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Tenant Rights Guidebook
SECTION 3
Leases
A lease is a contract between landlord and tenant which contains the terms and conditions of the rental. It cannot be changed while it is in effect unless both parties agree.
Unless the lease states otherwise, the landlord is obligated to deliver possession of the apartment to the tenant at the beginning of the tenancy. If the landlord fails to do so, the tenant generally has this right to cancel the lease and obtain a full refund of any deposit.
Tenants are entitled to receive from their landlords a fully executed copy of their signed lease no more than 30 days after the tenant signs the lease. The lease's beginning and ending date must be stated.
Leases must use words with common and everyday meanings and must be clear and coherent. Sections of leases must be appropriately captioned and the print must be large enough to read easily.
A lease is a legally binding contract between a landlord and a tenant which grants the tenant possession and use of the landlord's property for a given period of time. The lease sets forth the terms of possession, such as rent, length of time of possession and rules governing tenancy. The lease may also require the payment of attorney's fees in some circumstances. Once a lease is signed there is no grace period to back out of the lease. Probably the most important advice to be given in resolving landlord/tenant disputes is that both parties read the lease carefully.
Written Leases
Be alert to clauses in written leases which require the tenant to give up certain rights. For example, a clause which allows the landlord to evict a tenant for nonpayment of rent without the appropriate and timed notice. In most states, the notice to evict for non-payment must include a certain number of days by law in which the tenant may pay the rent or vacate the premises and this timed notice period cannot be waived by a tenant or lease or any other agreement. Other questionable clauses may only be determined unenforceable by a court. If any party has a question concerning the enforceability of a term of a lease legal advice should be sought from a legal expert.
Multiple Tenants
When more than one tenant signs a lease for a particular residence, each tenant is responsible for all of the conditions of the lease. For example, each tenant is individually responsible for all of the rent and all of the damages regardless of the means the tenants use to divide the rent between themselves and regardless of which tenant actually caused the damage. this is called "joint and several liability." If one person does not pay the rent, the other tenants are liable for payment of that person's share or they are all subject to eviction for nonpayment of rent. It is up to the other tenants, not the landlord, to collect from the nonpaying tenant. By the same token, if one tenant damages the premises, the landlord may deduct the damages from the tenant who caused the damage or the landlord may choose to deduct money from all of the tenants' deposits.
For better self protection, it can be useful for tenants to execute a "roommate agreement" which spells out tenants' obligations to one another such as what portion of rent each will pay, responsibility for damages, division in payment for utilities, duration of the rental period, responsibility for finding a replacement tenant upon early termination and payment of rent until a replacement is found. A roommate agreement is not binding on the landlord.
SECTION 4
Termination & Eviction
Termination
If a lease has a date of termination or a definite term and if there is no mention of a requirement to give notice of termination, then the lease expires and the tenant is responsible to leave the premises on the date or at the end of the term stated. The landlord is under no obligation to automatically renew the lease with the tenant. If a lease does require that a tenant give notice of termination prior to the stated expiration of the lease, then the specified amount of notice must be given before a tenant is free and clear of his/her obligation. Many leases contain hold-over clauses which allow the tenant to continue the tenancy on a month-to-month basis following the expiration of the initial term of the lease. The lease should be consulted carefully to determine all termination and hold-over provisions.
Month-to-Month Lease
A month-to-month lease is a rental agreement for a one month (30-day) period which is renewed automatically each month for another month until properly terminated by either party. If someone previously had a lease which was not renewed, but the individual remained a renter then the lease is considered to have roll-over into a month-to-month lease. The terms for termination and some other rights and obligations established in the expired written lease may still be applicable unless altered with the knowledge of all parties.
A tenant may give written notice of intent to terminate by mailing or hand delivering a copy to the landlord. To terminate a month-to-month lease, generally, a written notice of intent to terminate must be given at least 10 days before the last day of the rental month which has already been paid, that is, 11 days prior to the next rental payment due date. In a written lease for example, start from the day when the rent is due then count back 10 days.
In a written lease, it is acceptable to require a longer period of time for notice to terminate as long as this time period is noted in the lease. A common practice is for a written lease to require a 30-day notice. The failure of either party to provide proper written notice will obligate both parties to another month's tenancy.
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Eviction
To evict a tenant a landlord must sue in court and win the case. Only a sheriff, marshal, constable or other court-appointed official may carry out a court -ordered warrant to evict a tenant.
A landlord may not take the law into his/her own hands and evict a tenant by use of force or unlawful means, For example, a landlord may not use threats of violence, remove a tenant's possessions, lock the tenant out of the apartment, or willfully discontinue essential services such as water or heat. When a tenant is evicted, the landlord generally has no right to retain the tenant's personal belongings or furniture. Editorial Note: Always consult an attorney or legal expert to protect your legal rights if your landlord seeks possession of your apartment. Never ignore legal papers.
Unlawful Evictions
In some municipalities and/or states there are unlawful evictions laws, making it illegal for any person without a court order to evict, or attempt to evict, a tenant who either has a lease or has lawfully occupied a dwelling unit for thirty or more consecutive days.
Subtenants, roommates and relatives are also generally protected by these unlawful eviction laws. These occupants do not have to be on the lease or have made direct payments to the landlord to be protected. He or she, however, must have lived there for at least thirty consecutive days.
Through police intervention, possible arrest, and the imposition of substantial criminal and civil penalties, the law discourages unlawful evictions. Illegal evictions or lock-outs are a fast and effective means of displacement of tenants by owners. Unlawful evictions law is designed to deter such unlawful abuse. Given the shortages of available housing in some areas and the conditions of the housing stock, landlords who deny due process to tenants and evict without a court order, deprive people of a very basic human need-affordable housing.
In areas where such laws exist, before filing a suit to evict a tenant for nonpayment of rent, the landlord must post a written, signed demand giving the tenant the choice of either paying the past due rent or moving out within a specified (by law) period of days or hours. The notice must be posted in a conspicuous place on the premises. After the notice has been posted and if the tenant has not paid the rent or moved out within three days, the landlord need not accept the rent and may file an eviction suit. The start of the time limit begins running at the date and time the demand notice is posted, not when the tenant discovers it posted. Also the time continues to run regardless if it is a Saturday, a Sunday or a Holiday. The tenant's legal right to this timed notice prior to eviction for nonpayment of rent cannot be overruled even if the lease states otherwise.
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Lease Violations
Before filing a suit to evict a tenant for noncompliance with lease conditions, in most states, the landlord must post a written, signed demand in a conspicuous place for delivery of possession of the premises. The notice must state the reason the landlord believes the tenant is in violation of the lease and give the tenant a certain number of days or hours (fixed by law) to either move out voluntarily or correct the violation. (Note: Noise violations are particularly difficult issues for both landlords and tenants regarding eviction.) After the written notice has been posted and if the tenant has not moved out by the end of the fixed period and has not corrected the violation, the landlord may file an eviction suit.
If a tenant leaves the premises before the end of the lease term in compliance with a landlord's demand to vacate, the tenant may still be responsible to pay rent.
Roommate problems
Where a problem arises in a roommate situation, eviction of one or more roommates can be done by the landlord. The landlord can serve the tenant by posting an appropriate and lawful notice, which includes the legal time remedial time period, on the premises or by leaving a copy with a resident in the household over the age of 18. In addition, the landlord must send the summons and complaint in the mail the following day. If service is by posting, a copy must be mailed the next day.
Editorial Note: Where confusion exists regarding legal rights and responsibilities by any of the roommates, always seek legal advice.
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Eviction Procedure
Eviction Notice
If the proper legal written notice has been given to the tenant, the tenant should immediately call the landlord, and/or legal counsel to attempt to resolve the issues, or comply with the lease (if the eviction is for breaking a clause of the lease, e.g., non payment of rent, noise, pets, guests). If the situation has not been remedied within the legal time period, the landlord may generally initiate an eviction suit under a specific procedure set forth by laws of the appropriate state.
The landlord may not lock the tenant out of the premises, shut off the utilities or forcibly move the tenant or his/her possessions out of the building. Once the landlord has obtained a court order for eviction an officer of the court may be called in by the court to perform such functions.
Lockout
Any form of action by a landlord, including locking a tenant out of the premises, physical contact or intimidation which is not permissible should be reported to the police. If a tenant is locked out, the tenant may not force their way back into the premises. (Note: A tenant should seek the help of law enforcement officials and/or legal advice prior to attempting to re-enter the premises on their own).
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SECTION 5
Legal Help & Attorney's Fees
Many leases provide that landlords are entitled to collect attorneys' fees from tenants. Under this provision, tenants who successfully sue their landlords automatically have the same right to recover reasonable attorneys' fees and expenses from the landlord whether the lease says so, or not.
Legal Services/Aid
A local community organization may not only be of help in dealing with the police, but may also help in obtaining legal representation from a legal services or a legal aid provider. The organization might be familiar with the offending landlord and be able to pressure him to put the tenants back into their apartment.
Housing attorneys for low income tenants consider an illegal lockout a priority for tenant representation. The legal representative or the locked-out tenant must file an Order to Show Cause and supporting affidavit to recover possession of the apartment. Currently, motions for possession are not routinely given priority attention in most city's housing courts. Delays pose a danger in that they could give the offending landlord an opportunity to re-rent the apartment before the locked-out tenant has the chance to get an Order of Possession from the court. All orders to show cause should ask the judge to stay the landlord from re-renting the apartment until the case has been resolved.
Private Attorneys
Tenants who are not eligible to be represented by legal services or legal aid, should consider hiring a tenant attorney or other legal expert. The relatively high cost of representation is generally outweighed by the permanent loss of the tenant's long term, affordable home and the cost of finding and paying for a new, and inevitably a more expensive, apartment.
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SECTION 6
Harassment & Discrimination
Harassment
Landlords are prohibited from harassing or retaliating against tenants who exercise their rights. For example, landlords may not seek to evict tenants solely because tenants (a) make good faith complaints to a government agency about violations of any health or safety laws; or (b) take good faith actions to protect rights under their lease; or (c) participate in tenants' organizations. Tenants may collect damages from landlords who are applicable under and violate this law.
Landlords sometimes harass tenants in retaliation against those who have asserted their rights by complaining about a lack of required services or repairs in the building. No landlord, or any party acting on his behalf, may interfere with the tenant's privacy, comfort, or quiet enjoyment of the apartment.
Various statutes define harassment as a continuous course of conduct by a landlord, or his agents, designed to cause a tenant to unwillingly vacate his apartment or waive rights granted him by law.
The following acts constitute acts of harassment:
- physical abuse
- verbal abuse
- arson
- purposeful and continuous denial of services
- multiple instances of unwarranted litigation.
Right to Privacy
Tenants have a right to privacy within their apartments. However, a landlord may enter a tenant's apartment with reasonable prior notice, and at a reasonable time: (a) to provide necessary or agreed upon repairs or services; or (b) in accordance with the lease; or (c) to show the apartment to prospective purchasers or tenants. In emergencies, such as fires, the landlord may enter the apartment without the tenant's consent.
However, a landlord may not abuse this limited right of entry or use it to harass a tenant.
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Tenants' Organizations
Tenants have a legal right to organize. They may form, join, and participate in tenants' organizations for the purpose of protecting their rights. Tenants' groups have this right to meet at reasonable hours in any common area in their building, such as lobbies and halls.
Landlords may not harass or penalize tenants who exercise this right.
Tenants victimized by harassment may file a complaint with their appropriate state and local human services and or housing officials specifically designated to enforce this area of the law.
It is almost always preferable for a tenant association, or a group of tenants if they are involved, to file a harassment complaint rather than an individual tenant; such a complaint will have a greater impact on both the officials and the landlord. It may also deter the landlord from targeting any one tenant for retaliation. Successful resolution of the complaint depends on establishing evidence of a pattern of harassment by the landlord which makes it clear that he intends to force the tenant or tenants to move out or give up rights.
Documentation is important in establishing such evidence which might include records of statements made by the landlord as well as correspondence and other forms of communication.
Tenants should have an attorney or legal expert; those who are income eligible should seek assistance from a legal services or legal aid office.
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Discrimination
Landlords may not refuse to lease accommodations to, refuse to renew leases of, or otherwise discriminate against any person or group of persons because of race, creed, color, national origin, sex, disability, age or marital status.
In some states and cities, landlords may not refuse to lease an apartment solely for residential purposes or discriminate in the terms and conditions of the rental because of a person's lawful occupation.
There are city, state and federal fair housing laws that prohibit discrimination and promote equal housing opportunity.
The law prohibits housing discrimination because of actual or perceived race, color, national origin, sexual orientation, religion, disability, gender, marital status, alien status, citizenship status, age, lawful occupation, or because children may be, are, or will be in residence. The widespread practice emphatically forbidden under the law is the refusal to rent, sell, or approve the sale or rental of a housing accommodation because the prospective tenant or purchaser happens to belong to one of the a protected class listed above.
Additionally, other unlawful housing practices and behavior include offering services in exchange for sexual favors, use of discriminatory slurs and epithets, racial steering, blockbusting and discriminatory mortgage or home improvement lending. The law also may require that landlords make reasonable accommodations to the needs of the disabled, such as: building ramps, making kitchen cabinets and closets accessible, and widening doorways and passageways.
Complaints alleging discriminatory practices should be filed with the state and/ or local human rights agency or commission, or other human rights officials.
Tenants should have an attorney or legal expert; those who are income eligible should seek assistance from a legal services or legal aid office.
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SECTION 7
Rent
Security Deposits
Most leases require tenants to give their landlords a security deposit. The security deposit is generally limited to one month's rent. The landlord must return the security deposit, less any lawful deduction, to the tenant at the end of the lease or within a reasonable time thereafter. A landlord may use the security deposit only: (a) as reimbursement for the reasonable cost of repairs beyond normal wear and tear, if the tenant damages the apartment; and (b) as reimbursement for any unpaid rent.
The law requires all landlords, regardless of the number of units in the building, to treat the deposits as trust funds belonging to their tenants. Landlords are prohibited from mingling the deposits with their own money. Landlords of certain multiple dwelling buildings must put all security deposits in bank accounts earning interest at the prevailing rate. Each tenant must be informed in writing of the bank's name and address and the amount of the deposit. Landlords are entitled to annual administrative expenses of 1% of the deposit. All other interest earned on the deposits belongs to the tenants. Tenants must be given the option of having this interest paid to them annually, applied to rent, or paid at the end of the lease.
Return of Deposit
The tenant should notify the landlord, in accordance with the lease and in writing, if they will not renew the lease. A vacate date should be given. At the same time, the tenant should also include a demand for the return of the security deposit and reminding the landlord of apartment conditions that pre-dated the occupancy if they still exist.
If the tenant fails to notify the landlord of intention to vacate, especially if the vacate date does not correspond with the lease termination date, it will be easier for the Landlord to refuse to return the rent security deposit. At any rate, landlords will almost never return a rent security deposit until after the tenant has vacated.
Many landlords will simply ignore a tenant's demand to return a deposit. They know that the burden to act will fall on the tenant, and that the tenant, either not knowing his rights, or out of fear, or apathy, often will do nothing further. Experienced tenants anticipate when the landlord may not return a deposit and counter by 1) demanding that the landlord inspect the apartment with the tenant at the point of move-out, and return the deposit at the time of inspection if satisfactory, or 2) not paying the last month's rent. this practice is not authorized by the lease or the law, but does serve to circumvent the loss of the deposit by placing the burden on the landlord to sue to collect the last month's unpaid rent from a tenant no longer in occupancy. However, this practice has a potentially serious downside. The tenant cannot safely use that landlord as a credit reference when trying to rent another apartment.
Editorial Note: Most laws affecting security deposits in are not protective enough. It is simple for landlords to abuse them without penalty. Some landlords treat security deposits as their own money, never to be returned to the tenant unless forced to do so.
Rent Receipts
Landlords must provide tenants with a written receipt when rent is paid in cash, a money order, a cashier's check or in any form other than the personal check or a tenant. The receipt must state the payment date, the amount, the period for which the rent was paid, and the apartment number. The receipt must be signed by the person receiving the payment and state his or her title.
Rent Increases
Leases must specify the amount of rent to be paid. Under most states' laws, there are laws which protect against rent "gouging", and some states also have rent "control" and/or rent "stabilization" laws which govern the rent amounts which may be charged during the lease period, and once the lease has expired.
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SECTION 8
Sharing & Subletting
Sharing
Most municipal zoning and land use regulations determine the number of people that can legally occupy a unit. Landlords may limit the total number of people living in an apartment to comply with legal overcrowding standards. In addition, Federal and State laws also determine the number of people that can occupy units governed under certain Federal and State programs. Over-occupancy of a unit may result in civil and/or criminal prosecution of either the landlord, the tenant, or both.
Unless prohibited by Federal, State or other municipal law, it is unlawful for a landlord by a lease clause to restrict occupancy of an apartment to the named tenant in the lease or to that tenant and immediate family (within legal occupancy limits). When the lease names only one tenant, that tenant may share the apartment with immediate family, one additional occupant and the occupant's dependent children.
When the lease names more than one tenant, these tenants may share their apartment with immediate family, and, if one of the tenants named in the lease moves out, that tenant may be replaced with another occupant and the dependent children of the occupant. At least one of the tenants named in the lease or that tenant's spouse must occupy the shared apartment as his or her primary residence.
Subletting & Assigning
Subletting and assigning are methods of transferring the tenant's legal interest in an apartment to another person. A sublet transfers less than the tenant's entire interest while an assignment transfers the entire interest. A tenant's right to assign the lease is much more restricted than the right to sublet.
If subletting is permitted under Federal, State or other municipal laws governing occupancy, a tenant may not assign the lease without the landlord's written consent. The landlord may withhold consent without cause. If the landlord reasonably refuses consent, the tenant cannot assign and is not entitled to be released from the lease. If the landlord unreasonably refuses consent, the tenant is generally entitled to be released from the lease after 30 days notice.
Unless prohibited by federal, state or other municipal laws, tenants with leases who live in buildings with four or more apartments have this right to sublet with the landlord's advance consent. The landlord cannot unreasonably withhold consent.
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SECTION 9
Security & Pets
Security
Tenants who are victims of crimes in their building or apartment, and who are able to prove that the criminal took advantage of the landlord's failure to make the building reasonably safe, may be able to recover personal and property damages from the landlord.
Most modern multiple dwellings must have automatic self-closing and self-locking doors at all entrances. These doors must be kept locked at all times -- except when an attendant is on duty. Certain multiple dwelling buildings must also have a two-way voice intercom system from each apartment to the front door and tenants must be able to "buzz" open the entrance door for visitors. Certain multiple dwellings also must have self-locking doors and a two-way intercom system if requested by a majority of the tenants. Landlords may recover from tenants the cost of providing this equipment.
Tenants in multiple dwellings may install and maintain their own locks on their apartment entrance doors in addition to the lock supplied by the landlord. The lock may be no more than three inches in circumference, and tenants must provide their landlord with a duplicate key upon request. In most multiple dwellings, the landlord must provide a peephole in the entrance door of each apartment.
United States Postal regulations require landlords of buildings containing a certain number of apartments to provide secure mail boxes for each apartment unless the management has arranged to distribute the mail to each apartment. Landlords must keep the mail boxes and locks in good repair.
Landlords of multiple dwellings in most municipalities must install one or more approved smoke detectors in each apartment, within 15 feet of any room used for sleeping. Tenants should test their detectors frequently to make sure they work properly, and, if battery operated, replace batteries as needed.
Landlords of multiple dwellings in most large urban municipalities must install government approved window guards in each window in any apartment where a child ten years old or younger lives. Also, landlords are required to install window guards if the tenant requests them. Certain windows are excluded. Tenants may be charged for these guards. Landlords must also protect against the possibility that children will eat peeling paint chips containing dangerous lead based paint. Landlords must remove or cover apartment walls and other areas painted with lead based paint. The law presumes that lead based paint was used if the paint is peeling in an apartment in a building built prior to January 1, 1960.
Pets
Tenants may keep pets in their apartments if their lease permits pets or is silent on the subject. Landlords may be able to evict tenants who violate a lease provision prohibiting pets. Tenants who live in certain types of government subsidized housing are permitted under Federal law to have pets, and tenants who are blind or deaf are permitted to have guide dogs regardless of a no-pet clause in their lease.
Exception
If the household pet causes damage to the dwelling unit or building, creates a nuisance or interferes substantially with the health, safety or welfare of other tenants or occupants of the same or adjacent building or structure, the pet must be removed or its owner may face a judgment to dispose of the pet or be evicted.
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SECTION 10
Other Tenants' Rights
Sale of Rental Property
When rental property is sold, the new owner is subject to all rental obligations of the previous owner unless the lease provides otherwise. The new owner may increase the rent or change other lease terms only upon the expiration date of the existing lease.
Landlord's Negligence
Lease provisions which exempt landlords from liability for injuries to persons or property caused by the landlord's negligence -- or that of his employees -- are null and void.
Tenants' Personal Property
The landlord is not responsible for damage to the tenant's personal property unless such damage was caused by his/her negligence. A tenant should purchase renter's insurance to protect his/her personal property.
In certain situations a landlord may place a lien on some items of a tenant's personal property for past due rent. Prior to taking such action, the landlord should seek legal advice from an attorney as s/he could be liable to the tenant for actual punitive damages if a lien is improperly exercised. If property has been seized, the tenant should seek legal advice and assistance, and document in writing the property taken as well as keeping all written notices received from the landlord.
Constructive Eviction
Unless otherwise expressly agreed, there is an implied agreement in every lease for real property that the landlord will refrain from acts or omissions which interfere with the tenant's right of peaceable enjoyment of the premises. If this implied agreement is violated by the landlord, either by act or by omission, resulting in the premises becoming legally uninhabitable, the tenant may vacate the premises, terminate the lease, and owe no further rent. To exercise this remedy, the tenant must abandon the premises. Before the tenant is justified in moving out, the landlord must also have been given notice of the problem by the tenant and a reasonable time in which to remedy the situation.
Editorial Note: Tenants should always get legal advice from an attorney or other legal expert prior to exercising this remedy. Only in extreme conditions may a tenant vacate the premises and stop paying rent. This remedy should never be attempted without first talking to an attorney or legal expert.
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Conclusion
In general, both landlords and tenants should keep good records, including copies of notes, letters and photographs make all agreements specific, and keep them. Both should make an effort to communicate with each other and try to understand each other's point of view. Strive to make the landlord-tenant relationship work in a context of what is reasonable, fair, and respectful of the needs of both parties.
If problems arise, every effort should be made to negotiate a settlement. Try direct negotiation, and if that fails, go to mediation as the next best alternative. Mediation is an assisted negotiation process in which a neutral mediator helps the parties communicate and listen to each other's point of view, develop a list of issues to be resolved, and negotiate a settlement that meets both parties' needs. Settlement agreements should be in writing and signed by both parties.
Prevention is the best assurance for a fair, reasonable and respectful landlord-tenant relationship. Both parties should carefully screen and research each other's real estate and financial histories. The landlord should prepare, and the tenant should read and understood, a legal and binding lease agreement. Taking the time and effort to be absolutely sure that both tenant and landlord completely understand and are satisfied with the proposed real estate transaction ---before signing any leases or other binding legal agreements and/or taking occupancy --- will go a long way to prevent costly, stressful problems for both parties later on.
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