Archive for June, 2010

June 23 Questions & Answers

June, 2010

Q1

I have a situation where I let a friend stay in a home that I have up for sale. He was to help with the mortgage payment and pay the utilities since I don’t live in the home. He did not follow through with his part, leaving me with hefty winter utility bills so I told him he needed to find another place to live. I put his things into the garage and told him I’d done so, but he has not made efforts to remove them in almost a month. What can I do to get him to remove them?

A1

This might depend on how good a friend he really is and the terms of agreement you had with the friend. If you had a written agreement of any kind, it might be construed to be a lease or rental agreement even if not so titled. Even if you had no written lease agreement, it is possible that a court would consider him to be a tenant under an oral lease agreement where your agreement was that he pay certain amounts, with the amounts construed to be rent.
Understand that if your friend had claimed to have an oral agreement for any term up to one year you would have had to evict him through the court in order to regain possession of your property.
In most states a landlord cannot take possession of the rental premises unless the tenant has relinquished possession. If the friend has not recently occupied the property and did not indicate any objection when you informed him that you moved his things into the garage you are likely OK. Since he is no longer occupying the home, he must have somewhere other than your garage where his things can be stored. Accordingly, in order to maintain your friendship and to avoid any possible legal issues, you might consider asking him when you can deliver his things to his new place.

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Q2

Children sometimes play in the parking lot of my apartment complex. Can I enforce prohibition of them doing so if I post signs regarding it?

A2

You can post signs and you can enforce them, but you must be careful what the signs say. Having the signs say “Children are prohibited from playing in the parking lot” could be a violation of fair housing laws because it singles out children as the class being prohibited. Having the signs say “No one may play in the parking lot” or “Playing in the parking lot is prohibited” would be better. I would add that in order to avoid any claims of discrimination the prohibition must be enforced equally against everyone – children and adults alike.

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Q3

Then what about my “Fitness center users must be 12 or older” rule?

A3

There are activities for which persons below a certain age are more likely to injure themselves compared to older persons and those persons can be prohibited from putting themselves at risk. For such cases, the prohibition should usually be against those younger than the age recommended in writing by the manufacturer of the equipment. For activities such as swimming in a community pool, one can usually have a requirement such as “Swimmers younger than 12 must be supervised at all times by an adult resident of the community.” One must use care to avoid the appearance of attempting to subvert fair housing laws and be sure that the rules are uniformly enforced.

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Additional Information

Most of the issues discussed in these Q&A’s are covered in considerably more detail in our eCourses and/or in our Mini Training Guides.

New Lead Safe Practices Rule (effective April 22, 2010)

June, 2010

Effective April 22, 2010, federal law requires that contractors performing renovation, repair and painting projects that disturb more than six square feet of paint in homes, child care facilities, and schools built before 1978 must be certified and trained to follow specific work practices to prevent lead contamination. Lead safe practices include minimizing dust, containing the work area, and conducting a thorough cleanup to reduce the potential exposure associated with disturbing lead-based paint.

The new law is expected to limit the risks of lead poisoning that might result from renovations made to older buildings. Renovation is broadly defined as “any activity that disturbs painted surfaces.” It includes most repair, remodeling, and maintenance activities, including window replacement, weatherization, and demolition. Generally, minor repair and maintenance activities (less than 6 square feet per interior room or 20 square feet per exterior project) are exempt from the work practices requirements. However, this exemption does not apply to jobs involving window replacement or demolition, or that involve the use of any prohibited practices.

The rule covers any individual or firm that is paid to perform work that disturbs known or presumed lead-based paint in housing and child-occupied facilities built before 1978. This includes but is not limited to general contractors; specialty trade contractors including painters, plumbers, carpenters, and electricians; home renovation companies; window replacement contractors; maintenance workers; and to residential rental property owners and managers who perform repairs and renovations themselves.

The rule applies only to renovations performed for compensation. Accordingly, if a homeowner performs renovation, repair or painting work on his own home, the rules do not apply. However lead safe work practices should still be followed to protect home occupants and the value of the property.

There is no question that the new rule applies to renovation activities performed by landlords or employees of landlords. Landlords receive rental payments and maintenance personnel in rental property or child-occupied facilities receive wages or salaries derived from rent payments. The receipt of rent payments or salaries derived from rent payments is considered compensation under the RRP rule. Therefore, renovation and repair activities performed by landlords or employees of landlords are covered by the rule.

Those businesses and individuals affected by the rule are required to:

  • Apply to EPA to be approved as a Certified Renovation Firm and receive the necessary training and certification from an EPA-accredited training provider for Lead Safe Work Practices.
  • Assign a Certified Renovator to be present at each project and ensure that lead safe work practices are used throughout the project.
  • Provide consumers or tenants with the EPA pamphlet “Renovate Right” prior to the start of each project and maintain records documenting that the required information has been provided at each project subject to the rule.

Those seeking to become certified and trained can find more information on the process and a list of accredited trainers at: http://www.epa.gov/lead/pubs/renovation.htm#contractors.

Hundreds of thousands of businesses including contractors, painters, and even neighborhood handymen are affected by the new rules on lead-based paint safety. Failure to comply can be costly, with fines up to $37,500 per violation per day. In addition those who fail to meet the new certification and training standards could potentially be subject to lawsuits from individuals whose health was endangered by the violations.

To date, EPA has certified 204 training providers who have conducted more than 6,900 courses, training an estimated 160,000 people in the construction and remodeling industries to use lead-safe work practices. EPA estimates that more than 200,000 contractors will apply for the new certification.

In addition to the rule becoming effective, the EPA has issued these additional actions:

  • A notice of proposed rulemaking to require dust-wipe testing after most renovations and provide the results of the testing to the owners and occupants of the building. For some of these renovations, the proposal would require that lead dust levels after the renovation be below the regulatory hazard standards. EPA will take comment on the proposal for 60 days. The agency expects to finalize the rule by July 2011.
  • An advance notice of proposed rulemaking to announce EPA’s intention to apply lead-safe work practices to renovations on public and commercial buildings. The advance notice also announces EPA’s investigation into lead-based paint hazards that may be created by renovations on the interior of these public and commercial buildings. If EPA determines that lead-based paint hazards are created by interior renovations, EPA will propose regulations to address the hazards.

Additional Information

For more information regarding the new rules visit www.epa.gov/lead or call the National Lead Information Center at 1-800-424-LEAD (1-800-424-5323).

June Questions & Answers

June, 2010

Q1

Can I legally prohibit waterbeds in my rental units?

A1

That depends, mostly on the terms of your lease agreement. Most states will allow a landlord to prohibit waterbeds if the lease agreement so states. Unless there is a state or local law that says otherwise, a tenant would be allowed to have a waterbed unless prohibited in the lease. Some states specifically allow a landlord to require an additional deposit for waterbeds in addition to the maximum security deposit otherwise allowed by statute.

Landlords can also protect themselves without eliminating potential applicants, who are otherwise qualified, by requiring that such tenants carry renters insurance that includes waterbed coverage. In any case, a tenant would usually be responsible for any damage resulting from presence of his waterbed, but including a specific lease clause regarding this issue would give additional protection. Check the landlord-tenant law of your state to see if waterbeds are explicitly covered in any way.

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Q2

I’ll soon be closing escrow on my first rental property and when looking at several possible application forms, I see differences in info required. Can someone give any ideas of the most important info?

A2

You are right to be concerned about what is on your application form, as the first line of defense against bad tenants is having an adequate application form. An adequate form is one that requires the applicant to provide information that can be used to verify his identity, obtain a credit report, verify employment and wages, verify other sources of income, contact previous landlords regarding rental history, check eviction records, perform a criminal background check, verify bank accounts, and interview personal references. The form itself and the associated collected information are also useful if it ever becomes necessary to track down a tenant in order to collect a debt related to his/her tenancy. Each adult in any group of residents should complete and sign a separate form.

At a minimum, landlords should require that:

Each applicant is of legal age (or emancipated minor),

Each applicant sign an authorization of release of personal information form for credit reports, employment, rental history, eviction report, and criminal history, for both at the time of application and in the future, and

Each applicant should be required to present at least two forms of personal identification, with at least one being a government-issued photo ID and you should make copies of the IDs.

We suggest that the following information be requested on an application: 

First, last, middle name of applicant, including other names previously or currently used;

Social Security number;

Current residence address;

Telephone numbers, including current home, cell, and work;

Employment history (name, address, telephone number of current employer, supervisor’s name and telephone number, dates of employment, job title);

Monthly gross employment income and/or other income amounts applicant wants considered;

Driver license number – make a photocopy of the driver license;

Vehicle information including make, model, year, color, license plate number for each vehicle;

Date of birth (for identification purposes only, so only of those filling out applications);

Debt obligations (including loans, credit accounts, and spousal or child support);

Financial institution accounts, including name, address, account numbers;

Past rental history (property address, dates at the address, landlord name, landlord telephone number, reason for leaving);

Personal references;

List of additional occupants (include everyone who will live in the rental property);

Emergency contact information, names, addresses, telephone numbers, relationship to applicant (can be useful for tracing a skipped tenant);

If pets allowed, what types and, for dogs, the breeds and sizes;

Describe any water filled furniture;

Has tenant ever filed bankruptcy? If so, which chapter, when, and why?

Has applicant ever been evicted? If so, when and why?

Has applicant ever been convicted of a felony crime? If so, for what and when?

Avoid asking for information regarding age (except as above), birthplace, religion, marital status, relationships among occupants, physical or mental conditions, arrests that did not lead to a conviction, or any other item that might be prohibited by federal, state, or local fair housing laws.

A social security number is important for verifying identity and obtaining various tenant screening reports. It is permissible for an applicant to be asked to divulge their Social Security number as part of the application screening process and it is legal to refuse consideration of an application or to deny an applicant simply because the applicant refuses to provide the number.

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Q3

Can I limit the number of vehicles that a tenant may have?

A3

You cannot limit the number of vehicles a tenant may own, but you can limit the number that are simultaneously allowed to be parked on the rental property when there is not unlimited parking available. The tenant would then be required to park any additional vehicles elsewhere, for example, on nearby local streets. To avoid any tenant charges of favoritism or even possible claims of fair housing discrimination, it is important that you treat all tenants equally regarding the parking issue. In any case, as with most issues, it is always best to cover the parking issue adequately in lease agreements.

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Additional Information

Most of the issues discussed in these Q&A’s are covered in considerably more detail in our eCourses and/or in our Mini Training Guides.