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Landlord and Tenant Law
Pay or Quit Notice Time Frames by State
Returning tenant security deposit deadlines by state
Landlord and Tennant Frequently Asked Questions
After I move out, can I get my deposit back?
Yes. After a tenant moves out, a landlord usually has one month to either
return your deposit, or give you a written statement of why all or part of the
money is being kept. It is advisable for the tenant to leave a forwarding
address with the landlord when moving out. Some states require that a
forwarding address be given if you want to recover damages in addition to the
amount of the security deposit.
Under landlord - tenant law, the rental unit must be restored to the same
condition as when the tenant moved in, except for normal wear and tear.
Deposits cannot be used to cover normal "wear and tear", or damage
that existed when the tenant moved in. (Under the law, a damage checklist
should have been filled out when the tenant moved in.)
The landlord is in compliance with the law if the required payment,
statement, or both are deposited in the U.S. mail with first class postage
paid within the required time. If the tenant takes the landlord to court, and
it is ruled that the landlord intentionally did not give the statement or
return the money, the court can usually award the tenant up to twice the
amount of the deposit.
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After the tenant gets served, what next?
The tenant(s) that are served have several days (California is Five Days) to
respond to the court with a written response known as an answer. The amount of
time to wait for the answer to be filed does not include the day of service.
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Can a landlord enter my residence without my
knowledge?
No. The landlord must usually give the tenant at least a two-day notice of his
intent to enter the premise. The actual time of the notice varies from state
to state. In addition, the landlord must enter at a reasonable time. However,
landlord tenant law usually provides that tenants must not unreasonably refuse
to allow the landlord to enter the rental. If the landlord has given the
required notice to enter at a specified time to show the dwelling to
prospective or actual purchasers or tenants the tenant must usually agree to
the access. Most law says that tenants shall not unreasonably refuse the
landlord access to repair, improve, or service the dwelling. In case of an
emergency or if the property has been abandoned, the landlord can enter
without notice.
Any provision in a rental agreement, which allows the landlord to enter
without such notice, is not valid under landlord tenant law.
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Can a landlord refuse to rent to me because
of my race?
No. Various federal, state, and local anti-discrimination laws bar
discrimination on a number of specific grounds including race, national
origin, ancestry, sex, marital status, age, and physical handicap. The laws
prohibit refusal to rent based upon discrimination and discriminatory rental
terms and conditions. In addition, the laws prohibit discriminatory
advertisements and statements regarding the availability of housing.
For example, it would violate both federal and state law for a landlord to
advertise an apartment for rent and conclude the advertisement by stating
"only Christians need apply." Accordingly, it would also be illegal
to limit the advertisements to "Muslims, females, people over 30,",
etc.
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Can I accept a partial payment of the total
that the tenant owes on the notice?
YES! Now, make another three-day notice to pay or quit for the out standing
balance. Careful to still enumerate by the month and show a total. NO LATE
FEES.
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Can I charge late fees in the notice?
In most localities, you can get your late fees later but not on the notice.
NOTE: Only rent can be claimed on the three day notice to pay rent or quit.
The amount of rent arrearage cannot exceed twelve months. Each month must be
enumerated (i.e.: January 1 to January 31, 2000 = $300.00.)
If the tenant paid a partial payment and is in default for other prior
months, the notice must show month by month each amount due and must show a
total amount the tenant must pay to avoid eviction.
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Can I file unlawful detainer in small claims
court?
Yes! Though not recommended. The process can add months to the process of
regaining possession.
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Can I make a deal with the tenant to move out
rather than go through the eviction process?
Yes. Most tenants hold over because they do not have the money to rent another
property. This may not be a good practice, if the arrears are great.
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Can I still use the three-day notice to pay
rent or quit if I have an oral agreement?
The notice is prepared the same. Care should be taken to name all persons,
including children, over the age of eighteen. Excluding any person from the
notice means that you must start over without regard to what stage of eviction
you are in.
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Can my landlord come in and physically remove
me?
No. The only way a landlord can legally evict a tenant is to file an unlawful
detainer lawsuit. A landlord may not use self-help measures of any kind. For
instance, a landlord cannot physically remove or lock a tenant out of the
rental. The landlord cannot cut off utilities such as water, electricity or
gas, or take the tenant's belongings in an attempt to force the tenant to
leave. If the court rules in favor of the landlord, the sheriff will be
instructed to move the tenant out of the rental if the tenant does not leave
voluntarily. The only legal way for a landlord to physically move a
tenant out is by going through the courts and the sheriff's office.
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Can the landlord refuse to rent to me if I
have a water bed?
The majority of states had laws that prevent the landlord from renting to a
water bed owner. But, the landlord can insist on water bed insurance.
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Can the tenant be forced out by locking doors
or windows, changing locks, removing the tenants personal property?
NO! The law is clear and the landlord could be held liable in civil court.
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Do I have to accept the amount of rent due if
offered within the three days?
You must, only if the total amount is tendered. The landlord can dictate the
terms and conditions of payment.
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Do I have to have the notice served by a law
enforcement officer or process server?
NO. It's best is to hand the notice to the tenant(s). If this is not feasible,
tack the notice to the door and mail the tenant(s) a copy. Anyone over the age
of eighteen can serve the notice and must sign a proof of service.
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Do I place all of the occupants on the
notice?
All tenants named on the rental agreement and persons over the age of
eighteen, listed or not.
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Does landlord-tenant law cover roommates?
Generally yes. There are two basic types of roommate arrangements. The first
arrangement is when all of the roommates have signed the lease. Each roommate
is in privet of contract with the landlord. In this situation,
landlord-tenant laws, always covers all roommates. The next arrangement
involves the original tenant taking in a roommate to help with the rent or for
some other reason. The new roommate is usually called a subtenant. Most states
require that the landlord follow the general landlord-tenant rules when
dealing with a subtenant. In addition, most states also require that the
original tenant follow the rules of landlord-tenant law if wishing to
terminate the roommate arrangement.
What if I am living in property that I have bought under a sales
installment?
It is important to determine whether the occupant is a tenant or a
purchaser under a contract that provides that the title will pass to the
occupant on completion of the specified payments. The distinction will
determine the remedies of the owner.
If the occupant is really a tenant then the traditional rules of
landlord-tenant will apply. If on the other hand, the occupant's "rent" is being applied toward the purchase price of the dwelling or
if the rent is in conjunction with an "option to buy" at the
completion of the tenancy, than traditional rules of contract and not
landlord-tenant law will apply.
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Does landlord-tenant law, cover an
"extended-stay" motel?
Many states will place a stay in an "extended-stay" motel under the state's
landlord-tenant law. If the following factors are present, than the
motel is NOT likely covered by the state's landlord-tenant law:
the proprietor retains the right to enter and control the use of the
dwelling unit,
the proprietor provides facilities for all residents to safeguard their
personal property,
the proprietor provides a central telephone system that is utilized by
all residents,
the proprietor provides a central dining facility, maid service, mail
service, and recreational services, and
the occupancy for the room is usually for duration of 7 days or less.
Therefore, other than residential hotels with extended-stay occupancy, many
formal hotel type facilities are exempt from landlord-tenant law.
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How do I calculate the daily amount of rent?
Monthly rent divided by thirty is the daily rental amount.
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How do I know which notice to use for my
particular tenant situation?
Non-payment of rent (Three Day Notice to Pay Rent or Quit) is the form and is
relatively easy to fill out but does come with some restrictions.
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How is a landlord-tenant agreement created?
The legal relationship between a landlord and a tenant is created by a
contract between the two. The contract is usually called a "lease".
The contract may be oral or written and express or implied. In order for the
contract (lease) to be valid, it must show the following:
the intent of the parties to create a contract,
a designation of parties,
a reasonable description of the premise to be leased,
the amount of rent to be paid,
the time and manner of payment of rent, and
the duration that the tenant will rent the property.
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How long must the landlord wait before
selling the abandoned property?
That depends on the state law and the value of the goods. In general, if the
total value of the property is less than $50, the landlord must mail a notice
of the sale to the tenant and then wait seven days. Family pictures,
keepsakes, and personal papers cannot usually be sold until 45 days after the
landlord mails the notice of abandonment.
If the total value of the property is more than $50, the landlord must mail
a notice of the sale to the tenant and then wait 45 days. Personal papers,
family pictures and keepsakes can be sold at the same time as other property.
The money raised by the sale of the property goes to cover money owed to the
landlord, such as back rent and the cost of storing and selling the goods. If
there is any money left over, the landlord must usually keep it for the tenant
for one year. If it is not claimed within that time, it belongs to the
landlord.
If a landlord takes a
tenant's property and a court later determines there
had not actually been an abandonment, the landlord could be ordered to
compensate the tenant for loss of the property, as well as paying court and
attorney costs.
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How many copies do I make?
Always keep the original (original signature) to go with the unlawful detainer,
one copy for each tenant NOTE: DO NOT USE COLORED PAPER (i.e., RED)!
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How would a tenancy at will arise?
Tenancies at will may arise in any of the following ways:
entry into the dwelling under a void oral contract,
entry into the dwelling under a void written lease,
entry into the dwelling while negotiations for a lease are pending, and
remaining in possession of the dwelling after rescission of a contract of
sale.
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If I am in a lease, can the landlord end the
lease before the lease term ends?
If the landlord and tenant have a lease agreement for longer than one month,
the landlord cannot demand that the tenant move out before the lease ends,
unless the tenant violates an important term of the lease. The lease is a
legally enforceable contract. As such, if the landlord breaks the lease, the
landlord will be liable for damages. Alternatively, if you decide to leave
before the lease is period has expired, you may be liable for the cost to the
landlord to advertise the vacancy. In addition, you will be liable for any
rent payments until the landlord finds a new tenant.
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Illegal Actions by the Landlord
The law prohibits a landlord from taking certain actions against a tenant.
These illegal actions usually include the following:
Utility Shutoffs. The landlord may not shut off utilities
because the tenant is behind in rent, or to force a tenant to move out. The
landlord may only shut off utilities so that repairs can be made, and only
for a reasonable amount of time. If a landlord intentionally does not pay
utility bills so the service will be turned off, that could be considered an
illegal shutoff. If the landlord has shut off the utilities, the tenant
should first check with the utility company to see if it will restore
service. If it appears the shutoff is illegal, the tenant can file a
lawsuit. If the tenant wins in court, the judge can usually award the tenant
up to $100 per day for the time without service, as well as attorney's fees.
Taking the
tenant's property. The law allows a landlord to
take a tenant's property only in the case of abandonment. A clause in a
rental agreement that allows the landlord to take a tenant's property in
other situations is not valid. If the landlord does take a tenant's property
illegally, the tenant may want to contact the landlord first. If that is
unsuccessful, the police can be notified. If the property is not returned
after the landlord is given a written request, a court could order the
landlord to pay the tenant up to $100 for each day the property is kept.
Renting condemned property. The landlord may not rent units
that are condemned or unlawful to occupy due to existing uncorrected code
violations. The landlord can be liable for money damages, as well as costs
and attorney's fees for knowingly renting the property.
Retaliatory actions. If a tenant exercises rights under the
law, such as complaining to a government authority or deducting for repairs,
the law prohibits the landlord from taking retaliatory action. Examples of
retaliatory actions are raising the rent, reducing services provided to the
tenant, or evicting the tenant. The law initially assumes that these steps
are retaliatory if they occur within 90 days after the tenant's action,
unless the tenant was in some way violating the statute when notice of the
change was received. If the matter is taken to court and the judge finds in
favor of the tenant, the landlord can be ordered to reverse the retaliatory
action, as well as pay for any harm done to the tenant and pay the tenant's attorney's
fees.
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Instead of going through the eviction
process can I have the utilities turned off?
NO! The termination of water, gas, electricity, telephone, elevator or
refrigeration with intent to terminate tenant is punishable in civil court.
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Leases
If the tenant moves out at the expiration of a lease, in most cases it is
not necessary to give the landlord a written notice. However, the lease
should be consulted to be sure a formal notice is not required. If a tenant
stays beyond the expiration of the lease, and the landlord accepts the next month's
rent, the tenant then is assumed to be renting under a
month-to-month agreement.
A tenant who leaves before a lease expires is responsible for paying the
rent for the rest of the lease. However, the landlord must make an effort to
re-rent the unit at a reasonable price. If this is not done, the tenant may
not be liable for rent beyond a reasonable period of time.
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Month-to-Month Rental Agreements
When a tenant wants to end a month-to-month rental agreement, written notice
must be given to the landlord. The notice must usually be received at least
20 days before the end of the rental period (the day before rent is due).
The day on which the notice is delivered does not count. A landlord cannot
require a tenant to give more than 20 days notice when moving out.
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Must I give notice before I decide to move
out?
Usually yes. When a tenant wants to move out of a rental unit, it is
important that the proper kind of notice be given to the landlord. The
following discusses how to end the two most common types of rental
agreements. However, it is important that tenants check their own rental
agreements to determine what kind of notice must be given before they move
out.
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Must the landlord notify me before evicting
me?
Yes. Before a landlord can require a tenant to move out of a residential
rental unit, the landlord must give the tenant notice telling the tenant to
leave. This notice must usually be a thirty days. Some states allow a shorter
notice depending upon the tenant's action. If the tenant does not comply
with the notice within the time stated, the landlord can go to court to evict
the tenant.
Some states allow a shorter notice (usually 3-5 days) demanding that the
tenant move out of the rental if the tenant has done any of the following:
- Not paid the rent;
- Destroyed or severely damaged the rental property;
- Committed a nuisance such as interfering with the other tenants` use of
their rental units or common areas;
- Used the rental unit for unlawful purposes such as selling drugs; or
- Violated the rental or lease agreement.
In most states, a 3 or 5 day notice must state why the tenant is being
asked to leave, and what the tenant must do in order to continue living in
the rental after the three or five - day period. For example, if the notice
states that the tenant is behind in paying rent, the tenant can stay if he
or she pays the rent due within the three or five days. The landlord's notice must state the exact amount of the rent due. However, for a very
serious problem, such as drug dealing, the landlord can demand that the
tenant move out, and the tenant does not have any option to stay.
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Should a co-signer on a rental agreement be
named in the unlawful detainer (law suit)?
Yes. For several reasons. The co-signer is generally a relative of the
tenant and will not want to be named in a lawsuit and the co-signer is
attachable, that is to say, you have someone to take judgment against that
could be satisfied.
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What about nonrefundable fees?
These will not be returned to the tenant under any circumstances. If a
nonrefundable fee is being charged, the rental agreement must be in writing
and must state that the fee will not be returned. A nonrefundable fee cannot
legally be called a "deposit." Landlords will commonly charge a
prospective tenant a nonrefundable "application fee." This is
generally allowed.
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What are common pitfalls in the Three Day
Notice?
Spelling of the tenant's name is critical. Also, the amount of enumerated
rent must match the total amount that the tenant owes.
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What are some advantages of fixed-term
tenancy?
For the tenant, a fixed-term has the advantage of providing certainty as to
the right to occupy the dwelling for a fixed time and a fixed rent. The
landlord is usually prohibited from altering the terms of the original lease
for the duration of the fixed-term. A disadvantage is that the tenant
remains liable for the rental payments for the entire duration of the
fixed-term. The tenant may also have difficulty in subletting or assigning
the right to occupy the dwelling if he or she decides to vacate.
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What are some illegal provisions that a
landlord cannot put into the rental agreement?
Some provisions that may appear in rental agreements or leases are not legal
and cannot be enforced under the law of most states. These illegal
provisions include:
- A provision that waives any right given to tenants under the
State's landlord - tenant law.
- A provision that tenants must give up their right to defend themselves
in court against a landlord's accusations.
- A provision which limits the
landlord's liability in situations where
the landlord would normally be responsible.
- A provision allowing the landlord to enter the rental unit without
proper notice.
- A provision requiring a tenant to pay for all damage to the unit, even
if tenants or their guests do not cause it.
- A provision stating the tenant will pay the
landlord's attorney's fees
under any circumstances if a dispute goes to court.
- A provision that allows the landlord to seize a
tenant's property if
the tenant falls behind in rent.
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What are some reasons that the landlord cannot
use to evict me?
A landlord's ability to evict a tenant is restricted in the following
situations:
- The tenant rightfully withheld rent because the rental unit was not fit
to live in.
- The tenant rightfully withheld part of the rent to pay for the repairs
that were necessary to make the rental fit to live in, or the tenant
exercised a legal right, such as complaining to a city inspector about the
condition of the rental unit. An eviction in these situations would be
"retaliatory eviction."
A landlord may not evict a tenant in the following situations:
- The notice to vacate the rental is defective (for example, the notice
was not properly served, does not give the tenant a legally-sufficient
period to move, or, in a three-day or five-day notice to pay rent or quit,
the rent demanded is more than is actually due).
- The landlord does not have "just cause" to end the rental
agreement, in cities where rent control ordinances require it.
- The landlord is terminating the tenancy because of race, religion, or
another arbitrary reason.
- The basis for the eviction stated in the notice is false.
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What are some reasons that the landlord can
evict me?
When a landlord wants a tenant to move out, certain procedures must be
followed. The following are reasons that are usually accepted by the courts
for initiating an eviction:
- Not paying rent. If the tenant is even one day behind in
rent, the landlord can sometimes issue a three day notice to pay or move
out. If the tenant pays all the rent due within three days, the landlord
must accept it and cannot evict the tenant. A landlord is not required to
accept a partial payment.
- For not complying with the terms of the rental agreement.
If
a tenant is not complying with the rental agreement (for example, keeping
a cat when the agreement specifies "no pets"), the landlord can
usually give a ten-day notice to comply or move out. If the tenant
remedies the situation within that time, the landlord cannot continue the
eviction process.
- For creating a "waste or nuisance." If a tenant
destroys the landlord's property; uses the premises for unlawful activity
including gang or drug-related activities; damages the value of the
property; interferes with other tenant's use of the property; the landlord
can issue a three-day notice to move out. The tenant must move out after
receiving this type of notice. There is no option to stay and correct the
problem.
- For no cause.
Landlords can usually evict month-to-month
tenants without having or stating a particular reason, as long as the
eviction is not discriminatory or retaliatory. If the landlord wants a
tenant to move out and does not give a reason, the tenant must usually be
given a 20-day notice to leave. The tenant must receive the notice at
least 20 days before the next rent is due. The tenant can only be required
to move out only at the end of a rental period (the day before a rental
payment is due.) Usually, a 20-day notice cannot be used if the tenant has
signed a lease. Check the specific rental document to determine if a lease
can be ended this way. If the rental is being converted to a condominium,
the tenant must be given a 90-day notice under most state law.
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What are the
landlord's responsibilities
during the tenancy?
In general, under landlord-tenant law, the landlord must:
- Maintain the dwelling so it does not violate state and local codes in
ways that endanger the tenant's health and safety.
- Maintain structural components, such as roofs, floors and chimneys, in
reasonably good repair.
- Maintain the dwelling in reasonably weather-tight condition.
- Provide reasonably security, including adequate locks and keys.
- Provide the necessary facilities to supply heat, electricity and hot
and cold water.
- Provide garbage cans and arrange for removal of garbage, except in
single family dwellings.
- Keep common areas, such as lobbies, stairways and halls, reasonably
clean and free from hazards.
- Control pests before the tenant moves in. The landlord must continue to
control infestations except in single family dwellings, or when the tenant
caused the infestation.
- Make repairs to keep the unit in the same condition as when the tenant
moved in (except for normal wear and tear).
- Keep electrical, plumbing and heating systems in good repair, and
maintain any appliances that are provided with the rental.
- Inform the tenant of the name and address of the landlord or
landlord's agent.
- Set water heaters at the temperature required by law when a new tenant
moves in.
- Provide smoke detectors, and ensure they work properly when a new
tenant moves in.
- Investigate whether a tenant is engaging in gang-related activity when
another tenant notifies the landlord of gang-related activity by serving a
written notice and investigation demand to the landlord.
It is important to note that a landlord is not responsible for the cost
of correcting problems that the tenant created. For example, if you decide
to see if a tennis ball will flush down the toilet or if the glass on the
front door is really "shatterproof," you are responsible for the
clean up.
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What are the
tenant's responsibilities
during the tenancy?
In general, under landlord-tenant law, a tenant is required to:
- Follow the terms of the lease or rental agreement.
- Pay rent, and any utilities agreed upon.
- Comply with any requirements of city, county or state regulations.
- Keep the rental unit clean and sanitary.
- Dispose of garbage properly.
- Pay for fumigation of infestations caused by the tenant.
- Properly operate plumbing, electrical and heating systems.
- Not intentionally or carelessly damage the dwelling.
- Not engage in or allow any gang-related or drug-related activity.
- Not permit "waste" (substantial damage to the property) or
"nuisance" (substantial interference with other tenants` use of
their property).
- When moving out, restore the dwelling to the same condition as when the
tenant moved in, except for normal wear and tear.
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What are the usual steps that I must take
if the rental unit needs something repaired?
When something in the rental unit needs to be repaired, the first step is
for the tenant to give written notice of the problem to the landlord or
person who collects the rent.
The notice must include the address and apartment number of the rental,
the name of the owner, if known, and a description of the problem. It's a
good idea to deliver the notice personally, or to use certified mail and get
a return receipt from the post office.
After giving notice, the tenant must wait the required time for the
landlord to begin making repairs. The allowed time for repair varies from
state to state. However, the usual waiting times for repairs are:
- 24 hours for no hot or cold water, heat, or electricity, or for a
condition which is imminently hazardous to life.
- 72 hours for repair of refrigerator, range and oven, or a major
plumbing fixture supplied by landlord.
- 10 days for all other repairs.
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What can I do if the landlord does not
repair the unit?
Your State law will determine your actual rights. However, most states
provide the following options:
- Litigation or arbitration can be used to work out the dispute.
A tenant can hire an attorney and go to court to force the landlord to
make repairs. (These kinds of suits cannot be brought in Small Claims
Court.) Or, if the landlord agrees, the dispute can be decided by an
arbitration service. Arbitration is usually less costly and quicker than
going to court.
- The tenant can hire someone to make the repairs.
In many cases the tenant can have the work done and then deduct the cost
from the rent. Before having any repairs made by a licensed or registered
tradesperson if one is required, or any person capable of doing the work,
the tenant must submit a good faith estimate to the landlord. To speed up
the repair process, the estimate can be given to the landlord along with
the original written notice of the problem.
When the required waiting period has ended and the landlord has not
begun repairs, the tenant can contract with the lowest bidder to have the
work done. If the repair is one that has a 10-day waiting period, you
cannot contract to have the work done until ten days after the landlord
receives notice, or five days after the landlord receives the estimate,
whichever is later. After the work is completed, the tenant pays the
repairperson and deducts the cost from the rent payment. The landlord must
be given the opportunity to inspect the work.
There are limits on the cost of repairs that can be deducted. Usually
if a tenant contracts the repair work out to a licensed or registered
person, then the total cost of repairs that may be deducted is no more
than one month's rent per each repair, and no more than two months rent in
any 12 month period. If a large repair which affects a number of tenants
needs to be made, the tenants can join together, follow the proper
procedure, and have the work done. Then each can deduct a portion of the
cost from their rent. A tenant must be current in rent and utilities
payments to use this procedure.
- The tenant can make the repairs and deduct the cost from the
rent, if the work does not require a licensed or registered tradesperson.
The tenant must usually give the landlord proper notice of the problem.
Then, if the landlord does not begin repairs within the required time, the
tenant can make the repairs. The cost of materials and labor can be
deducted from the rent. To use this procedure, the cost of the repairs
cannot usually be more than half a month's rent. And within any 12-month
period, the tenant can only deduct a total of one month's rent. In
addition, the landlord must be given the chance to inspect the repairs.
Work must be properly done and meet local codes. The tenant could be held
responsible for inadequate repair work.
- The tenant can move out.
After waiting the required time, the law usually allows tenants to give
written notice to the landlord and move out immediately. Tenants are
entitled to a prorated refund of their rent, as well as the deposits they
would normally get back.
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What do I do with my tenant after fire or
flood?
If the tenant is displaced by fire or flood, all states have specific laws
that govern this. The tenant must be placed in temporary housing by the
landlord. Consult your local and state laws. Generally, the temporary
housing rental factor can not exceed the amount that he pays at the time of
the loss.
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What happens to a
tenant's deposits when
the rental is abandoned?
When the landlord leans of the abandonment, the landlord is responsible for
either returning a tenant's deposit or providing a statement of why the
deposit is being kept.
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What if all tenants (Defendants) do not
respond to the court with an answer?
The non-responding defendants are defaulted. At this point, the
non-responding tenants have no say in the court.
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What if I am given a place to stay in
return for providing a service?
It is important to determine whether you are an actual tenant or only an
employee. The determination will effect whether or not landlord-tenant law
protects you. As a general rule, if the occupancy is connected with services
to be performed by the employee, or is required by the landlord in
connection with such services, the occupant is regarded as an employee and
not as a tenant. The occupancy can usually be immediately terminated if the
occupant is treated as an employee and the employment ends. However, it is
important to note that most states will require the employer to file an
unlawful detainer action to remove the former employee. Notice of the filing
is not usually required.
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What if I fail to name all tenants on the
unlawful detainer?
Leaving a tenant or any person over the age of eighteen out of the notice
and unlawful detainer would not allow the court to remove the unnamed person
from the premises.
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What if I move out without giving the
proper notice?
Most law states that the tenant is liable for rent for the lesser of: 30
days from the day the next rent is due, or 30 days from the day the landlord
learns the tenant has moved out. However, the landlord has a duty to try and
find a new renter. If the dwelling is rented before the end of the 30 days,
the former tenant must pay only until the new tenant begins paying rent.
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What if I stay past the expiration date?
A tenant who stays in the dwelling after the expiration of the lease is
termed a tenant at sufferance. In this situation, the landlord can usually
begin eviction proceedings without providing notice to the tenant. However,
if the landlord accepts a rent payment from the holdover tenant, a
presumption arises that a month-to-month tenancy has been created.
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What if the property that I am leasing is
sold?
The sale of the property does not automatically end a lease or
month-to-month rental agreement. Usually the lease agreement will contain
provisions detailing what the legal significance of a sale will be. When a
rental unit is sold, tenants must be notified of the new owner's name and
address, either by certified mail, or by a revised posting on the premises.
All deposits paid to the original owner must usually be transferred to the
new owner, who must put them in a trust or escrow account. The new owner
must promptly notify tenants where the deposits are being held. The rules
governing a sale of a leased premise vary from state to state. If your lease
is silent, then it is advisable to contact an attorney concerning your
rights.
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What is "abandonment?"
Under landlord tenant law, abandonment occurs when a tenant has both fallen
behind in rent and has clearly indicated by words or actions an intention
not to continue living in the rental.
When a rental has been abandoned, the landlord may enter the unit and
remove any abandoned property. It must then be stored in a reasonably secure
place. A notice must be mailed to the tenant saying where the property is
being stored, and when it will be sold. If the landlord does not have a new
address for the tenant, the notice should be mailed to the rental address,
so it can be forwarded by the post office.
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What is a "fixed-term" tenancy?
This type of tenancy is very common. A written lease usually creates this
type of tenancy. However, the lease does not have to be in writing if the
tenancy is for a period of less than a year. In this type of tenancy, the
tenant has exclusive use and possession of the dwelling for a specified
term. At the end of the term, the tenancy will automatically terminate. The
duration of the tenancy must be stated to create a fixed-term tenancy.
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What is a "periodic tenancy?"
This is a tenancy that continues for successive periods of the same length
for an indefinite amount of time. The most common is a month-to-month rental
agreement. A periodic tenancy may be defined in terms of any period. The
agreement period is defined by the interval between rental payments, unless
the rental agreement specifies otherwise. For example, weekly, annually,
BI-annually, etc. If the rental agreement specifies neither the tenancy
period nor the rent intervals, the creation of a month-to-month rental
period is presumed. Unlike a fixed-term tenancy, a periodic tenancy does not
automatically terminate at a specific time. Termination of a periodic
tenancy requires notice of the termination by either party.
If the landlord wants to change the provisions of a month-to-month rental
agreement, such as raising the rent or changing rules, the tenant must be
given at least 30 days notice in writing. (Less notice is not usually
allowed under the law.) These changes can only become effective at the
beginning of a rental period (the day the rent is due). If the landlord
wishes to convert the unit to a condominium the tenant must usually be given
a 90-day notice. Landlord-tenant law does not usually limit how much rent
can be raised, or how often. However, the landlord cannot raise the rent to
retaliate against a tenant.
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What is a "tenancy at
sufferance?"
A tenancy at sufferance is created when a tenant who initially entered the
property lawfully continues to occupy the premises after the expiration of
the agreed upon term and without the landlord's consent. The laws governing
this type of tenancy vary from state to state. It is important to consult an
attorney who practices property law within your state to learn more about
this and the other types of tenancies.
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What is a "tenancy at will?"
A tenancy at will is created when the tenant enters the dwelling with the landlord's
consent, for an indefinite amount of time, and with no express
provisions governing rent. This type of tenancy is created by the express or
implied consent of the parties. The landlord's consent is fundamental to the
creation of a tenancy at will. A tenant who enters without the landlord's consent is either a tenant at sufferance or a trespasser.
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What is a deposit?
When a new tenant moves in, the landlord often collects money to cover such
things as cleaning or damage. The money collected may be refundable or
nonrefundable. All State's allow for the collection of a security deposit.
However, the amount of the deposit is limited in many states to 2x the
monthly rent due.
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What is a refundable deposit?
Under general landlord-tenant law, the term "deposit" can only be
applied to money that can be refunded to the tenant. If a refundable deposit
is being charged, most states requires:
- The rental agreement must be in writing. It must say what each deposit
is for and what the tenant must do in order to get the money back.
- The tenant must be given a written receipt for each deposit.
- A checklist or statement describing the condition of the rental unit
must be filled out. Both the landlord and tenant must sign it, and the
tenant must be given a signed copy.
- The deposits must be placed in a trust account in a bank or escrow
company. The tenant must be informed in writing where the deposits are
being kept. Unless some other agreement has been made in writing, any
interest earned by the deposit belongs to the landlord.
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What is an unlawful detainer?
An unlawful detainer is the name of the legal action that a landlord must
file with the court to initiate the eviction process. This is also known as
an eviction lawsuit. An unlawful detainer is usually filed in the municipal
court. An unlawful detainer can usually be filed in municipal court only
after:
- notice to move has been properly given;
- the period stated in the notice has passed;
- the tenant has not moved out; and,
- in the case of some types of three-day or five-day notice, the tenant
has not corrected the defect stated in the notice.
The landlord's summons and complaint must be properly served on the
tenant. The tenant's response to the lawsuit must be in writing on the
proper legal form, and must be filed with the clerk of the court in the
county where the lawsuit was filed, usually within five days of the date on
which the lawsuit was served on the tenant. If the tenant responds, a court
hearing usually is held within 20 days after the landlord requests it.
If the tenant does not file a written response, usually within five days,
the court may issue a default judgment in favor of the landlord without
allowing the tenant additional time to respond. The default judgment allows
the landlord to obtain a "writ of possession" a legal document
giving the landlord the right to the rental. The court also may award the
landlord unpaid rent of damages, or both.
When the tenant has been served with a writ of possession, the tenant
usually has five days to move. If the tenant does not leave, the landlord
can take the writ of possession to the sheriff, who will then issue a
"writ of execution" authorizing the sheriff to physically remove
and lock the tenant out of the rental, and to take the tenant's belongings
that are left in it.
The tenant can appeal an eviction judgment by filing a notice of appeal
within 30 days after receiving notice of the court's judgment. Generally,
the tenant cannot continue to use the rental while the tenant is waiting for
the appeal to be heard.
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What is normal wear and tear on a rental?
Carpet and paint and normal wear items. The majority of states look at
normal wear and tear along with the length of time the tenant has rented the
property. Excessive damage can be picture hanger holes in the walls or burns
in the carpet. For the most part, residence of longer than two years can
cause carpet and paint renewing.
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What is the "implied covenant of quiet
enjoyment?"
Unless a lease or rental agreement is specifically modified, every lease or
rental agreement contains the landlord's implied covenant of quiet
enjoyment. Under this implied covenant, the landlord promises that tenant
will not be evicted or disturbed by the landlord or anyone else claiming
title to the rented premises. The covenant protects the tenant from acts of
the landlord that disturb the tenant's peaceful possession of the land. For
example, the landlord cannot rent a part of the same premise that the tenant
is already living in. The landlord would also be prohibited from renovating
or altering the leased premise in a way that would make it unlivable. For
example, the landlord would likely be prohibited from turning the apartment
below you into a dance club or a dog kettle.
The purpose of the covenant is to protect the tenant against any act by
the landlord that interferes with the tenant's right to use and enjoy the
property. If the landlord breaches the implied covenant, the tenant may sue.
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What is the difference between a
"lease" and a "rental agreement?"
The terms are often used interchangeably. Technically, the term
"lease" is used to mean an agreement that creates a tenancy for a
fixed amount of time. The term "rental agreement" is technically
used to refer to an agreement creating a periodic tenancy. This usually
takes the form of a month-to-month tenancy.
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What is the meaning of "QUIT" on
the notice?
Simply, it means to surrender back the premises to the landlord.
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What relationships does landlord-tenant law
govern?
In general, a state's residential landlord-tenant law will cover most
tenants who rent a place to live. However, certain renters are specifically
excluded from the law. Those who are generally not covered by
landlord-tenant law are:
- Renters of a space in a mobile home park. They are usually covered by
the state's Mobile Home Landlord-Tenant law.
- Residents in hotels and motels.
- Residents of public or private medical, religious, educational,
recreational or correctional institutions.
- Tenants with an earnest money agreement to purchase the dwelling.
- Tenants who lease a single-family dwelling with an option to purchase,
if the tenant's attorney has approved the lease on it's face.
- Tenants who have signed a lease option agreement but have not yet
exercised that option are still covered.
- Residents of a single family dwelling that is rented as part of a lease
for agricultural land.
- Residents of housing provided for seasonal farm work.
- Tenants who are employed by the landlord, when their agreement
specifies that they can only live in the rental unit as long as they hold
the job (such as an apartment house manager.)
- Tenants who are leasing a single family dwelling for one year or more,
when their attorney has approved the exemption.
- Tenants who are using the property for commercial rather than
residential purposes.
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What type of criteria can a landlord use in
selecting an applicant?
Unless otherwise prohibited by federal or state laws or regulations in
publicly financed housing projects, landlords may use factors such as credit
standing, employment history, rent-income ratios, personal references and
rental history in selecting tenants.
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When do I serve the notice?
If the rent is due on the first of the month, a notice should be served on
the second. If your agreement with the tenant has a "grace
period", you must honor that period.
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When do I use a three day notice?
Any time that an action is needed against a tenant.
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When does the notice time expire?
The day after service is the first day of the three day notice. If the
notice is served on Monday the notice expires at the close of the business
day on Thursday and the tenant is in default on Friday.
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Where do I get a proof of service?
Click on Proof of service, notice. NOTE: Always keep original on file
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Who must serve the unlawful detainer (law
suit) to the tenant(s)?
Any person over the age of eighteen, sheriff/marshal, process servers. The
person perfecting service can not be a party to the action. That is to say,
the plaintiff can not serve the law suit himself, but a person or the above
not named as plaintiff can.
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Who should repair interior mold damage?
Mold is caused by a wet condition entering the premises and can be a serious
health hazard. The landlord should be made aware of this condition. In the
event that the landlord is not sympathetic, call the health department in
your county.
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Why are some unlawful detainer forms
printed upside down?
This is called tumbling. The forms that are filed with the court must be
copied in this manner. In a file folder the forms can be reviewed by court
clerks and the judge without turning the entire file around. Note: the forms
that are served to the tenant(s) do not have to tumble.
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Why are three days allowed in the
"Three Day Notice"?
This allows the tenant enough time to cure this breach (non-payment of rent) in
the rental agreement.
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Why do I use a three or thirty day notice?
The very foundation and the first building block of the eviction process and
the legal path to regaining your property back, is the three or thirty day
notice. A three day notice is primarily used for breaches in the covenant of
the rental agreement that are curable. The thirty day notice is generally
used for termination of possession.
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Laws before I
rent
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Revised:
16 Aug 2009 10:23:55 -0400
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