Eviction Basics - Tenant Perspective

     Most of the questions we get from residential tenants fall into 2 categories -- either they have received an eviction notice and are not sure what to do or, they are having a problem with their unit and feel the landlord is not being responsive. We'll address eviction now and conditions in our next blog post.

     There are different types of notices to quit that one can receive -- you can receive a 14 day notice to quit, a 30 day notice to quit or a three month notice to quit.

     A 14 day notice to quit is solely for if you, the tenant, did not pay your rent.  If you have a lease, you have a chance to cure.   So long as you pay all rent due, interest and costs of the suit before the day the answer is due, then your lease is not terminated.

     If you do not have a lease, the rules are bit different.  First, you only have the right to cure if you have not received a notice to quit for non-payment of rent in the past 12 months.  Second, if your notice to quit has some required language requiring you to pay within 10 days, then you must do so to preserve your tenancy.  If your notice to quit does not contain the statutorily required language, then you have until the day the answer is due to get caught up on your rent.

     If you do not have a lease, then a landlord can terminate your tenancy for a good reason (you are violating the rules of the building), no reason (this is a no fault eviction) or for a bad reason (you carry a purple handbag or you like heavy metal music).  A landlord, however, cannot evict you for an illegal reason such as your gender, sexual orientation, ethnicity, national origin, race, religion, disability as well as a few others.  If you pay rent monthly, then the landlord must give you either one full month's notice or 30 days, whichever is longer.  If you pay rent quarterly or you do not pay rent at all, then the landlord must give you three full months' notice in the notice to quit.

     A tenant without a lease, even a long time tenant, can be evicted and there is often little that can be done, unless there are condition issues or other defenses or counterclaims available.

Month to Month Tenancies

     When we receive a call at the office from a potential tenant client, the first thing we need to determine is the type of tenancy the tenant has.  If you have no written lease, then the tenant has a month to month tenancy.  That means that the landlord or the tenant can terminate the rental relationship on one full month's notice.

     Not having a lease has advantages and disadvantages for both landlord and tenant.  If you are a tenant, no lease means you can move fairly easily and quickly.  This can be great if you don't like the place, get noisy neighbors or decide to purchase a home.  It can be less than ideal because the landlord can require you move on as little as 30 days' notice for any reason that is not discriminatory.  The landlord can also seek to raise your rent at anytime.  If you receive a notice to quit and do not have a lease, you will need to move.  There may be some negotiating with the landlord to figure out a time that is mutually convenient, but ultimately, you must move.  This is true even if you have lived in the unit for a very long time.

     From the landlord's perspective, not having a lease gives you the freedom to evict someone without reason.  For example, if a tenant has  lease, is paying rent and generally abiding by the terms of the lease, but the landlord just does not like the tenant (for some non-discriminatory reason), the landlord does not have grounds to evict the tenant and must live with the tenant through the end of the lease term.  With no lease, a landlord can send a notice to quit and with any luck, the tenant will move.  The tenant can have the property available on reasonably short notice for a friend or relative who needs a place to live.  You may also be able to charge a bit of a premium as there are certain groups of people in need of temporary housing.  These would include people doing renovations on their home (either by choice or because of some sort of catastrophe), people moving out of their residence because of a divorce, people relocating, and people with temporary job assignments, just to name a few.  The disadvantages for the landlord are that the tenant could leave at anytime and you could end up with a bit of a revolving door at your unit.  Re-renting a place takes time, effort and expense.  You also do not have the chance to specify rules or regulations that you wish to have followed.

     So when is it better to have a lease as a tenant?  If you plan on staying where you are for at least a year and do not want to move, you should seriously consider a lease.  Similarly, if you have been in a unit for a number of years and do not want to move, you should make sure your lease is renewed.  On the other hand, if you fall into any of the above categories -- recently separated or divorced, moving to a new town, or desirous of home ownership, then a month to month tenancy would be better for you, unless the landlord is willing to give you a short term lease.

     From a landlord's perspective, in most cases you are better off having a lease.  Your tenant is responsible for rent for twelve months and you can specify the terms of the tenancy.  You can say no smoking, no waterbeds or no space heaters.  You can charge a tenant for gas or electricity of separately metered.  You can indicate fees for rent not paid for 30 days.  However, there are a few situations when you may not want to have a lease.  For example, if you purchased the property with the intention of having a family member move in and the date of move in is uncertain, then perhaps you want to rent the unit for a few months.  Depending on your town, it may be easy to rent properties and you are happy with the premium you can get for rentals of several months at a time because there are always people who want to rent.  You may not want a lease if you live in the same building as the rental unit and want to see if you and the tenant get along without being locked into a year long lease.

     Finally, you can have a written month to month lease which could be a good combination in many circumstances.  The amount of time which must be given to terminate the lease can be spelled out, so you can make it 60, rather than 30 days.  The landlord also can spell out specific terms it wants included.  Both sides still have flexibility in moving out, but neither side has a guarantee of housing (for the tenant) or income (for the landlord).

Landlord's Rights and Responsibilities When a Tenant is a Victim of Domestic Violence

In our last post, we discussed that a tenant can terminate a tenancy when he or she is the victim of domestic violence, assault, stalking or rape.  We mentioned that the landlord has the obligation to excuse the victim from the tenancy obligations, but there is additional information a landlord should know in dealing with these types of situations.

A victim/tenant must act promptly to terminate his or her responsibility under a tenancy promptly.  A tenant must notify the landlord within 3 months of the most recent act of violence and then move out within 3 months after giving the written notice.  If the tenant does not move out within the three months, then the notice to terminate is void.

A landlord must also know that the termination applies only to the victim.  No one else who resides in the unit is discharged from the rental obligations.  If, for example, a couple is residing in the unit and one moves out because the other is the abuser, then the remaining party is responsible for the rent.  Similarly, if three friends are renting an apartment and one must leave because she is being stalked by a former boyfriend, the other two roommates are now responsible for the whole rent due under the lease.  If the remaining tenant cannot pay the rent, the landlord may send a notice to quit without fear of a claim of retaliation by the remaining tenants. 

If a victim tenant is the sole occupant and vacates the unit and leaves behind belongings, the landlord may consider those belongings abandoned, unless the tenant indicates in writing that he or she will be responsible for those items and the action to be taken with respect to the belongings.

As a landlord, you can request proof that the tenant is, indeed a victim of domestic violence, sexual assault, rape or stalking, including the identity of the perpetrator.  If the landlord obtains the written proof requested, then that information must be kept confidential and not provide the information to anyone without written permission from the victim or required by court order or law.

You cannot deny renting to a tenant because that prospective tenant terminated a prior rental agreement or requested that locks be changed.  Any waiver of the provisions relating to termination or lock changes are void as a matter of law.  On the plus side, if you comply with the laws in sections 23 to 28 and any court order and act in good faith, then you may be able to escape liability from another household member as well as attorney's fees and multiple damages.

So, what is the bottom line?  Landlords who have a tenant who is or becomes a victim of domestic violence, sexual assault, rape or stalking must permit that tenant to move out on one month's notice and cannot discriminate against prospective tenants who had to leave their prior residence for those reasons.  You can ask the tenant for proof, but you have to keep it confidential and you can't legally ask a tenant to waive his or her rights under this law.  If you act in good faith and comply with the law, your liability will be limited and possibly eliminated.