Landlords spend a great deal time and effort to attract and qualify potential tenants. Not all prospects who express some interest in the rental vacancy will complete an application. Not all applicants will qualify to the landlord’s rental criteria. All applicants that do complete the application process will require the landlord to perform tenant screenings in a consistent and non-discriminatory manner. Of those applicants that do qualify, only one will be offered tenancy. The others will be rejected.

The decision to say “No” is a business decision that some landlords find difficult. To aid in the decision making the landlord can provide a copy of his tenant screening criteria and screening process to interested prospects. In some states a landlord may be required to provide such disclosure to prospective tenants. The disclosure may allow prospects to self-qualify themselves to the landlord’s rental criteria before making a rental application.

Rejecting an applicant is part of business management – an assessment of the potential risk that the business may have to absorb if the tenant is installed. It is important to develop rental policies that protect the business and the tenants already in residence.

By setting rental standards to support his business and keep compliant with applicable laws on all governing levels, the landlord sets the level of risk he believes his business can afford. The selection of a new tenant is considered the most important business decision a landlord can make for his property management. The amount of due diligence a landlord gives to this critical task of tenant screening can directly impact his business operations.

Some applicants may be rejected immediately for obvious business reasons. Other applicants may qualify but may be in competition with other qualified applicants for the vacancy. Decisioning is the landlord’s choice provided legal compliance and legitimate business purpose underlies his decision.

What is important is how the rejection of an applicant is handled with proper notification in a timely manner. Documentation of the facts will help to defend against an applicant’s claim of discrimination or other cause for action.

There are many legitimate business reasons to reject an applicant.

Lease Terms and Conditions

An applicant’s failure to qualify under the landlord’s lease terms and conditions is a common reason to reject an applicant. As examples, a landlord sets his requirements for:

• Length of lease term (fixed term or month-to-month)
• Security deposits and fees
• Occupancy limits
• Property specific policies
• Property/Unit availability date
• Signed, fully completed application

If the applicant will not or refuses to agree to stated lease terms and conditions, a landlord should reject the applicant. If a landlord determines that an applicant has falsified information or provided misleading information, the landlord should reject the applicant.

Tenant Screenings

The results of tenant screenings and verifications can disqualify an applicant from consideration for tenancy. An applicant can fail to qualify because of:

Credit Report/Credit Score

Every landlord sets his own business criteria for an acceptable credit report/score. A review of the applicant’s credit history may show items that the landlord considers a risk to the business, such as a history of slow pay or missed payments, or substantial debt obligations.

A low credit score may or may not cause an applicant to be rejected. There is no hard line on what credit score should automatically disqualify an applicant. Many landlords use the credit score and the analysis of the full credit report into consideration within the context of the landlord’s business. It is the landlord’s decision to determine if the risk is too high for his business.

Income Standard

The industry standard for gross income to rent is a ratio of 3:1. If the applicant cannot provide verifiable proof of income to meet the income standard, a landlord should reject the applicant. If the gross income to contracted debt ratio is insufficient to support general living expenses including the expected rent amount, a landlord should reject the applicant. A general rule of thumb is that contracted debt payments including the rent cannot exceed 50 per cent of the applicant’s gross income.

Bankruptcies and Judgments

A tenant bankruptcy will impact a tenant’s credit score. Some landlords may take into consideration a tenant’s satisfactory payment history since a bankruptcy discharge, or consider if the bankruptcy filing was for a debt obligation that was outside the applicant’s control. It will be the landlord’s decision regarding the tenant’s potential risk to the business.

While a discharged bankruptcy and the length of time that has passed since the filing may be taken into consideration by a landlord, a judgment filed against an applicant for money damages for unpaid rent or property damage is a legitimate business reason to reject an applicant.

Background Checks

Landlords must comply with federal, state and local laws that regulate or prohibit the use of criminal history background for tenant screenings. A landlord’s blanket policy that excludes any person who has been convicted of any offense is discriminatory and violates provisions of the Fair Housing Act. Arrest records cannot be used to determine an applicant’s qualifications and are not a valid reason to deny housing to an applicant. A landlord may only use a criminal conviction to deny housing to an applicant if the record clearly shows a criminal conviction that would endanger the safety of other tenants, or put the property or neighborhood at risk.

There have recent changes in state laws and some local ordinances that may restrict or disallow a landlord’s use of criminal background checks for tenant screening. A landlord should conduct due diligence for the current applicable state and local laws or consult with experienced landlord-tenant law attorney to determine compliance requirements.

Verifications

The results of verifications can disqualify an applicant from consideration for tenancy. An applicant can fail to qualify because of:

Employment

A landlord should verify an applicant’s employment directly with the employing organization. If the landlord is unable to verify employment, or the applicant has been terminated from his employment a landlord should reject the applicant.

A landlord may consider that an applicant who is only recently employed or have had frequent job changes in a short period of time may be a risk to the landlord’s business. If there is a valid business reason to do so, a landlord may choose to reject the applicant.

Eviction Record

An eviction search should always be conducted to determine if the applicant has a history of eviction. An eviction is a red flag to most landlords to reject the applicant. With recent changes in public records reporting on consumer credit reports, a landlord cannot be certain that an absence of eviction/money judgment on the credit report is an indication that the applicant does not have an eviction history. Contacting previous landlords to gain direct knowledge of rental history behaviors may be useful in determining eviction history or issuances of eviction notices.

Landlord References

If there are unsatisfactory references from previous landlords and those landlords would not rent to this applicant again, a landlord should consider these reports to be an indication of business risk and reject the applicant. If there was unpaid rent, property damage, nuisance complaints, violence, criminal activity, or lease violations of any type at the applicant’s previous housing address, there is a good probability that similar problems could occur in the future. Such actions may indicate the landlord should reject the applicant.

Notifications

When an applicant does not qualify under the landlord’s rental criteria, a landlord should move quickly to notify the applicant that he (the applicant) has not been selected for tenancy in accordance with the law. Providing timely notification allows the applicant to move forward and continue his search for rental housing with other landlords and properties.

Adverse Action Notice

An adverse action is any action by a landlord that is unfavorable to the interests of a rental applicant. It includes a landlord’s denial of a rental application as well as an action by the landlord that imposes a burden on the applicant that is not required of all tenants, such as requiring a co-signer or a larger security deposit.

When a landlord takes an adverse action that is based solely or in part on information contained in a consumer report or tenant screening report, the Fair Credit Reporting Act requires the landlord to provide the applicant with notice of the adverse action. The adverse action notice is required even if the information in the consumer report/screening report was not the primary reason for the adverse action.

The notice must contain certain information:

• the name, address, and phone number of the credit reporting agency (CRA) [including a toll-free number for the nationwide CRA(s) that supplied the report,
• a statement that the CRA didn’t make the adverse decision and can’t explain why the decision was made,
• notice of the consumer’s right to a free copy of their report from the CRA if the consumer asks for it within 60 days,
• notice of the consumer’s right to dispute the accuracy or completeness of any information provided by the CRA, and
• the consumer’s credit score, if a score was used.

Federal law does not require a landlord to provide an adverse action notice if the decision to reject the applicant is based on information that the applicant furnished or the landlord or his employees verified on their own. Landlords should conduct due diligence for state statutes and local ordinances to determine if there are adverse action requirements at those levels.

Documentation

A landlord will need to keep written documentation of the reason why the applicant was rejected along with supporting documentation such as screening reports or reference interviews. A good paper trail will help to defend against a claim of fair housing discrimination. All applicant documentation including the completed application, tenant screenings, verifications, interviews, copy of the adverse action notice, notation of date and manner in which the applicant was notified of the denial, and other miscellaneous paperwork should be organized in the applicant’s file and retained according to the statute of limitations for fair housing claims or per state statute.

While there is no federal requirement to disclose a death that occurred on a rental property, a few states address this issue by statute which requires landlord disclosure of a death in a rental unit. In some disclosure states a landlord has the legal duty to truthfully answer a direct question from a prospective tenant or tenant regarding a death on the property. In other disclosure states, a landlord must volunteer information regarding a death in a rental unit. The disclosure requirement for a death in a rental unit may include death as a result of homicide, felony act, suicide, accidental death, and natural death.

In other states a death in a rental unit does not require a landlord to disclose such a fact to prospective tenants. A landlord will need to conduct due diligence for his state’s disclosure requirements. As example, the state of California requires landlord disclosure, if asked, of any deaths on the premises in the past three years. The landlord is not obligated to disclose a death that occurred more than three years ago.

State statutes address various landlord-tenant issues, regulate landlord-tenant duties and obligations, and require landlord disclosure of important landlord-tenant laws.

Notice and disclosure requirements will vary among the states. The most common state disclosure requirements are policies on owner and agent identity, security deposits, nonrefundable fees, and move-in/move-out checklist requirements.

Owner/Agent

The majority of mandatory disclosure states require owner/agent information be provided to the tenant at or before the commencement of the tenancy. Disclosure requirements include the name and address of the property’s owner; the name and address of the owner’s agent who is authorized to manage the premises; the name and address of the authorized agent who can act for and on behalf of the owner for the purpose of service of process and receiving notices and demands. Some states include a requirement for the name and address of the person who can be readily contacted by the tenant or a requirement of the name of the person authorized to accept and collect rent.

Security Deposits and Non-refundable Fees

The landlord’s deposits and fees policies are always key issues in the landlord-tenant relationship.

Most states require the landlord to inform the tenant at or before collection of the security deposit how the deposit will be used. Common disclosures require the landlord to disclose in writing the conditions under which part or all of the security deposit may be withheld and whether any part of the deposit is refundable.

A landlord may be required to provide a written list of preexisting damage to the rental before collecting a security deposit or provide a copy of inspection orders or habitability defects. In states that require a separate account for holding a security deposit, a landlord is required to disclose the account number, amount on deposit, interest rate, and name and address of the financial institution.

Some states address the issue of whether nonrefundable fees are permitted as a simple “No.” Some states permit nonrefundable fees as a “Yes” with disclosure requirements. Those states that permit nonrefundable fees require the lease or written statement to explain the fees that are required and the purpose for which they are required. A landlord may be required to provide the explanation to the tenant before the deposit is taken and in some states the fee must be expressly agreed to in writing by the tenant.

Tenant Move-in/Move-out Checklists

In most states if the landlord collects a security deposit, a move-in checklist is required. The move-in checklist is a written record of the inventory and condition of the rental premises as retained in the tenant file along with the lease agreement. A tenant has the right in many states to be present during the landlord move-out inspection of the rental premises.

Other

Additionally most states require landlord disclosure of landlord policies and conditions and material facts about the property that may affect the tenant’s right to habitable, safe, and sanitary housing, and the tenant’s right to quiet enjoyment of the rental premises.

There are many other landlord disclosures required by federal laws, state statutes or local ordinances that may apply to the rental property.

Environmental hazard issues requiring disclosure may include:

• Lead-based Hazards
• Toxic Mold
• Radon Gas
• Asbestos
• Air Contamination
• Flooding/Flood Zone
• Military Ordnance Zone

Health and safety issues that may require disclosures may include:

• Housing Code Violations
• Condemnation Orders
• Methamphetamine Contamination
• Pest Control
• Bedbugs
• Smoking
• Marijuana
• Fire Alarms/Fire Protection
• Smoke Detectors
• Carbon Monoxide Detectors
• Child Protection Window Guards
• Safety and Security Measures provided by Landlord
• Tenant Notification of Hidden Defects
• Domestic Violence Victim Rights
• Megan’s Law Registered Sexual Offender Database

Disclosure may also be required in some states for:

• Rent Control
• Condominium Conversions
• Foreclosure Proceedings
• Demolition permits
• Truth in Renting Act

The landlord’s rental policies may also require applicant/tenant disclosure before entering into a lease agreement. Policies may include:

• Shared Utility Arrangements
• Screening Criteria
• Background Checks
• Late Fees
• Dishonored Check Fees

Local ordinances may regulate essential services and housing code requirements that must be disclosed to applicants and tenants.

Federal, state, and local laws require landlords to make certain disclosures to tenants at or before lease signing and tenant move-in. Mandatory disclosures help protect the tenant’s legal rights and provide health and safety measures under environmental protections and housing code standards.

Mandatory disclosures of important landlord-tenant laws and landlord rental policies help the tenant understand his legal rights, his legal obligations, and the terms and conditions of the lease agreement for tenancy. Compliance with required disclosures can help protect the landlord in defending against tenant claims alleging injury, damage or harm due to landlord negligence.

Landlord disclosures must usually be provided in writing. Most often disclosures are incorporated into the lease agreement or provided as a separate disclosure document attached to the lease, preferably with cross-references between the documents.

The consequences to landlords who fail to make required disclosures may vary by state and jurisdiction as well as by subject matter. While some statutes may have landlord penalty provisions written within the statute, some statutes may not address the issue and follow general rules of law, such as small claims court for damages suffered as a result of a landlord’s failure to disclose. Consequences for a landlord’s failure to disclose required information can be monetary penalties such as a specified preset amount or actual damages.

Landlord failure to comply with required federal disclosures such as lead-based paint and/or lead-based paint hazards could result in possible civil penalties for willful and continuing noncompliance; court awarded actual damages to an injured tenant; or criminal fines assessed

The Housing Choice Voucher Program (HCVP) is a tenant-based housing assistance program for very low-income families, the elderly, and the disabled to afford decent, safe, and sanitary housing in the private housing market. Landlords and tenants must qualify to participate in the HCVP program and comply with program guidelines and requirements.

The housing voucher program offers better living conditions at affordable rent payments, freedom of choice in selecting rental units from the open market, and incentives to landlords and property owners to rent to voucher approved families.

The HCVP program is administered at the federal level by the U.S. Department of Urban Development (HUD). At the local level, the program is administered by numerous state, regional, and local housing agencies, known collectively as Public Housing Agencies (PHAs).

Eligibility for a housing voucher is determined by the PHA based on the family’s total annual gross income and family size. Eligibility is limited to U.S. citizens and specified categories of non-citizens who have eligible immigration status. Once family eligibility has been established, the family is placed on a waiting list of approved families and notified when a housing voucher becomes available. Eligibility and approval do not guarantee funding assistance. There is no automatic entitlement benefit. Program funding limitations govern the number of available housing vouchers for the local PHA area.

Once a rental unit has been selected by the participating family and the owner/landlord has agreed to rent the unit in accordance with HCVP rules and requirements, a “Request for Tenancy Approval” (RFTA) form must be completed by the landlord and submitted by the participant family to the PHA for processing. The RFTA lists the property address, anticipated lease start date, proposed rent, and whether utilities are included. The PHA will determine whether the monthly rent amount is reasonable and consistent with market rents for similar units in the area.

Upon approval of the RFTA, a Housing Quality Standards (HQS) inspection is conducted on the rental unit to ensure the unit meets HUD quality standards for decent, safe, and sanitary housing. If the selected rental unit fails to meet HQS requirements, the landlord is notified in writing and given a timeframe to complete needed repairs. The unit is then re-inspected and approval given if the unit passes inspection. The landlord will be required to maintain required habitability standards for the duration of the tenancy. If the unit fails inspection for the second time, the family will be asked to select a different rental unit.

Many of the inspection requirements are basic health and safety standards required by most state habitability statutes and city/ county building codes. Habitability standards may include inspections of:

Sanitary Facilities

Food Preparation Area

Refuse/Garbage Disposal

Living Spaces

Door and Window Security

HVAC

Electricity and Wiring

Building and Roof Structure and Materials

Interior Air Quality

Ventilation

Water Supply

Plumbing Pipes and Fixtures

Lead-Based Paint

Exit Routes

Environmental Hazards

Evidence of Pest Infestations

Smoke Detectors

If the unit passes the housing quality inspection, the PHA enters into a one year contract with the participating landlord for direct payment of the monthly housing subsidy. The participating family and the participating landlord enter into a lease agreement of the rental unit for a term of one year. The lease agreement and the housing assistance contract are effective the day the unit passes inspection and the family takes possession of the rental unit.

The housing subsidy is paid directly to the landlord by the local PHA who administers HCVP funding on behalf of the participating family. The family is responsible to pay the difference between the actual rent charged by the landlord and the amount subsidized by the voucher program. HCVP families generally pay no more than 30% of their monthly-adjusted income towards the rent and utilities.

The participating landlord must follow his standard tenant screening and selection process when qualifying HCVP assisted applicants for tenancy. The landlord must comply with applicable federal, state, and local laws including fair housing and consumer protections in tenant screenings. While the federal Fair Housing Act does not prohibit discrimination based on source of income or public assistance status, some states and municipalities have enacted fair housing laws that ban housing discrimination based on these characteristics. Due diligence is required to determine the anti-discrimination protections that apply for the location of the rental property.

The landlord can require a security deposit from the applicant family as specified in the lease agreement terms and conditions. There can be no difference in the amount of the security deposit requested from an assisted family than the security deposit requested from a non-assisted family. The landlord should review applicable state landlord tenant statutes to determine security deposit requirements.

The PHA monitors the family’s eligibility through the contract term and requires the family to provide notification and documentation of changes in family status and income. The family is required to pay the landlord’s required security deposit for the rental unit, their share of the monthly rental amount, and comply with all terms of the written lease agreement with the landlord including tenant responsibility to take good care and proper maintenance of the rental unit.

The subsidized rental unit must be the family’s only place of residence and cannot be sub-leased nor assigned. In addition, the participant family must not own any interest in the rental unit.

Criminal activity, including fraud, bribery or any corrupt or violent act, or drug related activity by any family members are cause for termination of the voucher assistance.

Participant families may not receive housing assistance if they are also receiving another housing subsidy for the same unit, different unit or any other duplicative services under federal, state or local housing assistance programs.

HUD regulations for the voucher program permit the PHA to terminate assistance to participants if any household member or guest does not abide by the program rules and requirements.

A landlord is required to make reasonable modifications to the unit to make it more accessible. However, any such modifications will be at the participating family’s expense. The family may also be required to restore the rental unit to its original condition when they vacate the unit.

The lease agreement signed by the landlord and the participant family should be clear that damages to the rental unit beyond normal wear and tear are the participant family’s responsibility for payment. Such damages may be recovered from the tenant’s security deposit held by the landlord.

If there are lease violations by the participant family, the landlord has the right to enforce the lease agreement and take appropriate actions against the participant family. Landlords should make themselves aware of all applicable laws including local regulations before taking action. It is advisable to conduct all communications with tenants in written form with a copy sent to the local PHA.

If the participant family fails to pay their portion of the rental amount in a timely manner per their lease agreement, the family is in violation of the lease terms. This failure to comply with terms and conditions of the lease and housing program requirements may jeopardize the family’s current and future assistance for housing voucher subsidies.

Material violations of the lease agreement may lead to eviction proceedings against the participant family. While the housing agency provides the rental subsidy for the family, the agency is not responsible for the family’s behavior. Non-compliance of lease terms and conditions may necessitate landlord actions to correct deficiencies. The landlord in any action taken to remedy a situation would be advised to send copies of any tenant correspondence, notices, summons, etc. to the appropriate contact in the local housing agency. The housing agency must be kept informed of any issues regarding family compliance for rules, regulations, and lease terms.

The local PHA has no legal authority to act for either the landlord or tenant in remedy actions. The agency does not have the authority or the ability to remove a tenant. The landlord selected the tenant per the landlord’s selection criteria, policies, and procedures. The landlord must be the party to take action if the situation must be remedied with an eviction proceeding. Eviction is the only legal remedy to remove a tenant who is non-compliant with the terms of the lease agreement and refuses to leave the rental property on a voluntary basis.

Research studies on bed bug management strategies show prevention of bed bug infestations is less costly than costs associated with treatment of existing infestations. This is particularly true in multi-unit housing that can be more vulnerable to pest infestations. Prevention and early detection of bed bug infestations can help stop bed bug populations from spreading to multiple units. A bed bug infestation once established in a rental unit requires aggressive actions to control and eliminate the infestation.

While prevention of bed bug infestations is the best pest management strategy, it is generally held that at some point of time during the property management, evidenced bed bug infestation will be reported by a tenant or discovered during a landlord property inspection. The effectiveness of a bed bug remediation program will depend upon prompt tenant reporting of the problem and quick landlord response for inspection and treatment by a qualified pest management company experienced in bed bug control. Self-help methods such as the application of insecticides are rarely effective in the control and elimination of an infestation.

For landlords and property managers of multi-unit housing with recurring tenant turn-over, tenant education on bed bugs is an ongoing task to help prevent infestations and to control treatment of existing infestations. Not every bug is a bed bug and not every bug bite has been caused by a bed bug. Tenants should know how to identify signs of a bed bug infestation and how to promptly report problems. To provide the necessary information to tenants, landlords and property managers must be themselves knowledgeable in bed bug prevention methods, pest identification, detection, treatments, and have proactive measures in place to mitigate risk to tenant health and property damage.

Educating tenants before there is a problem helps to prepare a tenant if a problem does arise. Having tenant cooperation is important for coordination of treatment of infestation in the rental unit and subsequent monitoring of treatment effectiveness.

Bed bug information is readily available from a number of printed and media sources that can be used in education and training of tenants and property management staff. In some states, landlords may be required to provide educational material to tenants and applicants. Dismissing or ignoring tenant complaints about bed bugs can create liability issues for matters of habitability, health, safety, and negligence which could result in future litigation.

Additionally, landlords and property managers should have a thorough understanding of applicable bed bug laws and regulations that govern the location of the property, including state landlord-tenant statutes on bed bug identification, treatment, and disclosure requirements to tenants or prospective tenants.

Being prepared with a proactive plan that addresses the issues of bed bug prevention and treatment can allow faster response by the landlord or property manager to tenant complaints, help coordinate response and treatment with professional pest control management services, and specify the responsibilities of tenant, landlord, and pest control company in the management and treatment of a bed bug infestation.

Bed bug Laws

Comprehensive bed bug legislation has been passed by many states and some cities to prevent, manage, and control bed bug infestations. In states with bed bug laws, landlords must incorporate specific additional policies for disclosure and mitigation of bed bug infestations.

Whether states have or have not enacted specific bed bug legislation, states still regulate health and safety standards under landlord-tenant statutes. The statutes of most states require that the landlord of a residential unit must maintain the unit in a safe, sanitary, and habitable condition. In general, the rental unit must comply with state and local building and health codes that materially affect tenants’ health and safety. There are federal standards of habitability as required by the U. S. Department of Housing and Urban Development (HUD) and there are also state and local habitability requirements, which can be more stringent than federal standards.

As an example, California’s recent passage of bed bug legislation obligates landlords and tenants in the control and management of bed bug infestation. A landlord is prohibited from:

• showing, renting, or leasing a unit that the landlord knows has bed bugs, and
• retaliating against a tenant who reports a suspected bed bug infestation.

A landlord is considered to have knowledge of bed bugs in the unit if a bed bug infestation is apparent.

Landlords are required to give tenants notice of entry as required by state statute to inspect a tenant’s dwelling unit. A tenant shall:

• cooperate with the inspection to facilitate the detection and treatment of bed bugs, and
• provide requested information that is necessary to facilitate the detection and treatment of bed bugs to the pest control operator.

For those units inspected by the pest control operator, the landlord is required to notify the tenant in writing within two business days of the receipt of pest control operator’s findings. All tenants must be provided notice of a pest control operator’s findings for confirmed infestations in common areas.

The California Civil Code requires:

“On and after July 1, 2017, prior to creating a new tenancy for a dwelling unit, a landlord shall provide a written notice to the prospective tenant as provided in this section.  This notice shall be provided to all other tenants by January 1, 2018.  The notice shall be in at least 10-point type and shall include, but is not limited to, the following:

(a) General information about bed bug identification, behavior and biology, the importance of cooperation for prevention and treatment, and the importance of and for prompt written reporting of suspected infestations to the landlord. The information shall be in substantially the following form:

Information about Bed Bugs

• Bed bug Appearance: Bed bugs have six legs. Adult bed bugs have flat bodies about 1/4 of an inch in length. Their color can vary from red and brown to copper colored. Young bed bugs are very small. Their bodies are about 1/16 of an inch in length. They have almost no color. When a bed bug feeds, its body swells, may lengthen, and becomes bright red, sometimes making it appear to be a different insect.  Bed bugs do not fly. They can either crawl or be carried from place to place on objects, people, or animals. Bed bugs can be hard to find and identify because they are tiny and try to stay hidden.
• Life Cycle and Reproduction: An average bed bug lives for about 10 months. Female bed bugs lay one to five eggs per day. Bed bugs grow to full adulthood in about 21 days.
• Bed bugs can survive for months without feeding.
• Bed bug Bites:  Because bed bugs usually feed at night, most people are bitten in their sleep and do not realize they were bitten. A person’s reaction to insect bites is an immune response and so varies from person to person. Sometimes the red welts caused by the bites will not be noticed until many days after a person was bitten, if at all.
• Common signs and symptoms of a possible bed bug infestation:
  • Small red to reddish brown fecal spots on mattresses, box springs, bed frames, mattresses, linens, upholstery, or walls.
  • Molted bed bug skins, white, sticky eggs, or empty eggshells.
  • Very heavily infested areas may have a characteristically sweet odor.
  • Red, itchy bite marks, especially on the legs, arms, and other body parts exposed while sleeping. However, some people do not show bed bug lesions on their bodies even though bed bugs may have fed on them.

For more information, see the Internet Web sites of the United States Environmental Protection Agency and the National Pest Management Association.”

Landlord Best Practices

The resurgence of bed bugs continues to be a significant concern to landlords, tenants, and pest management operators. Control and elimination of bed bugs requires an integrated pest management approach utilizing multiple products, methods, and technologies to provide effective controls for treatment. Bed bug remediation can be costly and invasive of tenant rights and dwelling space prevention and treatment are made all the more difficult by factors such as bed bug resistance to certain pesticides, treatment of adjacent units, and re-infestation problems.

An integrated pest management approach to bed bug treatment will provide compliance with applicable laws while providing required standard of care to protect tenants and property.

Despite the landlord’s policies and rules, it is not uncommon for a tenant to move in another person or persons. A lease clause that sets reasonable limitations on guests and overnight stays can help prevent tenants from moving in their family members or friends as their guests. These guests often become the full-time occupants who were never qualified under the landlord’s standard tenant screening and selection standards. Lease violations that are not cured when discovered could lead to claims of discrimination and unfair treatment by other tenants and applicants.

A landlord can serve the tenant with a notice to cure or quit. If the problem is not cured by compliance with the lease agreement (i.e., removing unauthorized occupants) or vacating within the number of days specified in the notice, the landlord may terminate the lease agreement and file an unlawful detainer action. Some states allow landlords to terminate a tenancy without giving the tenant an opportunity to correct the problem, however, many do not.

Many judges will require that the lease agreement have appropriate, defined language addressing the specific issue of unauthorized occupants as a prerequisite for filing for eviction. This type of eviction action is sometimes difficult to win, as the difference between a guest and an occupant is subjective at best. A landlord filing for eviction bears the burden of proof of a lease default.

A landlord could file for eviction of the named tenants and any John and/or Jane Does residing in the rental unit for breach of lease for other reasons, such as rent defaults, disturbance, etc. If the landlord is awarded a judgment for possession, all occupants would be removed from the rental unit.

If the occupant poses a threat to people or property, in some states there may be provisions for an accelerated notice period for eviction actions.

If the tenancy is month-to-month, a landlord can simply serve the appropriate written notice for termination of tenancy and avoid the need to prove a default. For fixed-term lease agreements that are near the end of the lease term, a landlord may choose to notify the tenant that the lease will not be renewed.

As a general statement, there is no national occupancy standard for rental units. Landlords must develop occupancy policies that are legally compliant at the governing level or agency requirement and appropriate to the particular rental unit and specific situation.

Legally compliant policies are commonly based upon an industry standard of “reasonable occupancy.” An occupancy policy based on a reasonable occupancy standard takes into consideration rental unit particulars and situational factors. Without fully understanding what is considered reasonable in context with federal, state, and local jurisdictions, a landlord could incur liabilities for claims of fair housing discrimination.

A commonly utilized standard for rental occupancy limits is the Department of Housing and Urban Development (HUD) guidance that “an occupancy policy of two persons in a bedroom, as a general rule, is reasonable under the Fair Housing Act.” Known as the Keating Memo, the guidance provided “that in appropriate circumstances, owners and managers may develop and implement reasonable occupancy requirements based on factors such as:

• Size of bedrooms and unit,
• Age of children,
• Configuration of unit,
• Other physical limitations of housing,
• State or local housing and occupancy codes, and
• Other relevant factors.

Since the number of bedrooms is not the only factor that must be considered in developing occupancy standards, the HUD guidance is sometimes referred to as the “two-per-bedroom-plus” rule.

The guidance goes on to state that an occupancy policy which limits the children per unit is less likely to be reasonable than one which limits the number of people per unit.

While landlords have some flexibility in developing an occupancy policy by taking into consideration the reasonable policy of two persons in a bedroom plus other relevant factors of a given situation, the guidance does not categorically set an occupancy limit for a rental unit. A landlord cannot know for certain that a reasonable two-plus occupancy limit for a unit will meet federal standards for legal occupancy. Until a landlord analyzes each situation, a legal maximum occupancy number for a unit cannot be established.

States and municipalities can set their own occupancy standards that may be different than federal standards. State and local standards are usually equal to or greater than federal standards.

In some states occupancy standards may allow fewer people to occupy a rental unit. This could result in a landlord being compliant with state standards but non-compliant with the federal standard if the HUD guidance is applied.

Occupancy standards have historically been justified based on habitability standards for health and safety, as example, allowing too many occupants makes the rental unit less safe or less healthy.

There may be local zoning or building occupancy limitations that apply to rental units. Some localities have based guidelines on the Uniform Housing Code standards which provide occupancy guidelines based upon square footage rather than the number of bedrooms.

Typically, guidelines are tied to building codes standards for the number of bedrooms, or number of square feet, but some guidelines make allowances due to size of rooms, layout of the unit, availability of other living areas, age of children, and any physical limitations of the housing such as capacity of septic/sewer or water systems.

A landlord, when developing occupancy standards for his units, must research federal, state, and local occupancy standards to determine how many people must be allowed in a particular rental unit under federal standards, under state statutes, and under local standards. There will be two sets of numbers that must be taken into consideration for occupancy standards, (1) the minimum number of occupants allowed in a particular unit, and (2) the maximum number of occupants as set by state and local health and safety codes based on the size of the rental unit and the number of bedrooms and bathrooms in the rental unit.

It may be that the safest way to avoid potential problems is to use common sense and use standards that are at least as generous as the federal standards, but follow state and local standards if those standards are more generous than federal guidelines/standards.

In general, justification for occupancy limitations is generally based on health and safety considerations, but financial consideration can also be of concern to landlords regarding real or perceived issues related to more occupants such as wear and tear, damage, parking spaces, utilities, noise, disturbances to neighbors, demands on services, and overcrowding of common areas.

A landlord may have legitimate business reasons to restrict the number of occupants allowed in a particular rental unit. Legitimate business reasons could include limitations of building systems such as plumbing, electrical, sewer or septic systems that cannot accommodate increased use. The age and condition of the rental unit as well as the size and configuration of the unit could also be a limiting factor for occupancy.

If the landlord’s occupancy policy restricts the number of occupants for reasons other than health, safety, or legitimate business need, the landlord may be putting himself at risk for claims of familial status discrimination.

The federal Fair Housing Act prohibits discrimination in housing because of race, color, national origin, religion, sex, familial status, and disability. Landlords cannot use occupancy restrictions to discriminate based on familial status. A landlord’s occupancy policy that directly or indirectly excludes or restricts children would be a violation of fair housing laws.

Familial status protections include:

• Adults in the household who have legal or designated custody of the child or children living in the household
• A child or children under the age of 18 years
• A child or children who are members of the household or expected to become household members

While it may be tempting to charge extra rent for additional tenants, a landlord should realize that the increased expense of additional occupants is not usually proportional to the number of occupants. If adequate screening and proper selection are utilized, then four occupants should not significantly increase the risk of damages compared to two occupants. More occupants will increase normal wear and tear, but not necessarily proportionally more. Even utilities that might be paid by the landlord will usually increase relatively little with additional occupants, certainly not proportional to the additional number. This is because (1) there are usually significant minimum service fees independent of usage and (2) few if any usage costs depend directly on the number of occupants.

Enforcing the terms and conditions of the lease agreement is critical to protecting the safety and rights of tenants and neighbors. Warnings and notices are issued to tenants whose actions violate rental terms. Failure of a tenant to comply with lease terms and conditions can result in lease termination and possible eviction from the rental premises.

Warning Notices

A warning notice, oral or written, may be appropriate for a tenant’s first time violation of a lease term or condition that is not a material default of the lease or a potential threat to neighbors or property. A tenant whose previous behaviors have never been a problem may be responsive to an oral request by the landlord to remedy the situation. The landlord should document in writing the details of the landlord tenant-conversation regarding the lease violation and what the tenant must do to correct the violation. A copy of the writing should be placed in the tenant’s file.

A landlord could instead send a written warning letter to the tenant that provides details of the problem behavior including date and time; the expected corrective action by the tenant to remedy the problem; citation of the specific lease term or condition that has been violated; and the consequences if the tenant fails to take corrective action for compliance.

A warning letter can be effective in some problem situations but in many other situations, it only serves to delay serving the inevitable notice of termination of tenancy. A warning letter is an informal writing and does not qualify as a formal termination notice. Property management experience may serve to guide the landlord toward the most appropriate and/or effective type of notice for the tenant problem behavior.

If a tenant has repeatedly violated terms and conditions of the lease, it is very likely a warning letter will not produce the desired change in the tenant’s behavior. If the problem situation involves dangerous behaviors such as criminal activity, drugs, or threats of violence, a landlord should immediately begin the termination process to end the tenancy.

Tenants who choose to ignore a warning letter or refuse to comply with lease terms and conditions will need to be served with a formal notice for termination of tenancy.

Formal Notices

Terminating a tenancy due to a tenant’s material breach of his lease agreement begins by providing the proper notice according to the statutes of the state where the rental property is located. The type of termination notice and the notice period depends upon the circumstances of the breach as well the law of the particular state.

All states have addressed the termination notice issue by statute and, while terminology and notice periods may differ among the states, the substance of the notices will be similar. A termination notice properly prepared and served must be done before an unlawful detainer lawsuit can be filed. Without proper termination of the tenancy an unlawful detainer judgment cannot be issued. A court ordered judgment is required to evict the tenant.

Notice to Pay Rent or Quit

Since failure to pay rent is the most common reason to initiate eviction actions, the Notice to Pay Rent or Quit is the notice most often used. A Notice to Pay Rent or Quit demands that the tenant pay his rent within the statutory period a (specified number of days) and, if not paid, to move out (Quit), ending his occupancy.

If delinquency exists in the payment of any portion of rent due, a Notice to Pay Rent or Quit may be served on the delinquent tenant, in most states, as early as the day following the rent due date. If rent is due on the first, a notice may legally be served on the next day absent a grace period being specified in the lease agreement or by state law.

A few states will not allow service of a termination notice (either a Pay Rent or Quit Notice or an Unconditional Quit Notice) until the rent is a certain number of days late. In these states, tenants enjoy a statutory grace period plus the time specified in the Pay Rent or Quit Notice in which to come up with the rent.

Statutes generally require the landlord to provide the Notice a minimum number of days before the lease can be terminated and a lawsuit for possession filed with the Court. The Notice gives the tenant a few days (usually 3 to 10 days in most states) to pay all rent owed or to move out.

Notice to Cure or Quit

A Notice to Cure or Quit demands that the tenant comply with one or more terms of the lease agreement (Cure) and, if the tenant does not comply, to end his occupancy (Quit). Notices to Cure or Quit are typically given after a violation of a term or condition of the lease agreement, such as nuisance, waste or illegal use. Usually, the tenant has a specified amount of time in which to cure the violation.

Unconditional Notice to Quit

An Unconditional Quit Notice orders the tenant to vacate the rental premises and does not allow the tenant to cure any violation of the lease agreement. These notices are the strongest of all termination notices and mean exactly what they say. The tenant must move without an opportunity to pay back rent, correct some other lease violation, or otherwise change his behavior. In most states, Unconditional Quit Notices are used when the tenant has:

• Been late with the rent on more than one occasion,
• Repeatedly committed a material lease agreement violation,
• Committed serious waste or damage to the premises, or
• Engaged in illegal activity, such as drug dealing on the premises.

In a few states, the Unconditional Quit Notice is the only notice statute for any type of violation including late rent or breach of the lease agreement.

Many states have provisions for all three types of termination notices and specify which notice should be used for a particular situation. Some states may give the landlord a choice of which notice to use, for example, a Pay or Quit Notice or the Unconditional Quit Notice for unpaid rent. The tenant does not have the option to choose a type of notice that would provide him more relief.

Service of Notices

To be legally effective, the landlord’s notice to the tenant to pay, cure, or quit must be properly served. State statutes are specific about how and when notices must be served. The procedures set out by statute to serve the notices are designed to provide the greatest likelihood that the person so named in the notice actually receives the notice.

Second Chance

A landlord is not required by law to allow a tenant a second chance in curing any breach of the lease agreement, but may extend that option as desired depending upon the circumstances. If the landlord accepts the tenant’s payment of rent for the entire notice period, the Pay or Quit Notice is cancelled. If the landlord accepts a partial payment of rent, while the original Notice is effectively cancelled, the landlord can immediately serve the tenant with a new Pay or Quit Notice for the balance still owed.

Some landlords may sometimes be willing to work with the tenant by setting up a payment schedule for past due rent amounts. Any agreement between the landlord and the tenant should be documented in writing. A tenant default on the agreement will allow the landlord to take action to terminate the tenancy.

Notice Deadlines

When the noticed deadline expires, and the violation has not been cured, the tenant is not automatically evicted. In almost every state a landlord must file and win an eviction lawsuit before law enforcement officers can physically evict a tenant who refuses to leave the premises after receiving a termination notice.