Posted by Teresa on July 20, 2010 under Landlord Paperwork and Forms, Landlord Tenant Lawsuits | 
When Does a Landlord Need a Lawyer?
In short, landlords need expert assistance from landlord/tenant lawyers when a legal issue becomes serious or has the potential to be expensive. Here are several such scenarios:
When you’re starting out. It could be worth the extra expense to have your lease agreements, pet policies, security deposits and other legal documents prepared by a a law professional. You don’t want to discover during a tenant dispute that the lease you downloaded from the Internet is illegal in your state. And you don’t want to be sued for having discriminatory language on your lease. If you prepare your own lease documents or use publicly-available documents, you should at least have a lawyer review them before you use them.
When you experience your first eviction. Having an experienced attorney prepare all the required documentation the first time you evict a tenant is an investment in your landlord education.
When a tenant files a complaint. Sure, you can represent yourself. And if a tenant files a baseless complaint, you might just need to present the attorney-prepared documents with the tenant’s signature as proof of your innocence. But if things get sticky, if the complaint is regarding something serious like discrimination, or your tenant hires a lawyer, you might want to do the same for yourself.
When you want to reinforce a policy with a tenant. If you’ve done the phone call, email, letter routine to a tenant in violation of the lease, a quick letter from an attorney will often produce a quick result.
If you’re going into mediation or arbitration with a tenant or former tenant. It’s good to know your options, your legal standing, and what you can choose to compromise on when you go into the arbitration process.
If your tenant files a lawsuit for damages. You don’t want to take a lawsuit too lightly. Tenants who have been injured on your rental property, who have suffered losses due to your alleged negligence, or who have banded with their neighbors to file discrimination or other charges probably mean business. You probably don’t want to face serious charges without an attorney by your side.
Whenever things get dicey between you and your tenants, it could be worth the expense to hire a good landlord/tenant attorney.
Posted by Teresa on June 24, 2010 under Landlord Tenant Lawsuits, Landlord Tips |
Landlords and tenants are in a business relationship. But unlike typical business transactions, the emotions of landlord/tenant disputes tend to run higher. When a tenant is abusing your property, ignoring your rules, or just not paying you to live in your rental house, it’s natural to feel angry. It’s not always conducive to solving the problem—but it is natural.
And on the tenant’s side, an angry landlord can be a little scary. Unreasonable landlords lock tenants out of their homes, put their belonging on the curb, or cut off the utilities in order to prove a point. These actions might be illegal, but they do happen.
A better solution to diffusing anger in a business situation is mediation. Through mediation, a trained, neutral professional can help landlords and tenants resolve their differences. Whether the result is an agreement that works for both parties, or a compromise where each gives a little to the other, mediation can be an inexpensive and effective alternative to going through legal channels. In some areas, mediation can even be free of charge.
According to Mediate.com, there are 6 steps to formal mediation:
1. Introductory remarks: With both landlord and tenant present, the mediatior makes an opening statemtent outlining the role of each participant and neutrality of the mediator. The process and ground rules are defined.
2. Statement of the problem by the parties: The landlord and tenant each give their version of the story, uninterrupted.
3. Information gathering: The mediator askes open-ended questions to discover the emotions underneath the surface.
4. Identifying the problems: Common goals are brought out, in an effort to figure out which issues can be settled first.
5. Bargaining and generating options: The mediator puts a settlement on the table and the landlord and tenant take turns modifying it. Brainstorming sessions may help in discovering more solutions
6. Reaching an agreement. The landlord and tenant agree to the terms of the agreement.
In mediation, there are many paths to a final agreement. Mediation is a voluntary, non-binding process—so each participant has the option to walk away at any time. No one can force a participant to accept a solution. It’s private and completely confidential. But most important is that over 85% of all mediations result in a settlement.
Instead of heading to litigation next time you have a dispute with a tenant, perhaps you’ll consider mediation. It works!
Pre-screen all tenants as part of your standard application process. Background and credit checks will help ensure you rent to qualified tenants. For more landlord resources, including forms and information on tenant screening, turn to E-Renter.com.
Posted by Teresa on June 4, 2010 under Landlord Tenant Lawsuits, Landlord Tips, Landlord and Tenant FAQs |
Take a look at these true landlord stories—and avoid repeating their mistakes. These are definite landlord don’ts!
- George informed his landlord that he lost his job and can’t afford the apartment any longer, so he needed to break the lease and move. The landlord told George he’d be responsible for the rest of the rent until the lease is up— unless he’s able to rent the apartment first. George knows the landlord is having a hard time filling vacancies, so he was surprised to see the apartment on Craigslist for $500 more per month than George was paying. George knows the landlord will never rent it at that rate. He thinks the landlord is deliberately avoiding re-leasing the apartment.
Don’t be unreasonable—if you’re a landlord who is not trying to find a replacement tenant, or rejects a qualified tenant, your current tenant could have a case against you. If rents are declining, advertising a higher rent is not going to look legitimate. George knows the market. Your tenants probably do, too.
- Carrie was informed by her landlord that she’d be responsible for the cost of refinishing the hardwood floors after she moved out. Carrie didn’t think it was fair, because the floors were nearly a hundred years old, and she didn’t damage them beyond a few scratches. She thought her landlord was trying to bully Carrie into financing her new floors. Her suspicions were confirmed when she did some online sleuthing and saw that her landlord had a Twitter account—and found her tweet saying, “thanks to my tenant for beautiful new floors!”
Don’t repeat any tenant business online. If they don’t see it, their friends will. Word travels fast online!
- Sharon and Joe applied to rent an apartment. The property manager informed Sharon that because they are unmarried, each of their incomes would need to be three times the rent in order to qualify for the rental unit. Sharon thought this was unfair, so she asked the local Housing Authority to look into it. She was right—it’s illegal to require higher incomes from unmarried couples.
Don’t be ignorant of Federal and state Fair Housing Laws in any tenant interactions. Discriminating against applicants on the basis of family status, race, country of origin, religion, disability, sex, or color is illegal.
Posted by Teresa on April 2, 2010 under Landlord Paperwork and Forms, Landlord Tenant Lawsuits, Tenant Screening & Background Checks |
Our last post contained a warning to landlords that what you say can come back to haunt you. In other every day activities, like accepting or rejecting new tenants, landlords must also take care to know and follow all applicable laws—because it protects you and your business from liability.
Take discrimination. The Fair Housing Act is very clear on what constitutes discrimination: denying housing to an applicant based on race, gender, family status, country of origin, religion, age, sexual orientation, or disability. Still, depending on how a rejection is handled, there is always a chance that a discrimination claim could be filed by a rejected tenant.
How can landlords avoid such claims? First, make absolutely sure that you have a rock-solid reason for the rejection—and back it up with paperwork. Second, communicate the reason to the applicant. Don’t just say, “I found a better tenant,” or “I rejected your application.” The tenant could make up his own reasons for the rejection, including his race or religion.
Establish your minimum standards for approving tenant applications, and apply them to every single applicant. Treating everyone equally is a cornerstone of good landlord practices. Accept the first qualified applicant for a rental unit, after applying your standards to each interested party.
Full disclosure to all applicants up front is a good idea. Your lease application should convey your standards, as in the following examples:
- That each adult who will live in the rental unit must fill out an application and be approved.
- That a minimum income level is required to rent the unit.
- Employment history will be checked, and a minimum of six months at the applicant’s employer is required.
- That previous rental history will be taken into consideration, including timely rent payments, keeping property in good condition, and fulfillment of previous leases.
- That a tenant credit check and criminal background screening will be conducted on all applicants.
If you have additional requirements, add them to the list. And of course, your application should state that you do not deny the right to rent or lease property based on race, gender, family status, country of origin, religion, age, sexual orientation, or disability.
With this information up front, applicants will know what basis they can be rejected on. When you do reject a tenant applicant, be sure to explain your reasons in writing, and supply a copy of the credit report, as required by law.
Posted by Teresa on March 27, 2010 under Landlord Tenant Lawsuits, Landlord Tips |
Learning by others’ mistakes is a classic move. So read on for a few errors landlords can avoid—just because others have already made them.
Security deposits: Seems like security deposit issues are a top-5 cause of disputes between landlords and tenants. The problem can often be traced to miscommunications and unspoken expectations. Tenants sometimes assume they will receive 100% of their deposit back. It’s not their fault if they don’t understand how it works—it’s your job to fully explain the process, and what they stand to lose if they damage or otherwise alter the condition of the rental unit after they move in.
Have new tenants sign a statement that they have reviewed and understand your security deposit policy, move-in and move-out inspection lists, and then follow up with a thorough initial walk-through of the rental unit. Take photos and have tenants initial the condition of each item on the list. When they are ready to move out, schedule another walk-through with the tenant, establish damages and take more photos.
Failure to document, document, document. Keep pristine records—you never know when you’ll need them. Each tenant’s application, background screening and credit check report, lease documents and correspondence should be kept on file until three years after the end of the lease. Keep notes of emails and notes conversations, too (aside from the “nice day, huh?” conversations). Just keeping good records shows that you’re serious about your business—and someday, if you find yourself in front of a judge over a landlord/tenant dispute, it could work in your favor. It certainly can’t hurt!
Unintentional discrimination: Being discriminatory is not always a planned situation. Some landlords may mean well when asking a disabled tenant applicant about their wheelchair or asking if a 2 potential tenants plan to have children—but those questions themselves can be considered illegal. By avoiding personal questions of applicants, you could be avoiding possible legal trouble.
Not treating all tenants equally: Not only is it easier to be consistent in how you deal with tenants, it can also keep you safe legally. Don’t allow Tenant A to pay rent four days late when you never allow Tenant B a single day of leeway. Don’t enforce your “no smoking” rule for one tenant and not the others. Don’t fix a water drip immediately in the apartment of the tenant you like to talk to, but make an “unstable” tenant wait a week for a repair. Be fair and enforce all rules the same way to all your tenants. It’s easier to explain to a tenant that you’re sorry, but you have to apply the rules equally—and it can help you avoid a fair housing complaint, and a call to your lawyer!
Posted by Teresa on January 25, 2010 under Fair Housing Act, Landlord Tenant Lawsuits, Tenant Screening & Background Checks |
Question 1 is about pet policies. Let’s say a landlord has five rental units. The tenants in four of them are neat and clean. The fifth tenants are not. They leave trash around their unit, and during inspections the landlord wonders if they ever clean the place. If a “neat and clean” tenant wants to adopt a dog, and a tenant number five also want to adopt a dog, is it discriminatory to approve Mr. Clean’s request and turn down the other tenant?
Pet policies have nothing to do with the Fair Housing Act. The only tenants who are protected regarding pets are those who fall under the protection of the Americans with Disabilities Act (ADA). A service animal must be allowed, regardless of your pet policies. All other pets are completely at your discretion.
Question 2 is regarding appearance. A landlord has two applicants for the same apartment. The first arrives in a clean, well-maintained late-model car. She is nicely dressed, and wears expensive-looking jewelry. The second arrives on a bicycle, wearing baggy jeans, a baseball hat turned backwards, and a torn t-shirt. Is it discriminatory to decline the second prospective tenant’s application without going any further?
Yes. Landlords may not discriminate on the basis of appearance. Smart landlords are “blind” to it, using solid tenant background screening as the decision maker. In this case, the first applicant could be way overextended on her credit, have a bankruptcy in her credit history, and owe her previous landlord a few months’ rent. The second could have bicycled straight from work, where he is well-respected, earns a good salary, and has solid credit. Appearances can be deceiving.
Question 3 is regarding advertising. Landlord Jane wants to pre-screen tenants by describing her expectations in the “for rent” ads she places in the paper. Her ad reads as follows: “1BR 1BA apartment, clean building, safe neighborhood near church. No pets, no kids, no smokers, no drinkers, no bums. Background and credit checks. Ref req’d.” Is Jane’s ad discriminatory?
Could be. Describing the rental unit as “near church” could be interpreted to mean she desires tenants of that church’s denomination. “No kids” can be problematic. You cannot discriminate against people with children, although a one-bedroom apartment could be considered too small for more than one person. Parents or a parent and infant in most states are allowed to rent a one-bedroom apartment. Check your local and state laws. Landlords can enforce a “no smoking” rule, and rules regarding alcohol consumption in common areas, but not a general “no drinking” or “no bums” rule. Jane’s definition of a “bum” is most probably discriminatory.
Remember, landlords must be very familiar with the Fair Housing Act, which bars discrimination against persons based on race, color, national origin, religion, sex, familial status (including children under the age of 18 living with parents or legal custodians), pregnant women, and people securing custody of children under the age of 18), and handicap (disability). Treating all of your tenants fairly and consistently is a smart way to avoid charges of discrimination.
Question 1 is about pet policies. Let’s say a landlord has five rental units. The tenants in four of them are neat and clean. The fifth tenants are not. They leave trash around their unit, and during inspections the landlord wonders if they ever clean the place. If both a “neat and clean” tenant and tenant number five want to adopt a dog, is it discriminatory to approve Mr. Clean’s request and turn down the other tenant?
Discrimination is defined by the Fair Housing Act (FHA). Pet policies have nothing to do with the FHA. The only tenants who are protected regarding pets are those who fall under the protection of the Americans with Disabilities Act (ADA). A service animal must be allowed, regardless of your pet policies. All other pets are completely at your discretion.
Question 2 is regarding appearance. A landlord has two applicants for the same apartment. The first arrives in a clean, well-maintained late-model car. She is nicely dressed, and wears expensive-looking jewelry. The second arrives on a bicycle, wearing baggy jeans, a baseball hat turned backwards, and a torn t-shirt. Is it discriminatory to decline the second prospective tenant’s application without going any further?
Yes. Landlords may not discriminate on the basis of appearance. Smart landlords are blind to appearance, using solid tenant background screening as the decision maker. In this case, the first applicant could be way overextended on her credit, have a bankruptcy in her credit history, and owe her previous landlord a few months’ rent. The second could have bicycled straight from work, where he is well-respected, earns a good salary, and has solid credit. Appearances can be deceiving.
Question 3 is regarding advertising. Landlord Jane wants to pre-screen tenants by describing her expectations in the “for rent” ads she places in the paper. Her ad reads as follows: “1BR 1BA apartment, clean building, safe neighborhood near church. No pets, no kids, no smokers, no drinkers, no bums. Background and credit checks. Ref req’d.” Is Jane’s ad discriminatory?
Could be. Describing the rental unit as “near church” could be interpreted to mean she desires tenants of that church’s denomination. “No kids” can be problematic. You cannot discriminate against people with children, although a one-bedroom apartment could be considered too small for more than one person. Parents or a parent and infant in most states are allowed to share a one-bedroom dwelling. Check your local and state laws. Landlords can prohibit smoking in rental units and alcohol consumption in common areas, but not a general “no drinking” or “no bums” rule. Jane’s definition of a “bum” is most probably discriminatory.
Remember, landlords must be very familiar with the Fair Housing Act, which bars discrimination against persons based on race, color, national origin, religion, sex, familial status (including children under the age of 18 living with parents or legal custodians), pregnant women, and people securing custody of children under the age of 18), and handicap (disability). Treating all of your tenants fairly and consistently is a smart way to avoid charges of discrimination.
Posted by Teresa on January 5, 2010 under Landlord Tenant Lawsuits, Landlord and Tenant FAQs |
Where are landlords required to place security deposit funds in FDIC-insured institutions? Are you allowed to earn interest on your tenant’s security deposit, or must you turn interest over to the tenant at the end of the lease? How long are you legally allowed to hold the deposit after your tenant moves out?
Every state has its own laws regarding how landlords handle security deposits. As a rental property owner, you must be familiar with your state and local regulations.
Here are some general guidelines that can help keep you on the up-and-up in most states. Dealing with your tenants as fairly, openly, and honestly as possible is the first step to keeping security deposit headaches to a minimum.
Interest: In many states, landlords with a minimum number of units are required to place security deposits in interest-bearing savings accounts. Some require separate accounts for each tenant; others allow one account, but no comingling of the landlord’s own funds. If you reside in one of these states, you have the choice of paying the interest at the end of the lease, or for long-term tenants, paying the interest once or twice a year. With interest rates currently low, the total interest earned is not much. We know a landlord who gives his tenants their interest checks each year in December—just in time for the holidays.
Rent vs. Deposit: Do not confuse the two, nor allow your tenants to do so. Rent is rent. The security deposit is meant to cover the property owner’s expenses if the tenant fails to keep the property in good working order or to cover tenant damages. If a tenants gives notice and expects you to keep the security deposit as last month’s rent, you may have grounds for eviction. Clearing up the tenant’s misunderstanding is probably a simpler way to go, however. Tip: be sure to include clear language in your lease about the amount of the security deposit, when and under what circumstances the tenant will receive it after the lease ends, and that it may not be used in lieu of rent payment.
Deductions: A move-in inspection and checklist, compared with a move-out inspection and checklist, will likely dispel any conflicts over deductions for cleaning, repairs, and damages. Conduct the move-out inspection with your tenant. Point out items that must be replaced or repaired. Obtain their signature to prove they were present and agree to the list of damages. Then, be reasonable about costs—recover your expenses, but don’t gouge your tenants.
Time Limitations: Landlords must deal with security deposits in a timely manner after the tenant moves out. It’s not fair to drag the process on indefinitely, keeping the tenant’s money tied up. Do the right thing and deal with damages, send an accounting of what was deducted from the deposit, and include a check for the balance to your tenant as soon as possible. Besides, most states require landlords to supply an explanation within a certain number of days.
Second Chance: Times are tough for almost everyone. Why not be an exceptional landlord and help your good tenants keep more of their hard-earned money? After the move-out inspection, set up a second walk-through to give the tenant a chance to right the wrongs you point out. Most tenants are capable of performing minor repairs and giving the unit a good scrubbing. Clearly communicate your expectations and give the tenant a chance to meet them.
We recommend you also automatically screen all tenants as part of your application process. For more landlord resources, including forms and information on tenant screening, turn to E-Renter.com. .
Posted by Teresa on September 24, 2009 under Landlord Tenant Lawsuits, Landlord Tips |
Keep tenants safe with proper deadbolt locks.
Nobody wants to receive a phone call like a landlord we know recently did: “I just slipped on some wet leaves and tore the ligaments in my knee.” Luckily, this landlord has plenty of insurance to cover just such an incident—but as everyone knows, making an insurance claim can lead to higher rates or even cancellation.
Landlords and property managers must do their due diligence when it comes to keeping tenants safe. Being prepared and performing a little hard work can go a long way to preventing problems that lead to injuries, lawsuits, and losses.
First, make sure your properties have sufficient locks on all the doors and windows. Deter criminals with good lighting, and keep shrubs away from windows. Make sure your tenants understand the importance of key control, and advise them in writing against venturing out alone—especially if the neighborhood is historically sketchy. Don’t rely on tenants to alert you to broken locks or burned-out lights. Do your own periodic inspections to stay on top of these issues that can cause a landlord to lose a lawsuit in a heartbeat.
Give each tenant an evacuation plan. Provide escape ladders if second-floor bedrooms can be cut off from exits in case of fire. Also, provide fire extinguishers in the kitchen and at least one other room.
Don’t require tenants to rake leaves or shovel snow. Either do it yourself, or hire professionals to take care of the grounds. Whether it’s from a pile of wet leaves or a slick patch of ice, tenants can be injured on your property if it’s not well maintained. There is no magic formula to prevent any and all injuries, but it still will benefit the landlord or property manager who does everything possible to keep the property safe. And, the courts see it as the owner’s responsibility, not the tenant’s.
Conduct safety inspections. You should keep your eyes peeled every time you enter your rental property, but be sure to also schedule periodic safety inspections. Look for problems with broken or rotted stair treads, wobbly railings on stairwells, porches, or decks, and windows that don’t operate properly. Make sure locks are easy to operate, and smoke and CO2 detectors are functioning. Trim broken tree limbs before they come down on a tenant’s head.
Finally, keep communicating with your tenants. Provide them with more information than you think they need—it could help you win a court case someday. Write up a list of safety tips, and firmly state your visitor and key policies in your lease. Alert tenants whenever maintenance or construction projects will be going on, and advise them to avoid the areas being worked on. And remember to check in with your tenants—ask if all their safety equipment is working properly, or if doors and windows are getting stuck. Keep communicating and you’ll find out what needs to be addressed much sooner—which could possibly prevent and injury for a tenant, and a lawsuit for you!
Remember, protect yourself and your property by
screening tenants prior to leasing. For more landlord resources, including forms and information on
tenant screening, turn to
E-Renter.com. You’ll know that you have the best possible tenants when you
prescreen tenants.
Posted by Teresa on August 10, 2009 under Landlord Tenant Lawsuits, Landlord Tips, Landlord and Tenant FAQs |
Landlord vs. tenant issues seem to occur in the same general areas. One item that landlords and tenants frequently clash over is flooring. Whether your rental unit floors are covered with carpeting, hardwood, or tile, you and your tenants will likely have issues with them at some point. We’ve put together some guidelines to help deal with damages or requests for replacement.
Determine the extent of the damage. Are you seeing normal wear and tear, minor damages, or major damages?
Normal means high-traffic areas are starting to show wear.
Minor damages include:
- Carpet indentations
- Minor scratches in wood floors
- Color fading
Major damages include:
- Stains
- Burns
- Carpet wrinkling
- Deep scratches in wood
- Gouges in laminate
- Chipped or broken tiles
- Carpet odors
Determine the cause of the damage. Keep in mind that some of the above issues may be a result of the quality of floor covering or the installation method—and may not be your tenants’ fault. Improper tile installation can lead to cracks. Poor quality carpet will wear quickly. Obviously, pet stains and odors, burns, or food stains that were not present at move-in are the responsibility of your tenant.
Can the damage be repaired? Most flooring can be, so you might be able to avoid the cost of replacement. Contact a local flooring contractor or installer to provide an estimate for repair. You can require your tenant to take care of the bill if they are at fault.
How old is the flooring? Carpet and laminate will wear out. If you have 20-year-old carpet in a rental unit, then obviously, it should be replaced. And, low-quality, inexpensive carpet won’t last even five years under heavy use. The more people and animals walking on it, the quicker it will wear out! You’ll attract a higher-quality tenant with newer flooring.
So what’s the best flooring to avoid landlord and tenant issues? Unfortunately, there is no “best” flooring choice when it comes to rental units. Many landlords we hear from prefer hardwood, such as oak. It’s tough and lasts for hundreds of years with proper care. In older homes, hardwood can be painted to reduce upkeep and hide signs of wear.
If you want to install carpet, use your best judgment. Keep price and quality in line with the level of rent you are charging. Spell out your tenants’ responsibilities when it comes to caring for the floors, and thoroughly document the floor’s condition at move in and again at move out. That way, if damages occurred during the tenant’s stay, you have proof enough to deduct the amount from the security deposit—or to charge them more to cover the difference.
For more landlord resources, including forms and information on
tenant screening, turn to
E-Renter.com. You’ll know that you have the best possible tenants when you
prescreen tenants.
Posted by Teresa on June 12, 2009 under Landlord Paperwork and Forms, Landlord Tenant Lawsuits |
Lead-based paint can be a real problem for owners of older properties. Although lead in paint was banned in 1978, it could still present in older rental units. The paint itself is not a health hazard until it cracks, peels, or turns to chalk with age. And sanding or scraping it releases lead dust, which is a serious health hazard, especially to young children.
As a rental property owner, you should be aware of lead paint dangers and required disclosures. Most states have lead hazard reduction laws in place; some require testing and careful maintenance.
The federal Residential Lead-Based Paint Hazard Reduction Act of 1992 covers dwellings built before lead paint was banned in 1978 and requires rental housing owners or their property managers to notify tenants that the property may have lead-based paint.
Under the federal law, property owners are not currently required to test for lead-based paint or to remove it; but you must disclose any known presence of lead-based paint and provide all tenants with copies of records pertaining to the presence of lead-based paint.
Landlords are also required to provide an information brochure prepared by the federal Environmental Protection Agency (EPA): “Protect Your Family from Lead in Your Home.” This brochure is available online or you can request printed brochures from the National Lead Information Clearinghouse at 800-424-5323.
Certain other dwellings are exempted from the federal law:
- Housing for the elderly or persons with disabilities (unless there are children under age 6 living in the house)
- Short-term (100 days or less) rentals
- Certain university housing
- Studio or efficiency units
- Housing that has been inspected and certified “lead free”
You can always contact the EPA or your local health or environmental agencies for information specific to your area. If you are advised your property is exempt, get verification in writing for your records.
Keep a copy of your tenant’s signed disclosure form for three years. You only need to make the disclosure once, even if the tenant renews an existing lease.
If a landlord fails to follow the federal regulations, and a tenant does not receive required EPA or approved state disclosures, the owner or property manager may be subject to serious fines and penalties. The EPA and HUD are enforcing these regulations, so follow the laws and minimize your risk!
