Apartment Management Magazine Landlord / Tenant Law “Q&A” With Kimball, Tirey & St. John

By Ted Kimball, Esq., Partner, Kimball, Tirey & St. John LLP

• Question. If a tenant is evicted, does he lose his security deposit?

Reply. Even if a tenant is evicted, he is still entitled to an accounting of the use of his security deposit. The deposit can be used for cleaning, repairs and overdue rent.

• Question. Does a resident have to stay in their apartment for a certain number of days per month for their lease to remain in effect?

Reply. Unless the lease requires actual possession.

• Question. Our new residents, who are college kids, drive the neighbors crazy with their party, and they only have one month in their one-year lease. What type of notice should I serve?

Reply. If the disturbance is major and ongoing, or if the police need to be called, you may be able to serve three days’ notice based on the nuisance and initiate the inmate’s illegal action if they do not leave under the notice.

• Question. Can I ask the resident to pay more deposit to make up the difference from the rent increases?

Reply. You can unilaterally change the terms of a monthly agreement by properly serving thirty (30) days notice of changing the rental conditions. This cannot be done with a fixed term lease. You will have to wait for the expiry of the lease, then, when renewing (or when the rental goes from month to month), ask for an addition to the deposit.

• Question. I am renting a house from a married couple. I found that they now had a third person living with them. Can I raise the rent, tell them they have to sign a new lease if they want an extra person, or can I say they can’t have additional people in the house since only two people signed the lease?

Reply. If your lease limits the number of occupants and the tenants have exceeded the limit, this is considered a breach of the lease and can be corrected by serving three days’ notice to fulfill the conditions and / or commitments or to vacate. Alternatively, you can invite the third party to complete an application, if they are qualified, and add their name to the lease.

• Question. Do we have to take pictures of the apartment before a new resident settles in?

Reply. While there is no legal obligation to take photos before a tenant moves in, it’s a very smart thing to do, especially when comparing your photos of what the premises looked like when the tenant moved in. moved. This allows the judge to easily see the damage. Just make sure your photos are dated, including the time of day, and are of good quality. Many owners also prepare a written statement of the condition of the unit.

• Question. We have posted no smoking signs in our bathrooms and poolside laundry rooms. Is it legal? We were stopped by several residents.

Reply. Yes, you can restrict smoking in the common areas of your apartment community. In addition to posting no-smoking signs, you can also add rental provisions or a lease rider to control smoking.

• Question. We have an excellent single resident in one of our units. She asked to move a struggling friend with relationship issues with her for a few months. What legal aspects do I need to take into account and what additional and / or new forms do I need to have filled out and signed?

Reply. You could ask the additional occupant to qualify as a resident and sign the current lease as a tenant. This will protect you if the occupant stays and the resident moves out.

• Question. Can three (3) days notice be served for the cost of damage caused to the unit by a resident? A five-year-old flooded a carpeted room upstairs, resulting in carpet repairs and drywall repairs from the ceiling downstairs. The standard lease form in force clearly provides that the tenant must pay in this circumstance.

Reply. As long as your lease does not provide otherwise, you can serve three (3) days’ notice to perform any conditions or commitments requiring the resident to pay for the repair.

• Question. Who is responsible for the cleanliness of the carpet? The tenant or the owner?

Reply. The tenant is responsible for leaving the premises, including the carpet, in the same state of cleanliness that existed when he moved in.

• Question. I bought a building in which two of the three tenants do not have a deposit on file. Can I require a deposit for the continuous rental?

Reply. If their rental agreement is for the month (as opposed to a fixed-term lease), you can serve thirty (30) days notice amending the terms of the rental to require a deposit.

• Question. Our new tenants signed our lease and paid the first month’s rent. Now they want to get out of the lease. They did not take possession of it. What should I do?

Reply. When the tenant signs a lease, they are bound by the terms even if they change their mind later. The landlord must make reasonable efforts to try to find a replacement tenant, and if this effort is successful, the amount paid by the replacement tenant will reduce the liability of the original tenants.

• Question. Our tenants signed a one-year lease but were evicted after two months. They moved out before being locked out. Can we charge the rent until the unit is rented again?

Reply. An eviction does not terminate the responsibilities of the tenant. You can charge them rent until the end of the lease term. . However, you must make reasonable efforts to try to find a replacement tenant, and if this effort is successful, the amount paid by the replacement tenant will reduce the liability of evicted tenants.

• Question. I am renting a single family home to three people, each of whom submitted a separate application but all wanting to be on the rental agreement. How to fulfill a monthly contract?

Reply. Ask them all to sign the same rental agreement, listing the three people as tenants, so that they are all jointly and severally liable.

• Question. Several weeks ago, during a windstorm, a large tree fell on my tenant’s car. The tenant thinks I’m responsible for the damage, but my insurance company says I’m not.

Reply. Unless you have been negligent in the way you have maintained the tree, you are not responsible.

• Question. A lawyer representing a former tenant says, “The Consumer Affairs Department suggests that a landlord should not charge tenants for painting after a two-year rental.” Is there a standard for this?

Reply. The Consumer Affairs Department said this, but a judge may or may not agree with that position. The life of the paint may depend on the type of paint. (For example, it may be reasonable for a homeowner to expect a high quality gloss paint to last more than 2 years). Renters are responsible for damage beyond normal wear and tear.

• Question. Could you please tell me the law on roommates and the return of security deposits when only one leaves the accommodation.

Reply. Unless you provide otherwise in your lease, only release the security deposit after repossession of the unit by all occupants.

• Question. I have several tenants who damaged their units. What can I bill them for?

Reply. You can charge the actual costs. If you do it yourself, you should charge what the market would charge if you hired someone to do the job. In other words, it must be a reasonable charge.

• Question. One of our residents brought a roommate without my permission or consent. We have a clause in our lease prohibiting assignment or subletting of the lease. How to prove that the tenant does not respect the lease?

Reply. In many cases, it is difficult to prove this because tenants often claim that the person is a temporary guest. However, if there is enough circumstantial evidence, such as receiving mail at the scene, getting to and from work, using the laundry room and other facilities regularly, you will have enough evidence to satisfy most judges. .

Kimball, Tirey & St. John LLP is a real estate law firm representing owners and managers of residential and commercial real estate. This article is for general information purposes only. Laws may have changed since the publication of this article. Before you act, be sure to seek legal advice. For contact details, please visit our website. www.kts-law.com. © 2020 Kimball, Tirey and St. John LLP.