Maintenance Inspections

Regular maintenance of rental property can increase its marketability and extend its economic life. The pride of ownership as reflected in the property’s appearance can translate into fewer vacancies and better tenants. For those landlords looking to trade up or dispose of a property, resale value can be directly affected by how well the property was maintained.

Property that is inadequately maintained cannot effectively compete for the attention of new, good tenants. Some landlords use discounted rents to counter the negative effects of poorly maintained property. However, deferred maintenance combined with discounted rents will only keep properties occupied for so long. The landlord may have to accept less qualified tenants to fill the next vacancy or may have problems in rent collection or other lease violations. An applicant or tenant may perceive that if the landlord is lax about taking care of the property, the landlord may likewise be lax about enforcing other rental policies. The new tenancy may be short-lived, lasting as long as it takes for eviction action.

Failing to take care of maintenance and repairs is a costly mistake. If the property is not kept in good repair, the tenant may have the right to withhold rent, sue for any injuries caused by defective conditions, or move out without notice.

In almost all states, a landlord is required to provide housing that meets basic structural, health, and safety standards. Under the legal doctrine of implied warranty of habitability, landlords are responsible to maintain and repair the rental property throughout the tenancy term. The basis for the implied warranty comes from either local building codes which specify minimum requirements for essential services or widely held common-law beliefs of what constitutes decent housing. The source of the warranty determines the landlord’s responsibilities and the legal remedies available to the tenant. Since some states have more stringent requirements than others, it is important for a landlord to know the specific standards under his state’s law and to use those standards as a minimum standard for his properties in order to fulfill his legal responsibilities and protect his financial interests.

Depending upon the type and age of the property, the condition of the property at the time of the last tenant move-in, the landlord may want to schedule periodic, detailed inspections of the property. Some landlords schedule these inspections to coincide with seasonal maintenance tasks such as changing batteries in smoke detectors or changing furnace/AC filters.

Periodic inspections will allow the landlord to inspect the property for a variety of maintenance issues, including those that may not be reported by the tenant but would be costly for the landlord if not taken care of. Inspection items usually include plumbing (leaky under-sink turn-off valves in particular), furnace and air conditioning problems, cracks in window panes, roof or gutter repair and housekeeping items that need attention to maintain health and safety conditions, such as trash and garbage accumulating on the property.

It is a good idea to include clauses in the lease agreement regarding maintenance and inspections. The clause regarding maintenance should include a list of the tenant’s responsibilities, including the duty to report problems requiring landlord action. The clause regarding inspections should state that there will be periodic inspections by the landlord or by his/her agent, the approximate frequency of inspections, and the manner (method of communication and amount of advance notice) in which the landlord will schedule a proposed inspection date.

The importance of regularly scheduled inspections is emphasized by including such language in the lease agreement and statement of rental policies. This helps to reinforce the tenant’s responsibility to take good care of the rental premises and to promptly report any items needing service. An annual safety and maintenance inspection is generally considered an acceptable standard, but semi-annual inspections may have more value to help reduce risk and/or contain costs by identifying a problem early on.

The tenant should be made aware that certain annual inspections may be required for compliance with state landlord tenant statutes and/or municipal codes for fire, safety, health, environmental or other reasons and/or local landlord/rental properties registration and license.

Landlord-tenant statutes of most states require specific advance notification to the tenant before a landlord can enter the rental unit to conduct an inspection. There may be different requirements regarding landlord entry in the event of an emergency or other need to access the rental unit. Most tenants will cooperate to schedule a mutually agreeable time for inspection. The benefits of safety and maintenance inspections should ease any concerns by the tenant regarding a brief loss of privacy and quiet enjoyment.

Common sense should come into play when scheduling an inspection. If the landlord schedules an inspection toward the end of the tenant’s rental term, the tenant may already be planning to move out and may not have the same attention to detail or motivation for repair items. An inspection scheduled too soon after move-in may cause the tenant to feel his privacy is violated.

Property conditions can quickly change if landlords fail to routinely inspect units and some deferred maintenance needs can result in serious collateral damage when not attended to early on. While a simple drive-by of the property can quickly determine if there is visible exterior damage or evidence of lease violations such as unauthorized vehicles or parking on the lawn, a more thorough inspection will be needed to assess health or safety hazards and to discover damage or potential for damage to the interior of the rental unit.

When tenants move-out, the condition of the rental unit is documented on the move-out checklist and action taken accordingly if damage has occurred. After cleaning and repair/renovation the rental unit is again offered to tenants. The move-in checklist with the new tenant serves to document the “rent ready” condition of the unit and with the tenant’s signature acknowledges the tenant’s satisfaction with the general condition of the unit. Any items still needing repair or replacement are noted, with agreement to a projected resolution date. Any items noted “as is” serve as acknowledgment to both landlord and tenant that the condition existed prior to the new tenant’s possession of the rental unit. However, “as is” cannot be used for items related to habitability or covered by building codes or other governmental regulation.

The move-in checklist when properly completed is a valuable document that serves as the baseline for the condition of the rental unit throughout the rental term. It is helpful to have the move-in checklist available during the annual inspection. It provides a quick reference as to whether the rental unit remains in satisfactory condition.

Landlords can use the checklist to better manage properties by knowing when repairs were done and when to schedule future routine maintenance. Checklists are another source of documentation to help refute claims of neglect or unsafe conditions in a rental unit. As with all property records, inspection documents should be retained in a permanent file for the appropriate time period as specified by specific legal requirements or by statute of limitation law.

Inspections can result in discovering other problems which might require a violation notice to the tenant, a business decision to not renew the tenant’s lease, or cause for an immediate eviction.

There are numerous ramifications related to inadequate maintenance. If the property is not kept in good repair and the problems are not repaired during a vacancy, new tenants will start out with a bad experience. The fewer defects for a property when a tenant moves in, the less argument the tenant can have when the tenant moves out. Damage to a door or wall found at move-out is obviously the fault of the tenant if the door and wall were in excellent condition at move-in.

Many types of maintenance items that are not taken care of when initially discovered, not only become worse as time passes, but can eventually be the cause of other problems that are substantially more costly to correct.

Without a maintenance plan in place, a landlord has less control over his expenses. Unplanned emergency repairs will almost always be more costly for the landlord and be more stressful for both the landlord and the tenant.

It is important to maintain a detailed up-to-date maintenance log which provides information about every tenant request for service, the results of each inspection in detail, and what was done to correct any issues discovered. Keeping a maintenance log is powerful evidence if a landlord ends up in court or before a housing agency in spite of always attempting to provide safe and sanitary housing

In summary, the positive benefits of good property maintenance can include better tenants, greater tenant satisfaction, longer tenancies for good tenants, improved landlord-tenant relations, higher rents, less likelihood of complaints to regulatory agencies, and reduced costs for vacancies.

Termination and Eviction Overview – Part 1

When a tenant fails to materially perform according to his lease agreement, a landlord must decide the appropriate course of action to protect his investment. For many landlords the better business decision sometimes is to terminate the tenancy and file an eviction lawsuit.

Eviction is the legal process to remove a person from occupation of real property. However, before an eviction lawsuit can be filed, a landlord must first serve the tenant with a legal notice of intent to terminate the tenancy.

State statutes are specific in their procedures to terminate tenancy and conduct an eviction. A landlord should be thoroughly familiar with applicable state statues, case law, and local court of jurisdiction procedures. Failure to follow proper procedures can result in a dismissal or even the loss of the eviction lawsuit, no matter how egregious the tenant’s violation.

Termination Notices

The type of termination notice and required notice period are determined by state statute and the type of default. Generally there are three types of termination notices.

Pay Rent or Quit

The most common reason for an eviction action is non-payment of rent. In most states, if the tenant is late with rent, the landlord must give the tenant a written notice of the time period (usually a number of days) in which the tenant has to pay rent or move out (quit). If the tenant does not pay rent or move-out, the landlord can file for eviction. In some states there is a legal late period before the landlord can serve the notice to pay or quit.

Cure or Quit

If the tenant violates a condition of his lease agreement, a landlord can notice the tenant with a specified amount of time to cure the lease violation, cease the lease violation, or move. In some states a landlord can file for eviction as soon as the cure period expires; in other states, the tenant may be allowed additional time to vacate. In many states, a landlord can terminate with an Unconditional Quit notice.

Unconditional Quit

Unconditional Quit notices allow landlords to terminate a tenancy immediately or within a short period of time for repeated violations of lease terms and conditions, acts of damage, nuisance, or illegal activity. The tenant is ordered to vacate the premises with no chance to cure or cease the violation.

Many states have all three of the above types of notices on the books. In many states the Unconditional Quit notices are the only notice statutes.

Termination of tenancy is the first step in the eviction process. However, when the noticed deadline expires, the tenant is not automatically evicted. In almost every state a landlord must file and win an eviction lawsuit before local law enforcement officers can physically evict a tenant who refuses to leave after receiving a termination notice.

Common Reasons for Eviction

There are many reasons that a landlord may bring legal action to remove the tenant from the rental property. As noted above, the most common reason for eviction is non-payment of rent, followed by chronic late payment of rent, or repeated violation of lease terms. Lease violations could be a breach of the tenant’s statutory duties regarding waste or nuisance, health and safety, or a breach of a material condition of the lease agreement. If a tenant holds over once his lease agreement has expired (with no renewal or extension of the lease by the landlord) a landlord will need to give notice to the tenant to leave, and if the tenant does not comply, the landlord can file an eviction lawsuit.

Individual landlord lease agreement clauses may specify various terms and conditions which protect his rental investment and help prevent harm to others. Material violations of any of those lease clauses could also form the basis for an eviction lawsuit.

There can be circumstances when a landlord must take immediate legal action to evict a tenant. In the event the tenant poses a danger, such as drug dealing or engaging in other illegal acts, in most states the landlord must take immediate legal action to evict the tenant or risk substantial criminal penalties and/or possible confiscation of the rental property according to public nuisance abatement and forfeiture laws.

To legally re-gain possession of the rental premises, a landlord must use the court system to conduct an eviction. A landlord has the burden of proof to show that there is a material breach of the lease agreement or other circumstance that should be remedied by termination of the tenancy. He must show not only a breach that permits termination of the lease, but also that he complied with all statutory procedures, such as the Complaint and Summons and service of process.

The tenant has the right to due process and the court may extend a bias towards the tenant who presumably could be at the mercy of the landlord. The landlord’s prior conduct towards the tenant and his entire relationship with the tenant will also come into scrutiny if the tenant defends against the lawsuit. Even with fully documented proof, a landlord is not guaranteed to win an eviction lawsuit. A landlord should take nothing for granted.

Self-Help Evictions

In almost all states landlord self-help evictions are illegal. Any attempts using methods outside the legal system to force the tenant to move, such as utilities shut-off, tenant lock-out of the rental property, or seizure of the tenant’s personal property, can subject the landlord to substantial legal penalties for actual and/or punitive damages, court costs, attorneys’ fees, or other orders as determined by the court. Any activity that is or may be perceived as illegal, threatening, humiliating, abusive or invasive of a tenant’s rights or privacy could be used to file a lawsuit against the landlord.

Courts of Jurisdiction

The important determination before initiating any legal action is whether one party has suffered damage because of the other person’s action or lack of action. If there is no damage, there is no cause for legal action.

If there is cause for legal action, the action must be taken in the appropriate court of jurisdiction. Since landlord-tenant laws are state statutes, evictions are the business of state level courts.

Eviction lawsuits can be filed in a formal trial court, in a small claims court or, in a few states, in a special court such as Landlord-Tenant Court.

While some states give landlords a choice of courts in which to file an eviction lawsuit, other states specify the court that must be used. If the landlord has a choice of courts between formal trial courts and small claims courts, there are several important considerations.

An important determination is the dollar amount that the landlord is seeking. If the amount of unpaid rent exceeds the dollar limits set by the state’s small claims court, the landlord must use a higher court or accept a lesser amount that can be awarded in small claims court.

Another consideration in the landlord’s choice of courts is the issue of attorney fees. If the landlord’s lease agreement provides for payment by the tenant of “court costs and attorney fees in any action or legal proceeding to enforce the agreement,” the landlord may want to consider filing the eviction lawsuit in a higher trial court.

In this option the landlord will be relying on winning with a strong case, and a good chance of collecting all funds from the tenant. If the tenant is already in dire financial trouble, the chances of collecting the awarded fees might be slim to none, at least in the near future. In that instance, the landlord is probably better off filing his lawsuit in the small claims or equivalent court.

There are other important difference between a formal trial court and a small claims court.

The rules of small claims courts are not as formal as the municipal court rules. There is no discovery period. The landlord will present his case to a judge or magistrate by telling his story without worrying about legal language and strict procedural formality and the tenant will do likewise. After each side has presented its case, the judge will make his ruling. Even though the court operates somewhat informally, neither the landlord nor the tenant is allowed to ramble on or bring up issues that are not germane to the issues at hand. The landlord must, however, be prepared with his facts, backed by evidence, to prove his case.

In a formal court the landlord and the tenant may use pre-trial discovery to gather information to support their positions. During discovery, each side may question witnesses under oath (depositions), submit written questions for response (interrogatories) and pose requests for admissions that the other party, again under oath, is obliged to admit or deny. The information gained during the discovery process may be used during the trial.

Also, in a formal court a landlord will need to produce proof that the tenant’s breach of a term or condition of the lease agreement was a material breach, sufficient to warrant a termination of tenancy. In addition, before a landlord can present his case for termination, he will need to provide evidence that certain conditions existed before the breach. A landlord can call upon witnesses, submit letters or reports, use information gained from pre-trial discovery, and provide photographic evidence that can be substantiated through witnesses.

While many experienced landlords routinely conduct their own evictions in the courts, many others prefer to have an attorney specializing in landlord-tenant law handle their evictions. There are, however, some circumstances when a landlord should consult with an attorney before proceeding with the eviction action, such as when the tenant is already represented by an attorney, has filed for bankruptcy, or is contesting the eviction. There may be other factors such as rent control rules or the property location that could require obtaining legal counsel.

In a future article, the eviction legal procedures of Complaint, Summons, Service of Process, and Tenant Answer will be discussed in some detail.