Help for tenants, landlords
June 23, 1997: 6:19 p.m. ET
Lawyer Janet Portman answers your questions about renting
NEW YORK (CNNfn) - Tenants love to hate their landlords, and landlords love to withhold deposits -- but it doesn't have to be that way.
Lawyer Janet Portman seeks to improve the situation, and in this round of Expert Opinion, she answers your questions about rental issues.
Portman is co-author of "Every Landlord's Legal Guide" (Nolo Press). Portman's companion book, "Every Tenant's Legal Guide," is due in September.
NOTE: Portman's answers are only general suggestions. For further legal advice, she urges you to contact an attorney.
1. How many days does the landlord have to give the tenant prior to increasing the rent? I have a month-to-month lease, and my landlord gave me only four days' notice. Is that legal?
Most states require landlords to give month-to-month tenants 30 days' notice of a rent increase. A few states (Delaware, Georgia, Tennessee and Vermont) require 60 days; Hawaii and Nevada require 45, and Idaho specifies only 15. Alabama, Colorado, Florida, Louisiana, North Carolina, Utah and Wyoming do not have state statutes governing this issue.
Chances are that your landlord's four-day notice was not sufficient.
2. My landlord requires that I pay my rent by mail, and the rent must be RECEIVED by the fifth of the month. I send my payment in every month on the first, but I get penalized two or three times a year for a "late" payment. I feel like it is factors that are beyond my control (unpredictable postal delivery and processing time by property management) that make my rent "late."
Can my landlord legally charge me a fee based on when my rent is received, rather than when it is sent?
Landlords may legally specify that rent must be received, not sent, by a certain date. (If the due date falls on a Sunday or holiday, the rent is due the next business day.) It's legal to impose a late fee on rent that is received after the due date, as long as the late fee policy is spelled out in the lease or rental agreement and the fee is reasonable (in most states, not more than 5 percent of the entire rent).
Several states do not allow landlords to begin assessing late charges until the rent is a certain number of days late, for example, nine days in Connecticut and five days in North Carolina.
If your landlord is getting the rent late because of the sluggishness of the U.S. mail, you'll have to mail it earlier. But once the check is received by the landlord's property management company, it has been "received" as far as you're concerned. If the landlord gets the funds late due to the inefficiency of the management company, it's the fault of the company, not you, and you should not be penalized.
Consider sending your rent certified, return-receipt requested. This will give you hard evidence of when the management company received the check. If they get it by the fifth but your landlord tries to impose a fee, you'll be in excellent shape to say no.
3. What would you do if a tenant has stated he does not have a pet, but later, you find there is a dog living in the rented house?
If I require an increase in deposit, and they deny they have a dog, what are my courses of action?
If your lease or rental agreement allows pets but imposes an added pet deposit, and your tenant has been untruthful and refuses to pay the deposit, you could terminate the tenancy. In most states, you'll have to give the tenant a chance (a few days) to get rid of the dog or pay the deposit (or do neither and leave voluntarily) before you file for eviction. Be sure that you have good proof that there was, indeed, a dog on the premises (such as photos and neighbors who are willing to testify in court).
Before sending your tenant a termination notice, be sure that your requested pet deposit will not run afoul of your state's security deposit laws. Many states limit security deposits to a multiple of the monthly rent (one, two or three month's rent), and include any payment, however labeled, as a deposit. If the pet deposit would put your total over your state's limit, the tenant has a right to refuse to pay it.
4. What are the screening tactics that should be done to avoid "home trashing" and the seemingly never-ending eviction process?
Carefully screening and selecting tenants is the landlord's most important act. In a nutshell, here are the basics:
- Insist that every applicant complete a rental application, giving you Social Security and drivers' license numbers, bank account numbers, current employer (and phone), current and past landlords (with phone numbers), a signed release that enables you to question their employers and bank, and a check (not more than $30) to cover the credit report you'll order.
- Call current and former landlords and ask whether the applicant paid the rent on time, was considerate and was someone to whom the landlord would rent again. If possible, visit the applicant's present rental and see for yourself how well it has been treated.
- Verify employment, salary and the applicant's reliability.
- Do a credit check to find out about prior bankruptcies and evictions.
- Verify bank account information.
- When you approve an applicant, use a lease that spells out tenant obligations and house rules and regulations, and makes it absolutely clear that substantial violations are grounds for eviction.
- Never rent to someone who needs an apartment that day; never skip previous steps listed here! Tenants who don't pay the rent and trash other peoples' property generally leave lots of evidence behind. You'll find out if you've done your screening carefully.
5. What is reasonable for a landlord to use as justification for withholding some of a tenant's security deposit once he or she moves out? For example, if there is chipping paint on the walls, is it legal or reasonable for the landlord to keep a portion of the old tenant's security deposit as payment for the "damage"?
A landlord cannot use your security deposit to cover repairs or replacements that are due to "ordinary wear and tear." If the paint has chipped because it's simply old, the landlord must pay for the repainting. On the other hand, if repainting is needed because your toddler used the wall as a blackboard, the bill belongs to you.
If your landlord deducts for an expense that you feel belongs to him (such as repainting an apartment that hasn't been touched in ten years), you can challenge the deduction in your state's small-claims court.
6. What recourse do I have if a landlord does not reimburse an unused portion of "last month's rent"? (e.g., I give 30 days' notice 7 days after paying the monthly rent, so I should be entitled to 23 days of the last month's rent that was paid upon move-in). The landlord did not provide a rental agreement on move in, so neither he nor I have signed anything.
In most states, money that a landlord collects up front as "last month's rent" is subject to the state's security deposit laws. Because you paid for all but seven days of your last month twice, you are indeed entitled to 23 days worth of rent. Your landlord must return it within the time specified by your state statute.
If the landlord holds on to the money, you'll have to go to small-claims court to get it back. You won't need a lawyer, but you should check with the court about how to file and present your case. And be sure to check the security-deposit statute itself -- in some states, you must give the landlord a forwarding address and write a demand letter before you have the right to sue.
7. Our landlord has just notified us of a 10-percent rent increase. That seems excessive. Do we have any recourse?
Unless you are covered by rent control, your landlord is free to raise the rent as high as he wishes. Of course, he must comply with notice requirements (see Question No.1 above), and smart landlords won't raise the rents beyond the market rate, but there's no law preventing a steep hike.
Your best bet is simply to ask the landlord to reconsider, in light of your (hopefully) excellent track record as a long-term tenant. Wise landlords realize that good, stable tenants are hard to find and, in the long run, result in higher profit margins than a string of short-term renters with their attendant move-in and move-out costs.
8. My landlord and I have come to a verbal agreement to terminate my lease a month early, that being June 27.
Should there be anything in writing with our signatures? I can't force him to write sign something to our verbal agreement, but I am concerned that our lease will not terminate as smoothly as he makes it sound.
You are correct to want a termination agreement in writing. It will protect you against misunderstandings or the landlord's change of mind.
If you cannot convince the landlord to sign an agreement, however, all is not lost. Simply write him a letter setting out the substance of your verbal understanding, and include the date and circumstances of the conversation. Mention that you are relying on his willingness to end the lease early -- for example, you've rented another place. Then, politely ask the landlord to respond to you promptly in writing if his recollection of your conversation and verbal agreement differs from what you have written. End by saying that if you don't hear back, you'll assume that he agrees with your version. Send the letter certified, return receipt requested, and keep a copy for your files.
Lawyers call this a "letter of understanding," and it is almost as good as a signed agreement. In most states, the law will presume that he received the letter (your receipt will nail that down), and that he read it. In addition, he's legally bound to respond if he disagrees with your version of the agreement, especially since you've told him that you are relying on his promise to let you out early.
In short, your letter will oblige him to reply and, if he doesn't, he'll have a hard time later claiming that you misrepresented the agreement.
9. Recently my landlord subdivided the lot that my rental house occupies. He sent me a letter saying that my backyard and garden "no longer exist." I have a lease and originally rented a house with a yard. Is my landlord within his legal rights to interpret my lease in this way?
No. Your landlord has violated the lease by literally removing some of the property that you pay rent for. This is a significant breach and would probably justify your moving out. If you move out and the landlord sues you for unpaid rent (or keeps your security deposit to cover unpaid rent), you can strongly defend yourself on the grounds that his breach excused you from further obligations under the lease.
You may, however, want to stay and ask for a reduction in rent. Talk to your landlord and ask that the rent be lowered in view of the loss of the yard. If he refuses and you want to stay, you should try mediation, a process involving a neutral, third party who will help you and the landlord arrive at a mutually agreeable resolution.
Many cities and counties offer low-cost mediation services, some designed especially for landlords and tenants (call your local government to find out if one is available to you). If you don't like the outcome, you can always go to small claims court, where you can ask for a court-ordered reduction in rent, both prospective and retroactive, in view of the shrinkage of the rental property.
10. My wife and I rent an apartment in a co-op building. The lease we signed looks like it is technically a sub-lease which has the co-op rules attached. Are my rights any different than "regular" renters? They told us that they will not renew our agreement because they want to sell. However, they don't have a buyer, they just want to put it on the market as a vacant apartment. Do we have any right to a renewal option in this case?
Tenants who rent in co-op buildings are just like regular tenants with one big difference: They are subject to the co-op's rules and regulations, just as the owners of their unit are. If you rented directly from the unit's owners, you have a lease (not a sub-lease) with a lengthy "addendum," or attachment, that binds you to the co-op's rules.
Your question boils down to whether your landlords can decline to renew your lease because they would prefer to show the rental to potential buyers as a vacant unit. The answer is yes, unless you have a renewal option in the lease. There is one slim hope: If you are protected by rent control, your landlord must have a "just cause," or good reason, to decline to renew (such as repeated nonpayment of rent or a relative move-in). The desire to market a vacant apartment instead of an occupied one might not constitute just cause under your ordinance.