This article is presented in a general nature to address typical landlord tenant legal issues. Specific inquiries regarding a particular situation should be addressed to your attorney.  

Question:  My new tenants just moved in a month and a half ago. The lease requires that the tenant pays for all utilities, and must put the utilities in their own name prior to moving in. Well, I just received the electric bill, and it’s still in my name. I’m thinking about not paying it, just letting it get shut off. Maybe when the lights go out, they’ll take care of it. Can I do that?

Answer:  No, you can’ t let the utilities be shut off. Your tenant’s actions are a breach of the rental agreement, and must be addressed in compliance with California law. You should immediately prepare and serve a Notice to Perform or Quit-Breach of Covenant notice. The notice should identify the specific breaches, the failure to place the electric utility in their own name, and their failure to pay the utility charges incurred since taking possession. The notice should be specific as to how they must cure the breach, namely, they must put the utilities in their name, and reimburse you for the amount of utility changes that have been billed and incurred post tenancy. Note that some jurisdictions may require that you include a statement identifying a witness who observed the breach, as well as the date and time of the breach. In such jurisdiction, you or your manager would suffice as the witness, and the breach would be considered ‘ongoing’ as it continues to occur. In the event of noncompliance, you would be entitled to file an unlawful detain action to recover possession of the premises. Rarely though is that necessary, as the vast majority of residents will immediately comply.

Question:  I just put my single family house on the rental market, and have agreed to rent it to a nice family of four; mom, dad and two kids, two and five. The parents seem responsible enough and I’m sure they’ll make great tenants, but I am concerned because the house has a pool. Is there anything I can do to protect myself from liability should one of the children fall in and drown?

Answer:  The short answer is yes. There are several measures you can, and should, take to protect yourself. First and foremost, ensure that the pool and the gate/enclosure conform to all state and local codes and ordinances. The gate should be self-latching, and should be checked to ensure that it closes properly. Review your insurance policy with your broker to ensure that your coverage is adequate; consider a commercial umbrella policy as well. Your broker can counsel you on coverage limits; consider $3,000,000 as a minimum. Finally, you should include as part of your rental documents an addendum to the lease in which the tenant acknowledges the dangers of the pool, agrees to ensure that all gates are kept closed, and agrees to periodically verify that the self-latching gate functions properly. Consider requiring that your tenants procure renters liability insurance as well.  These requirements should be a part of your rental policies for a property with a pool, regardless of whether or not your tenants have children.

Question:  Just opened up the mail, and what do you suppose was in it? A notice from my bank informing me that one of my tenant’s rent check was returned unpaid because he placed a stop payment on it. Imagine that, it’s now mid-month, no warning, no phone call, the deadbeat didn’t even have the courtesy of letting me know he was going to stop payment on his check. It kind of makes sense though, he asked a couple of weeks ago if I’d let him out of his lease early, guess his girlfriend has a nicer place and he wanted to move in with her. I called his phone number, got a recording saying that it had been disconnected. His cell phone works, got his voice mail, and left a message. I’m guessing that when I swing by later today, it’ll be empty. What do I do now? I don’t want to make any mistakes; can I just change the locks if he’s out?

Answer:  You have a couple of issues that you need to resolve, first the issue of return of possession of the premises, and then, of course, getting you paid. If the tenant appears to have vacated when you visit the unit later today, then you must follow certain procedural rules before you simply change the locks. Ideally, you will be able to contact the tenant on his cell or at work. If you make contact, ask that the tenant confirm that he is out by faxing or emailing you written confirmation. If you are able to confirm that he has moved out, you will not have to follow the abandoned real property notice requirements, and will be able to retake possession immediately. If when you visit the unit, and find that it is vacant, and if the rent is due and unpaid for fourteen days, and the tenant has not voluntarily surrendered possession, then you must serve a written notice of Belief of Abandonment of Real Property. The notice can be posted on the premises and mailed by regular mail to the tenant’s last known address, your property. You must wait eighteen days before you retake possession. If the tenant does not reply, in writing, by informing you of his address for service of an unlawful detainer within eighteen days, then you may retake possession, and change the locks. Once you regain possession, prepare the security deposit disposition form. If he skipped mid lease, he will owe the balance of the term, or until you mitigate your damages by reletting the unit, whichever occurs first. Hang on to the tenant’s check that was returned by the bank. Stop payment orders are only effective for six months, unless renewed by the maker, which rarely happens. That means, in six months and a day, you can redeposit the check, and if there are sufficient funds, the check will clear.

Question:  I’m looking at a single family residence to purchase. It’s a pocket listing, no signage, not on the MLS. The agent claims it’s a great deal because the seller needs cash quickly, wants a quick escrow, and is willing to let it go for under market. The only catch is, the tenant doesn’t know the house is for sale, and the owner doesn’t want the tenant to know. He says that when I close escrow, I can serve my own notice to have the tenant leave, but he doesn’t want the tenant getting nervous and moving out if the deal doesn’t go through. Seems like a really good deal, I know the house, I’ve peeked in the windows, and it’s in incredibly great shape. What am I missing, what can go wrong?

Answer:  Lots. You have actual notice of a tenant in possession. That means that you are bound by whatever rental agreement, or contract, exists between the owner and the existing resident. The tenancy agreement may turn out to be a fixed term lease for a long period of time at less than market rent. The resident may have a lease with an option to purchase the house for a fixed sum, possibly less than what you are paying for it. There may be litigation between the parties relating to the premises, possibly mold or some other contamination issue that you may not be aware of. If the deal really is as described, then prepare a purchase agreement providing a due diligence period allowing you a brief time period to check title, condition and other issues. Once escrow is open, and you are satisfied with title, and the condition of the premises, contact the resident, confirm the terms of his tenancy, get a copy of his rental agreement, and prepare an estoppel certificate for the resident to sign affirming the tenancy agreement, amount of deposit, and affirming that he has no equitable or legal interest in the property.

Stephen C. Duringer – The Duringer Law Group, PLC is one of the largest and most experienced landlord tenant law firms, has successfully handled over 200,000 evictions, and has collected over $90,000,000 in unpaid rent since 1988. The firm may be reached at 714.279.1100, toll free at 800.829.6994 or 877.387.4643.

Visit www.DuringerLaw.com for more information and the locations of their six offices.

Apartment News Publications Inc. is teaming up with the Income Property Management Expo to provide Apartment Owners/Managers & Commercial Property Management Companies with tools for efficient, cost effective management, operation and maintenance of their communities & facilities!

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By: Nick Frantz | OneCallNow.com

I don’t know a property manager who doesn’t grapple with parking issues. At best, they’re a hassle. At worst, they threaten resident safety, satisfaction and retention. They can even send you to court.

Towing may alienate a resident… but failure to act on a parking problem could alienate many residents. The best solution is a proactive approach that maximizes compliance and minimizes your need to have to make the tough decision. Here are seven tips to help ease parking woes on your property.

1.  Understand the parking and towing laws and ordinances in your state and in your municipality.

If you don’t already know the laws, an Internet search should yield results. Illegal towing can do more than damage resident relationships. It can be costly. Some states allow the court to award loss of use damages for the illegally towed vehicle. Residents have to prove their case. But win or lose, it’s going to cost you time and money.

2.  Have proper legal signage.

Posting parking permit and restriction signs on your property is one of the most important actions you can take to ensure and enforce compliance. With effective signage, residents, visitors, staff and vendors should never have any question about where to park.

 3.  Clearly mark the parking lots and curbs.

Sometimes signs disappear, but parking lot stripes and curb paint is permanent. Mark restricted parking areas as clearly as possible; leave nothing to question.

4.  Create, publish and distribute a clear, well-defined parking policy.

Your policy should spell out—and itemize—exactly:

• Where residents, visitors, staff and vendors may park
• Where residents, visitors, staff and vendors may NOT park
• Snow plow procedures
• Your step-by-step procedure for handling vehicles that violate the parking policy (It’s a good idea to try to notify the owner, whenever possible, before a vehicle is towed. Document your attempts to notify; it will payoff)
• Actions to take if someone finds that their car has been towed and how much it will cost

If there are seasonal issues in your area, such as snow or flooding, send timely reminders that reiterate the parking policies and procedures.

5.  Review your parking and towing policies with your snow removal and towing vendors.

Make sure they understand that only authorized personnel from your staff can request that a vehicle be towed.

 6.  Personally address parking issues with problem residents.

Some parking infractions aren’t as defiant as they may seem to you or to other residents. When parking issues arise, one-on-one notices are far more effective than blanket reminders. It doesn’t have to be a nasty confrontation. Stay calm, refer to your parking policies and rules, and make sure the resident has a copy. Keep a record of your resident contact with the date, time and content.

 7.  Communicate regularly and always document.

Managing your property is your job. But your residents have their own jobs, busy—often hectic—lives, and lots on their minds. Make sure your parking rules don’t slip their minds. Proper signage, marked parking spaces and curbs, a published policy, personal reminders and community-wide announcements all work together to minimize slippage.

It’s important to document all your parking compliance efforts.  Take photos of your signage, parking lot, curb markings and any instances of policy violations. Keep a record of all your communications to your residents, whether community-wide or one-on-one. Your documentation should show dates, times, and message content. It should also confirm that your residents received your communications. If a conflict or legal issue arises, all of these will work in your favor.

The name of the game here is to maximize parking compliance and minimize towing instances. It takes a proactive approach, vigilance and a commitment to regular communications with your residents.

For more information regarding resident communication solutions please visit www.onecallnow.com, or call (877) 698-3262 to find out how our text, email and voice messages can work for your community.

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Nick Frantz is the National Sales Manager for Property Management Solutions at One Call Now, where he has worked since March 2011. He specializes in Property Management solutions – commercial and residential – assisting in communications between property managers and staff/residents. Nick holds a Bachelor of Science degree from Miami University.

By: Elizabeth Whited | www.therrd.com

As we all well know, the Fair Housing Act prohibits any type of discrimination from Real Estate Professionals when choosing who to rent their property or unit to in regards to race, gender, sexual orientation, disability, family status or national origin, and in some counties: section 8 voucher status (www.tenantsunion.org). But what about disparate impact?

Disparate impact is the legal theory that people of certain races and ethnicities are disproportionately represented in the criminal justice system. This theory was previously used in regards to employment, but in recent years has moved into the real estate industry as well. The theory states that the use of criminal records for tenant screening purposes has a disparate impact on certain minorities who have been disproportionately represented in the legal system, and who therefore have criminal records that could be used to determine that they should not be rented to. Fair Housing Advocates argue that in effect, while you may be following all Fair Housing Laws, and screening every applicant, you could be inadvertently discriminating against certain minorities (Wikipedia).

The Landlord Times gives a great example: “…a property management company has a policy of charging a set rental amount for the first three residents in a household, plus $100 per month for each additional resident. This policy, although applied equally to all applicants and residents, will have a disproportionately negative effect on families with children, and thus likely violates fair housing laws. Similarly, a policy of denying rental to everyone who has any criminal record may have a disparate impact on certain protected class groups (such as race, national origin, and disability).”

On the other side of that argument are landlords and owners who want to protect their tenants, as well as their staff from those who have committed crimes in the past (be it on a property, or not). Another question that is being debated by certain states is should applicants who have a criminal history be immediately rejected, even if it is not directly related to an on-property offence? This issue also arose in employment screening, and a few states have made amends to only deny an applicant if they can directly relate the crime to the specific job the applicant applied for. They also argue that being a convicted criminal does not put a person into any protected class.

Another law that you could begin to see take hold in other states is the Fair Tenant Screening Act, passed in Washington, which compels landlords to share the reasons behind obtaining certain information required from applicants that is used during the screening process. If a landlord or owner does not disclose this information, then they themselves must pay for the screening fee, even if a third party tenant screening company is used. The owner must also easily identify what criteria for that particular property will fail an applicant. If an adverse action follows a screening report, then the manager or landlord must notify the applicant in writing if it is a direct result of any of the following conclusions:

• Information contained in a consumer report
• The consumer credit report did not contain sufficient information
• Information received from previous rental history or reference
• Information received in a criminal record
• Information received from an employment verification (www.walandlord.com)

A few screening companies out there already offer adverse action letters, and lists of criteria needed from applicants that will be used in their screening process. If criminals cause problems on a property, then future landlords and property managers have a right to know. This does not mean however, that they will not be rented to, but sharing this type of information can be beneficial to all parties involved. Any sort of “black list” of who not to rent to posted online, written, or read aloud in any capacity is illegal, because there is no addendum to inform the tenants, evidence, and no appeals on behalf of the tenant.

Do your research, and make sure to find a database that utilizes all of these tools and is Fair Credit Reporting Act compliant for a completely legal way to share information about tenants. To stay up to date on new amendments and additions to the Fair Housing Law, please visit the U.S. Department of Housing and Urban Development website, or see a list of landlord/tenant laws broken down by state.

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About the Author: Elizabeth Whited is the Operations Coordinator at the Rent Rite Directory. She has written educational articles for multifamily magazines and Real Estate websites to help Property Managers and Owners improve their properties, in an effort to reduce crime in their communities. The Rent Rite Directory educates Property Managers and Owners at Crime Watch Meetings, and Crime Free Association Conferences, and works closely with law enforcement nationwide. For more information, visit www.therrd.com.

Elizabeth Whited 1-855-733-2289, ewhited@therrd.com

By: Nick Frantz

Security is a tough nut. Everyone wants it, yet no one can guarantee it. Most lease agreements make that clear. But as you well know, resident safety is not completely out of your realm of responsibility. So let’s take a common-sense look at some of the legal, ethical and business aspects.

How Property Managers and Multi-Family Employees Can Help Identify Human Trafficking

By: Elizabeth Whited

To be honest, have you ever considered your role in your community when it comes to helping to uncover and end human trafficking? I had to ask myself the same question, because until I began working for my company, I was unaware of the extent of this issue, and how professionals in the Real Estate Industry have the ability to change it.

Renter Nation – 10/31/2012 7:02 pm