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Lesson 6
Landlord-Tenant Law
It is important
that landlords have a good understanding of the landlord-tenant laws of their
state because failure to obey the laws ca n be costly. The relevant statutes
can be found on our members-only Property
Management Web and highlights of the law for a particular state can be found
by selecting that state from any page of our Rental
Web.
U.S. Landlord-Tenant Law governs renting
of commercial and residential property. The law is composed primarily of
state statutory law and old English common law. A number of states have based
their statutory law on either the Uniform Residential Landlord And Tenant Act
(URLTA) or the Model
Residential Landlord-Tenant Code. Those states include:
It is important to note that various state
landlord-tenant laws differ in many significant ways. For example, RHOL
concludes that on a scale, where 1 would favor landlords and 10 favor tenants,
Arkansas is a 1 and Massachusetts is a 10. A review of the various state
laws in the RHOL web (available to members) will show that most of the
conservative south is still landlord friendly while the liberal northeast and
west-coast now seem to write and amend their laws almost entirely by and for
tenants.
Also, in most states, commercial landlord-tenant
law is significantly different than residential. For example, many states
allow the landlord to lock out a commercial tenant, essentially shutting down
his business, for non-payment of rent.
State statutes and courts normally control
landlord tenant relationships in the U.S., however, federal statutory law may be
a factor in times of national/regional emergencies and in preventing forms of
discrimination.
The basis of the legal relationship between a
landlord and tenant is grounded in contract law, property law, and, in some
states, consumer protection statutes. The tenant has a property interest
in the land (historically a non-freehold estate) for a given period of time.
The length of the tenancy may
be for a given period of time, for an indefinite period of time, (,e.g.
renewable/cancelable on a month to month basis), terminable at any time by
either party (at will), or at sufferance if the agreement has been terminated
and the tenant refuses to leave (holds over). If the tenancy is tenancy
for years or periodic the tenant has the right to possess the land, to restrict
others (including the landlord) from entering upon it, and in most cases, to
sublease or assign the tenant's interest in the property. The
landlord-tenant agreement may eliminate or limit some of these rights. The
landlord-tenant agreement is normally embodied in a lease which may be oral or
written. The lease, though not historically or strictly a contract, may be
subject to concepts embodied in contract law. See Contracts; § 1.103 of
the (URLTA).
The landlord-tenant relationship is founded on
duties proscribed by either statutory law , the common law, or the individual
lease document. What provisions may be contained in a lease is normally
regulated by statutory law. See § 1.403 of the (URLTA).
Basic to all leases is the implied covenant of quiet enjoyment. This
covenant ensures the tenant that his possession will not be disturbed by someone
with a superior legal title to the land including the landlord. A breach
of the covenant of quiet enjoyment may be actual or constructive. A
constructive eviction occurs when the landlord causes the premises to become
uninhabitable.
Housing
codes were established to regulate occupancy standards and ensure that
residential rental units were habitable at the time of rental and during the
tenancy. Depending on the state, housing code violations may lead to
administrative action or to the tenant being allowed to withhold rent. The
habitability of a residential rental unit is also ensured a by warranty of
habitability (discussed below) which are prescribed by common and/or statutory
law. See § 2.104 of the (URLTA).
A breach of the warranty of habitability or a covenant within the lease may
constitute constructive eviction, allow the tenant to withhold rent, repair the
problem and deduct the cost from the rent, or recover damages. See (URLTA)
§ § 4.101 & 4.104 & 4.105.
Unless the lease states otherwise, there is an
assumption that the tenant has a
duty to pay rent. State statutes may provide for a reasonable rental value
to be paid absent a rental price provision. See (ULTRA)
§ 1.401(b). In commercial leases rent is commonly calculated in part
or whole as a percentage of the tenants sales. Rent acceleration clauses
that cause all the rent to become due if the tenant breaches a provision of the
lease are common in both residential and commercial leases. Summary
eviction statutes commonly allow a landlord to quickly evict a tenant who
breaches statutorily specified lease provisions, particularly a failure to pay
rent. Self-help, a unilateral landlord action, as a method of
eviction is now usually prohibited. Some states do not even allow it for
tenants who have held over after the end of a lease. See (URLTA)
§ 4.207 & Restatement 2d. § 14.2. Landlords are also restricted
from evicting tenants in retaliation of action the tenant took in regards to
enforcing a provision of the lease or applicable law. See (URLTA)
§ §. 4.197 & 5.101.
Federal law prohibits discrimination in housing
and the rental market. See Civil Rights Act of 1866 & 42 U.S. Code,
Chapter 45, Federal Fair Housing Act.
Right to Privacy
Violating a tenant's privacy is one of the
most common and emotion-filled issues in rental housing; right next to disputes
over rent and security deposits. They often arise over a landlord's right to
enter a rental unit without reasonable notice and cause, and a tenant's right to
be left alone at home.
A typical lease allows a landlord, or agent, to
enter the premises for normal maintenance and repair with 24 hours notice, or in
case of emergency. Amateur landlords often think that since they are the owners,
they may go into a rental property anytime they wish. That is not true. A tenant
has a right under the law to: "quiet enjoyment."
A major point of contention over tenants right to
privacy in recent years results from onerous new rental property only inspection
ordinances being adopted by various municipalities across the country. In many
cases the local rental inspection laws do not acknowledge the tenant's right to
deny access to anyone, even city rental inspectors; "without probable cause
to believe that a crime has been committed" as is required under the Forth
Amendment to the US Constitution. Although the same local officials are quick to
acknowledge that they are prohibited from entering an owner occupied residence
without permission or a warrant. There is a great deal of money from what are
called "fees" and a lot of additional power that flows from
information on property owners and their tenants at stake for municipalities, so
the issue will have to be decided at the local ballot box, or eventually by the
US Supreme Court. Winning local elections with more intelligent and
reasonable candidates is cheaper and easier by far.
The law aside, honoring tenants' right of privacy
to the greatest extent possible is just plain good policy.
Warranty
of Habitability
In most states, residential leases
are covered by what is called an "implied warranty of habitability."
That means that regardless of what a lease says, the landlord must provide
premises that are decent, safe and sanitary.
In multi-family buildings, problems usually arise
over essential building services and cleanliness. Many courts have held such
things to be breaches of the implied warranty and the landlord has been required
to correct them. The implied warranty naturally applies to the leased premises,
but also to common areas such as a lobby, stairways, a pool or a yard.
What a court will consider a breach or violation depends on the law of each
state and, of course, on the particular facts in each case.
There are a few states that do not have an
implied warranty of habitability. In these states: Alabama, Colorado,
Kansas, and South Carolina, the tenant takes the place "as is," and
the landlord has no obligation to provide anything except what is written into
the lease. You may want to see our Warranty
of Habitability page as well.
An Example - California
It is instructive to look at the way that the
warranty of habitability is interpreted in one state, California. Although
California may favor tenants over landlords compared to many other states,
California is not the worst in this regard. Furthermore, California laws
are often an indication of what's coming to other states in the near future.
Under California law, both statutes and court decisions, set standards for both
landlords and tenants.
The landlord's responsibilities, as defined
by the California Supreme Court's 1974 Implied Warranty of Habitability decision
that stated an owner of residential property is required to maintain all units
in habitable conditions and in good repair and as delineated in California Civil
Code (Section 1941.1), owners and managers must meet the following habitability
standards:
- Effective waterproofing and weather protection of roof and exterior walls,
including unbroken windows and walls;
- Functional plumbing facilities, including hot and cold running water, and
efficient sewage disposal;
- Gas facilities, heating resources and electrical system in good working
order;
- At least two functioning electrical outlets (or one outlet and one light)
in every room, with at least one light in the bathroom;
- Well-lighted common areas, such as stairs and hallways;
- Buildings, grounds and fixtures that are clean, sanitary and free from
debris, rodents and vermin;
- Adequate and properly maintained trash receptacles (now also required by
local ordinance in Isla Vista);
- Functional outer doors and locks, including a deadbolt lock for the main
entry door, and window locks;
- Maintain operable deadbolt locks that extend, in the lock position, a
minimum of 13/16 of an inch in length beyond the strike edge of the door and
protrude into the door jamb;
- Functional smoke detector-it's the tenant's responsibility to buy and
install batteries for the smoke detector;
- Floors, stairways and railings that are safe and in good repair.
The tenant's responsibilities,
as delineated under Section 1941.2 of the California Civil Code,
also requires the tenant to use the property appropriately and to keep it clean
by observing the following principles:
- To keep the premises "as clean and sanitary as the condition of the
premises permits;"
- To operate gas, electrical and plumbing fixtures in an appropriate manner.
Examples of inappropriate use include overloading electrical outlets,
flushing large objects down the toilet, and allowing bathroom fixtures to
become filthy; To provide batteries for the smoke detector;
- To dispose of trash in an appropriate manner;
- To refrain from damaging or defacing the premises and to ensure that
guests also refrain from such activities;
- To use the premises solely as a residence, as intended, and to use the
living room, the bedrooms, the bathrooms and the kitchen solely for their
respective intended purposes.
If
the premises need repairs and the problems are severe enough to make the rental
unit uninhabitable, tenants have several options in order to remedy the
situation. First the tenant must notify the owner or manager of the problem, in
writing; see the sample "Habitability" letter on page 44. The law
allows owners and managers a "reasonable" amount of time to fix the
problem. "Reasonable," in most cases, is presumed to be 30 days.
Critical circumstances, however, may well demand that repairs be completed as
quickly as within 24 hours.
In California, there are certain remedies at the tenant's disposal when a
landlord ignores or refuse a request for repairs that affect habitability.
However, although the remedies are sanctioned by law, when using those remedies,
process is just as important as principle. Accordingly, tenants should
exercise great caution when using any of the remedies.. Misapplication of these
remedies may result in eviction proceedings (including an Unlawful Detainer
action) being initiated by the owner or manager against the tenant. Tenants who
are confronted with a situation of this kind are advised to consult with a
competent attorney with expertise in landlord-tenant law before proceeding with
any of the remedies. No owner or manager may retaliate against a tenant solely
for having invoked rights and remedies. Any form of retaliatory action,
including notice of a 30-day rent increase or notice to quit, is illegal and
will give the tenant yet another basis for entering into a suit against the
owner or manager. Many standard leases and rental agreements provide for a
tenant's waiver of these rights. Any such waiver is void and unenforceable, even
if you've signed it. It is especially important to communicate effectively with
your owner or manager in cases involving habitability or "Repair &
Deduct" issues. Alll communications between landlord and tenant
should be put in writing. All these letters should be delivered in personal or
with proof of delivery.
Remedies
- Repair and Deduct: Take
personal responsibility both for undertaking the repair and for deducting
the cost of this repair from the following month's rent (California Civil
Code, Section 1942). The amount tenants may set aside for such repairs,
however, may not exceed the amount of one month's rent. No tenant may
exercise this option more than twice in any 12-month period. See page 45 for
more information.
- Move Out: Move out of the
rental unit (California Civil Code, Section 1942).
- Rent Withholding:
Withhold rent until the condition has been remedied (Green vs Superior Court
10 Cal.3d 616). The power given tenants in such circumstances does not mean
that they may live in the premises rent-free. The nature and severity of the
problems, however, may mean that the tenant is entitled to some retroactive
reduction in rent for the time the problems remained un-remedied and thus
actively interfered with the tenant's ability to take full advantage of the
rental unit.
Although states other than California have different laws, either more or less
stringent, the principles will general be the same. Remedies also vary
among the states and it is important to know the exact procedure for the
specific state, whether you are a tenant trying to use them or a landlord
defending against them.
Security
Deposits
Security deposits is probably at or near the top of the list when one considers
the various landlord-tenant issues. At the end of a tenancy, the tenant
wants his entire deposit returned, while the landlord wants to keep it all.
Most states now closely regulate the collection, handling, and return of or
accounting for security deposits and limit what charges can be debited from the
deposit.. Some states require that the landlord pay interest to the tenant
and, some require that deposits be kept in a special bank account. Many
states provide for stiff penalties for landlords who don't follow the rules.
This subject of security deposits is so important that Lesson
11 is devoted solely to the subject.
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