Once the landlord has transferred possession of the rental unit to the tenant, a landlord must respect the tenant’s rights to privacy in the tenant’s home. The implied Covenant of Quiet Enjoyment ensures the tenant that during his tenancy, the tenant’s use and enjoyment of the dwelling unit will not be disturbed by someone with a superior legal title to the land including the landlord. The covenant between landlord and tenant provides the tenant with the right to exclude others from the premises, the right to peace and quiet, the right to a clean and habitable environment, and the right to basic services. If the tenant is deprived in whole or in part of the beneficial use and enjoyment of the leased premises due to actual or constructive action by the landlord, a breach of the covenant has occurred.

The rental unit is still owned by the landlord as his legal property and the landlord retains a legal right to enter the premises under certain circumstances as permitted by state statutes. For compliance with habitability responsibilities, a landlord can request access to the rental unit as needed for inspections and repairs in order to make sure the property is safe and well maintained. This could include supervised access to the rental property for contractors, tradespersons, or service technicians. In most states the landlord has the right to show the rental property to prospective tenants or purchasers. The conditions for notice requirements and reasonable hours of access apply for any access to the rental premises.

While ownership of the property and possession of the property are separate matters, at times such matters can create landlord-tenant tension when the landlord requires access to the rental unit and the tenant views the landlord’s entry as a violation of privacy. Generally in discussion with the tenant regarding the business need for entry, the landlord, following statutory requirements for tenant notification, is granted access to a tenant-occupied property. The tenant should be reassured that the landlord, or the landlord’s agent, will remain in the tenant’s rental unit only for the amount of time required to complete the task, inspection, repair, or showing.

Landlord behaviors that are considered too invasive of the tenant’s right to privacy and/or intrusive to the tenant’s enjoyment of the premises violate the tenant’s rights. If a landlord requests frequent inspections unwarranted by business purposes, conducts inspections or requests access outside of reasonable hours, or otherwise uses entry to harass a tenant, the landlord’s behaviors violate the landlord-tenant agreement. The landlord cannot just drop in or otherwise enter the tenant’s unit without the express permission of the tenant except in the case of true emergency. Depending upon the circumstances regarding entry, tenant remedies for a landlord’s violation of tenant privacy include filing a lawsuit against the landlord for trespass, invasion of privacy, breach of the implied covenant of quiet enjoyment, and infliction of emotional distress.

In the event of a true emergency a landlord can enter the rental premises without giving the required notice. A true emergency is an event that threatens life or causes property damage if not immediately corrected. A landlord should use both caution and common sense to evaluate a situation for emergency entry. Fire, flooding, or an event caused by a natural disaster might be considered legal justification for emergency entry.

A best practice is to document in writing all requests for entry and corresponding tenant permissions for entry. Written notices provide details of the nature of the request, date and time of entry and serve as a risk management practice in the event of a misunderstanding or tenant claim of violation of privacy rights.

A landlord has a legal responsibility to take reasonable care to protect tenants from foreseeable harm. The landlord’s duty of care extends to protect tenants from third party criminal acts and, correspondingly, to protect the neighborhood from criminal acts of his tenants.

A landlord should assess his property’s safety and security vulnerabilities. A physical inspection of the property can point to areas that require additional safety measures or upgraded security systems. While a landlord cannot guarantee tenant safety, with adequate due diligence and appropriate safety measures, a landlord can help secure a property from known risks.

A landlord’s property security assessment will determine what security measures are needed to effectively protect the property. Basic security measures for all types of properties include:

• Exterior lighting at entrances and walkways
• Interior lighting at stairwells, hallways, doorways, garage or parking entrances
• Locks including dead-bolt locks for entry doors, window locks, patio door locks
• Landscaping that does not block or obscure doorways or windows

The type of property, the location of the property, and the security measures as required by state statutes, local ordinances, or building safety codes may also determine what must be provided for adequate protections.

Measures for tenant safety can include rental policies and practices for tenant screening. Tenant screening practices that include thorough background checks for credit history, rental history, criminal conviction history, public records, and landlord references can help control business risks and protect current residents from harm.

A landlord should monitor activity on his rental property for signs of illegal or nuisance activities and take appropriate measures to enforce rental policies and take legal action as required to stop illegal activities and remove nuisance tenants.

Responsible landlords have good management practices, prompt response to tenant security concerns and complaints, regular property inspections, timely response to maintenance and repair issues, and installation and maintenance of required safety and security devices that help protect tenants’ safety and reduce landlord liability for known risks.

Carbon monoxide (CO) is a toxic gas produced by incomplete combustion of fossil fuels, such as natural gas, wood, oil, propane, charcoal, gasoline, kerosene, or coal. When fossil fuels are burned, carbon monoxide gas is released into the air which, if not dissipated, leads to air quality problems and serious health issues.

Because carbon monoxide is a colorless, odorless, and tasteless gas, residents can be unaware of dangerous levels of CO in their homes. Exposure to carbon monoxide inhibits the blood’s ability to carry oxygen to body tissues and vital organs. Symptoms of carbon monoxide exposure can include headache, nausea, weakness/fatigue, rapid breathing, dizziness, confusion, and fast heart rate. Extreme exposure can include convulsions, unconsciousness, brain damage, and heart and lung failure followed by death.

The winter season can be especially dangerous for accidental carbon monoxide poisoning. Insulating homes and apartments for more energy efficiency in the winter can make the unit/ home more air tight, but this in itself could contribute to indoor air quality problems. Carbon monoxide levels in tightly sealed apartments and homes could rise to dangerous levels if a fossil fuel source malfunctioned or was not properly vented.

Carbon monoxide comes from sources such as:

• Any fuel-burning device that is malfunctioning or improperly installed.
• Furnaces, gas range/stove, refrigerator, gas clothes dryer, water heater, portable fuel-burning space heaters, fireplaces, and wood burning stoves.
• Vehicles running in an attached garage.
• Combustion engines used in enclosed spaces.
• Blocked chimney or flue.
• Cracked or loose furnace exchanger.

Only incomplete burning of fossil fuels can produce carbon monoxide gas. Appliances or heating systems that use electricity do not produce carbon monoxide.

Carbon monoxide exposure poses a risk in all types of housing and other type of properties. Most housing has some source of fossil fuel heating system or appliances which requires inspection and regular maintenance to prevent carbon monoxide exposure. Even when there is no carbon monoxide source within the home or rental unit, there can still be risk of CO emissions coming from nearby units or properties. Accordingly it is recommended that a carbon monoxide alarm be installed in all housing intended for human occupancy.

Landlords should be proactive in taking appropriate measures to protect the health and safety of tenants. A landlord may have the legal obligation to install and maintain carbon monoxide alarms in rental properties. Landlords should determine compliance requirements for their properties by state statute, local ordinances, and building/safety/health codes in their area. Specific requirements and responsibilities concerning carbon monoxide detectors can vary among states. In some states landlords are prohibited from renting properties with a carbon monoxide source unless an approved carbon monoxide detector has been properly installed. In other states landlords are required to install CO alarms/detectors in every unit even if there are no fuel sources or attached garages that could create a risk of carbon-monoxide poisoning.

Per most state and local requirements, at least one approved carbon monoxide alarm must be installed in each dwelling unit. Wherever there is a carbon monoxide source (appliance or system) there should be a CO alarm. This may include placing an alarm in the furnace room, laundry room, and garage. Installation and placement of CO alarms should be done according to the manufacturer’s instructions. As a general rule, carbon monoxide alarms must be located outside of each separate sleeping area, in the immediate vicinity of the bedroom and on each level of the residence.

Fire and safety recommendations include testing CO detectors on a monthly basis according to the manufacturer’s instructions, replacing batteries as specified by the manufacturer, and as applicable, regularly cleaning the alarm to remove dust.

Carbon monoxide alarms properly installed and maintained can detect high concentrations of carbon monoxide gas and alert residents to take appropriate actions for safety.

There are measures that can be taken to reduce exposure to carbon monoxide and prevent carbon monoxide poisoning. In general:

• Have the heating system, vents, chimney and flue inspected annually by a qualified technician.
• Every home with at least one fuel-burning appliance/heater, attached garage or fireplace should have a carbon monoxide alarm.
• Properly install carbon monoxide alarms in the home on every level and in sleeping areas.
• If the home has only one carbon monoxide alarm, it should be installed in the main bedroom or in the hallway outside of the sleeping area.
• Place the alarm at least 15 feet away from fuel-burning appliances.
• Make sure nothing is covering or obstructing the unit.
• Do not place the unit in dead air spaces, next to a window or door, near heating/cooling vents, ceiling fans, or areas with turbulent airflow or heavy ventilation.
• Do not install a unit in direct sunlight or outdoors.
• Avoid installing the unit in locations with high humidity such as bathrooms.
• Test the carbon monoxide alarm regularly using the test/reset button.
• As applicable to the manufacturer’s care instructions, clean the unit to remove accumulated dust.
• Install and operate appliances according to the manufacturer’s instructions.
• Purchase appliances that have been approved by a nationally recognized testing laboratory.
• Never use a gas range/stove/oven to heat the home.
• Never leave a car idling in a closed garage or use fuel-powered appliances or tools in enclosed, attached areas such as garages or porches. Carbon monoxide can seep into the home through vents and doors.

• Install and use an exhaust fan vented to the outside over a gas stove.
• Open the fireplace flue when using a fireplace.
• Use a wood stove that has been certified to meet EPA emission standards.

• Prohibit indoor use of portable gas grills or charcoal grills.
• Prohibit the use of nonelectric space heaters in the home/rental unit.

Tenants should be instructed on the proper use of appliances, heating systems, fireplaces and wood stoves; how to inspect appliances and heating sources for proper working order; make sure ventilation ducts for any appliances and systems are kept clean and unobstructed; and to promptly report any problems to the landlord. The lease agreement should be clear and detailed regarding tenant responsibilities to properly use appliances, fixtures, and systems provided in the rental unit.

It is important the tenant know where the carbon monoxide alarms are located in the rental unit, know how to test the alarms, and know how to replace batteries in the alarms as per manufacturer instructions. A tenant should be held responsible to keep alarms in good working order and cautioned against disabling the alarms. Should the tenant fail to comply with lease terms and conditions regarding safety measures for the prevention of carbon monoxide poisoning, the tenant’s default may be considered a material lease default and a cause for the landlord to seek legal remedy.

The move-in checklist should clearly note that landlord and tenant tested approved carbon monoxide alarms during the move-in walk-through and found alarms in good working order. The landlord should note that the tenant was given information regarding the dangers of carbon monoxide exposure, device testing, and what to do in an emergency situation. As part of the documentation in the tenant’s file, the landlord should keep a record of the alarm installation and maintenance inspections.

A best practice to ensure tenant understanding and compliance of carbon monoxide responsibilities is the use of a carbon monoxide lease addendum signed by the tenant at move-in and reviewed at lease renewal.

In many states a landlord’s duty of care to take adequate measures to provide for the safety of a tenant will include the landlord’s responsibility to install, inspect, and maintain carbon monoxide alarms. If a landlord breaches his duty of care by failing to take appropriate steps to protect the tenant from CO exposure and the tenant suffers carbon monoxide poisoning as a result, the landlord as a result of his negligence would likely be held liable in a tenant’s personal injury lawsuit.

A landlord could be held liable for a tenant’s claim of injury due to exposure of carbon monoxide if the landlord (1) violated state statutes requiring carbon monoxide detectors to be installed in rentals; (2) failed to maintain required carbon monoxide detectors; (3) violated health and safety codes for carbon monoxide detector requirements; or (4) breached a landlord duty of care regarding carbon monoxide alarms as per lease agreement or oral promise. The determining factor in establishing landlord liability will be the facts as evidenced by an investigation of the circumstances. It is unlikely that a landlord could be held liable for tenant’s injuries from CO exposure that were a result of a matter completely out of the landlord’s control, such as a product recall for a design flaw or manufacturing error that makes the unit unsafe to use. If the facts show that tenant injuries were due to the tenant’s negligence, the landlord would not likely be held liable.

A lease agreement or separate lease addendum should always address rental issues that specify landlord and/or tenant duties and responsibilities.

If the rental property is located in a region that receives winter weather (snow and ice), snow removal should be addressed in the lease for legal compliances with applicable state, city, and county regulations and assignment of responsibilities.

Tenant safety is a duty of care responsibility for a landlord. Snow and ice removal must be done to help keep tenants safe on the property and to maintain the property to good condition. Some states address the issue of snow removal by statute including specific responsibility for snow removal. Other states may address the issue in general but allow a landlord to determine specific responsibility for snow removal. City and county ordinances may also address the issue to further specify snow removal responsibilities and details of how and when snow must be removed.

Unless otherwise specified in the lease or by statute/ordinance, a landlord or property owner is generally responsible for snow removal for multi-unit buildings in a complex where there are common walkways and parking areas. In many states a landlord or property owner with multi-family/multi-unit properties is held responsible to maintain all means of egress at all times in safe and operable condition, including conditions of snow and ice.

Landlords with single-family residential properties may be able to transfer responsibility of snow removal to the tenant through appropriate language in the lease agreement.

The lease agreement must comply with the state and municipal laws on snow removal and clearly define details regarding the time frame and manner of snow removal.

By including the snow removal policy in the lease agreement, the landlord and tenant sign their agreement to duties and responsibilities for snow removal at the rental property. The policy, practices, and remedies for default are clearly detailed in the lease for understanding what will need to be done during conditions of snow and ice. The tenant is made aware of duties and responsibilities such as:

• Tenant responsibility for snow removal
• Landlord responsibility for snow removal
• The timeframe for snow removal by the tenant per applicable statute/ordinance
• Landlord remedies for tenant default of snow removal duties and responsibilities

A landlord may include in the lease clause a remedy that if the tenant does not perform to required statutory regulations, e.g., timely snow removal, the landlord may remove the snow and ice at the tenant’s expense. A lease clause may also assign to the tenant responsibility for injuries caused by the tenant’s failure to remove snow and ice per regulations and lease terms and conditions. The lease may also assign tenant responsibility for fines resulting from tenant failure to remove snow and ice per regulations.

To help prevent fire and safety hazards when decorating indoors for the holidays, pay close attention to lighting decorations and particularly to open flame candles.

• Do not place trees, live or artificial, next to a heat source such as heat ducts, radiators, or a fireplace. Avoid placing trees in high-traffic areas or near doorways so as not to restrict or block access to or from the area.

• Interior lighting strings should be checked for damage, such as cracks, damaged sockets, bare or loose wires, and missing bulbs before placing lights on a tree or used in a decoration.

• Use lights that have been inspected for potential safety hazards and certified safe by an approved source such as Underwriters Laboratory.

• Consider using energy efficient LED lights rather than incandescent lights.

• Don’t overload electrical circuits with multiple devices such as holiday decorations and space heaters. Do not exceed the maximum number of light strings that can be linked together, as noted on the packaging instructions.

• Use a ground fault circuit interrupter (GFCI) outlet that will shut down if there is overcurrent.

• Prevent tripping by placing cords and decorations in low-traffic areas where they won’t be walked on. Avoid twisting, kinking or crushing cords.

• Use a timer or turn off lights before going to bed or if residents are away from home. Unattended lights could short out and start a fire.
• Indoor lights should not touch drapes, furniture or carpeting.
• The use of open flame candles should be discouraged (or prohibited) to avoid fire hazards. If lighted candles are used, place them away from flammable or combustible materials, including other decorations, fabrics, plastic or paper products. Never leave a lit candle unattended. Make sure to extinguish candle flames when leaving the room and before going to bed.
• As the best alternative to traditional candles, use battery-operated candles.

The following tips for energy efficiencies may be helpful to tenants to reduce their heating costs:

• Replace furnace air filters on a regular schedule.
• Turn down the thermostat at night while sleeping.
• Lower the thermostat setting during the day when no one is home.
• Reduce cold air drafts from entering living spaces at doorways or window sills by placing draft dodgers along bottoms of exterior doors and in window sills. Windows should be kept shut and locked. If allowed, weatherproof windows with insulating film, and install insulating gaskets in electrical outlets.

• Open any register vents or air returns inside the living spaces in the rental unit. Vents may be wall mounted, in the floor or in the ceiling. Make sure furniture has not been placed over or against vents or returns.
• Keep the heat on at the premises. Do not turn off the heat in the rental unit when leaving for the holidays or taking a vacation trip. Heat should be kept at a minimum of 55° at all times during the winter season. Notify the landlord if there is a planned extended absence from the rental unit.
• Keep kitchen and bathroom warm water faucets slowly dripping to prevent pipes from freezing if the outside temperature is expected to fall below 20°.

• Keep the kitchen sink and bathroom vanity cabinet doors open so warmer air can circulate around pipes to prevent pipes from freezing.

• Reverse the direction of ceiling fans to rotate clockwise to help circulate warm air that gathers near the ceiling. This will push the warm air down to lower areas.

• Use the exhaust fan above the stove when cooking.
• Run the exhaust fan in the bathroom during and after a shower to reduce moisture in the rental unit.
• Replace incandescent light bulbs with energy efficient LED bulbs.
• Lay down rugs on bare floors for more insulation during the winter.

Setting the right rent can attract and retain quality tenants. The right rent can make a positive difference in the property’s cash flow, tenant satisfaction, and stable occupancy.

For business viability, setting the right rent is not a one-time pricing event. A landlord must routinely check market conditions to evaluate and adjust his rents based on his local area.

Market Survey/Market Rent

A market survey is a snapshot of the current market conditions. A survey gathers information on local market projections, rental trends, and changes in market demographics. Conducting a market survey to determine current rental rates under existing conditions can help a landlord determine if his rents are competitive. Market research may determine the feasibility and timing of rent increases and what rate of increase would keep good tenants yet provide satisfactory cash flow for business operations.

Market rent is a factor of supply and demand conditions in the neighborhood area for similar properties by location, size, physical condition, amenities and services. Rents are influenced by how much tenants are willing and able to pay for comparable units.

Setting the correct rent for a property can mean the difference between an extended vacancy and a rapid installation of a quality tenant. Business operations analysis may point to the need to raise rents to keep current with expenses such as property insurance, taxes, maintenance costs, and property management.

Setting the rent much above the market rent can mean fewer applicants. Potential tenants searching rental listings can quickly eliminate a rental unit from consideration if the rent is even a small percentage above market rents for that area. With fewer applicants a landlord may need to consider his business options – adjust his rental standards to fill a vacancy or experience an extended vacancy period. Lower than market rent could mean reduced cash flow, perhaps a negative cash flow. However a slightly lower than market rent could also result in filling a vacancy sooner to offset reduced monthly revenue.

Fair Market Rent

The U.S. Department of Housing and Urban Development (HUD) conducts a study each year using census data and renter surveys to help determine rents for metropolitan and non-metropolitan counties. Fair Market Rents (FMR) is defined by HUD as the amount of money a tenant would be expected to pay for rent for a property with a certain number of bedrooms in a certain area of the country The gross rent estimate includes base rent and essential utilities that the tenant would be responsible to pay, such as electricity, gas service, or water/sewer services.

A primary purpose of FMR is to determine standard rental payment voucher amounts for the Section 8 Housing Choice Voucher Program and other government housing assistance programs.

Setting the Right Rent

Setting the right rent for a property may require adjustment as leases expire, ongoing market surveys are conducted, and new leases are written. While some trial and error pricing could be necessary to find the right range of rents, generally if a comparable market survey is done, a landlord can identify a range of rents for his properties. For comparison purposes at least three properties in the area of the subject property that are similar in size, features, and amenities should be used to determine a market rate. Comparison rent pricing could be obtained from:

• Meeting with property managers of comparable properties
• Networking with investors and fellow landlords in the local area
• Contacting local real estate brokers
• Viewing classified advertising online or other media
• Calling on neighborhood “For Rent” signs
• Attending Open Houses or Property Marketing Events

Market factors that influence rent

There are many factors that influence market conditions and, accordingly, rent rates. Rent rates vary from area to area and location to location within an area. Influences can be exerted from external events – legal, social, economic, demographic, and environmental issues – and internal conditions arising from business management, ownership issues, and financial resources. The following influences usually condition market rents:

• Location: The location of the rental unit/property is always a factor in all phases of property management. Location can influence marketing and advertising, the applicant pool, rental standards, market rent, tenant selection, and tenant retention. If a property is located in a desirable neighborhood comparable in features and services to similar properties, supply and demand conditions could be favorable to set rents that meet or exceed market rents. Proximity to local goods and services such as medical offices, schools, retail stores, grocery stores, and restaurants could provide leverage to justify a higher rent.
• Type of Property: The type of property, whether single family residential or multi-family housing is a factor in setting market rents. Single family housing typically can command a higher rent.
• Property Construction: Tenants may be more willing to accept a higher rent for new construction properties or recently renovated units.
• Demand: Supply and demand conditions may necessitate a downward adjustment in rents if the supply of units exceeds the demand for rentals. Market surveys will alert a landlord to changing conditions and the need to make changes in rental terms and conditions.
• Bedrooms and Bathrooms: The number and size of bedrooms and bathrooms are decisioning items for a number of potential tenants. A larger unit with more square footage in comparison to other rental units in the area may justify a higher rent.
• Amenities: Unit upgrades, open floor plans, and outdoor living spaces can differentiate one rental property from a similar one in the same neighborhood. Certain amenities allow a landlord to set a higher rent as substantiated by a market survey of other units in the area similar in size and amenities.

Market rent pricing is usually adjusted according to unit size and property amenities. However a different strategy could be considered to price rental units. Accordingly, unless rental units are exactly the same size (bedroom, bath, square footage, floor plan) and can be said to have same features and access to same amenities, a landlord may be missing the opportunity to price his units according to beneficial differences in amenities. Amenities that value to the property and are attractive to tenants are selling points that can translate into setting market differential higher rents yet within the range of market rents. Tenants make a financial decision on the base rents but place value on interior features such as units with large windows, a garden view, an extra closet, a balcony, ground floor units, updated kitchens, and new floor coverings. Curb appeal of the exterior building and grounds is important as well. Well maintained units with appropriate landscaping, green spaces and recreational facilities/areas can be decisioning factors for potential tenants willing to pay a little extra rent.

Business factors that influence rents

Business policies and practices can influence rent pricing and, accordingly, occupancy and vacancy rates. Some landlords have sufficient reserve to withstand vacancies while others depend upon full occupancy and timely rent payments to meet their financial obligations.

Property management costs must be factored into the setting of rents. Some properties are more expensive to maintain than others. Adequate reserves for emergency repairs, insurance, and taxes also are a factor in planning and setting rent policies. Seasonal demands for rental units can influence rents, for example, setting a lower rent in winter months due to reduced market demand.

Rental policies such as lease terms, furnished or unfurnished units, pet policy, and assignment of utilities responsibility can be a factor in setting rents and a decisioning factor by tenants in choosing a rental unit.

The types of amenities available at a rental property can have different effects on rental value. Many tenants place high value on assigned parking spaces and garages and are willing to pay an additional fee for such amenities. Recreational amenities such as fitness centers, walking trails, tennis courts, basketball courts, and swimming pools are attractive to renters but may increase management costs for maintenance, repair, and facilities management. Interior unit upgrades are desirable amenities by most tenants when searching rental listings. While there are costs associated with upkeep for upgrades such as appliances, in-unit washers and dryers, the value of such items for tenant satisfaction with potentially higher rent can make a positive contribution to the business bottom line.

Interviewing an applicant for an open job position is an important part of the hiring process. Information gained from applicant interviews contribute to a more informed hiring decision.

There are several interviewing techniques that can help the employer determine whether an applicant’s skills, knowledge, abilities and work experience meet job requirements.

Interviews should always be conducted in a legally compliant business manner with questions relevant to job requirements and specific industry requirements while recognizing the organization’s culture and mission.

To avoid claims of discrimination, hiring managers should receive training and education on how to conduct legally compliant employment interviews. Discrimination can occur during pre-employment interviews as a result of direct, purposeful disparate treatment between applicants, i.e., applicants are treated differently because of their race, color, religion, national origin, sex, disability, or age. For example, disparate treatment occurs when employers do not ask the same questions of all applicants. Discrimination also occurs when employers engage in hiring practices that have the effect of excluding members of protected classes. While it may not have been the employer’s intent to discriminate, the employment practice has an adverse impact on members of a protected group with the effect of a disproportionally higher percentage of applicants being rejected from employment consideration.

Employment Laws

Federal Laws

The United States Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Most employers with at least 15 employees are covered by EEOC laws and employers with 20 employees are covered in age discrimination cases.

The most familiar federal laws that protect rights of applicants in the hiring process are:

• Title VII of the Civil Rights Act of 1964 as amended prohibits discrimination based on race, color, sex, race, religion or national origin.
• The Age Discrimination in Employment Act (ADEA) prohibits questions about a person’s age.
• The Americans with Disabilities Act (ADA) protects qualified individuals with disabilities from discrimination in employment.

Employers are prohibited under ADA from asking applicants during pre-employment interviews about a disability, including its nature or its severity. ADA requires the employer to isolate an employer’s consideration of an applicant’s non-medical qualifications from any consideration of the applicant’s medical condition. An employer may ask only if there is anything that precludes the applicant from performing, with or without a reasonable accommodation, the essential functions of the position for which the applicant is applying.

Title VII and ADEA specifically prohibit discrimination because of race, color, religion, sex, national origin, and age. Pre-employment inquiries that express, directly or indirectly, any limitation or discrimination on the basis of race, color, religion, national origin, sex, disability, or age unless based on a bona fide occupational qualification are therefore prohibited. Accordingly, the employer must not ask any questions of the applicant whose answers would identify the applicant as having protected class characteristics.

Bona Fide Occupational Qualification (BFOQ)

In certain narrow circumstances, employment practices that would constitute discrimination against individuals with protected characteristics of religion, national origin, sex, or age are allowed when reasonably necessary for the normal performance of duties in the normal operation of that particular business. This bona fide occupational qualification exception is an employer’s defense to acknowledged discrimination. It is the employer’s responsibility to prove that the qualification required for the job is necessary for job performance and that there is no reasonable alternative with a lesser impact on the protected classes. There is no bona fide occupational qualification for race or color discrimination.

State Laws

State laws can provide broader protections than federal laws. An employer’s due diligence will determine requirements for the employment laws of the state in which his company operates.

Interview Techniques

While traditional interviews are conducted face-to-face or by telephone, today’s various technologies allow interview practices to include virtual interviews, web-based interviews, or applications on mobile devices.

The most commonly used interviewing technique is a structured interview that asks a specific set of questions of all applicants for the open job position. This is the most straight forward approach to interviewing applicants. The format of a structured interview provides a consistent practice of asking all applicants the same questions in the same manner. By keeping the focus on job requirements and the applicant’s work history, the structured interview aids in defending the employer against claims of discrimination in hiring.

Interview Questions

When preparing for the interview, the interviewer should format a series of interview questions based upon the job description of the open position. Developing questions in this manner keeps the focus on the qualifications required to do the job. With the focus on job appropriate questions, the interviewer can evaluate the applicant’s skills and experience and avoid topics of discussion that could be interpreted as inappropriate or discriminatory.

How the interviewer asks for information may determine what information is returned or how much information is returned. The language used in formulation of the question, that is, the word choices and phrasing, contribute to how the applicant understands what is being asked and how he formulates his response.

As example, asking open-ended questions encourages the applicant to expand upon on his work experiences, skills, and abilities in his reply. Questions that begin with “How” or “What “or “When” are illustrative of the types of open-ended questions that facilitate a detailed response.

A close-ended question on the other hand calls for a short answer response, generally a “Yes” or a “No”. This type of question is in direct response to a specific question and does not require an applicant to provide additional information. Questions that begin with “Do” or “Have” are examples of closed-ended questions that require only confirmation of the posed question.

At no time should an interviewer phrase a question to lead an applicant towards a response that could be construed as discriminatory or biased.

The operating guideline behind any questions asked of an applicant during a pre-employment interview is whether there is a legitimate business necessity for asking such questions. Employers should ask themselves:

• Will the answer to the question have a disparate effect in screening out members in a protected class?
• Is the information being asked for necessary to evaluate the applicant’s qualification to perform the job?
• Is this question permissible on the basis of bona fide occupational qualification?
• Would this question screen out a qualified candidate because of a disability before he/she can demonstrate ability to perform the job?

The intent behind the questions and how the information is used by the employer are important criteria in determining whether the questions are appropriate legal compliances.

To help avoid claims of discrimination, employers should consult with appropriate professional counsel to formulate appropriate and legal pre-employment inquiries or to review and revise existing interview practices.

Other Considerations

Interviewers must not make statements during an interview that could be construed as creating a contract of employment. Information that is provided for the open position should be limited to the job specifications and the job description. An interviewer should avoid using terms that imply or could be interpreted as offering long-term employment, or a career opportunity.

If an interviewer should ask a question that is inappropriate or illegal, the applicant is not required to answer that question. If the applicant does feel obligated to reply, the applicant’s answer cannot be used in discriminatory treatment of the applicant as an individual or in discriminatory evaluation and qualification of the applicant for the job position.

If an applicant volunteers information that is inappropriate or illegal, the interviewer should not pursue the topic, and redirect the interview to appropriate discussion issues in qualifying an applicant to job duties. The interviewer must disregard any volunteered information. Such information cannot be used in the applicant qualification and selection process for the open job position.

Whether the landlord’s decision is to collect the last month’s rent or not, the landlord’s lease agreement should address how the security deposit cannot be used. For example, a lease clause may state “Tenant may not without Landlord’s prior written consent apply the security deposit to the last month’s rent or to any other amounts due by this Agreement. In addition to the issue being in the lease agreement, he landlord should clearly communicate this term and condition to the tenant during orientation.

Despite the restriction of the lease clause, a tenant may ask the landlord to use the tenant’s security deposit as the last month’s rent. The landlord must decide whether he can afford to take a risk and allow the tenant to use the security deposit for the last month’s rent. The risk to the landlord is that there may be property damage when the tenant moves out and the landlord will not have any deposit to apply to repairs or cleaning. In such a case, the landlord would have to absorb the costs or take legal action against the tenant to recover the costs.

The landlord could decide to grant the tenant’s request conditionally. If the tenant has been a good tenant and there is reason to believe the tenant will leave the rental unit clean and in good condition, the landlord may, after a property inspection, allow the tenant to use the security deposit for the last month’s rent.

Despite having options, most landlords choose not to collect a last month’s rent. To those landlords, a better business practice is to collect the maximum security deposit allowed by state statute. If the statute allows collecting more than one month’s rent as the security deposit, the landlord would be covered if the tenant skips paying the last month rent. The landlord could apply excess funds to cover any property damage or cleaning. The landlord would need to file legal action against the tenant if the damages exceeded available funds.

In general, tenants cannot escape liability under their leases due to economic hardship, a job transfer, family matters, safety and security concerns, or health issues. In most jurisdictions, even death does not terminate a lease and the deceased’s estate remains liable for the lease.

The lease agreement is a binding legal contract between landlord and tenant detailing specific responsibilities for each party during the lease term. By signing the lease agreement, the tenant incurs the obligation to pay rent to the landlord for the entire term. When a tenant leaves before the expiration of his lease, without paying the rent due under the lease terms, the tenant breaks the lease.

In some states however, the landlord-tenant statutes allow a tenant to terminate a tenancy before the end of term without landlord permission in limited circumstances for reasons such as:

• A tenant who is a member of the armed forces, or that tenant’s spouse or dependent, who delivers copies of reassignment or deployment orders to the landlord within the required number of days of receipt of orders.
• As a remedy to the landlord’s failure to maintain fit and habitable housing resulting in constructive eviction of the tenant.
• A tenant who is a victim of domestic violence, sexual assault, unlawful harassment or stalking, and who has a legal protection order or has reported the incident to the authorities.
• A tenant who is threatened by a neighbor with a deadly weapon resulting in an arrest, and landlord fails to file an eviction action.
• A tenant is threatened by the landlord with a deadly weapon resulting in arrest.
• State specific laws allowing early termination for reasons such as a tenant job relocation, health problems, or moves to assisted living facilities, or housing for the elderly.
• The rental property is significantly damaged or destroyed by natural disaster or other reasons beyond the tenant’s control.
• A landlord or landlord’s agent violates the tenant’s right to privacy and quiet enjoyment of the property by stalking, sexual assault or unlawful harassment of the tenant.

A landlord must decide the appropriate course of action by statute and lease agreement when a tenant breaks his lease. In many states a landlord must make a reasonable attempt to re-rent the unit as soon as possible to mitigate damages. A landlord has the option to release a tenant from his lease obligations through a negotiated buyout settlement with the tenant. As another option, the landlord could choose to accept a tenant’s offer of a substitute replacement tenant for the remainder of the lease term. In this case, the landlord should do all normal screening usually performed.