TVS Tenant Verification Articles of Interest

When does lease-breaker's rent duty end?

Thu, 08 Dec 2011 00:00:00 -0800

Q: My wife and I bought a house after signing a lease a few months ago. We understand that we're responsible for the rent until the landlord gets new tenants. He took a security deposit from a prospective renter, but then the renter backed out and the landlord returned the deposit. Are we still on the hook for the rent? --Jeff C

A: Renters in most states will be in the same boat as you when they leave a lease midterm, without a legally recognized reason for breaking the lease. The landlord must take reasonable steps to rerent the property. Once the landlord finds a new tenant, the original tenant bears no further responsibility for rent (this is known as the "mitigation of damages" rule).

In soft markets, where the property can't be rented easily, tenants could conceivably remain responsible for the entire term. If the landlord has been able to rerent only after dropping the rent, the original tenant can also be responsible for the difference between the original rent minus the new, lower rent, for the remaining time left on the lease.

Your question doesn't tell us for sure whether the new renter had actually signed a lease. Let's assume he had (most landlords won't collect a deposit before someone signs on the dotted line, and most tenants won't fork over that money unless they have secured the rental with a signed lease). In many states, too, landlords cannot collect a security deposit until a lease is signed.

Once a new lease was signed, your responsibility for future months' rent ended. The mitigation rule requires landlords to make reasonable efforts to rerent; it doesn't also include an ongoing obligation for the lease-breaking tenant to step up and cover the rent if anything goes wrong with the new renters.

Such a dramatic extension of the mitigation rule would have to be adopted by a state legislature. I'm not aware of any state that has gone down this road.

That the landlord returned the new renter's deposit doesn't change this analysis. In fact, if the new renter did not have a legally valid reason for backing out, the landlord was under no obligation to do so, as long as he could retain it consistent with his state's rules on use of the deposit.

These rules allow retention to cover unpaid rent, and here we have a whole year's worth of unpaid rent looming. The departing tenants are now in the position you were in -- they're obligated for a year's worth of rent, unless the landlord can find new tenants. The baton has been passed.

Q: I have a property management business that I've just started, and manage many apartments for a particular client. This owner has told me flat out that she doesn't want to rent to Hispanics, and has suggested ways to avoid even taking their applications (for example, she told me not to respond to phone inquiries from people who have accents). I know this is wrong, but I can't afford to lose this client. What should I do? --Tim A.

A: Even reading your description of the owner's policy makes me cringe, although logically I know that seeing those words in print doesn't give them any legitimacy. You are, of course, correct: Refusing to rent to people of a certain ethnicity is against federal law (and against state law, too), whether it's accomplished by an explicit refusal ("I don't rent to people like you") or indirectly, as your owner is doing.

There's even a legal term for your owner's methods: linguistic profiling, which happens when people make decisions based on the accents they hear at the other end of the phone.

Owners have been successfully prosecuted for fair housing violations based on their consistent negative treatment of people with accents, even when the owners have not officially adopted or announced a policy of discouraging such callers.

If the owner herself were the one taking applications and phone inquiries, she would be risking a lawsuit (or an administrative complaint). The risk to you is no less. Although you "work" for her, you are an independent contractor, responsible for your own misdeeds, no matter who has inspired them.

Here's what might happen: If an applicant were to contact a fair housing advocacy group and complain about his or her treatment, the group would probably use "testers" who have similar accents to make phone inquiries about rentals; they would also use testers without accents.

If they find that accented callers are routinely turned away, but non-accented callers are encouraged to pursue the rental, they'd have enough evidence to support a complaint against you.

You'd need to respond, and no matter whose orders you are following, you'd be the one in the hot seat. You'd be facing a fine and perhaps education classes on fair housing. Your business liability insurance policy will cover none of this.

Let's get back to the question at the end of your message: What should you do, given your desire not to lose this client? At the very least, respond to the owner by explaining the illegality of what she is doing, and the consequences to you if you're caught (it's also possible that the owner herself could be named in the complaint).

With luck, you'll persuade her that business reasons alone point to dropping this obnoxious practice -- fines are likely to be high, especially when the landlord's policy is both long-standing and affects a large number of people.

If reason doesn't prevail, the wise course will be to drop this client. Being charged with a fair housing violation will not only be expensive, but it will sully your reputation and in the end may prove to be much more costly than the value of this particular account.

And don't forget the toll this practice will take on your integrity and your ability to hold your head high. In so many ways, you cannot "afford" to follow this owner's directions.

3 steps to get deposit back after move-out

Thu, 01 Dec 2011 00:00:00 -0800

Q: I moved out of my apartment last month, leaving it clean and without any damage. But I have yet to receive my deposit back. I now live several hundred miles away in another state. Any suggestions on how to get that deposit back? --Marc S.

A: Many states have strict rules on how landlords should collect and use deposits. These rules include the process of returning them when the tenant moves out.

Your first task is to find out how the state in which the rental is located regulates deposits. In brief, you'll need to know if there are specific rules on allowable deductions (some states specify "how clean is clean," for example), how much time the landlord has to return the deposit, whether you're entitled to interest, and the type of statement a landlord must provide when making deductions.

Importantly, find out whether your state requires you to leave a forwarding address with the landlord.

Next, contact the landlord again and ask that the deposit be returned. Do so in a "demand letter," which is a written letter sent "return receipt," in which you identify the rental address, the deposit amount, the date by which you should have received the deposit, and a specific request that the deposit be mailed to you at a stated address.

You should also include your plans should the landlord fail to carry through, such as suing in small claims court.

Now, suppose you do all this, but to no avail. The next step -- suing in small claims court -- will be quite inconvenient for you, because you'll have to file your suit in the state in which the property is located.

You can't ask someone local to do so on your behalf, nor can you expect that the matter will be handled in a webcast (with you in one state, the court in another).

Unscrupulous landlords who know that their tenants will be moving far away take advantage of this predicament, figuring that tenants won't or can't take the time to return and argue a lawsuit.

Fear that this will happen prompts some tenants to refuse to pay the last month's rent and ask that it be taken out of the deposit, which is not legal but has the practical effect of reducing the amount of deposit held by the landlord at the end of the tenancy.

The only solution to this escalating mistrust is old-fashioned and hard-won: Trust on the part of the tenant that the landlord will act legally. That is earned only by reputation and the experience the tenant has while renting at the property. You won't find this game played by landlords and tenants who have had fair and legal dealings in every other respect.

Q: My tenants just moved out, without notice and in the middle of their lease. They have been after us to fix the broken sprinkler system, and I've tried but couldn't find the leak. I asked them to turn it off, and next thing I knew, they were gone. Are they responsible for the rest of the rent under the lease? --David and Teresa C.

A: The only legal justification for your tenants' abrupt and midlease move-out would be a claim that by failing to fix the sprinklers, you've "constructively evicted" them. But I doubt that a judge would buy their argument.

Constructive eviction comes into play when landlords have failed to take proper care of the property, making it unfit for human habitation. Examples include failure to fix the only toilet, failure to supply heat or hot water, and allowing serious plumbing or rain leaks to go unchecked. Landlord lapses like these make it impossible to live safely in the rental.

Although the landlord has not locked the tenant out, he has indirectly done so, because a tenant cannot remain under these conditions. When that happens, the law views the landlord as having broken the law (evicted without proper steps), which in turn excuses the tenant from having to continue to honor the lease.

In short, the tenant is free to walk away, without continuing responsibilities under the lease (including the responsibility to pay the rent).

On the other hand, failure to maintain the property in less important ways cannot support a claim of constructive eviction. Not that these less serious landlord inadequacies are excusable, but the remedy for the tenant is less drastic.

When landlords fail to take care of business in ways that don't lead to valid claims of "inhabitability," the tenant can go to small claims court, asking that he be given a reduction in the rent to compensate him for the landlord's failure to deliver on a specific promise.

For example, your tenants might have sued for the difference between the rent that could be obtained for a property with a functioning sprinkler system and the rent of one without.

Your tenants' apparent misuse of the constructive eviction remedy leaves you free to hold them to the lease. But in many states, landlords must make reasonable efforts to rerent, even though the tenants have acted improperly by leaving early. Once the property has new tenants, the old tenants' responsibility for rent will end.

3 benefits of 'good landlord' licensing

Mon, 28 Nov 2011 00:00:00 -0800

Q: Our city has just instituted a business license requirement for landlords, including those who, like me, have only one or two rentals. The city council says this will discourage "slumlords." But there are plenty of laws on the books now to deal with bad landlords. Isn't this new fee just a thinly disguised way to generate income for the city? --Wes S.

A: You're not the first landlord to react in frustration at the prospect of having to pay a licensing fee to combat an evil that you feel is better handled in other ways. Another complaint I hear comes from rental property owners who are responsible and have never been accused, by tenants or city authorities, of running a slumlord operation. Why, they ask, should they pay for the bad business practices of others?

Cities have a number of ways to respond to these legitimate complaints, and smart drafters of these ordinances consider them when writing their laws. First, they point out that tenants in many states do, indeed, have remedies when landlords violate the law.

They can, for instance, withhold rent or use "repair and deduct" when owners fail to maintain habitable housing. But when tenants have to resort to such remedies, the problems have, obviously, already happened. It's far better, the drafters argue, to head off landlord lapses in the first place.

To prevent abuses before they occur, these cities use the revenue generated by the fee to educate landlords about the proper and responsible way to run their business. For example, the city may offer classes that teach landlords how to properly screen applicants, handle common occurrences (such as requests for maintenance), and honor tenants' privacy. Importantly, how to handle problem tenants is often on the list: When landlords know their legal options for dealing with these issues, calls to the city police force will decrease.

Thoughtful ordinance writers also address the landlords who are attempting to educate themselves about good rental practices. They give fee discounts to landlords who attend the classes. Of course, going to class and implementing what you learn are two different things, but attending classes is at least a start. Giving discounts to those who have never been the subject of a complaint or court case is another way to reward good landlord behavior.

You might consider one more consequence of a "good landlord" licensing system before you decide that it's a city boondoggle. Many cities allow landlords to display a sign or logo certifying that they have attended the city's educational programs. This is a marketing plus for a landlord, because potential tenants will know that this landlord has been taught the rules regarding maintenance and, importantly, how to screen applicants and deal with problem tenants.

In other words, if you know that your neighbors in a multiunit property have been screened appropriately, and will be dealt with lawfully but firmly if they cause trouble, you may be more inclined to rent at that property.

Q: I just applied to renew my yearlong lease. When I signed the first lease, I paid a $200 pet deposit. Now, they're asking for another deposit, claiming that this is a new lease! Can the owners do this? --Carolyn B.

A: Your landlord may be confused as to the meaning of a deposit. On the other hand, he may simply have misidentified the sum, which should have been called a fee. Whether he can collect such a nonrefundable fee is determined by state law.

A deposit is a sum of money meant to guarantee your performance of your duties as a tenant: to pay the rent and keep the premises reasonably clean and undamaged. Pet deposits, which some states regulate separately, target any damage the pet may cause. The advantage of a pet deposit is that, in some states, it can be charged in addition to a regular security deposit. If the state regulates how much security a landlord may charge, this gives the landlord the opportunity to collect more money. The disadvantage of a separate pet deposit is that it should be used only for pet damage. When human-caused damage exceeds the security deposit, but pet-caused damage is nil, landlords sometimes find it irresistible to keep their hands off the pet deposit. Arguments, and sometimes legal disputes, ensue.

To complicate matters, some states allow landlords to collect a pet deposit that they label "nonrefundable." Because deposits are, by definition, returnable when the depositor performs as required, calling a pet deposit nonrefundable is a most unfortunate contradiction in terms. Collecting a nonrefundable sum to cover pet damage should properly be called a pet fee, which landlords keep even if the pet doesn't cause any damage. But not all states allow landlords to collect such a sum, precisely because it doesn't seem fair to keep money meant to cover damage that never happened. Some, like California, specifically disallow these types of fees.

If your state allows nonrefundable sums meant to cover future damage, your landlord's demand that you pay again for any damage your pet may have caused may pass legal muster. You'll need to find out how your state approaches the tricky issue of deposits and fees.

Know when 'house rules' violate lease

Fri, 18 Nov 2011 00:00:00 -0800

Q: As a property manager, I am under contract with an owner to advertise and show his single-family rental. I recently chose new tenants and signed the lease. Since then, the owner has sent the tenants a nonsmoking policy, specifying that if any guests smoke on the property, it will constitute a violation of the lease and can result in termination.

He is also demanding proof that their dog is current on vaccinations; a statement from their vet that the dog is current on monthly flea and tick medicine; and a copy of their renters insurance policy.

He's also issued detailed cleaning instructions, including a demand that the air conditioner and heater filters be cleaned or replaced every month. Can he do this? --Chris B.

A: Your owner appears to be a little confused as to the meaning of a lease: It's a contract that binds both sides to its terms, as written. If one party to the lease wants to change or add to those terms, it must get the OK from the other party. Unless everyone agrees to vary the terms of the deal -- which includes adding important conditions as to use and defaults (a violation that triggers a termination notice) -- those changes are ineffective.

However, it's possible to put some "rules and regulations" in a document other than the signed lease. Commonly known as "house rules" in multiunit complexes, these rules cover day-to-day aspects of the rental, such as use of the pool, laundry room and parking areas; operating hours for the manager's office; or how to reserve the clubhouse. These are details that one would not expect in a lease -- they're simply too minor. Because of that, landlords generally don't need to give month-to-month tenants the legally required notice of any changes to these rules (the notice they must give to raise the rent, for example). And changes will apply immediately to lease-holding tenants.

In other words, the landlord can change these rules without the tenants' agreement and without renegotiating the rental agreement or lease.

Obviously, the key question is: How do you tell the difference between a provision that belongs in a lease (and cannot be added unilaterally, midlease), and a house rule, which can be announced at any reasonable time?

One rule of thumb is to ask whether the rule is one that a tenant would seriously think about before committing to the rental. If it concerns an issue that might be a deal-breaker or at least one that the tenant would seriously weigh before signing a lease or rental agreement, it likely belongs in the lease.

Let's look at the additional provisions your owner is attempting to place on this tenancy. A nonsmoking policy, particularly one that makes a violation of the policy a lease default, is a big deal. This policy belongs in a lease. Renters insurance is similarly a significant provision: Although it's a wise investment for all tenants, it's also an extra expense, which they should be aware of before signing a lease.

With respect to the pet rules, there's a good argument that they, too, belong in a lease. Some owners won't want the hassle of providing vaccination proof (and may argue about the need for vaccinations other than those for rabies), and some might not want to give their animals monthly treatments for fleas and ticks.

Detailed instructions for cleaning may also fall within the "belongs in the lease" camp. Requiring constant filter replacements is, again, costly; and telling someone how to clean the house is downright invasive. Many applicants, seeing the extent to which the owner intends to regulate their lives, might decline the rental on that basis.

It really comes down to this: If these new rules are very important to the owner, they are probably also significant to the tenants. If so, the tenants should have been made aware of them before they signed up. In the future, your owner should either include them in the lease or place them in a "house rules" document that he instructs you to give to applicants during the application process. That way, prospective tenants will get a sense of what this owner is likely to demand, and can make decisions accordingly.

Q: I just read about the Protecting Tenants in Foreclosure Act, which allows purchasers at a foreclosure sale to oust lease-holding tenants with 90 days' notice. But buyers at a normal sale must honor the lease. It doesn't seem right that there are two classes of tenants: those who have landlords who pay their mortgages and sell the properties, where the tenants' leases have to be honored by the new owners; and those who have deadbeat landlords whose leases the new owners don't have to honor. --Jean T.

A: You raise a legitimate point. Just to clarify, not every sale following foreclosure will enable the new buyers to terminate lease-holding tenants. Only when the new owners intend to personally occupy the residence may they terminate (with 90 days' notice); the new owner can't terminate a lease in order to charge a higher rent, for example. The new owner may oust a tenant on 90 days' notice only if the person who wants to live in the property is the purchaser at the foreclosure sale, not if the bank becomes the owner, or when someone buys later from the bank. For these protections to apply, lease-holding tenants must be "bona fide" tenants, which means that:

the tenant isn't the spouse, child or parent of the previous owner;
the leasing transaction was conducted in an "arm's length" manner; and
the rent isn't "substantially below" fair market value.

Now to your observation: It's true, unless the lease provides otherwise, that a tenant with a lease will survive the sale of the property, even to someone who intends to live there. Before going further, it's important to explain that "unless" part: Many owners, knowing that they may want to sell the property during the term of the lease, include a clause in the lease providing for termination upon sale, with typically at least a month or more notice. Prospective tenants, seeing this clause, will be forewarned and may choose not to rent for fear of losing the lease midterm.

But owners who lose the property through foreclosure usually haven't warned their tenants, in a lease clause, that the lease could terminate in 90 days. I know of no law that requires landlords to disclose this rule. I suppose the answer to your complaint is that it might be a good idea to require landlords to make this disclosure in the lease, just as they are required, by various states, to disclose information about how to contact the landlord, how to make official complaints, whether the unit or property has a pest control service, whether the unit has flooded recently, and so on.

On the other hand, it may be just as reasonable to expect tenants to know what will happen to their lease if a foreclosure happens. Folks in this camp would argue that mandatory disclosures should be reserved for information that tenants cannot readily discover on their own, such as the owner's contact information, how much energy the unit consumed during the past winter's months, the unit's history as to mold or bedbugs, and so on. Making landlords educate tenants on the law or on issues that are of public record could be seen as a bit too much -- just as landlords are expected to learn and apply the law, so too should tenants know the rules and do their due diligence.

In short, perhaps any tenant renting these days should know about the ever-present threat of foreclosure, and what could happen to their tenancy if the property is foreclosed on. That might spur them to check into the landlord's stability more closely, such as asking whether the landlord has been in default, and even checking local court records for any recorded notices of default.

Using Facebook to screen tenants invites trouble

Thu, 10 Nov 2011 00:00:00 -0800

Q: I applied for a rental last month and thought I'd get the place -- I have an excellent record as a tenant, a stable job, and a string of happy landlords in my past. But I was rejected. A friend asked me whether I'd taken down my Facebook page before applying -- he said that landlords regularly check these, and they make decisions based on what they find. On my page, it's clear that I'm very politically active and that I'm a Buddhist. How can I find out whether the landlord went online, and whether the information he found contributed to his decision -- which would have been illegal, right? --Tom F.

A: Your friend was correct when he told you that online searches of applicants' social media postings are on the rise. In the employment area, studies show that employers regularly conduct such searches. For example, an August 2011 study by the Society for Human Resource Management contacted 541 job recruiters and found that 18 percent said their companies regularly researched their applicants on sites such as Twitter and Facebook. There's no reason to think that landlords are proceeding any differently.

But as tempting as these sources are for information about potential tenants, using them carries a significant legal risk.

Suppose, for example, that you're a landlord who regularly goes online to research applicants. You're about to reject an applicant because of a poor credit score, but you've also viewed his Web page, which reveals that he's a devout [name a mainstream religion]. Your applicant is incensed when he doesn't get the apartment, and files a complaint with the local fair housing enforcement agency. They question you about your motives and, although you explain that the poor credit score alone justified your rejection, you also admit that you knew about the applicant's religion. Unfortunately, you have to convince the investigator that this latter bit of knowledge played no part at all in your decision. You'd have been far better off if you'd never learned of the person's religion in the first place.

You, however, are the applicant with a rejection and a revealing Facebook page. Unfortunately, you have no evidence that the landlord actually saw your page. You won't know whether he did unless you ask him. He's not likely to answer, and you won't get any information until you put him in a position where he'll have to answer. But to do that, you'd have to file a complaint that a fair housing agency will pursue. But ... your conjecture alone that he may have gone online, because lots of landlords are doing that, probably won't be enough to convince a fair housing official to act on your complaint and initiate an investigation.

There's a lesson here for both landlords and tenants. Landlords, be wary of going to social media sites to check out potential tenants. You may learn information that is totally extraneous to your decisions, but may come back to haunt you when you're challenged to prove that your knowledge of the applicant's religion, ethnicity, age and so on was irrelevant. True, you may also learn that he's a party animal who throws keggers every weekend, but you could probably learn that the old-fashioned way (by talking to past landlords).

And tenants, beware: What you post is likely to be viewed by landlords and employers. Think twice before sharing with the entire world.

Q: The sidewalk and median outside our apartment complex has become a gathering spot for day laborers who stand in the street to solicit business from passing motorists and spend a lot of time sitting or standing on the sidewalk. At the end of the day, there's litter and worse in the bushes and street. Is there anything we can do about this? --Kim W.

A: The sensible answer to this problem lies with law enforcement, not private property owners like yourself. Your role is to bring the issue to their attention by filing complaints or by contacting your local city council members.

The behavior you're describing probably constitutes a violation of laws that are currently on the books. Chances are, your city already regulates traffic flow by preventing deliberate interference. Obstructing a public thoroughfare, such as a sidewalk, is also doubtless addressed. Litter laws and laws against public urination exist everywhere. These laws should be sufficient to enable local law enforcement to tackle the problem.

Many cities, even those with existing laws such as those described above, have gone one step further, by passing ordinances that specifically target day laborer gatherings. In California alone, some 50 cities have such laws. However, they might not be constitutional.

The problem is that solicitations for employment on a public sidewalk fall within one's right to free speech. When a law regulates speech, that law must be in place to protect a legitimate government interest -- not to control the content of the speech. In other words, laws aren't supposed to make speech about certain topics illegal, but allow talk of other topics to be legal. (There's a famous exception for public safety -- you shouldn't be allowed to cry "Fire!" in a crowded theater -- but that's not applicable here.)

Regulating the condition of public streets is certainly a valid government objective. But the law must be drafted as narrowly as possible to serve that objective. Prohibiting solicitations on sidewalks, medians and streets may be allowed, but prohibiting them more widely -- on "other such areas," for example -- may go too far.

The city of Redondo Beach, Calif., learned this lesson the hard way, when a federal appellate court struck down their anti-solicitation ordinance as unnecessarily and overly broad (it used the language "and other areas").

Your first step should be to talk to local police and elected representatives, asking them to use the tools they already have to handle the issue. You might also ask them to explore the idea of setting aside a particular area in town as a sanctioned place for day laborers to gather and ask for work. Some cities have tried this approach and have found that it balances the reasonable needs of the public (to have unimpeded access to streets and sidewalks, free of litter) and those who are looking for a way to make a living.

Is your rent hike illegal?

Thu, 03 Nov 2011 00:00:00 -0700

Q: After weeks of trying to get our landlord to make a repair to the roof, we decided to withhold rent. We followed our state's rules, and the landlord got the idea -- he repaired the roof. But then he served us with a rent increase. Isn't this illegal? --Dori and Tom T.

A: Most states that allow tenants to withhold rent and/or use "repair-and-deduct" also prohibit landlord retaliation when tenants invoke these remedies.

The reason is clear enough: It would defeat the purpose of these remedies if landlords could turn around and raise the rent, withhold services, or terminate the tenancy. If such responses were legally tolerated, few tenants would take the risk of asserting their rights.

However (Isn't there always a "however" in the law?), a rent hike or even a termination following a tenant's exercise of rent withholding or repair-and-deduct isn't necessarily an instance of illegal retaliation. Landlords always have the opportunity to argue that their act had nothing to do with the tenant's invocation of his or her legal rights.

For example, if the landlord raises everyone's rent once a year, without fail and with respect to every tenant in the building, he may be able to convince a judge that the hike would have happened irrespective of the tenant's action, and was not motivated by it.

Also, most antiretaliation statutes provide for a wash-out period of a few months after the tenant has invoked the remedy -- after that period ends, the usual retaliation rules will not apply. For example, Connecticut and Michigan specify 90 days; Arizona and Washington, D.C., six months; Iowa and Kentucky, one year.

If you suffer a rent hike or other negative action after the wash-out period has come and gone, you may not be out of luck, depending on how your state has structured the law.

A tenant-friendly statute will presume that the landlord's act was retaliatory if done within the time specified by the law, which makes the landlord responsible for providing evidence that will convince the judge or jury that his act was not retaliatory.

If the time period has passed, it becomes the tenant's duty to convince the judge or jury that the act was retaliatory. But not-so-friendly statutes may provide that once the time period has passed, your ability to raise the defense has also gone away.

Q: We just got around to reading the fine print in our lease, and buried in the "no illegal activities" clause, we discovered to our astonishment a sentence that says we are prohibited from "conducting vocal or instrumental practicing or instruction." Our middle-schooler has signed up for the band and will need to practice his flute daily. Can our landlord prohibit this? --Jackie and Walter

A: Your question is a good example of the dangers of fine print ... and of failing to read it. Perhaps you glazed over the clause, after seeing the prohibition on illegal activities, something few tenants would argue with, and as a result, a part of the lease that they don't ponder too much.

It's only human nature -- that's why seasoned real estate lawyers, who deal with leases that run to dozens of pages, always review them from the bottom up, literally, as well as from the start. What you miss as your eyes travel familiar text might jump out at you when you come at it from a different angle.

I'm afraid that a prohibition like the one you describe is not illegal. The landlord doubtless had some bad experiences in the past with loud practicing or many hours of instruction.

To be fair, if the quarters are close, hearing scales or a tune played repeatedly, let alone a practice session of the band, could be very disturbing to other tenants. Because players of musical instruments are not a legally protected class, singling them out for negative treatment is not illegal.

You might approach the landlord and ask him to vary the rule, but I wouldn't count on success. If the landlord makes an exception for you, it will soon become evident that the rule can be bent, and he may be approached by others.

And that's where his legal troubles might begin -- those whom he turns down may think that they're being treated differently than you because they are a different ethnicity than your family, or because of their age, or because of (substitute any legally protected class here).

If the disappointed musician files a complaint with a fair housing agency, the landlord will have to defend himself, and even if he prevails, the experience will not be a nice one.

Have a talk with your son's middle-school music teacher and explain the problem. There may be a way for your boy to practice at school, after the school day ends (or before it begins), or during lunchtime. Or perhaps your child can accompany another child to that child's home for practice sessions. These aren't ideal solutions, but given the restriction you're under, they may be the best you can do.

A smoking ban that doesn't break rules

Thu, 27 Oct 2011 00:00:00 -0700

Q: We operate a fourplex and have decided to prohibit smoking entirely -- in common areas, such as the halls and lobby, as well as individual units. Current tenants who smoke say that's discriminatory. Would we be breaking the law if we implement this policy? --Ronald and Mai

A: You're within your rights if you decide that you'd like your entire building to be smoke-free (but you need to follow notice laws, explained below). Local governing bodies are increasingly recognizing the danger of secondhand smoke, and have passed ordinances that prohibit smoking in multi-unit buildings.

In 2009, the Department of Housing and Urban Development formally suggested that public housing agencies adopt smoke-free policies for the residential rentals they do business with.

It's not uncommon for people who smoke to cry foul, pointing out that smoking is a lawful activity, and jumping to the illogical conclusion that it's therefore illegal for landlords to prohibit that activity. If this argument were valid, it would also be illegal for landlords to prohibit tenants from keeping pets, another activity that by itself, on one's own property, is perfectly legal.

Your tenants' objections and reasoning is not uncommon, however. The widespread belief that it's illegal for landlords to adopt property-wide smoking bans was the motivating force behind a new law in California (California Civil Code Section 1947.5), set to take effect Jan. 1, 2012.

That law specifically states that landlords may adopt such policies, and its preamble candidly explains that the law simply restates existing law, and is intended to give landlords a statute to point to if they're challenged after adopting a policy. Importantly, it also states that it is not intended to interfere with existing local ordinances, many of which already ban smoking in multifamily properties.

The new law requires landlords to place any property-wide policies regarding cigarette or other tobacco use in the lease or rental agreement itself. This is a sensible step; it means that the policy cannot simply be part of a set of house rules, which are properly used to regulate less important aspects of multifamily living, such as pool rules and common-area use.

The new law makes tobacco policies subject to the normal rules of notice and change. Because a new tobacco policy constitutes a change in the terms of the tenancy, tenants who have rental agreements are entitled to 30 days' notice. Tenants with existing leases, however, will not be subject to the new policy until their leases expire and they sign new ones with the landlord.

This means that there's a possibility that a property will only gradually become totally smoke-free: If even one smoking resident has a lease that doesn't expire for many months past Jan. 1, 2012, the other tenants (whose leases and rental agreements may include the new policy) will have to put up with this tenant's smoking.

By singling out a landlord's right to ban tobacco use on rental property, the new law may have inadvertently suggested to smokers of other substances that landlords do not have a similar right to ban smoking of these non-tobacco substances.

One wonders whether users of medical marijuana will point to the law and argue that because it doesn't include the landlord's right to ban marijuana smoking, a landlord therefore cannot do so.

Such an argument might not make much headway, but it could be enough to confuse a landlord and muddy the waters. For the record, although in some states it's legal to use medical marijuana, such use is still a violation of federal law. Landlords who will not tolerate medical marijuana use on their property are within their rights.

Q: My lease says that I get a rent concession of $500 for the first month's rent, and $150 for every month thereafter. When I subtracted $500 from the first month's rent, the landlord returned the check, saying I was entitled to deduct only $150. When I pointed to the lease, he said that was "an error on his part," and that the correct figure for all months was only $150. Is he bound to honor the $500 figure, even though he claims it was a mistake? --Roger S.

A: I doubt very much whether a judge would allow your landlord to reform or rewrite the lease to take into account his "mistake." Even if we give your landlord the benefit of the doubt -- by believing him when he says that the $500 concession was made in error -- that won't lead to a rewrite.

First, what does your landlord mean by "made in error?" If he's claiming that he made an error in judgment -- by misjudging the amount of the first month's concession needed to get you to sign a lease -- no amount of arguing will make his case successful. Mistakes in business judgment can't be reformed later.

Next, let's suppose this "error" was a typo or other mechanical error. If you were aware of the error, or should have been aware, the law says that no contract was created at all, and your entire lease may be unenforceable. On the other hand, if you didn't know, and had no reason to know of the mistake, in most states, the lease will be enforced, mistake and all.

So the question boils down to whether you (or a reasonable person in your shoes) should have known that a $500 first-month's concession was too good to be true. The answer may depend on the total rent and the state of the rental market.

If the rent is high compared with the concession (for example, the concession is only one-quarter of the rent), the market is glutted with rentals like this, and if other landlords are offering deep concessions, you may have been justified in thinking that a $500 concession was an intentional marketing decision.

Find ex-tenants who owe you money

Thu, 20 Oct 2011 00:00:00 -0700

Q: My tenant left me with a lot of damage that the security deposit won't cover, so I'd like to sue him in small claims court. But I don't know where he is -- he refused to leave a forwarding address. I thought I could send a letter to his old address, ask for confirmation of delivery, and get the new address that way. But that system is no longer in place. Any suggestions on how to locate him? --Brenda S.

A: You're right -- U.S. Postal Service policies have been tightened up in recent years, in response to federal privacy laws. According to the U.S. Postal Service, it will not share a patron's new address to requesting mailers unless those mailers already possess the patron's address and the patron submitted a change of address form. If your tenant wouldn't leave a forwarding address with you, chances are he didn't leave one with the post office either.

This leaves you with some alternative methods for tracking down your ex-tenant. The Internet is full of advertisements for "skip searches" for landlords. These organizations promise to find your ex-tenant, for a fee, of course.

Before signing up with a skip search, try some sleuthing on your own. Begin with the tenant's rental application (hopefully, you have a comprehensive one that you've saved). A good application will ask for names and addresses of employers and references; you may be able to learn your tenant's whereabouts by calling up these contacts and asking some creative questions.

Once you obtain an address, you'll need to serve the ex-tenant with your summons and complaint. You may be able to do this by using the mail, or court procedures may require personal service.

Q: Years ago, we hired a lawyer to prepare a lease form for us to use at our apartment building. The lawyer is now representing a tenant who claims we discriminated against her. I thought that lawyers couldn't go against former clients -- isn't it unethical for that lawyer to threaten to sue us? --Patricia B.

A: You're wading into some tricky lawyer ethics questions here. Many clients think that "their" lawyer is on their side forever, no matter what the nature of future cases or disputes. Not so.

The general rule is that lawyers may not take a position that attacks their prior work. For example, suppose your lawyer drafted a lease form for you that included a clause that a tenant now claims is against the law. If that tenant were to ask your former lawyer to represent her in attacking that clause, the lawyer would be ethically bound to turn the case down, because he'd be attacking the very lease he prepared for his former client.

The question is: What's the genesis of the discrimination claim? The claim may have nothing to do with your lease form. Chances are it involves actions or statements by you or your employees that involve federal or state fair housing laws, irrespective of your lease.

But if the complaint stems from a lease clause, you've got reason to object to the lawyer's involvement now.

For example, if the lease he drafted included a clause making tenants with disabilities pay for certain modifications, and if that clause is the basis for the tenant's claims, you're dealing with the lawyer's "former work," and you may be able to fairly insist that the lawyer turn this case down.

Solve tenant disputes using social media

Thu, 13 Oct 2011 00:00:00 -0700

Q: We're facing a bit of a public relations nightmare, the result of a few disgruntled tenants whipping up a frenzy about our apartment complex. They claim it's mismanaged, and have used Facebook pages and groups, blogs, and countless tweets to spread the word and make all sorts of unsubstantiated claims. There's a kernel of truth in some of their claims, but most are way overblown. What can we do? --Robert and Susan

A: Welcome to the powerful world of social media, where a few people can make a huge impact. Just think of the role that social media played in the political uprisings in Egypt and other Middle East countries -- without it, it's quite possible that these revolutions would simply not have happened.

Dictators aren't the only ones who should be paying attention to what's being said on Facebook and blogs. Companies and service providers, including professionals like doctors and lawyers, have all been fair game to determined posters and bloggers. Most of the time, the wisest course is to treat a major campaign seriously and with respect, rather than to ignore it -- or, worse, disparage it.

Take the recent commotion over Proctor & Gamble's "Dry Max" diapers, which some parents considered the source of severe diaper rashes. Although the scientific evidence was scant (an independent analyst, a doctor at Harvard's School of Public Health, found the diaper's underlying technology safe), thousands participated in the Facebook groups, blogs and tweets, exchanging posts about "chemical burns" and other scary-sounding issues.

The manufacturer, meanwhile, simply dismissed the complaints, and even went so far as to suggest "poor parenting skills." Rather than engaging in the debate in the social media space, it worked behind the scenes, asking the Consumer Product Safety Commission to help it put some balance into the discussion.

Not a good move: Proctor & Gamble is considering settling a class-action lawsuit, which involves $1,000 for each of the 59 class members/parents, and $2.73 million in attorney fees! What's the lesson here?

You, dear landlords, need to get into the social media space and engage with your tenants. In the old days, tenants might call a meeting of their neighbors and plan a rent strike; nowadays, it's simpler to do it all online, but the purpose is the same.

Your admission that there's a "kernel of truth" in their complaints is proof enough that a respectful discussion needs to take place. You'd be surprised how an honest recognition on your part of the need to improve can de-escalate the online accusations.

Q: We signed a lease with our landlord two months ago, but he refuses to give us a copy of the lease with his signature (we have a copy with our signature alone). Isn't he legally required to do so? If not, what's the effect on our tenancy of not having a signed copy? --Marcia and Wes

A: Many states do require landlords to give tenants a signed copy of the lease or rental agreement within a specified number of days after signing. Consequences for failing to do so may include a preset penalty.

If your state has no such law, you're not necessarily in jeopardy. As long as you at least have a copy of the lease that you signed, you should be able to rely on it if you need to. The key will be in making it clear to the landlord now that you consider this document to be the same as the one he signed.

That way, you'll be boxing the landlord into your position, which will make it difficult for him to dispute the document later.

Here's how to do it: Make a copy of the lease you have -- the one with only your signature -- and attach it to a letter to the landlord (to be extra cautious, send the letter return receipt requested). In your letter, explain that you believe the attached lease is the one that the landlord signed, and that you're proceeding with this tenancy with that assumption in mind.

Ask the landlord to supply his signed copy if he disputes your statements. If you hear nothing back, the law will presume that the landlord agreed with your statements -- that the attached lease is, in fact, the lease everyone agreed to.

Let's suppose that, later, the landlord attempts to do something that's not provided for in the lease, such as increase the rent midlease (midlease increases are legal, as long as they're spelled out in the lease).

You'll be able to defeat this attempt by producing your lease copy and the letter you sent the landlord, and by proving that the landlord never disputed your claim that it is the correct document.

Refund rules for prepaid vacation rental

Thu, 06 Oct 2011 00:00:00 -0700

Q: We prepaid for our vacation rental at the beach in New Jersey, which was to begin the day the governor issued mandatory evacuation orders for that area. Are we entitled to our money back? The landlord is being evasive. --Jack and Ellen

A: When a lease cannot be honored because of an "act of God," the fate of prepaid rent depends first on whether state law has a specific rule that applies.

In the absence of that, the next question is whether the lease addresses this contingency. Finally, if both state law and the lease don't address the issue, some tried-and-true legal rules will settle the matter -- though not always so easily, as you'll see below.

Some states -- naturally, those with lots of vacation rentals -- have passed laws that provide some solutions. North Carolina's Vacation Rental Act considers the effect of mandatory evacuation orders on the rental: Landlords must offer a refund, but not if tenants have either refused the landlord's or broker's offer of insurance, or if they bought insurance that will reimburse them. Landlords and tenants cannot vary this rule in their leases.

California, with its many vacation rentals, does not have a statute covering this situation. Instead, pursuant to a 1926 case, unless the rental agreement says otherwise, when the property has been destroyed prepaid rent cannot be recovered (Pedro v. Potter, 197 Cal. 751).

Landlords can anticipate this problem and provide for a solution in the lease (except in North Carolina, as noted). A good clause will provide that if the landlord cannot deliver the house through no fault of his, here's what will happen: The tenant gets a total refund, a partial refund, or no refund.

Leases that provide for no refund often urge tenants to buy travel insurance, which should step in if a hurricane, fire or other unforeseen event makes it impossible to occupy the rental.

Sometimes neither the lease nor state statutes nor cases address the issue of prepaid rent for a vacation rental that can't be occupied. When this happens, a court is likely to look at past similar cases from higher courts and follow their solutions.

The general rule is that prepaid money must be refunded, as long as the event that made the lease impossible to carry out was not only something the landlord couldn't control, but was unforeseen, too.

That last requirement suggests lots of arguments: Are hurricanes during hurricane season really "unforeseen"? Consider mountain road closures in the winter -- if that frequently happens, is it a risk that renters are assuming when they book their rentals?

The answers may be "yes," particularly when the landlord has brought the risk to the tenants' attention by urging them to buy travel insurance.

Q: The tenant who used to live with me became abusive and dangerous; I had to get a protective order, directing him to stay away. He complied, but has left a ton of personal belongings behind, some of it rather valuable. What are my obligations regarding this stuff? I certainly don't want him coming back, even just to collect it. --Richard D.

A: Many states have procedures for landlords to follow when tenants leave behind personal belongings. Some, like California, aren't hard-and-fast rules -- they are simply a process that, if followed, will shield the landlord from lawsuits over abandoned property.

In California, the steps involve determining the value of the property and store everything, other than obvious garbage. Then, landlords must give written notice to the tenant, wait a specified amount of time, and if the property isn't claimed, they can do whatever they want if the value is less than $300.

If the value exceeds that, the landlord must sell it at public auction and publish a notice in a newspaper. The landlord can keep from the proceeds enough to compensate for expenses, and must turn the rest over to the county. Needless to say, this statute is on the far end of the spectrum.

Other states are far less accommodating to the tenant. In many, the landlord can simply do what he wishes; others take a middle approach, and require notice and an opportunity to claim, but then give the landlord the go-ahead to keep or dispense of it as he wishes.

The situation you're in is a bit different than the typical scenario that the statutes address: The tenant who is departing willingly (or if not voluntarily, at least with knowledge of the move, as happens when law enforcement personnel carry out an eviction order).

These tenants have had time to gather their possessions, and if they fail to take them all, there's some element of "you had the chance, now we'll give you just one or two more." But a tenant who is the subject of a protective order, even one that he has had a chance to oppose, may not have a chance to pack up.

In this sense, an "abandoned property" scheme may not apply to him. But on the other hand, you hardly want to give your ex-tenant an invitation to come get his stuff when you've just served him with an order to stay away.

You'd be best served by talking with a local lawyer, who is familiar with your state's abandoned property law and can advise you on your rather unusual situation. Your lawyer might consult with the police and even the judge who issued the order.

There has to be a way for your tenant to get access to his property without putting you face to face with him; and if he doesn't respond, you'll need to be assured that there's a proper and legal way to dispose of his property.