Apartment
Ohio-A court reverses a criminal conviction against a guest for damaging an apartment
because it appears the tenant may have consented to the damages.
The tenant invited a number of people to a party at her apartment, although she did not
attend herself. Guests caused considerable damage to windows, cabinets and furniture, and
they even wrote on the walls. The guests later claimed the tenant said it was all right to
write on the walls because she was planning to paint anyway.
One of the guests was arrested and charged with one count of "criminal
damaging" of the interior of the apartment-a second-degree misdemeanor. The guest
admitted attending the party but denied causing the damages.
A prosecution witness testified the guest told her later he damaged the kitchen table,
throwing it down the stairs and urinating on it. But another witness testified the guest
did not cause any of the damages, which occurred before he arrived.
The trial court convicted the guest of criminal damaging and sentenced him to 30 days
in jail, with the sentence suspended, plus a fine and court costs.
The guest appealed the conviction. He argued the only testimony against him was from
the witness who said he confessed to her, and she was not at the party so her testimony
was not credible. The guest pointed out his witness testified the damage was already done
when they arrived.
The appellate court reverses the conviction for another reason.
It says the prosecution failed to prove beyond a reasonable doubt the guest knowingly
caused physical harm to property belonging to another without consent of either the
landlord or the tenant.
The tenant admitted telling her guests it was all right to write on the walls. As the
tenant consented to at least some of the damages, the prosecution could not prove beyond a
reasonable doubt she did not consent to the other damages as well, the appellate court
concludes.
Because the prosecution failed to prove each and every element of its claim, the
conviction is reversed.
If the tenant refuses to pay for the damages, the landlord can sue her either under the
terms of the lease agreement or under the state’s landlord-tenant act. Alternatively,
he can make the necessary repairs and bill her or take the amount from her security
deposit after proper notice.
Lesson: Let us hope the landlord is holding a security deposit just in case the
tenant does not make the repairs. Landlords cannot really stop tenants from enjoying their
property, so it is important to require security deposits, conduct regular inspections for
damages and make tenants pay for their damages.
State of Ohio, Plaintiff-Appellee v. Sean G. Gray, Defendant-Appellant. 2001 Ohio
App. LEXIS 2586.
FROM PAST ISSUES OF Landlord Law Report:
Hotel May Use Self-Help To Evict Long-Term Guest Despite His Claim
He’s A Tenant
District of Columbia-In a city known to discourage most evictions, an appellate court
allows a hotel to evict a man from the room he occupied for eight months.
The hotel rented a room to the man for $85 per week. The hotel provided linens, maid
service and furniture.
Eight months after he moved in, the man stopped paying rent but refused to move out.
The hotel manager warned him if he did not pay his bill he would be evicted.
The hotel never filed a complaint with the landlord-tenant court for possession for
nonpayment, but the hotel manager changed the lock on his door and locked him out.
The man sued the hotel for wrongful eviction, and the trial court ruled the man is a
"roomer" and not a tenant because he did not have exclusive possession of the
room and was not a tenant under the Rental Housing Act.
The trial judge said the hotel is entitled to the common-law remedy of self-help to
evict roomers who fail to pay for their rooms. Since the man was not a tenant, he could be
evicted without the Act’s judicial process and the court dismissed his case against
the hotel. The tenant appealed.
The appellate court affirms the trial court’s decision and agrees the hotel was
not required to file an eviction action to regain possession of the room. The appellate
court disagrees with the man’s claim all self-help evictions are prohibited in the
District of Columbia.
A landlord may not evict a tenant without a court order, so landlords are prohibited
from self-help evictions against tenants. But a person who is a roomer is not a tenant and
is subject to a self-help eviction, says the court.
A tenant is different from a roomer because the tenant acquires an interest in the real
estate and has exclusive possession of the property. But a roomer or lodger does not
acquire an interest in the real estate, although he or she may use the property without
actual or exclusive possession in exchange for paying the agreed-upon sum.
The appellate court says a "transit-accommodation provider may utilize
self-help" as means to evict a non-paying roomer or lodger. And it notes an
accommodation provider might go to court to seek possession as well and avoid a possible
wrongful-eviction claim.
Even though the man lived in the hotel room for almost nine months, it did not change
his status from a roomer to a tenant because the hotel continued to provide him linens,
furnishings, towels and daily maid service in exchange for his weekly payment. Because he
was not a tenant, the hotel was justified in evicting him from the room by changing the
lock without a court order.
Lesson: More and more apartment buildings are offering short-term leases and often
provide fully furnished apartments and more hotel-like services for
residents. Apartment-building landlords are probably not entitled to exercise self-help
under those circumstances-especially if the rent is paid on a monthly basis. But landlords
in such situations should contact their attorneys if they have any questions. Most states
have fairly quick procedures in place to allow landlords to regain possession from tenants
based on nonpayment of rent. It is usually more prudent to go to court rather than
exercise self-help because self-help evictions often prove costly even if the landlord
ultimately prevails.
Michael Harkins, Jr., Appellant, v. WIN Corporation, Appellee. 2001 WL 421235
(D.C.). Unpublished opinion rule applies.
FROM PAST ISSUES OF Landlord Law Report:
A Landlord Is Liable For Wrongfully Evicting A Tenant Who Stole
Equipment From Him And Sold It
West Virginia-A landlord is found to have wrongfully evicted a tenant who stole
equipment from him, because he failed to give a proper notice of termination and
unlawfully removed the tenant’s possessions from the apartment.
The landlord orally agreed to allow a tenant and his wife to live in an apartment
rent-free in exchange for performing maintenance work each month.
Then the landlord found the tenant stole and sold some of his tools. When the tenant
and his wife returned one evening, they found a note on the door saying the landlord had
obtained a warrant for the tenant’s arrest and the tenant and his wife had to move
out by noon the next day.
The couple left the next morning to get a truck to remove their personal property. But
when they returned, they discovered the landlord had removed everything.
Although the tenant pleaded guilty to a misdemeanor criminal charge, he and his wife
sued the landlord for wrongful eviction.
The trial court ruled in favor of the landlord, saying there was no lease and even if
there was it was indefinite in duration. It needed to be in writing to be enforceable, the
court said.
Appellate court agrees with tenants
The tenant and his wife appealed. They argued they had a month-to-month tenancy with
the landlord and he failed to provide them with a proper 30-day notice before terminating
their tenancy.
The appellate court agrees and rules they presented sufficient evidence to establish
they had a month-to-month tenancy, which did not have to be in writing to be enforceable.
In order to terminate the month-to-month tenancy, the landlord had to give his tenant a
30-day notice.
Because there was no written lease agreement, the court says the duration of the
tenancy could be determined by the terms of the rent payment. The court says the tenant
paid $350 per month to the landlord through work he performed, pursuant to an oral
agreement.
The landlord provided the tenant with less than one day’s notice to vacate, which
was improper, and the landlord had no authority to remove their possessions from the
apartment, the court says.
The appellate court sends the case back to the trial court for a new trial to determine
the amount of damages to award the tenant and his wife.
Lesson: The tenant, even though convicted of stealing property from the landlord,
prevailed in this wrongful-eviction claim. Now the court will determine whether the tenant
and his wife were damaged, and the amount of any damages will depend on whether their
possessions were recovered or replaced. A landlord should not evict a tenant without a
court order because the potential liability far exceeds the benefits of a quick eviction
without a court order. All states have summary procedures in place to allow landlords to
regain possession quickly, especially in nonpayment cases or for criminal or willful
misconduct endangering the health and safety of other tenants.
Vera Stewart and Ron Stewart, Plaintiffs Below, Appellants, v. Dennis Johnson,
Defendant Below, Appellee. 2001 WL 336253 (W.Va.)
PAST EXCERPTS FROM Landlord Law Report
PAST EXCERPTS FROM Managing
Housing Letter
A
trial court’s decision to dismiss a tenant’s counterclaim should not have
included dismissal of the entire case in favor of the landlord
Ohio--A tenant may prevail in an eviction action
if she can prove she made a disputed rent payment on time.
A landlord files an eviction action after a tenant fails to pay one
month’s rent. The tenant files a counterclaim and an answer, with several affirmative
defenses, claiming she paid her rent on time.
The counterclaim alleges the landlord failed to “fulfill his
statutory obligations pursuant to state law,” entitling the tenant to collect damages
from the landlord.
One day prior to the trial date, the magistrate issues a decision in
favor of the landlord, based upon the tenant’s failure to pay her rent into the court
as required by state law. That law requires tenants to “escrow rental payments as a
condition of trial.” The magistrate rules the tenant breached the lease as alleged
and, therefore, the landlord is entitled to possession.
The trial court adopts the magistrate’s decision the next day and
the tenant appeals. On appeal, the tenant argues the magistrate and the trial court
improperly ruled she was required to post rent as a precondition to affording her a
hearing. The appellate court reverses the lower court’s decision, saying a trial
court has the discretion to require or not to require a tenant to escrow rent, even in
cases where the tenant alleges all rent has been paid.
It rules the counterclaim was properly dismissed but says due process
does give the tenant the right to prove she paid her rent on time at trial.
| Lesson: The
lower court improperly ruled in favor of the landlord and, in so doing, deprived the
tenant of her rights. The appellate court was able to correct the mistake but at the
landlord’s expense, because the landlord incurred additional legal fees during the
appeal process. The problem may have been avoided if the landlord or his attorney
had made it clear at the first hearing that the tenant had to escrow her rent. |
Kenneth Bester Plaintiff-Appellee v. Monica
Owens Defendant-Appellant. No. 17388. 1999 WL 179261 (Ohio App.2
Dist.)(*Unpublished Opinion Rules Apply).
Pay Attention To Workplace Rules And Save Legal Fees
Multifamily property owners and
managers should take heed of potential workplace-related litigation.
Robert P. Davis, a partner with the law firm of Mayer, Brown &
Platt of Washington, says in the eyes of the law, independent contractors and third-party
employees are still considered the company’s workers.
Davis tells the National Multi Housing Council’s Human Resources
Forum a third party employee is regarded as being jointly employed by owners/managers,
therefore owners/managers will be held liable as if they were “your employee.”
He cites a 1973 Supreme Court Case, Falk v. Brennan, as the guiding
light on this issue. The owners of several apartment buildings were on record as employers
of maintenance workers. A real estate management company was found to be the joint
employer of those workers because it exercised substantial control over the terms and
conditions of their work.
More recently, the courts have ruled against making distinctions
between employees of a company and contract personnel in regards to pension and welfare
benefits. Microsoft had some of its employees writing computer codes and had hired
contract personnel to do the same kind of work. Under common law rules, Microsoft had to
show personnel carried as independent contractors were not common law employees of
Microsoft.
To avoid these legal hassles, Davis says owners/managers should choose
their vendors carefully. They should make sure they have it down in writing that the
vendor is the employer and assumes all obligations. They also must make sure they have the
right to supervise or inspect the contract employee’s work. It’s also a good
idea to determine the distinctions between your employees and third-party personnel with
contract documents and operating policies for your supervisors.
Tenant
Eviction: A Legal Primer
To evict a tenant, property managers
must act decisively and not let opportunities pass them by, says attorney Robert Harris.
Harris, who writes Landlord Law Report for CD Publications, has been
practicing landlord-tenant law for five years in Northern Virginia and Washington. He
participates in an “expert advice” question and answer interview with MHL.
Q: What do property managers do most often that fouls up the eviction
process?
A: They wait too long. Most experienced property managers will know
pretty soon if they will have problems with a new tenant. Sooner or later, they will have
to get rid of that tenant.
The easiest way to get rid of a tenant is to take action when they fail
to pay the rent. In some jurisdictions, like Washington, nothing happens quickly. The
courts are more tenant-oriented. They like to give tenants two or three chances before
they evict. The courts have a way of putting the landlords through the hoops. It can take
three to four months to get rid of a tenant in Washington for non-payment of rent.
In Virginia, the same kind of case would take only three weeks. There
is not much landlords can do in Washington. Landlords must keep good records, records of
payments and that kind of thing. The courts will bend over backward to keep the tenants on
the property.
There is an organization called “Law Students In Court” which
often represents the tenants. They do it to get the experience. [Their participation]
means landlords are faced with a trial and they have to spend money on an attorney.
Q: To start the process, what should landlords do?
A: Everything in Virginia is based on proper notice. The notice to pay
rent or vacate is important. It’s a five-day notice. In some states, it’s only
three days. For others, it’s 10 days. Most states require by statute a notice be
given to the tenant.
In Virginia, if a tenant comes forward and pays the past due rent after
the five-day period, the tenant still can be evicted. That’s not always the case in
other states. Five days go by pretty quickly. A lot of tenants will come in after the five
days and pay up.
In states other than Virginia, the landlords have to decide what they
want. They have to go on their instinct—now is my opportunity to get rid of a problem
tenant or how bad do I want that money. If the landlord wants the money, he will accept
the money, cancel the eviction and continue to put up with the problem.
Q: What about Fair Housing rules? Can the tenant use those to stop
eviction?
A: Evicting someone for failing to pay the rent is not discrimination.
Being unable to pay your rent does not make you a member of a protected class under the
Fair Housing Act. Fair housing problems aren’t a concern. It is not discrimination if
the issue boils down to money. The only color that counts is green.
Q: What are some other things property managers can do to get rid of
unwanted tenants.
A: In Virginia, if there has been a material, remedial breach of the
lease, the landlord can take action. If a person has a dog and it’s not allowed in
the lease, or if the tenant creates a lot of noise, those are remedial situations.
In Virginia, landlords can give what is called a 21-30 statutory
notice. The landlord gives the tenant 21 days to correct the problem. If it is not
corrected, the tenant must vacate the property in 30 days. If they don’t vacate, the
landlord can sue the tenant for possession.
It’s up to the landlord to have the documentation to prove the
violations if the matter goes to court. Many times, landlords receive complaints from
other tenants, but don’t witness the problem. If the landlord goes to court, then the
complaining tenants have to be subpoenaed.
Many tenants are happy to sneak around and complain about a tenant, but
they won’t come to court. They don’t want to face [the offending tenant] in
court.
Q: Are there other measures landlords can use to get rid of troublesome
tenants?
A: Virginia and most states say landlords can terminate a lease if the
tenant has been involved in a willful or criminal violation of the lease. The unwanted
tenant can be evicted if the landlord thinks that person will affect the health and safety
of the tenants or the landlord’s employees.
Fighting and illegal possession of firearms can be used as reasons to
evict someone. I have a case in which children of a tenant are going around a neighborhood
setting fires. If the claim is contested, it may go to court. Some states require juries
to hear such cases. It’s up to the landlord to provide the proof. He may not win if
the witnesses don’t show up. If someone threatens a landlord and he can prove it, the
landlord can use that incident to evict a tenant.
But if a tenant threatens another tenant and the victim doesn’t
appear in court, the case is probably a loser.
Q: What about Sec. 8 cases? Are they different?
A: Sec. 8 cases have different notice periods. In a lot of states, the
landlord must give 30-day notice. The process involves the local public housing authority,
so it has to be notified, too. There are not many Sec. 8 evictions.
Most of the time, public housing authorities pay 70%-90% of the rent.
Q: What are the best ways to evict troublesome tenants?
A: Take advantage of the easiest way first: nonpayment of rent. Know
what your state’s laws are in that regard. If the tenant makes a late payment and you
accept it, you may have to keep him on. Some states won’t allow you to take any money
at all.
The second best way is remedial breaches of the lease, such as having a
barking dog, starting a fire on the porch. Remember to give the offending tenant 30-day
notice when taking this action.
The third way is if there is criminal activity involved. In all states,
landlords have a duty to protect tenants from reasonably foreseeable criminal acts.
The foreseeability factor is important. What is the frequency of a
prior crime, like strong-arm robbery, in the neighborhood?
The landlord may have to buy video cameras and take other steps to make
his property more secure. If they don’t take steps, they have breached their duty and
they can be held liable.
EVICTIONS
Tenant ignores the terms of her settlement agreement
and must be evicted
Vermont. A tenant agrees to voluntarily vacate when she is about to be
evicted for failing to pay rent but changes her mind as the move-out day approaches and
unsuccessfully fights to remain in her apartment.
The tenant failed to pay her monthly rent and her landlord sued her for
possession and for the unpaid rent. When they went to court, the landlord and tenant
entered into a settlement agreement. The tenant consented to a judgment against her for
the amount of unpaid rent and agreed to vacate the apartment within three weeks. The
landlord agrees to waive his other claims for unpaid rent, costs, fees, and interest just
to get the tenant out in three weeks.
The settlement agreement allows the landlord to seek a writ of
possession if the tenant fails to vacate by the agreed upon date. The trial court enters
judgment against the ten-ant based upon the terms of the agreement and it looks like the
case is over.
Prior to the agreed-on move-out date, the tenant pays the judgment as
required by the settlement agreement. However, after she makes the payment, the tenant
files a motion with the court for “discontinuation of the ejectment and for
redemption of the tenancy.”
The tenant claims that because she paid the rental arrearages before
the court issued the writ of possession, state law requires that the ejectment action
“be discontinued and the defendant’s (tenant) tenancy redeemed.”
The trial court disagrees with the tenant and says she “negotiated
an agreement and should now live with it” and denies her motion.
State law allows a tenant to pay the rental arrearages and redeem a
tenancy anytime prior to the issuance of a final judgment—when the writ is issued.
But in this case, the tenant agreed to vacate by a “date certain” and the
agree-ment “must be held to be
an implied waiver of the statutory right to redeem” says the court. The tenant is not
entitled to redeem her tenancy or stop the ejectment action.
The tenant appeals the trial court’s decision. The tenant
unsuccessfully argues on appeal that she did not waive her statutory right to redeem by
signing the settlement agree-ment. The tenant says she thought she could pay the judg-ment
by the move-out date and remain in the apartment under the settlement agreement.
The tenant claims that if the landlord intended for her to waive her
statutory right to redeem in the settlement agreement, the agreement should have contained
a provision “explicitly waiving her right to redeem”—which it did not.
The appellate court disagrees with the tenant’s argument and
affirms the trial court’s decision allowing the landlord to evict the tenant since
she did not vacate by the date agreed upon in the settlement agreement. According to the
appellate court, the settlement agreement was explicit and clear and the court must
enforce it by denying the tenant’s motion.
The state’s landlord and tenant act prohibits landlords and
tenants from waiving obligations imposed upon them under the act. But the appellate court
agrees with the landlord’s position on appeal that a tenant may waive his or her
statutory right to redeem even though a waiver is not allowed under the state’s
landlord and tenant act.
The right to redeem may be waived because it is not actually part of
the state’s landlord and tenant act and there-fore a landlord and a tenant may agree
to waive the right to redeem, as in this case.
If the right to redeem were part of the state’s landlord tenant
act, it would prohibit a landlord and tenant from entering into any agreement like the one
in this case that waived this right. However, since the right to redeem is not part of the
act, the
parties were free to contract as they did and the courts must enforce such an agreement in
the absence of fraud or coercion.
Info: Alex James Murray v. Mary Louise Williams. 740 A.2d 791.
(Supreme Court of Vermont).
| Lesson: Landlords must be careful when it
comes to tenants who seek to exercise their right to redeem after a lease has been
terminated. Some states allow tenants an almost absolute right to redeem regardless of the
circumstances and often allow tenants to redeem right up to the moment the eviction
begins. Other states allow tenants to redeem only one time a year if everything is paid
prior to the first court date, including the landlord’s costs and attorney’s
fees. |
Lease Terms
Tenant Loses Claim For Lease
In Perpetuity
Indiana-A court refuses to construe a lease agreement to allow tenant to remain as a
month-to-month tenant for as long as he wants to stay.
The landlord rented a house under a 14-month written lease with a provision saying the
tenant reserved the right to renew it on a month-to month basis at the same rental rate
when it expired.
One month before the lease was to expire, the landlord sent the tenant a notice the
lease would not be renewed and he would have to vacate.
The tenant notified the landlord he intended to exercise his right under the lease to
renew as a month-to-month tenant and he would not move out.
The tenant did not vacate, and the landlord filed an eviction action as well as a
motion for summary judgment. She argued the lease was a month-to month agreement rather
than a lease in perpetuity as the tenant claimed. The landlord said she was entitled to
terminate the lease with proper notice and was not obligated to renew it.
The tenant argued the lease gave only him the right to terminate, so it was a lease in
perpetuity until he decided to terminate it.
The trial court found in favor of the landlord and concluded when the 14-month period
expired, the tenant became a month-to-month tenant and his lease could be terminated with
a 30-day notice. The court ordered him to vacate within 10 weeks.
The tenant appealed.
Missing the magic words
The appellate court affirms the decision and agrees the lease was not a lease in
perpetuity. It says a lease will not be construed as conferring a right to perpetual
renewals unless it contains clear and unequivocal language leaving no doubt as to the
intention and purpose of the parties.
In order to construe a lease as a lease in perpetuity, it must contain such words as
"forever," "for all time," "in perpetuity" or similar
phrases.
In this case, the lease did not contain such words and there was no evidence the
landlord intended to give the tenant the right to perpetual renewals.
Lesson: Landlords must use well-drafted leases to protect themselves against this
type of tenant. This tenant interpreted the lease to mean he was the only party with the
right to terminate it and if he did not, he could remain in the apartment at the same
rental rate forever. Leases should be reviewed at least once a year to determine whether
they are in conformity with state and case law revisions and decisions.
George Smyrniotis v. Sue Ann Marshall, et al. 2001 WL 168177 (Ind. App.).
|
