FAQ: Landlord / Tenant

Who is a roommate?

A roommate might be either a joint tenant or a subtenant, depending upon the terms of the lease or rental agreement. When all the roommates are listed on the lease, each one can be responsible for the full amount of the rent due to the landlord (although it is possible that a special lease could be negotiated whereby each roommate is responsible only for his/her “portion” of the rent). Where the roommate is not named and has not signed the lease, the roommate pays his/her portion of the rent to the named tenant, who has signed the lease, and the tenant is responsible for the full amount of the rent to the landlord.

Can a landlord ever terminate a tenant's right to use and possess the rental property?

Yes, in many cases. The more common reasons why a landlord may terminate a tenant’s right to use and possess residential rental property include:

  1. Failure of the tenant to pay rent when due
  2. “waste” to the rental property caused by the tenant
  3. Possession of pets in violation of the rental agreement
  4. Occupancy of the rental property by persons not named on the lease or rental agreement
  5. Material disturbances of other tenants (such as extreme noise disturbances)

Before a landlord forces a tenant out of residential rental property, the landlord must provide written notice to the tenant and provide a reasonable amount of time for the tenant to cure the default. If the tenant does not cure the default within a reasonable amount of time, and does not voluntarily vacate the rental property, the landlord must then initiate a formal eviction proceeding. In a court of law, it is commonly referred to as an “unlawful detainer action.” (An action in which the landlord alleges the tenant unlawfully continues to detain or have use and possession of the rental property). The law abhors “self-help” evictions, in which the landlord or the landlord’s agents show up and physically take the tenant and the tenant’s possessions out of the rental property, change the locks on the doors to the rental property, or shut off water/electricity in an effort to force the tenant to leave. Formal court orders are usually required to get a recalcitrant tenant out of residential rental property.

Can a tenant ever terminate their legal obligations of a lease during its term?

During the pendancy of the lease, and for all intents and purposes, the home and the land it sits on “belongs” to your tenant, and you have no “right” to invade your tenant’s “quiet enjoyment” of the property. The tenant may allow, or disallow, anyone he or she wants onto the land or in the home. You can tape a “request” to the door and ask the tenant, very nicely, to call you about the situation, but don’t be surprised if he / she says “No.” This also depends on what the lease says and the terms of any state statutes.

Can a tenant refuse to let an agent onto property after receiving 24 hours notice?

Yes. A real estate agreement that consists only of an oral understanding and a handshake will not be enforced by a court. An ancient law called the Statute of Fraud requires that real estate sales contracts be in writing.

A contract does not have to very fancy to be valid. If it describes the property and the price, it usually will be enforceable in court. Obviously, however, it is not a good idea to rely on a bare-bones contract when you purchase commercial real estate. You need much more detail.

I am a long-time (15-year) renter in an apartment house. This year the owner wants a 25% increase!

Your first step is to check your state landlord tenant law on rent increases for month-to-month tenancies. Unless the state or local law forbids rent increases without 60-day notice or limits the percentage increase, you have to pay the increased rent or move. You also want to make sure your landlord gave you adequate notice. The landlord has essentially terminated your old month-to-month agreement and is giving you the terms of a new agreement. If state law requires the landlord to give 30 days notice to terminate the agreement, and the landlord gave you less than 30 days notice of the rent increase, the notice is not effective until next month.

I have 7 months remaining on my home lease. the mortgage holder has instituted foreclosure proceeding

You can send a letter to the mortgage holder with a copy of the lease saying you are in occupancy and that your lease must be honored. Send the letter certified, return receipt required. This lets them know you are on top of the situation. Normally they are on notice from your occupancy and will have to honor your lease. You might also check the laws of your jurisdiction. Some jurisdictions have very specific landlord tenant laws.

I have been paying rent on a home owned by my mom for the last 16 months. There is no agreement

When you don’t have a written lease and have been paying rent monthly, most states will declare that you have a month-to-month rental agreement. A landlord can terminate a month-to-month rental on 20-30 days notice. However, each state has different laws regarding what type of notice is necessary: usually it has to be written notice delivered to the tenant. Then the landlord has to wait 30 days until you are illegally holding over before she can start eviction proceedings. The landlord can’t lock the house until a court grants her a writ of restitution and the sheriff evicts you. Even then, she can’t keep your stuff unless you owe her money. If she tries, you get to sue her for conversion/theft.

I put a deposit down on an apartment, had an approved application, and was set to sign a lease.

Until you have a signed lease, you do not have a lease. Unless the refusal was on prohibited grounds such as race, color, creed, etc., you’d be out of luck. Sometimes this depends on proving that the landlord “accepted” you as tenant, took a deposit, etc.

If a tenant has not been around for over 6 months and not paid any rent, can I re-rent it?

Yes. You can get an eviction order for non-payment. The sheriff will move the tenant’s belongings out. In some cases you must first give a statutory notice of abandonment for 15-20 days to the last known address before changing the locks. Also if the tenant’s property has a material value, e.g., over $300, the landlord cannot throw it away.

Is the landlord responsible for maintaining rental property and complying with local housing codes?

Yes. Landlords have the responsibility to maintain residential rental property and repair any defects or problems. Under most state law, there is an implied warranty of habitability; that is, a landlord not only must deliver residential rental property to the tenant in a habitable condition, but s/he remains responsible for maintaining the property in a habitable condition during the term of the lease.

“Habitability” is typically defined in local housing codes. It is usually defined as the minimum standard for decent, safe, sanitary housing suitable for residential purposes.

Most communities have local housing codes. The codes are local ordinances or laws that require owners of real property, including landlords, to maintain the property and make any necessary repairs. These codes typically require that any residential rental property offered by a landlord must meet the minimum standards established in the code. The landlord’s responsibility is not only to deliver the rental property to the tenant in compliance with the housing codes but also to maintain compliance with the housing codes throughout the term that the tenant has use and possession of the rental property.
If you have a complaint, you can notify the landlord and the appropriate housing authority; however, do not threaten to notify the housing authority and not do it in order to get some landlord concession as this could be a form of “extortion”.

Is there a difference between a residential and a commercial lease?

When a person leases rental property from a landlord for use as a residence, the arrangement is called a residential lease. When a business leases rental property, the arrangement is called a commercial lease.

While there are many similarities between residential and commercial leases, state and local law often regulates the relationship between a tenant and a landlord under a residential lease. These laws are designed to provide basic requirements for the condition of rental property, and to protect tenants from unscrupulous “slumlords.” Since commercial leases are viewed as being contracts between knowledgeable business people, less governmental protection is needed, as knowledgeable business people should be able to negotiate the terms of the lease to their respective satisfaction.

Therefore many more terms of a commercial lease can be negotiated and statutes waived than in the residential context.

The landlord wants me to transfer the utility bills back into her name. What will happen?

Follow your instincts. What the landlord is attempting to do is to have you participate in her scheme in order to obtain a lower interest rate. That’s illegal–knowingly taking part in the scheme and committing fraud on her lender, the financial institution. You would be running the risk of incurring some potentially hefty penalties. Since you want to stay on good terms with her, you might try to “lay low”, take a very long vacation to the Virgin Islands, or simply tell her the potential penalties resulting from such action on her part as well as on yours.

The Uniform Residential Landlord and Tenant Act

In the 1960s, at the time of the civil rights movement and heightened concerns about the legal rights of the poor, the federal government funded a legal aid project to write a model landlord and tenant act. The model code drafted at that time was given to the National Conference of Commissioners on Uniform State Laws, who drafted the Uniform Residential Landlord and Tenant Act (URLTA) in 1972. This code was approved by the American Bar Association in 1974. Since that time many states like Alaska, Arizona, Florida, Hawaii, Iowa, Kansas, Kentucky, Montana, Nebraska, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, and Virginia have adopted residential landlord and tenant laws based on this model, though there are many variations. Other states follow the Residential Landlord-Tenant Act.
The URLTA favors neither landlords nor tenants. It was intended to make residential landlord and tenant laws more fair to all parties and more relevant to rentals in a modern urban setting. Landlord and tenant law before that time was often based on the common law, or law established by court decisions. These decisions stretched back to pre-Revolutionary England and were often more relevant to the rental of rural property.
There are a few issues often covered in state laws or local ordinances that are not addressed by the URLTA. These include rent increases or rent control and the handling of security deposits. The URLTA does not specify whether landlords must keep security deposit money separate from his or her own money, whether interest must be paid on security deposits, or whether deposit funds must be placed in interest-bearing accounts.

We went from a 1-year lease to a month-to-month. Our landlady gave us a 30-day notice in the middle

The 30-day notice can be given on any day, not necessarily on the 1st or any particular day. It is effective 30 days thereafter with the tenant responsible for the rent to the end of the 30th day.

What can happen in an "unlawful detainer (eviction) action"?

When a landlord wants to have a tenant removed from rental property, either due to the tenant’s default or because a tenant refuses to leave at the expiration of the lease term, the landlord must get the assistance of a court of law. (“Self-help” eviction, as explained above, is abhorred and could result in the landlord having to pay damages to the tenant, and possibly be convicted of a crime).

The first step is for the landlord to file pleadings (legal papers) with the court and pay the required filing fee. Then the tenant must be served with the pleadings (although most jurisdiction allow “nail and mail” service in the event that a tenant avoids being served). Once service has been made on the tenant, the lawsuit can proceed (the tenant has a constitutionally protected due process right of notice and opportunity to be heard). An unlawful detainer action is typically a “summary proceeding” which can move rapidly through a court system.

In the event that the tenant loses the lawsuit (the tenant will lose if s/he fails to show up at the scheduled court hearing), the landlord may be given a monetary judgment (such as for damages to the premises, the amount of money owed for rent, plus attorney fees and costs) plus a writ of possession. A writ of possession may then be executed by the local marshal or sheriff so that the tenant is removed from the rental property and then the landlord is once again given possession. In some jurisdictions, it is possible that the landlord is given possession of the rental property but the tenant continues to be responsible for the payment of rent to the end of the lease term (although the landlord would have an obligation to make a good faith effort to re-rent the rental property so as to mitigate the damages sustained due to the tenant’s default).

In an unlawful detainer action, a tenant has certain defenses, such as “constructive eviction” , default by the landlord of the implied warranty of habitability, or a “retaliatory eviction”, which occurs when the landlord takes an action against a tenant for trying to exercise rights as a tenant (such as informing government agencies of code violations or complaining to the landlord regarding repairs that must be made to maintain the rental property in

What does it mean that a tenant shall not "commit waste?"

Often a lease will contain a provision stating that a tenant shall not “commit waste” with respect to the rental property. This means that the tenant has the responsibility to keep the rental property clean, to properly dispose of trash, and shall not deliberately or negligently allow damage to the property. Further, most leases require the tenant to return the rental property to the landlord in a clean and habitable condition, except for “reasonable wear and tear,” at the end of the lease term.

What happens to the right of use and possession at the end of the lease?

At the end of the period of time set forth in the lease, the landlord may choose to terminate the agreement and take possession of the rental property from the tenant. Typically, the rental agreement states that the landlord must provide written notice to the tenant thirty (30) days prior to the expiration of the lease term of the landlord’s intention to take back possession of the rental property (and the tenant will have to move out at the end of the lease term).

However, the lease may have a provision under which the tenant is given an “option” to renew the lease for a specified amount of time. If the tenant is not in default at the time of the expiration of the lease term, the tenant may be able to send written notice to the landlord of his/her intention to exercise the option of renewal and continue to use and occupy the rental premises for the duration of the option period.

Many leases state that if the lease is not renewed as of the expiration of the lease term (such as a six month lease without an option to renew for an additional six months), that the lease term will automatically be set as a month-to-month lease.

Under a month-to-month lease, both the landlord and the tenant may give thirty (30) days notice to the other party of his/her intention to terminate the rental agreement. Typically this notice must be provided to the other party in writing. In the event that less than thirty (30) days notice is provided, the notice could be disregarded and the rental agreement continues. For example, if a tenant gives notice to the landlord on July 15, 1998 of his intention to vacate the rental property on August 1, 1998, this notice is defective and the landlord can continue to hold the tenant responsible for the payment of rent for the rental property for the month of August 1998.

What happens to the security deposit at the end of the lease?

State law sets forth specific laws governing the return of security deposits. The landlord is required to return the security deposit within a set period of time (for example, in some states a landlord must return the security deposit to the tenant within 21 days). In the event that less than the full amount of the security deposit is returned, the landlord must provide the tenant with a written statement regarding any deductions made from the security deposit.

There is a big difference between a security deposit and an advance payment of rent. The security deposit is held by the landlord (or held in trust in a bank account maintained by the landlord) in the event that there is any damage to the rental property that has been caused by the tenant while s/he had in use and possession. An advance payment of rent sometimes is collected at the inception of the rental agreement to assure the landlord that s/he will be paid the last month of rent before the tenant vacates the rental property. A security deposit usually may not be used toward the payment of the last month’s rent. When a tenant has paid the equivalent of a month’s rent as a security deposit, the tenant must pay the last month’s rent to the landlord and then wait for the landlord to return the security deposit (as opposed to defaulting on the rental agreement by defaulting in the payment of the last month’s rent).

Some states and local jurisdictions have laws specifying how the landlord is to hold the security deposit (such as in a separate account at a bank) and who is entitled to the interest earned on a security deposit. Both state and local laws and ordinances can be very specific on the handling of security deposits.

What is "constructive eviction"?

Constructive eviction occurs when residential rental property is an uninhabitable condition. The uninhabitable condition makes the property unsuitable to live in. When residential real property is uninhabitable, it creates a condition under which the tenant has been “constructively evicted”; the facts and circumstances are such that the tenant is unable to have full use and possession of the rental property and thus, in reality, has been “evicted.”
To claim constructive eviction, thereby relieving the tenant from the obligation to pay rent to the landlord, the tenant must serve the landlord with written notice of the constructive eviction and provide the landlord with a reasonable amount of time to cure the defects. If the landlord does not correct the defects within a reasonable amount of time, the tenant may then be able to leave the rental property and not be responsible for payment of rent which would have been due under the lease or rental agreement. In most cases, the tenant must physically move out of the property and then sue for damages, termination of the lease, etc.

What is "repair and deduct"?

To keep residential real property in habitable condition, some local jurisdictions (and some standard lease forms) allow a tenant to give written notice to the landlord that there is a defect in the property. The notice to the landlord typically must provide the landlord with a reasonable amount of time to make the repair (“cure the defect”). After waiting the required amount of time after providing the written notice to the landlord, the tenant may then go out and hire a professional to make the necessary repair, pay the repairman, and then deduct the cost of the repairs from the rent paid to the landlord. Some restrictions on “repair and deduct” are that the cost of the repair must not exceed a certain dollar amount or be in excess of one month’s rent.

What is a lease or rental agreement?

A lease, sometimes also referred to as a rental agreement, is an agreement between a landlord and a tenant which gives the tenant the right to use and occupy rental property for a period of time. When a tenant turns over the right to use and occupy rental property to a subtenant, the agreement is sometimes referred to as a sublease.

A lease can be an oral agreement, or it can be in writing. If the lease extends beyond one year, most states require that it be in writing. An oral lease has the disadvantage of future misunderstandings over terms of the agreement, and potential problems for enforcement of terms between the landlord and the tenant. At the end of the lease, use and possession of rental property must be returned to the landlord. In addition to other responsibilities, a lease requires the tenant to pay the landlord a specified amount of money each month; this payment is called rent.

What should a lease or rental agreement include?

  1. the name of the landlord and the name of the tenant (and often the names of others who will occupy the rental property), as well as a description of the rental property subject to the lease.
  2. the term of the lease (month-to-month, 1 year lease, 5 year lease, etc.).
  3. the amount of rent that the tenant must pay the landlord, and when that rent is due.
  4. the particulars on the security deposit (how much, whether it is held at interest, and when it will be returned at the end of the lease).
  5. what can happen in the event of “default” – the failure of either party to live up to the terms of the agreement (such as the failure of the tenant to pay rent or the landlord to keep the rental property in habitable condition).
  6. whether the tenant must pay the landlord a late fee if the rent is not paid on time.
  7. whether the tenant may operate a business out of the rental property (where local zoning ordinances at the particular rental property allow such activities).
  8. whether the tenant will be in default in the event that the tenant disturbs other tenants’ “right of quiet enjoyment”.
  9. the respective duties of the landlord and tenant regarding the maintenance of the rental property.
  10. what happens at the end of the term of the lease (option to renew, conversion of lease to a lesser term, notice of termination by the tenant to the landlord).
  11. under what conditions may the landlord enter the rental property.
  12. whether the tenant must pay the attorney fees and costs incurred in a lawsuit, in the event that a lawsuit is filed and the tenant loses (and conversely whether the landlord must pay the tenant’s attorney fees and costs of a lawsuit that the landlord loses).
  13. whether the tenant may have a pet, and if so, what kind and how many. Whether an additional deposit is required.
  14. what happens if either the landlord dies or sells the building during the lease term.

Although there are many pre-printed lease forms, both the landlord and the tenant have the right to change the particular terms and conditions of the pre-printed lease. Lease forms, like all contracts, may be subject to negotiation between a prospective tenant and a landlord.

State and local laws can govern the terms of a lease. For example, state law often requires that the landlord must provide an “implied warranty of habitability” (that the landlord deliver and maintain the rental property in a condition suitable as residential housing, thus prohibiting a landlord from forcing a tenant to take possession of the property “as is”). Some local jurisdictions have enacted laws regarding “rent control” which governs how much the rent may be increased at the end of any given lease term.

What's the law on squatter's rights?

All depends. You usually only can acquire land by “adverse possession”, if you are there in the open and “notorious” (e.g.. so anyone can see it.) You can also try possession under a claim of right (e.g., as if you had reason to believe you had the right to be there and keep the land, perhaps because you were watching the other property for the owner, and he said I want you there and if you look out for the rest of the land, this land will be yours). A tenant under a lease doesn’t get to keep the house after paying rent for 25 years, for example since this was by “permission”.

But you need to contact an attorney in your state who can explain what your state’s rules are and how they apply to your exact situation. It’s worth a shot.

Who is a landlord?

A landlord is the owner of piece of real property (also called “rental property”), who leases it to another person. The landlord is also referred to as the “lessor” of rental property. The landlord lets a tenant use and occupy his/her rental property in exchange for the monthly payment of rent.

Who is a subtenant?

A subtenant is a person who has the right to use and occupy rental property leased by a tenant from a landlord. A subtenant has responsibilities to both the landlord and the tenant. A tenant can sublet rental property to a subtenant, but often must obtain the prior agreement of the landlord; the tenant still remains responsible for the payment of rent to the landlord and any damages to the property caused by the subtenant.

Who is a tenant?

A tenant is a person who has the right to use and occupy rental property in accordance with a rental agreement or lease. The tenant is also referred to as the “lessee” of rental property. The tenant may use and occupy the rental property as long as s/he complies with the terms and conditions of the rental agreement, including, but not limited to, the payment of rent.