When to Start Eviction.

ask-the-attorney

The Landlord Protection Agency®presents John Reno, Esq.,a highly experienced Landlord – Tenant attorney based on Long Island, NY.

Q:  Dear Mr. Reno: 

If the tenant has not paid any rent for any given month, At what point do you start the eviction notice. 1 month late or longer? Julian Ornelas, Texas

A: You could have started on July 2nd. There’s no requirement that you wait unless your lease has a grace period. Then you should wait until the grace period is up.

Legal Disclaimer
The Landlord Protection Agency’s “Ask the Attorney” column is for informational purposes only. The questions answered by Mr. Reno on this site do not constitute an attorney – client relationship and are not to be considered legal advice. Not all questions will be answered and some may appear in the LPA Q&A Forum.
The Landlord Protection Agency recommends that you seek legal advice before using any of the material offered on this web site, and makes no guarantee on the effectiveness, compliance with local laws or success of any of the material offered on this web site. The Landlord Protection Agency is not engaged in rendering legal advice.

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Ask The Attorney: Tenant Threatening to Sue

ask-the-attorneyThe Landlord Protection Agency®presents John Reno, Esq.,a highly experienced Landlord – Tenant attorney based on Long Island, NY.

Q:  Dear Mr. Reno:

I had a tenant who vacated and did not clean the home and there was close to $1,400.00 in damages which he refused to pay. I had 21 days to return his security deposit and I completely forgot because I was so overwhelm with the work that had to be done to the home. He sent me an email reminding me that I was late. I apologized to him and told him I would it send right out. He preferred to pick it up. His $3500.00 security deposit was minus the cleaning and the damages. The next day he spoke with a Lawyer and he threatened me with legal action and that he was entitle to a full refund of his security deposit. He took no ownership for his actions. I did return the remaining deposit because I had no time to go to court.

He rented the place for 3 years and he did not qualified to rent the home per our Property Management Company. I gave him a chance. I also told him before all this that if was to leave before the end of the lease I would only charge him for the days he will be there.
I would like to have my portion returned to me. Can you help me.

Regards,
Albert C., Clayton ,CA

A: You have won a no expense paid trip to small claims court to sue for your $1400 plus whatever. Good luck.

Legal Disclaimer
The Landlord Protection Agency’s “Ask the Attorney” column is for informational purposes only. The questions answered by Mr. Reno on this site do not constitute an attorney – client relationship and are not to be considered legal advice. Not all questions will be answered and some may appear in the LPA Q&A Forum.
The Landlord Protection Agency recommends that you seek legal advice before using any of the material offered on this web site, and makes no guarantee on the effectiveness, compliance with local laws or success of any of the material offered on this web site. The Landlord Protection Agency is not engaged in rendering legal advice.

Landlords: Are Your Contractors Licensed?

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Maintenance contractors are important members of every landlord’s team. It’s imperative to hire a professional for issues that could harm the integrity of the rental or the safety of its tenant occupants. It’s also important to verify the contractor is licensed, has liability insurance and provides worker’s compensation coverage for its employees. Why? Insurance covers workers that are injured on the job. You might be telling yourself as a landlord, “That’s not my problem, that’s the contractor’s problem.” Unfortunately, that’s not the case. If an uninsured contractor gets hurt on a landlord’s property, the landlord could be held responsible for all medical bills and other financial hardships realized by the injured contractor. Most state licensing agencies require proof of both insurances for licensed contractors in order to remain licensed. Using an unlicensed contractor won’t save a landlord money in the long term. Proper licensing is important for a landlord to avoid liability and litigation.

Today, one of our brokers snapped this photo of two contractors working on the exterior of a townhome across the street from one of our managed properties. We certainly hope this landlord and their property manager hired a licensed and insured contractor.

What They Don’t Teach You About Evictions in Landlord School

Eviction-OrderIf you’ve ever had any training buying rental properties, investing in real estate or taken actual training on being a landlord, one area they often either gloss over or entirely skip is the part about evictions. It’s easy to understand why, it’s not a very glamorous topic and it’s right up there with fixing toilets at 3am in the excuses for not being a landlord handbook. Yet knowing the rules, and following some simple steps in advance, can often mean the difference between making an eviction quick and cost effective, versus drawn out and costly for you the landlord.

Unfortunately, I can’t help you with the rules. The problem being that rules for evictions are all over the map. Some areas allow a 3-day notice, some a 7-day and others 14. Some places have landlord tenant courts, others call them tribunals and others picked letters out of a hat to create unpronounceable acronyms for a service landlords can’t understand!

Then there’s the rabbit hole of what to do with all the tenants belongings if you successfully evict them. While I don’t know of any areas that allow celebratory bonfires, there are usually specific rules about what to do with items if they exceed certain value amounts, how to store them (if you are allowed to store them) and how to dispose of them.

None of which is important until that dreaded day you discover you have a problem tenant and suddenly discover yourself over loaded with “what ifs”.

  • What if the tenant doesn’t pay?
  • What if the tenant destroys my property?
  • What if I can’t collect and much, much more.

Look, understanding your local rules should be one of the first things you learn, before you become a landlord, yet it’s often something we learn the hard way as we’re dealing with the additional stress of a problem tenant.

So let’s talk about what you can do to get up to speed, and why!

Lesson One – Leases

Probably the most important reason to understand the rules is to allow you to customize your leases so they help you work within the rules and give you the most power. Hold it, you do have a written lease don’t you?

Perhaps this is where I need to share some of my background.

I’ve been a landlord since the early 2000’s and I’ve had around 1,500 tenants during that time. Yes, 1,500 which is crazy when you see the number, but the positive is, it also has given me an over abundance of experience in evictions.

Maybe it’s just a sign of how crazy Real Estate folks can be, but I actually see the positive about this experience.

You see, I turned this experience into a benefit for other landlords as well as myself as I created a website for the area I’m in that walks landlords through the eviction process.

This has helped me see the same problems over and over and over and the biggest being no written lease, or a generic lease that allowed tenants to walk all over the landlord due to ambiguity or simply being too generic.

You need a written lease that allows you to enforce your rules within the local rules.

Whether this is making sure it contains a no smoking clause (where applicable), a no pets clause (again, where applicable) or specifics about what happens if they bounce a check, fail to pay, or skip out. Again, all worded and slanted to ensure you have the necessary power where needed.

So first lesson, if you don’t have a written lease, contact a local landlord association, a lawyer who specializes in Real Estate and rental issues or pick up some of the forms available here on AAOA.

Second Lesson – Evidence

The second problem landlords run into is not having enough hard evidence of a problem when it comes to an eviction.

As part of my eviction site, I also offer consulting services that walk landlords through the steps they need to successfully evict a tenant and as heart breaking as it can be sometimes I often end up telling landlords they won’t be able to get an eviction with the information they have.

I have to tell them that after months of stress and headaches, they’ll have to wait another month or two to have enough evidence to obtain the eviction they so desperately want and need.

And so begins lesson two!

Document, document, document!!!

If you don’t already have a tenant journal get one. It can be a simple notebook, an app on your smart phone, or some other method of recording interactions with your tenants. From the innocent call about a broken appliance to conversations about late payments you need to record it all in your journal along with dates and times.

These notes can become your timeline and your beginning pile of evidence. They can show a history of behavior from continuous late payments to a trail of lies and deceit. All which become incredibly handy in many hearings.

The extra benefit is you also come across as a professional landlord versus a run of the mill landlord which makes a huge difference in the eyes of a judge, hearing officer, tribunal or whomever you may face when evicting a tenant.

And any edge you can get is crucial, you’re dealing with a considerable investment when you own a rental property and you need to remember that.

One additional tip to include with this is to follow up any phone conversations with your tenants with written notice addressing what was talked about.

As an example of this, if your tenant calls explaining they need a couple extra days for rent and you agree to this, follow up with an email, a written notice dropped off at the place or both covering off what was discussed and any timelines agreed upon. And also document it in your tenant journal.

Third Lesson – Resolutions

The third lesson about evictions is to work with your tenant to resolve any issues, but make sure you have a line in the sand and an understanding of repercussions, your actions going forward and the end results.

This may involve providing extra leniency for a long standing tenant that has fallen behind, but with a firm understanding that you will take action if it continues.

Or it may require you to make decisions that while unsavory at the time are better long term for you. I’m not talking about breaking laws, shutting off utilities or removing front doors here either.

I’m talking about paying a tenant to leave, refunding full deposits even though tenants have left messes or not charging or going after any judgments in an effort to expedite getting control of your property back and having the problems go away.

You need to understand with evictions that your ultimate goal is to resolve the problem and get control of your property back. If it costs you $1,000 so your problem goes away and you can get a new paying tenant within a week or two it may well be worth it.

If you have to eat the cost of cleaning up after a tenant at your expense, but you have control of your property and they are gone, it may be worth it.

If you have to pay someone just to leave two weeks early, it could save you a month or two of lost rent on top of additional costs for repairs and hearings, so again it may be worth it.

Bottom line, you need to decide whether the short term pain of giving back a deposit, refunding a month’s rent or even paying someone to leave will save you weeks or months of additional headaches and expenses!

Just make sure if you do have to pay them, no money changes hands until they are out!!

Final Lesson – Learn Before You Have To

Finally, learn the local eviction systems before you need them.

Learning as you go can work for many different situations, but during the stress of an eviction, when your property that you worked hard for is potentially at risk of damages and destruction and when your bank account is spiraling downwards due to non-payment and unexpected costs, you’re probably not in the best position to blindly learn as you go…

If you have at least a basic understanding it can help pave the path moving forward and if you follow the first several lessons at least you will be more prepared if you do have to go down an eviction route.

The Ultimate Lesson Learned from Evictions

To really wrap this up, I need to share with you the most important lesson you need to know as a landlord. And unfortunately this is the lesson that gets reinforced after you’ve gone through your first eviction.

It’s far easier to let a bad tenant in, than it is to get a bad tenant out…

Think about that.

If you understand that and really let it sink in, it will change how you operate your landlord business.

It means you’ll put far more effort into screening your tenants, into not settling for someone just to get the burden of an upcoming mortgage payment off your back and into actually completing your due diligence properly.

I’m talking about checking all references, completing credit checks and verifying the tenants ID which are all parts of a solid tenant screening process. All steps to save you headaches down the road.

Yes, it’s definitely more upfront work, but as I mentioned skipping this can lead you right back to that Ultimate Lesson:

It’s far easier to let a bad tenant in, than it is to get a bad tenant out…

Bill Biko – “The Educated Landlord” has been an active landlord for well over a decade and during that time has packed more enough experience in for dozens of regular landlords. From rooming houses, to rent to owns, furnished rentals and“regular”rentals, Bill has had around 1,500 tenants which has made him a master of systems and a master of evictions. To find out more about Bill or to get access to additional tips, articles and Bill’s “7 Questions Landlords Must Ask” visit www.TheEducatedLandlord.com

HUD Issues New Guidelines On The Use of Criminal Records In The Rental Screening Process

1On April 4, 2016 the U.S. Department of Housing and Urban Development (HUD) dropped a bombshell on owners and managers of residential rental properties in the U.S.

HUD’s Office of General Counsel published a 10 page guide entitled “Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real-Estate Related Transactions.”

This guide essentially changes the rules as we currently know them with regard to rejecting a rental applicant based on their prior criminal history. I highly recommend that all of you read the document itself — many times in fact — as this is a very important change and this issue is not going to go away.

This Policy Is Applicable To All Landlords

HUD’s guide applies to ALL HOUSING PROVIDERS. I repeat, this new policy applies to all of you. Some landlords assume that when the see “HUD” that it only applies to federally subsidized housing and public housing. Sometimes that is true, but not in this case. HUD is the federal agency that investigates allegations of fair housing (discrimination) violations. HUD investigates discrimination allegations against all landlords not just landlords of section 8 properties. So this guide published by HUD applies to all of you market rate/conventional housing landlords as well.

Disparate Impact

In order to understand HUD’s view on the use of a person’s criminal history in the screening process you have to understand something referred to as “disparate impact”. In essence, “disparate impact” means that a landlord can have a facially neutral screening policy that is applied equally to everyone but it can still be discriminatory if its use results in a disproportionate impact on a member of a protected class.

HUD’s guide includes lots of statistics that show that across the U.S. African-Americans and Hispanics are arrested, convicted, and incarcerated at rates disproportionate to their share in the general population.

As a result of these statistics, if a landlord considers and applicant’s criminal history (arrest and/or conviction) as part of the screening process, that landlord may be discriminating against African- Americans or Hispanics based on their race and/or national origin (both of which are protected classes under Fair Housing laws).

So even if your screening policy on its face is not discriminatory and even if you are applying it evenly you may still be discriminating based on race and/or national origin, because your policy affects African-Americans and Hispanics more than others.

Substantial, Legitimate, Nondiscriminatory Interest

So does this mean that a landlord cannot take into consideration a rental applicant’s criminal background at all? The answer is both “yes” and “no.” HUD states that a landlord may not be discriminating based on race or national origin if his/her screening criteria with regard to the criminal history of an applicant can be proven to be “necessary to achieve a substantial, legitimate, nondiscriminatory interest of the [housing] provider.”

What the heck does that mean?

There is no easy definition or explanation of this phrase. Whether a landlord’s screening policy with regard to an applicant’s criminal history is “substantial, legitimate, and nondiscriminatory” will depend on many specifics. It could depend on the facts of the crime or how old the conviction is or the exact wording of the criteria or how the criteria is applied etc. etc. And it is helpful to keep in mind that one Fair Housing investigator’s interpretation of the phrase may be different than another’s. And one judge’s view may be different than another’s.

HUD has tried to further clarify this phrase by boiling it all down to the following statements:

  • A landlord must be able to prove through reliable evidence that his/her policy or practice of screening based on criminal history actually assists in protecting resident safety and/or property.
  • Merely relying on generalizations or stereotypes that anyone with a criminal history poses a greater risk than a person without such a background is not sufficient.

Prior Arrests

HUD states that if a landlord rejects a rental applicant because of one or more prior arrests — that have not resulted in a conviction — that the landlord’s policy cannot meet the burden of having a “substantial, legitimate, nondiscriminatory interest.” Translation: if you are doing this, you are discriminating.

HUD states that “the fact of an arrest is not a reliable basis upon which to assess the potential risk to resident safety or property posed by a particular individual. For that reason, a housing provider who denies housing to persons on the basis of arrests not resulting in convictions cannot prove that the exclusion actually assists in protecting resident safety and/or property.”

So landlords may no longer consider whether a rental applicant has been arrested unless that arrest resulted in a conviction.

HUD does not come out and say this but it would seem to me that by logical extension a landlord also can not deny an applicant who has a criminal case that it still pending (since there has not yet been a conviction).

So the applicant that has a pending “first-degree homicide” charge or a “sexual assault of a child” case that is still winding its way through the criminal justice system or is on appeal – cannot be rejected based on that fact alone.

I understand the whole “innocent until proven guilty” viewpoint, but do you think this will comfort your longstanding tenant that has minor children living with her when a middle-aged white guy charged with “sexual assault of a child” is allowed to move in next door to her because his case has not yet gone to trial and therefore he has not yet been convicted?

Oh just wait, it gets even better.

Criminal Convictions

HUD also states that a landlord that imposes a “blanket prohibition” on any rental applicant with a “conviction record — no matter when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then — will be unable to meet this burden.”

Translation: If you deny any and all applicants because they have a criminal conviction you are violating Fair Housing laws and therefore discriminating based on race and national origin, even if you apply that criteria evenly against everyone.

HUD goes on to say that even if you have a more tailored policy or practice that excludes individuals with only certain types of conviction you still must prove that your screening policy is necessary to serve a “substantial, legitimate, nondiscriminatory interest.” There that pesky phrase again.

HUD recommends that any landlord that wants to consider an applicant’s past criminal convictions as part of the screening process must at a minimum consider the following:

  • The nature and severity of the crime, and
  • The amount of time that has passed since the criminal conduct occurred.

That is the only guidance that HUD has given us. The rest is for you to figure out. And if you don’t handle things properly you may get investigated or sued for discrimination.

Exception: Illegal Manufacture or Distribution of a Controlled Substance

There is one point of clarity. The federal Fair Housing Act does contain a section that states that the taking of an adverse action against a person who has been convicted for illegally manufacturing or distributing a controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802) will not be discriminatory. So a landlord is still free to deny a rental applicant if they have ever been convicted of manufacturing or distributing a controlled substance.

Conclusion

What really frustrates me about this whole thing is that landlords are now being told that they must consider a applicant’s criminal convictions on a case by case basis. For years we have been told by HUD that the best way to avoid discriminating against someone is to treat everyone the same; your screening criteria must be “objective” and not “subjective. But now HUD seems to be saying that is no longer appropriate.

Now HUD is telling landlords that they will need to become social workers and therapists and try to determine if an applicant who was convicted of a crime in the past has been rehabilitated or not.

Think of the time and effort that will be required for a landlord to travel to the courthouse to review the criminal case file to determine all of the facts surrounding the crime, all of the events that led up to the person engaging in the criminal conduct, the individual’s past, to review any pre-sentencing report to see what the evaluator thinks about the defendant etc. None of this information is available on CCAP. You will only get this information from the actual file. Or are you just supposed to listen to the applicant’s version of the facts of the conviction and believe them?

It appears to me that HUD might actually be hoping that landlords decide their is too much risk involved in denying any applicant based on their past criminal convictions (except for the conviction for manufacturing or distributing controlled substances – see above) and therefore they should all be accepted.

Landlords will now need to try and determine what convictions might be considered “directly related to the safety of your residents and your property” and hope their interpretation is correct or else risk being investigated and/or sued.

Tristan R. Pettit, Esq.

Source: petriestocking.com

Tristan is a shareholder with the law firm of Petrie+Stocking and focuses his practice in the area of landlord-tenant law representing landlords and property management companies throughout Wisconsin.

What Landlords and Property Managers Need to Know About the Americans with Disabilities Act

1In recent years, there has been a proliferation of “drive-by lawsuits” involving the Americans with Disabilities Act (“ADA”). Such actions typically involve a plaintiff’s lawyer cruising around town with a disabled individual in search of retail properties whose premises are in violation of the ADA. Indeed, these lawsuits are so prevalent that 60 Minutesrecently dedicated a portion of its Sunday night program to the topic.

Each year, drive-by lawsuits result in the filing of thousands of lawsuits by a relatively small number of individual plaintiffs. Ironically, oftentimes, these individuals have suffered no actual harm and can recover little or no monetary damages. Nevertheless, landlords and property managers may be required to undertake costly remediation efforts. The lawyers filing such suits recover attorney’s fees (sometimes with a kick-back to the individual plaintiffs as compensation for their time).

Even worse, these lawsuits—or even the mere threat of a lawsuit—may constitute nothing more than “shake-down” operations and are frequently resolved with the plaintiffs receiving a quick monetary settlement without the requirement that any remediation actually be undertaken. Currently, there is a push in many jurisdictions to pass legislation requiring notice and an opportunity to cure before the commencement of legal proceedings. Unfortunately, such efforts have thus far been largely unsuccessful.

Compounding matters is the fact that the consequences of non-compliance with the ADA can be severe. Potential outcomes might include mandatory injunctive relief (i.e., a court order requiring a property owner to fix the problem), the landlord’s payment of attorney’s fees—both its own and the plaintiff’s—civil penalties, and negative publicity. Further, because ADA lawsuits frequently involve no actual harm to the plaintiff, general liability insurance policies likely will not cover these expenses.

Fortunately, ADA compliance problems are preventable. Violations usually result not from an intentional indifference to the needs of disabled persons but, instead, from the lack of proper policies, procedures, and practices regarding accessibility. Having effective policies in place can go a long way toward avoiding the expense associated with ADA lawsuits. Further, implementing effective policies doesn’t have to be difficult; it simply requires being conscientious about identifying barriers to access to parking, entrances, restrooms, etc.

So, what does the ADA require? Businesses that are “public accommodations” (e.g., restaurants, shopping centers, office buildings) must provide accommodations and access to persons with disabilities that is equal or similar to that available to the general public. Owners, operators, lessors, and lessees of commercial properties are all responsible for ADA compliance.

New construction and elements of buildings altered after January 26, 1992, must comply with ADA standards to the maximum extent feasible. But this does not mean that older buildings that haven’t been recently renovated are “grandfathered in.” Indeed, even for existing facilities, landlords and property owners must remove “architectural and communication barriers” that are structural in nature when it is “readily achievable” to do so. Examples of such modifications include widening doorways to ensure wheelchair accessibility, retrofitting restrooms, and adding access ramps. A modification is “readily achievable” when it is easy to accomplish without much difficulty or expense. This standard will often depend on the nature of the proposed modification and the resources of the party responsible for implementing it.

Who is liable for ADA violations? Owners, landlords, and tenants can be jointly and severally liable in the event of non-compliance. Significantly, a landlord may not shift liability for ADA compliance to its tenants. Certainly, the parties’ lease may shift the cost of remediation to the tenant, but such a provision does not serve to exculpate the landlord from liability. Landlords, as owners of “public accommodations,” have an independent duty to comply with the ADA and can therefore be liable for ADA compliance on property leased to and controlled by its tenants. Further, tenants are not subject to liability for violations in areas that are not under their exclusive control, such as common areas. Additionally, some courts have held that landlords cannot shift the financial responsibility for ADA compliance to architects and builders because to do so defeats the purpose of the ADA.

How does this affect property managers? Although property managers may not have direct liability for ADA compliance, their actions, as agents of the landlord, can have significant consequences. For example, in a recent Pennsylvania case involving the Cracker Barrel restaurant chain, the court certified a national class action lawsuit covering any person who had visited any Cracker Barrel location nationwide and who had encountered barriers to access. Certainly, there had been no finding that every Cracker Barrel location suffered from ADA violations, but the court nevertheless found that Cracker Barrel’s property managers had evidenced a systemic failure to inspect accessibility standards overtime. Thus, the acts and omissions of property managers can have far-reaching ramifications for landlords.

What about landlords who acquire existing properties? Landlords in the business of acquiring existing properties should take ADA compliance seriously. Due diligence should focus not only on the financial aspects of the transaction but on ADA compliance, as well. Failure to do so risks buying not only the property, but a lawsuit, as well. To minimize the risk of purchasing a non-compliant property, purchasers could (a) require that sellers correct any ADA violations as a condition of closing, (b) demand that a portion of the purchase price be placed in escrow until ADA compliance can be confirmed, or (c) negotiate a reduction in the purchase price so that the purchaser can implement remediation efforts itself.

ADA compliance is of critical importance. By recognizing the risks associated with non-compliance, and by implementing policies and procedures designed to ensure equal access to all, owners, landlords, tenants, and property managers can minimize the risk and expense associated with preventable violations.

Source: jdsupra.com

DOJ Warns Landlords About Conducting Criminal Background Checks on Would-Be Renters

1(CNSNews.com) –  As President Obama commutes the sentences of more and more prisoners, his Justice Department intends to make it harder for landlords to deny affordable housing to ex-convicts.

The Justice Department announced on Tuesday that it is involving itself in a legal case in New York brought by a group that  helps “formerly incarcerated individuals” find housing.

The group complained that a 917-unit complex in Far Rockaway, Queens (N.Y.) had a policy of refusing to rent to individuals with prior convictions for felonies or misdemeanors other than traffic offenses. The plaintiff argues that this policy has an unjustified disparate impact against prospective African-American and Hispanic tenants, in violation of the Fair Housing Act.

Although the Fair Housing Act does not forbid housing providers from considering applicants’ criminal records, the DOJ says “categorical prohibitions that do not consider when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then run a substantial risk of having a disparate impact based on race or national origin.”

In other words, if landlords have policies banning ex-convicts in general, they could be in trouble if too many of those ex-cons happen to be black or ethnic minorities. It’s called “disparate impact.”

“This filing demonstrates the Justice Department’s steadfast commitment to removing discriminatory barriers that prevent formerly incarcerated individuals from restarting their lives,” said Principal Deputy Assistant Attorney General Vanita Gupta, head of the Justice Department’s Civil Rights Division.

“Women and men who served their time and paid their debt to society need a place to live, yet unlawful housing policies can too often prevent successful reentry to their communities. While not all criminal records policies adopted by landlords violate the Fair Housing Act, we will take action when they do.”

Source: cnsnews.com