SMARTERLANDLORDING

ADVICE FROM EXPERIENCE

Landlord Law

Familial Status and Quiet Enjoyment

by

This article directed towards tenants with children should be interesting to landlords for a couple of reasons.

First, it provides a pretty nice overview of how otherwise well meaning landlords can end up running afoul of fair housing laws when dealing with children. Landlords need to always remember that familial status is a federally protected class. So what does that mean?

It means you cannot deny an applicant a property because they have children. Most landlords get this one.

But it also means that you cannot steer applicants to certain apartments or properties, say with more bedrooms or on the first floor. And here is where many landlords get tripped up. Not because they are trying to discriminate but because they are trying to be helpful. They think that another bedroom or more space might be needed and only discuss certain apartments. Or they believe, like the article states, that they are helping other tenants by only showing first floor apartments so there are less feet tromping around.

To avoid discrimination issues, landlords should tell applicants about all available properties and let THEM decide what is best for their needs. Do not do any thinking for them, no matter how helpful you may think it might be.

Secondly, the article discusses a clause that is in almost all of our leases, the right to quiet enjoyment. Perhaps you assumed, like many others, what that clause means. Quiet enjoyment means that there is no outside interference with an activity. An activity could be something such as renting an apartment. Thus, that term outside interference applies to you, the landlord. It does not, as the article points out, mean tenants have the right to absolute quiet. Rather, they have the right to be left alone in their home without interference from the landlord. Thus as the article again points out, kids playing in the courtyard in the afternoon, while perhaps loud, is a normal activity and does not violate the rights of other tenants.. Could get tricky I know, but understanding the term and being able to explain it to your tenants could help.

Landlord-Tenant Law: A Beginner’s Guide

by

Check out the Library of Congresses Beginner’s Guide to Landlord-Tenant Law. It contains a listing of several relevant books and websites relating to something all landlords show know – The Law.

Questions on Ebola, Apartments and Landlords

by

I have been watching the recent news about the ebola virus just like everyone else. Amongst all of the news I noticed that the two victims here in the US lived in apartments. Now, I understand the threat that Ebola is and I also understand the need to contain it. Nonetheless, as a landlord certain questions pop into my head when I read headlines like the following:

“Ebola decontamination begins at Dallas apartment of 2nd hospital worker”

Questions like:

Who pays for this hazmat cleanup?

How was the hazmat team allowed in to the apartment? Who gave them permission to remove all of the tenant’s belongings? Was it by court order? Did the family allow them in? Would I as the landlord have to get close to the place and let them in? Should I get one of these?

What about damages to the apartment caused by the hazmat team? Who is responsible for those?

Is the rent still being paid?

When and how does the landlord get possession of their property back? Do they even want it back?

What happens if one of my tenant’s gets ebola or a similar disease? What rights do I or my other tenants have?

These are all interesting and hopefully unique legal questions that I quite frankly do not have the answer to right now. But, I think it would be helpful to know what a landlord’s rights and responsibilities are on the front end of these things just in case.

I will try and get some answers and put them in another blog post.

If anyone out there has any related experience or expertise, please share it.

What other questions might you have as a landlord in a similar situation? Please share with your comments.

The Worst Landlord/Tenant Law?

by

Does Arkansas have the worst landlord/tenant laws in the country?

How should the eviction process work?

Check out a short video on the topic here.

If They Legalize It Do I Have To Allow It?

by

Social norms regarding the use of marijuana are rapidly changing.  Legalization would have been considered impossible just a few years ago, but it is now occurring to varying degrees all over the country.  To us landlords it brings up an interesting question; if pot is legalized do we have to allow people to use it in our properties?

The answer to that is no.

There are lots of things that are legal to do and or own that we do not have to allow, such as tobacco, pets even waterbeds.  Marijuana, if legalized, would fall into this same type category.

Why is that?

For one thing marijuana is still illegal on the federal level.  Until that gets resolved there are still legal implications.

Secondly, our property is just that, our property.  It is private and we can regulate, within certain limits, what we as private property owners will allow on our properties.

Thirdly, marijuana users are not a protected class.  Nor are tobacco smokers or users of alcohol.  Many a landlord, including yours truly, has banned tobacco use in our properties and we could ban alcohol use as well if we wanted to.

Remember, you as a landlord are not allowed to discriminate against who you allow to live in your properties based upon the seven federally protected classes.  Those classes are age, sex, race, color, religion, national origin and familial status.  But you can and are even encouraged to discriminate in other ways.  Everything else, such as marijuana smokers, tobacco users, motorcycle owners, truck drivers, lawyers and deadbeats is fair game.  You just have to be consistent in your application of those discriminating standards.  Meaning if you discriminate and say no once, you better say no all the time, every time.

But who knows.  As laws and norms continue to change, it may be advantageous and profitable to some landlords to allow marijuana use on their properties.  For other landlords, it will be not so much.  That however is the beauty of the free enterprise system.   There will likely be something for everyone, tokers and non-tokers alike.

The SmarterLandlording Podcast – Episode #3 – The Eviction Attorney

by

The SmarterLandlording Podcast – Episode 3 – The Eviction Attorney: An Interview with John “Bucky” Philip on Leases, Tenants and Evictions

“This is certainly in the landlord’s interest.”

 

 

 

 

 

 

 

 

 

 

Need to do an Eviction?  Here is Bucky’s Contact Information

John Philip

Crislip, Philip & Associates

4515 Poplar Avenue, Suite 322

Memphis, TN 38117

901-201-5078

800-335-9613

Bucky’s Website – http://www.crislipphilip.com/

Links and Forms We Mentioned

Tennessee Uniform Residential Landlord and Tenant Act – Click through and then on property.

MemphisInvestorsGroup.com

Release of Rights of Possession Form

Check out all the podcasts at iTunes on the Smarter Landlording Channel. 

Like the Intro Music?  Check out my good friends in the band Kitchens and Bathrooms (Kind of fits right!).  They write and play some awesome, original music from right here in Memphis, TN.

My Tenant Called The Cops On Me

by

Landlords often hold the mistaken notion that they are the “lords” of their properties.  In many ways they are the lord, but in some very fundamental ways they are not.   Once a lease is signed with a tenant they gain certain rights and acting like a lord may just get the cops called on you.

Here is why.

Your lease grants the tenant legal possession of your property.  Your property is now their home and their home is their castle so to speak.   So just like a homeowner, a tenant has rights in their home.  They have the right to be secure and to privacy for example.  They have a right to their possessions and they can expect that you as the landlord will keep the property safe and habitable.

What does this mean for landlords?

It means that you cannot just go in a tenant’s apartment at any time.  If you do, a tenant can call the cops and potentially have you arrested for trespassing.  Smarter landlords always try to give their tenants at least 24 hours notice before entering.  Most tenants will understand that you need to do routine maintenance and checkups and will have no problem allowing you in with proper notice.  But they may get really angry if they come home and just happen to find you there.  Of course if there is an emergency such as gushing water, a landlord is permitted emergency access to prevent property damage.  Otherwise, respect your tenant’s home and give proper notice.

A landlord also cannot deny access without going through proper legal procedure.  Remember, the tenant has legal possession.  Do not lock them out for any reason, even non-payment of rent.  Every state has a procedure in place to regain possession of the property.  It is called eviction.  If you do not follow this process, it is you that may end up on the wrong side of the law.

As a landlord, you can’t just remove their belongings either.  Even if you think they have abandoned the place and moved somewhere else, there is usually a legal procedure in place regarding a tenant’s possessions.  Here in Tennessee for example, If you suspect a tenant has abandoned the property, landlords have to wait and give notice before they can remove the tenants stuff. Then the stuff has to be stored for another thirty days.  Removing anything belonging to a tenant before you gain legal possession of the property can get you caught up in a nasty lawsuit or even arrested for theft.

Finally, don’t think turning off the utilities will solve your troublesome tenant problem.  You as a landlord have a legal duty to keep the property in a habitable condition, and a lack of utilities is generally going to be deemed inhabitable by legal community.  Will the cops arrest you for this?  Not likely.  But they will institute further legal actions by getting code enforcement involved.

Remember, your tenants have rights.  You as a landlord need to know what those rights are and respect them.  If you fail to do so, your tenant may call the cops and you may find yourself on the wrong side of the law.

 

Subscribe to Smarterlandlording and receive a Free Report: 21 Tenant Screening Red Flags

Zoning Ruins a Landlord’s Day

by

As a former planning director and chief code enforcement officer, I would like to stress to you other landlords out there that you have to be aware of and follow your local zoning laws and building codes.  If you ignore them, like this guy did, the powers that be can and will bring down the heavy hand of government.  Zoning regulates what you can do with your land, such as build or add on an apartment or construct an office building or have a home based business. 

So please do not try to add units in that garage or attic space without first checking with your local building department.  If you get caught, all of that money you spent adding the illegal unit will be for nothing.  Plus, fines for compliance can be stiff and think about all of those lawyer fees that you will rack up.   

Zoning can be very complicated, so if you are unsure, ask.

Zillow Stirs Up The Pot

by

While surfing through the headlines I came upon a blog post on Zillow.com titled, Landlords, Test Your Rental IQ.  The post described a survey that purported to show that half of landlords and over half of renters did not understand basic landlord/tenant laws.  For example, here are some of the survey’s supposed findings.

  • 82% or renters / 76% of landlords lack understanding of laws concerning security deposits, credit, and background checks.
  • 77% of renters / 69% of landlords lack understanding of privacy and access rights.
  • 62% of renters / 50% of landlords lack understanding of laws on early lease termination.

Interesting I thought.

Reading on, I noticed that there was a link to a “Rental IQ Quiz.”  OK Zillow you got me.  I had to click on that to check my landlord IQ.  After all, I have been a landlord for over ten years now.  I have read and re-read the Tennessee Landlord/Tenant Act.  I should have a pretty good understanding of things right?  Nope, I do not according to Zillow.

However, I call BS.  Zillow is just trying to stir up the post and generate controversy.

Why? Because it seems to me that this survey is poorly designed and worded.  Or perhaps it was very cleverly designed and worded.  Designed to stir up controversy and create bullet points like the ones listed above.  You decide.  Here are a couple of questions reprinted from the survey.

As a landlord, I am allowed to reject an applicant if I discover he or she has been convicted of illegal drug use while living in a previous rental.  True of False

As a landlord, you must make yourself, or someone you designate to act on your behalf, available to your tenants 24 hours a day in the event of an emergency.   True or False

As a landlord, it is within my right to enter the rental property to make emergency repairs whenever I need to.  True or False

So what are your answers?  Mine were true, false and true.  According to Zillow, those answers are incorrect.  Zillow then had the audacity to call me a “semi-pro” landlord! 

So Zillow, are you telling is that drug users are a protected class?  No they are not.  I can legally discriminate against drug users and do. 

And Zillow, I understand that things happen in the middle of the night, but I have to sleep as well.  I know of no law or statute, at least here in Tennessee that says I have to make myself available 24/7.

It is the last one that really gets me however.  Is Zillow telling me that if there is a gushing water leak, a gas leak or some other major problem of immediate concern I can’t go in and fix it unless I give notice?  Wrong!  In fact state statute here in Tennessee expressly authorizes me to enter a property to fix an emergency. I have to in order to protect my property and other tenants.  Now that does not mean that I will not try to contact the tenant, but if I can’t, I’m going in.  And if subsequent repairs are needed, of course I am going to work with the tenant after the emergency is over.

Zillow is spot on in the article when they say that landlords need to know and keep up with their local laws and regulations.  But these survey questions are simply suspect, designed only to stir up controversy and generate hits on a webpage.

So next time you are reading something and you wonder to yourself, “How did they come up with that nonsense?”  Remember this prime example and remember also not to believe everything you read.

Is Your Rent Increase Legal?

by

Rents seem to be on the rise in most areas of the country right now.  Some are predicting this trend to continue for a few more years.  As landlords we obviously want to maximize our rental income to increase our cash flow and increase the value of our real estate holdings. But you can’t just go and increase rents across the board at any time.  There are certain steps and rules one must follow for it to be legal.

First, you have to remember that your lease is a contract between you and your tenant.  This contract spells out, among other things, the amount of rent to be paid, when the rent is due and the term of the contract.  If your lease is like most residential leases out there it has a specified term, often for one year.  That term generally sets the clauses of the lease in stone meaning that you cannot raise the rent without the consent of the tenant during term of the lease.

So unless you have specifically put some type of language in your lease allowing you to increase the rent during the term of the lease, you cannot raise the rent until the end of the lease term.  Can you put special conditions in your lease to allow an increase in rent?  Sure, if local laws allow it.  You could for example state that the rent will increase if property taxes are increased.  Your tenant would have to agree to it beforehand however and that is not likely.

Once the term of the lease is completed or just before completion, you can begin to renegotiate new terms for the lease.  Now you can increase the amount of rent.  To do so however you usually have to send notice to the tenant stating that the terms of the lease will be changing and what those changes will be.  This notice usually has to be sent at least 30 days prior to the time the rental increase is to go into effect.

For example, if you want a rent increase to be effective on May 1, 2014 you need to send a notice to your tenant no later than April 1, 2014.  This notice is nothing more than a letter from you to your tenant spelling out the terms of the rent increase.  At least that is how it works here in Memphis, Tennessee.  Local laws can differ greatly.  The City of Seattle for example makes things much more complicated.  So be sure and know your local laws to make any rent increase legal.

A word of caution is necessary however.  I would not go hog wild raising rents unless you are in a particularly hot market.  Raising rents to much might cause many of your tenants to leave creating lots of tenant turnover.  And tenant turnover is the biggest cashflow killer out there.  Think about all of that new paint and carpet along with all of the other repairs that will need to be done once a tenant leaves.

So don’t shoot yourself in the foot by raising your rents to high or too fast.  Give careful consideration to rent increases.  Perhaps gradually and gently is a better way to go.

 

Subscribe to Smarterlandlording and receive a Free Report: 21 Tenant Screening Red Flags