4th May 2009

Landlord Tenant Law

posted in Landlord/Tenant |

Just recently I received three emails, in quick succession, from smaller landlords, like myself, asking various questions about dealing with tenants in general.

landlord-tenant-law-bookOne question was from a landlord who asked what they should do with a HEAP of stuff being removed from one of their units after their pack-rat tenant moved out.

Another question was from a landlord who asked what they should do about a tenant who was demanding that the landlord return their security deposit the day they moved out of the unit they were renting.

My response to all the landlords’ questions was that they should consult the appropriate state law where the property is located. Tenants can scream and threaten all they want about what the landlord should or should not do but when it comes down to it, the state law spells out pretty much everything to do with the landlord/tenant relationship.

One important thing to note though, is that the state law supersedes the lease agreement and the judge supersedes everything.

This is probably not how things are supposed to work but consider this example; A landlord writes into the lease that if the tenant pays the rent of $500 late, they must pay a $1000 late fee. The tenant signs the lease and moves in.

Well, the time comes when the tenant pays late (believe me, it’ll happen at some point) and refuses to pay the $1000. The landlord files for eviction based on the terms of the lease which the tenant signed.

Most state landlord/tenant law contains a clause which states, in effect, that the landlord can not write “unconscionable” terms into the lease and expect the tenant to comply.

“Unconscionable” is a nebulous term in this context in that it’s wide open to interpretation. Here’s where the judge comes in. Based on other leases, common local practices, random circumstances, etc., the judge can choose to waive the $1000 late fee, assign a lower fee, eliminate it altogether or evict the tenant. It’s purely up to the judge presiding over the case.

The lesson for the landlord in this case, is to not write strange terms into the lease. But, typically, if the lease terms are fair and within the guidelines set forth by the state law, the lease will usually hold up in court.

The state law, especially for a landlord/tenant relationship, is usually written in plain, easy-to-understand language with the exception of words like “unconscionable” which can mean something special in the context of the law.

I would encourage all landlords, regardless of how many properties they manage, to seek out and read the actual state law. At least that way they can effectively deal with rambunctious tenants or be able to speak with their attorney intelligently on the subject.

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