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Eviction Procedures

Tue, 14 Oct 2008 21:30:29 GMT

Eviction is the legal process that occurs when a landlord removes a tenant from a rental unit, such as an apartment or a house. There are many grounds for eviction, some of which are governed by the terms of the lease or rental agreement, and some of which exist under state law. For instance, most written rental agreements provide for eviction in the case of non-payment of rent. A tenant can also be evicted for violating a rental agreement in other ways, such as having a pet when not allowed, making too much noise, or causing damages to the rental unit. In some cases, a landlord can even evict a tenant without cause at the end of the lease term.

A landlord starts eviction proceedings by giving written notice to the tenant that he or she needs to either move out or remedy the problem that led to the eviction. In other words, if the tenant doesn’t pay rent for the month of August, then the landlord can send him a written notice telling him that he has to either pay the past-due rent, or move out. The amount of notice that a landlord is required to give a tenant before evicting him or her can vary from three days up to thirty days or more, depending on the rental agreement, state law, and/or the grounds for the eviction. Typically, however, the eviction process is relatively fast, especially in comparison to other types of legal processes.

If the tenant doesn’t move out or remedy the problem within the period specified in the notice, then the landlord must file an eviction action in court in order to legally evict the tenant and recover any monetary losses, or damages, from the tenant. State law specifies the procedures and requirements for giving the tenant notice of the eviction. However, a landlord must use the court process in order to evict a tenant - "self-help" is not allowed, a landlord cannot simply lock a tenant out of the rental unit, remove his or her belongings from the rental unit, and/or turn off the utilities in an effort to evict the tenant. The law typically does provide a way for landlords to dispose of property that a former tenant has left behind in the rental unit, but this cannot occur until the tenant has clearly left the rental unit without intending to return.

Finally, the court process allows the landlord to recover money that is owed by the tenant for past-due rent or damages. State law, and/or the rental agreement, also determines to what extent a landlord can apply security deposit funds to pay for past-due rent or damages to the rental unit. These laws also usually outline how a tenant can go about getting his or her security deposit back after moving out, and how quickly a landlord must return all or part of the security deposit to the tenant.

For more information on eviction procedures, contact a landlord tenant attorney today.

Fair Housing

Mon, 20 Oct 2008 17:55:59 GMT

Several federal and state laws require that landlords provide fair housing to prospective renters. The policy of fair housing in the United States came from the anti-discrimination movements of the 1960s. Adequate housing is essential to a person’s ability to live comfortably and work hard. In order to contribute to society, people, regardless of their race, sex, national origin, family status, disability or religion must be able to live in safe housing.

Who Is Protected?

The U.S. government passed the Fair Housing Act in 1968. The Fair Housing Act, as amended through the years, now provides that a landlord can not refuse to rent a dwelling to an individual or family based on race, color, national origin, religion, sex, familial status (including children under the age of 18 living with parents or legal custodians and, pregnant women) and disability. The Act does have a few exceptions. For example, housing for mature adults (those ages 55 and older) may prevent families with children from living in the units if the housing meets certain requirements. Also, owner occupied dwellings that have 3 or fewer rental spaces in the dwelling may also be exempt in certain circumstances.

What Are People Protected From?

The Fair Housing Act protects the classes of people described above from the following:

The landlord may not refuse to rent a dwelling because they are in one of the protected groups of people;
The landlord may not set different terms, different rent amounts or different rental conditions based on their inclusion in one of the protected groups;
The landlord may not threaten nor intimidate anybody because of their inclusion in a protected group;
The landlord may not advertise discriminatory housing;
The landlord may not prevent a person with a disability that substantially limits a major life activity from making reasonable accommodations to the rental unit if the accommodations are necessary for the person to use the housing. Further, the landlord must make reasonable accommodations in policies and procedures for a person with disabilities. For example, a landlord would likely be required to allow a guide dog for a blind person even in an apartment building with a no pets policy. Likewise, a landlord would likely be required to provide handicapped parking spots near the building entrance if the building already includes a parking lot.

What Should a Person Do If S/he Has Been Discriminated Against?

People who allege that they have been discriminated against in violation of the Fair Housing Act can file a complaint with the Office of Fair Housing and Equal Opportunity (FHEO) which is part of the U.S. Department of Housing and Urban Development (HUD) or they can pursue their claim in Federal District Court. The U.S. Attorney General’s office can also file a lawsuit if there is reasonable cause to believe that a landlord has a pattern or practice of discrimination.

HUD is also able to provide technical assistance to landlords and to answer inquiries from concerned renters. The goal of the Act is quite simple. Nobody who can abide by the lawful policies and procedures of the dwelling and who is able to pay the rent should be denied housing because of their inclusion in a protected class of people.

For more information on fair housing, contact a landlord tenant attorney today.

Whos Going to Fix That?

Mon, 20 Oct 2008 18:55:54 GMT

One of the greatest advantages to being a renter is that the landlord is responsible for making sure that the living space is habitable. In most states this means that the landlord is responsible for all maintenance and repairs that are necessary to make sure that the housing unit meets all applicable building codes and is safe for residents.

The Landlord’s Responsibility

Building codes vary from city to city and from state to state. So, it is always important to check with your town or city and with your state building department if you have a question about the building code in your area. That said, landlords have an “implied warranty of habitability” which means that the unit must be fit for use by human beings. Often this means that the landlord must provide adequate heating equipment during cold weather, safe electricity, indoor plumbing including a working toilet, a roof that is free of leaks and windows that are not broken.

The Tenant’s Responsibility

The Tenant has three primary responsibilities when it comes to repairs on the living space. The first is to keep the dwelling clean and in good order. The second is to promptly report any repair or maintenance concerns to the landlord. If a tenant knows about a problem and fails to report it and that problem gets worse as a result then the tenant may have some responsibility for the repair. Finally, the tenant is responsible for fixing any damage which the tenant causes that is not a result of normal wear and tear from daily living. For example, if the tenant has a party and someone puts his hand through a wall or breaks a window then the tenant is responsible for fixing the damage.

It is important to note that the rental agreement which the landlord and tenant sign prior to the tenant inhabiting the rental property might provide some specific details about which party has responsibilities for which repairs. For example, the rental agreement could provide that the renter has the responsibility to fix appliances such as refrigerators and stoves. If both parties agree to it then it is likely enforceable in court.

What Happens If Either Party Fails to Take Responsibility

If a tenant fails to take responsibility then the landlord can start eviction proceedings against the tenant.

If the landlord fails to take responsibility after the tenant has notified the landlord of a problem which is within the landlord’s responsibility to fix, then the tenant may be able to make the repair and deduct the cost from his or her rent payment. It is important to be aware that this remedy is not available in every state and when it is available, its use might be limited to certain situations or to a certain number of times a year. Alternatively, a tenant might be able to get out of a lease early or withhold rent until the repair is made. It is advisable for a tenant to speak with a local attorney before taking any of these remedies, however. That way, the renter can be sure that the repair is, in fact, the landlord’s responsibility and that his or her actions are consistent with state law.

For more information on landlord and tenant responsibilities, contact a landlord/tenant attorney today.

Do I need to have a lawyer if Im being evicted from my rented house or apartment?

Mon, 10 Nov 2008 19:18:01 GMT

If your landlord wants to evict you from your house or apartment, he or she must file a complaint against you in court, and prove that you have done something to violate your rental agreement. There are many rules and procedures that landlords must follow in order to pursue an eviction against you, which vary from state to state. In some states, evictions are filed in small claims court, which is a very user-friendly court for not only lawyers, but also for non-lawyer landlord and tenants. For this reason, it is quite common for both landlords and tenants in these states to be involved in eviction proceedings in small claims court without lawyers.

In many states, however, evictions are filed in regular courts, which are governed by various rules and procedures under your state’s particular laws. When appearing in such a court for an eviction or any other lawsuit, you are held to the same standard as a lawyer. In other words, you are responsible for following all procedures, just as if you were a lawyer. For example, if you don’t know how to properly admit a document into evidence during the eviction proceedings, then the judge might not allow you to present the document at all, no matter how important it may be to your case.

As previously stated, landlord have to follow certain rules for evicting you. For instance, if a landlord doesn’t properly serve you with notice of the eviction proceedings, then the court shouldn’t evict you. If you’re not a lawyer, you might not be aware of these rules, and your landlord may get away with wrongfully evicting you. A judge can’t give you legal advice about how to handle an eviction, so you’re totally on your own if you don’t know what to do in court.

Plus, even in states where evictions occur in small claims courts that are designed for non-lawyers, they still have rules that you have to follow. For instance, if your landlord is claiming that you broke your rental agreement by having a pet in your apartment, you need to show the court some proof that you didn’t have a pet in the apartment. You might need a witness to testify that you didn’t have a pet, or pictures to show that there was no pet-related damage to the apartment. A lawyer can help you prepare your case in order to avoid being wrongfully evicted, by using procedures and laws that might be unfamiliar to a non-lawyer.

Perhaps most importantly, if you are being evicted, you and/or your family are losing your home. You are not only facing trying to find another place to live, but also the costs of moving, disconnecting and reconnecting utilities, and a security deposit, among others. Therefore, eviction proceedings can be really important, especially if you don’t think that you have violated your rental agreement, or if you think that your landlord is wrongfully evicting you. The best way to be prepared for eviction proceedings is to consult experienced legal counsel especially when your home is at stake.

Can I Sublet My Apartment?

Thu, 20 Nov 2008 01:27:27 GMT

Many written lease agreements are for a one year period. A tenant may have every intention of remaining in the dwelling for one year at the time that the lease is signed, however, sometimes circumstances change. For example, the tenant may take a job in a new city, lose his job and be unable to make rent payments, get married or relocate to care for a sick relative. If any of those situations, or countless other situations, arise then the tenant may wish to sublet his apartment in order to make sure that the rent is paid for the remainder of the lease period.

If a tenant is interested in subletting then there are two things that the tenant must consider before approaching the landlord about any subletting arrangement. Specifically, the tenant should be aware of any city or state laws regarding subletting and the specific terms of the lease.

Does your City or State Have Laws About Subletting?

Some jurisdictions, such as New York City, have regulations about subletting. In New York City a tenant is able to request permission to sublet from the landlord and the landlord may not unreasonably refuse that request. For example, the landlord could refuse to agree to the sublet arrangement because the subletter has a poor credit history or is unemployed. However, the landlord could not refuse to sublet because he didn’t want to deal with the hassle of subletting or because he didn’t like the subletter’s religion or race.

Other cities and states have similar laws about subletting. In Illinois, for example, if the lease is silent on the topic of subletting then the tenant may sublet without the landlord’s consent. If the lease allows subletting with the landlord’s consent then that consent cannot be unreasonably withheld.

What Are the Terms of Your Lease?

Your lease may have specific terms in it about subletting. For example, it might require that you provide your landlord with a certain amount of notice. If you have roommates and you are all on the lease then the lease may require the approval of the other roommates.

If you do decide to sublet then it will be important to enter a written agreement with the person to whom you are subletting. The agreement should specify who will be responsible for which expenses including the amount of the rent to be paid by each party and the utility bills. It should also be specific as to the duration of the agreement and the notice that will be required to terminate the agreement.

Most landlords have two concerns about the properties that they rent. First, they are concerned that the properties remain in good condition and second, they are concerned about collecting the rental payments. If you can provide information to the landlord that assures the landlord that the person to whom you want to sublet can keep the property in good condition and pay the rent in full and on time then the landlord will likely want to work with you and approve the sublet agreement.

The Legalities of Living with a Roommate

Thu, 20 Nov 2008 01:29:16 GMT

Living with a roommate can make good financial sense and be a lot of fun. However, like all relationships, there are times when having a roommate does not work out as it was planned. A roommate might stop paying his or her part of the rent or the utility bills or the roommate may damage the dwelling or create problems with the neighbors. What do you do then?

Before you decide how to proceed when your roommate defaults on a responsibility, it is important to think about the financial consequences the default could have for you. If your name is on the lease or utility bill that is not being paid then it can negatively affect your credit score which could have a significant impact on your future ability to borrow money at reasonable interest rates.

When a Roommate Leaves

If you and a roommate enter a lease and you both sign it the presumption is that you are going to each pay a portion of the rent. However, if one roommate leaves the lease early the other roommate is still responsible for paying the rent to the landlord on time and in full. That said, the roommate who leaves still has contractual obligations pursuant to the lease. The landlord could pursue the leaving roommate if the roommate who stays does not pay the rent in full.

Further, the roommate who stays can pursue the roommate who leaves for his or her portion of the rent in small claims court or another venue. If the roommate who remains decides to try and recover rent payments from the roommate who leaves then the roommate who stays is under an obligation to try and find another roommate and to mitigate her damages. Likewise, unless the lease expressly prohibits subletting, the roommate who leaves could find a replacement roommate to live in the dwelling. The roommate who remains would not have the right to choose this roommate and could end up living with someone whom he or she does not like.

Adding a Roommate to your Lease

Often, tenants sign a lease for a one year period. Personal circumstances can change during that time and for financial or personal reasons a tenant may wish to live with a roommate.

If you anticipate that you might wish to add a roommate in the future then it is important to make sure that your lease does not prohibit that at the time that you sign it. Assuming that your lease allows you to take in a roommate, it will be important for you to make sure that the roommate’s name is added to the lease so that the roommate is legally responsible for the rent, along with you, and so that if the roommate defaults on his or her rent you can try to recover the money.

In order to minimize your financial exposure and legal liability, it might make sense to limit the number of bills that are shared by you and your roommate. For example, you might wish to forgo a traditional phone line and only use your individual cell phones. However, some things such as heat, water and electricity will need to be shared responsibilities.

When things go right, living with a roommate can be financially prudent and a lot of fun. However, it is important to recognize that circumstances might change and leave you with or without a roommate during your lease period. Therefore, it is important to protect yourself to the greatest extent possible.

The Advantages and Disadvantages of Oral Leases

Thu, 20 Nov 2008 01:30:09 GMT

Leases, like many contracts, do not have to be in writing. The landlord and tenant can agree to the terms of the lease contract orally and that contract is binding on both parties. However, there are advantages and disadvantages to entering a lease without a written contract that both the landlord and the tenant should be aware of before reaching a binding agreement.

The Disadvantages of an Oral Lease

Without a paper copy to look back on, it can be very difficult to determine what the terms of the lease are at a later date if the landlord and the tenant have a misunderstanding about the lease terms. For example, if an appliance breaks in the dwelling both parties may, in good faith, believe the other party to be responsible for its repair. However, without a written lease to look back on it is hard to tell which party had a correct recollection of their oral lease agreement.

Other situations may arise when one party does not act in good faith and tries to manipulate or change the contract to their advantage because there is no written record of it. For example, a tenant who entered a 12 month lease with the landlord and in month 5 has decided to relocate to another city may try and claim that the lease was a month to month agreement and not for a full year. Without a written lease as confirmation, it could be difficult for the landlord to prove that the lease was in fact for a one year period.

The Advantages of an Oral Lease

Oral leases can be easy to modify and easy to change on short notice. So, if the parties do agree to a month to month lease, the tenant can simply pick up the phone a month before he wishes to move and inform the landlord. Similarly, the landlord can evict the tenant in an oral month to month lease by telling him that he has 30 days to vacate the property. It is easy to do and does not require cause or any other conditions that are common in a written lease.

Oral leases may also be advantageous to tenants for another reason. Many written leases favor landlords. Written leases tend to contain more provisions, qualifications and responsibilities. Oral leases tend to be simpler and easier to understand.

Whether you decide to enter an oral or a written lease is a matter of personal preference for both you and your landlord. However, you should be aware that an oral lease can leave you vulnerable and is usually open to interpretation. Most landlords will prefer that a written lease be signed, especially if they are in the business of renting out more than one dwelling.

So, while oral leases are usually enforceable they may not be desirable. It is important to remember that written leases can be negotiated if there are terms in the original draft with which you are not comfortable and a written lease can give you a definite and permanent record of your agreement with your landlord should any issues later arise.

How to End a Residential Lease Early

Thu, 20 Nov 2008 01:31:44 GMT

Most written residential leases are in effect for a set amount of time such as one year. From a landlord’s perspective this is advantageous because the landlord does not have to think about finding another tenant during the lease term. However, while a tenant may intend to remain in the dwelling for the duration described in the lease, circumstances might change. For either professional or personal reasons, the tenant may wish to break the lease in order to relocate to a new location.

The first thing that you should do if you have a written lease that you wish to end prior to the end of the lease term is to carefully review the lease. Your responsibilities to the landlord for ending the lease term early will be governed by the written lease.

Some leases have provisions for early terminations that allow the tenant to end the lease early but require the tenant to pay a fee for leaving and ceasing to pay rent prior to the end of the agreed upon lease term. Some leases will allow early termination for any reason as long as the tenant pays the required fees. Other leases only allow early termination in certain situations such as being called to active duty military service or if the tenant needs medical treatment in a different location.

A lease might also allow the tenant to sublet the apartment to another tenant and provide specific provisions on how that may be done. It is the tenant’s responsibility to find someone else to sublet the apartment and it is the tenant’s responsibility to make sure that the rent is paid. However, it is to both the tenant and the landlord’s advantage to make sure that there is subletter in place who can pay the rent for the duration of the lease.

Sometimes, a tenant might wish to break the lease not because of he or she is relocating but because there have been problems with the dwelling that remain unresolved by the landlord. Different states have different laws about whether a tenant can withhold rent if a landlord fails to make necessary repairs after proper notice has been provided by the tenant to the landlord about the need for such repairs. If you wish to break the lease because the dwelling is not habitable it is important that you keep good documentation of all of the repairs that need to be done. That means that you should take pictures of any items that need repair, copies of any correspondence that you have with the landlord with regard to the problems and potential repairs and copies of any work orders for requested repairs.

If you think that your landlord is unlikely to agree to an early termination of your lease or to a subletting arrangement then it might be useful to speak with an attorney. Also, while it is never desirable and often not financially feasible, a renter has the right to vacate the property and to live somewhere else so long as the renter continues to make the required rent payments.

There are many factors to consider when you are looking to end a lease early. You can best protect your rights and financial interests by understanding the options available to you in order to legally end the lease term early.

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Free Landlord/Tenant Articles | Free Landlord/Tenant Legal Articles

Eviction Procedures

Fair Housing

Whos Going to Fix That?

Do I need to have a lawyer if Im being evicted from my rented house or apartment?

Can I Sublet My Apartment?

The Legalities of Living with a Roommate

The Advantages and Disadvantages of Oral Leases

How to End a Residential Lease Early

Free Landlord Tenant Law Articles

Free Rental Discrimination Articles

Free Rights for Tenants Articles

Free Terminations and Evictions Articles

Whos Going to Fix That?

Do I need to have a lawyer if Im being evicted from my rented house or apartment?