January 2012

The following were questions that were asked of our office and the responses that were provided.  Please feel free to email us with any questions your may have concerning your tenant issues.

The landlord was receiving possession back of a home that the tenants had completed the lease and were moving.  The question was whether the fines that were imposed against the owner by the HOA as a result of the tenant could be deducted from their security deposits?  The answer is yes, if the tenant caused the violations, they would be responsible for the fines associated with them and passed on to the landlord.

We received another question from a manager who had an applicant that had an open bankruptcy, but a letter from his bankruptcy attorney indicating that they could not add this particular tenant’s lease to the bankruptcy that was already in progress.  The answer is no, this is not correct.  If the tenant’s do not make their monthly payments, you would still have to hire a bankruptcy attorney and request the bankruptcy court to give you permission to evict the tenant.  This can be expensive and time consuming.  Also, the tenant could dismiss the current bankruptcy and re-file including this new landlord in it.

This landlord had a tenant that they evicted at the end of December 2011.  The lease runs through May of 2012; however the owners opted to list the home for sale and had no plans to re-rent it.  The property manager was trying to do the disposition of security deposits and wondered if they could charge them for rent through 2012, even though they would not be renting the property.  The answer is no, once they put the home on the market for sale and don’t try to re-rent it, they can’t charge beyond that date.  If they were to list the property for rent or sale, and actively pursued either a sale or a rental agreement, then they could charge the tenant.

The landlord had a tenant that was living in their property and when they moved in there was a large water fountain in the backyard.  The property manager did an inspection and found that the fountain and its base were completely gone.  The tenant alleged that a tree branch fell on the fountain and broke it, so he had it removed.  There is no evidence either way of what happened.  However, the property manager felt it was unlikely that a tree branch could destroy the fountain.  The question was who is responsible.  This is a close call because the tenant has a duty under the Landlord and Tenant Act to report any repair issues, and this would certainly fall into that.  However if a storm or other natural cause, caused the limb to fall and break the fountain, the tenant would probably not be held liable.  This is one of those that could go either way in court.

The landlord wanted to file a lawsuit against the tenants that had moved out of their rental property prior to the end of the lease.  It took the landlord approximately five (5) months to re-lease the property and there were also damages beyond normal wear and tear.  The landlord wanted to pursue a civil breach of contract claim for the damages and lost rent, but also for their credit report being damaged because they couldn’t make their mortgage payments to pay the cleanup and the lost rent they had.  The answer is no, you can not sue for damage to your credit score, but you could sue for the other damages.

Another owner asked a question because they had heard that leases for longer than a year are void if they aren’t notarized.  The answer is no, this is not true.  There is no requirement that a lease longer than a year must be notarized.  You can make the term of the lease any length, as long as the parties agree to it.

This particular owner had a problem evicting his ex-girlfriend who continues to live in his house without permission and has never paid any rent.  She was a resident of Italy and here on an extended visa.  She has given various dates she would move out, but has taken no steps to move.  The owner wanted to have her evicted immediately, and what would be the best course of action to take?  In this situation she would be considered an unauthorized occupant, and a five (5) day notice to move (not a five day notice to pay or move) would be the appropriate notice.  If she doesn’t move after five (5) days, you can file to do the eviction.

Another client had a provision in their lease that in the event a tenant declares bankruptcy, they will not include the lease in their bankruptcy and the bankruptcy will constitute a default and terminate their lease agreement.  The landlord was concerned about their tenant who filed bankruptcy and wanted to proceed immediately to evict them.  You can not do this.  This is an illegal provision because everyone has the right to file bankruptcy.  This should be removed from the lease agreement, because if you are using an illegal lease provision, the tenant has a claim for two (2) months rent.  You would have to go through the same procedure of getting the bankruptcy court’s approval in evicting the tenant after the case is removed from the bankruptcy court and back to the eviction court.

The owner had a property where the tenant’s had a dog and left the house at the end of the lease with a horrible pet urine smell.  The carpets needed to be replaced.  The carpets where originally installed in 2005 when the tenants moved in.  The landlord was concerned about what he could charge for new carpet.  This is one of those subjective matters.  You have to depreciate the carpet based on the age and condition of the carpet at move in, its normal life expectancy, how long the tenants were there and the condition at move out, less normal wear and tear.  In this situation, if the carpet had a ten (10) year life expectancy, you could probably charge around forty percent of the replacement cost.

Finally, the police let the apartment complex know that they had arrested one of their tenants for felony DUI.  He had hit someone, and that person was in critical condition.  The manager wanted to know if he could be evicted for this offense.  The answer is yes; he presents a danger to the property and to its occupants, and could be evicted