Tenant Rights Demystified
The rights of tenants can be complicated and may vary from state to state. However, there are some basic principles that all tenants should understand.
Privacy Rights
Tenants have a right to privacy in their homes and may not be entered without permission, "just cause" or an "emergency." An emergency provides a landlord with the ability to enter the rental property at any time. However, even landlords that wish to enter a rental property should provide advance notice whenever the landlord is not responding to an emergency. Further, a landlord should only enter the tenant’s space for a permissible reason, such as inspection, maintenance, or repairs. In addition, a landlord may not "harass" tenants by entering too frequently, and must respect their privacy. Many leases also provide tenants with a specific notice period before a landlord or agent can enter the rental property.
Safety Rights
Tenants have the right to rent habitable spaces under statutory (or common law) law. In general, this means that apartments and units cannot have conditions unreasonably dangerous to the health and safety of the tenant and their guests . For example, the law generally requires windows to have screens; kitchens to include a "working refrigerator and stove," doors that lock, etc.
More generally, specific code provisions apply through the states that require landlords to provide certain quality of life criteria. This includes state law requirements "maintain the premises," ensure the rental unit will "remain habitable," and to keep the unit free from "illegal activity." States may enforce these laws through damage claims.
Renting Uninhabitable Units
When a tenant rents a property, they are entitled to an inhabitable place. This means that any profound issues that would influence a person from renting space are required to be fixed. A few examples of issues that could be considered unsafe and would require the landlord to repair the unit would be broken furnaces, broken windows, broken locks on doors, or insect infestations. If any of these issues are evident in the unit, the tenant has the right to ask the landlord to fix the issue before engaging in the rental agreement. However, notice is required before the landlord is liable for these issues.
Lease Agreements 101
The lease agreement is a contract that lays out the terms of the tenancy. When you’re looking at a potential property, you’ll want to carefully review the agreement, cross-referencing each part of your state’s rental laws to make sure there’s nothing in there that breaks the law or puts the landlord in unfairly advantageous position.
The most commonly known components of a lease agreement include:
Rent: How much will you pay for rent? When do you have to pay it? If you do not pay your rent on time, what are the consequences?
Deposit: How much is the deposit? When do you get it back? In what situation would you lose the entire deposit?
Duration: When does the lease start and end? Is there a possibility of extending? If so, how?
Other important details to consider include any pet fees or restrictions, information regarding maintenance expenses, how the landlord will notify you of issues like rent increases, what happens if you do not pay rent, rules about having guests over and whether you’re allowed to sublet.
The Security Deposit – What Tenants Should Know
In almost every rental agreement and lease, the landlord will charge a lease security deposit at the start of the lease term. In San Francisco, the rent ordinance requires a lease security deposit, as do many other local ordinances and state laws. Legally, this is a rent bill which is paid up front to secure the tenancy, and in most cases, it is charged at the same time as rent itself. The lease security deposit is part rent and part security.
If the landlord plans to impose a lease security deposit at the start of the lease term, the law only allows ten percent of the rent for condo and TICs, and the market rent for tenancies created on or after January 1, 1999 for residential apartments. For a tenancy created prior to January 1, 1999, the onset of the rent ordinance, the lease security deposit is limited to one half of the rent.
However, if the lease remains in effect or is renewed on or after January 1, 1999, Chapter 49 now prohibits increasing prior security deposits to the full amount of current market rent. Such an increase would not constitute a proper renewal. Rent Board rule 6.14.
If the landlord wishes to increase the security deposit, Chapter 49 requires the owner to amortize the increase over the Rent Stabilization and Arbitration Commission’s (the "Commission") permission-to-increase rent authorization period on a monthly basis. Even then, the security deposit is capped at ten percent of market rent.
As per the residential rental units provision of California Civil Code Section 1942.5, a landlord may not increase the lease security deposit during the first 12 months after the rent ordinance first applies to the unit.
The law permits tenants to receive their initial lease security deposit within 21 calendar days after the landlord has both: (1) received the last of the keys; and (2) received the tenant’s written request for return of the security deposit.
The law permits a deduction from the security deposit for "ordinary wear and tear" such as worn carpets or fading paint. For example, a carpet may be eight years old when you move in, there may a couple of stains, but the carpet is not burnt or torn. If the carpet is twelve years old and torn, then it is not ordinary wear and tear. Another example would be curtains that are eight years old with a few bangs around the edges from bumping into the rods. It is not ordinary wear and tear if they are burned or frayed.
The law also permits landlords to damage caused by a tenant or guests with the exception of natural decay of some facility. Natural decay of plant, trees, etc. is not property damage. It is highly debatable if fertilizing a plant might cause dislocation that is damage. A tenant cannot be held responsible for use of a tree trimmer at ground level, if the tree old and dying, wore the damage might have taken place prior to taking possession of the property or the trees were planted in such a way that, the fence might have dislocated while putting up a pool.
Sound Advice on Repairs and Maintenance
Tenants living in homes are often responsible for basic upkeep of the home’s interior. They have limited repair obligations for the exterior structure or any systems and appliances like heating, plumbing and air conditioning. Even those limited obligations are typically a small percentage of what a landlord must take care of. But, regardless of the nature of the repairs, all tenants have several options for resolving issues.
Tenant’s obligations in almost all leases and rental agreements will state some version of the following:
As a practical matter this means that the landlord is almost always expected to make repairs, and even provide maintenance services, for things like air conditioning, heating, plumbing and the exterior of the home itself, including exterior electrical issues. A tenant is usually expected to keep things clean and tidy, changing filters and maintaining aids where applicable, but if something necessary to use those functions isn’t working, it is almost always the landlord’s obligation to get it fixed.
So what happens when a landlord won’t provide the expected services? At the first sign of trouble the tenant can send the landlord a written request for the repairs. This can be done via a text message or email (unless their lease says otherwise) but the trouble is that most tenants often do not communicate through email or text, and many apartment owners do not address tenant emails or texts. To guarantee that notice is received a tenant should send a letter, with details about the failure or needed repair, via a letter carrier like the U.S. Postal Service or other private carrier like United Parcel Service (UPS) or Federal Express (FedEx).
In most situations a landlord should respond within a reasonable period of time considering the nature of the imperative issue. For major issues like broken air conditioner or burst pipe the landlord is required by statute to make the repair within a certain period of time, typically 7 to 14 days depending on the nature of the situation. In any case a tenant can follow-up with another request for the same repairs after that time.
If the problem has still not been addressed and repaired within a reasonable period of time a tenant can take one of two avenues. Either they can file a complaint with their local or state consumer protection office or state attorney general, or they can make the repair expenses the tenant’s responsibility, and then pay for the services performed by the contractor hired by the tenant to fix the issue. This second option is better for serious issues like no air conditioning in scorching summer months and burst water pipes but not much help for minor problems since many contractors have minimum service fees ranging from $75 to $150 requiring the tenant to pay for the contractor’s trip to their home and any diagnostic services they perform.
Understand How Evictions Work
The law requires a landlord to terminate the lease before filing an eviction, and only after the tenant has failed to comply with the lease after the landlord has served a notice of termination. Once these technical requirements of an eviction are met, it is up to the Court to decide whether the landlord is entitled to possession of the apartment or not.
However, while a landlord’s success in possession cases is, for the most part, uncontested at trial, there are opportunities for tenants to expand the time frame for an eviction. The most common tactic available to tenants is to seek an Order to Show Cause. This application, called an OSC for short, allows a tenant to go before the Court without the 7-day "notice of motion" requirement that applies to most applications. An OSC with a stay prevents a tenant’s eviction until a judge has ruled on the underlying issue.
For example, a substantial rent increase in a month-to-month tenancy is often accepted by the landlord as de facto notice that the tenant intends to vacate the apartment. However, if the tenant wishes to remain, he or she would be advised to pay the increased rent under protest if possible. To prevent an eviction after paying the higher rent, the tenant should file an OSC. The tenant has already executed a lease to the increased rental terms by his actions and perhaps the increased rental price in conjunction with a letter to the landlord explaining why the rent was accepted should be enough to support a claim that the lease has been continued .
Some tenants may argue that a month-to-month lease is not enforceable because the renter has not completed and returned a residential lease to the landlord, as required under Section 4.3 of the New Jersey Department of Community Affairs Residential Lease and Confidential Identification Information Act, N.J.S.A.54:4-8.1 et seq. However, the operative language of the statute explicitly provides that "The failure of a lessor to furnish a completed lease as required by this act shall not impair or void the lease." In other words, a month-to-month tenancy created by the tenant’s payment of rent is not voided simply because the lease is not signed.
Other grounds upon which tenants may seek a stay of their eviction may require more thorough analysis but are generally based upon the "hardship" or iniquity the tenant may suffer by being removed from the premises. In most cases, landlords with superior legal counsel are not afraid to rely upon their superior knowledge of the law and, therefore, win more possession cases than tenants who appear pro se or who simply rely upon the experiences of their landlord.
However, over the years, I have found that Judges tend to be accommodating to tenants who ask for an adjournment or settlement that may delay the tenant’s eviction for a matter of weeks. The landlord simply needs to be aware of the progress of the case moving forwards to ensure they obtain the relief they are entitled to despite delays.
Breaking Your Lease: Legal Ramifications and Rights
Breaking a lease early is not without its consequences. Typical language found in lease agreements include the tenant’s agreement to pay the remaining monthly rent as liquidated damages. See, e.g., Solberg v. Countywide Prop. Mgmt., 2011 WL 15425563, at *5 (Cal. App. 2d Dist. Apr. 26, 2011). However, many of these liquidated damages clauses are presumptively unenforceable under California Civil Code § 1671.
Nevertheless, a landlord could be able to recover the lost rental income if it can show that it suffered damages in excess of the liquidated damages clause and that the tenant’s early breach caused those damages. Davis v. Fresno Aids Foundation, 2015 WL 3796468, at *10 (Cal. App. 5th Dist. June 18, 2015) ("The trial court found, quite correctly, the properly interpreted lease required Davis to pay 97% of his remaining monthly installments as liquidated damages. The trial court also found Davis was entitled to offsets from the rent due for the remaining term of the lease.").
Liquidated damages can also be found unenforceable if a landlord has a duty to mitigate its damages and failed to make an effort to find a new tenant. Swain v. Torrey Village Joint Venture, 50 Cal. App. 4th 469, 479-80 (1996) (In determining whether a liquidated damages clause is enforceable, "the amount of liquidated damages must bear a reasonable relationship to the range of actual damages that one could have anticipated would flow from the breach, taking into account the knowledge the parties had when they made the contract. . . . The agreed sum has to be a reasonable amount, and not a penalty, considering the anticipated or actual loss caused by the breach.").
Of course, a landlord can avoid the requirement to mitigate its damages if the lease contains a clause that requires the tenant to pay a liquidated sum irrespective of the landlords’ efforts to re-rent the property. Solberg, 2011 WL 15425563, at *5.
Landlords and tenants may negotiate different consequences for breaking a lease. See Johnson v. Davis, 200 Cal. App. 3d 23, 31 (1988) (noting the ability of the landlord and tenant to circumvent the requirement to mitigate by agreeing that the tenant would pay the rent due for the remaining term of the lease). More commonly, a tenant is able to avoid the consequences of breaking a lease through the exception under California Civil Code § 1942.5(d) if they can show that they gave the landlord notice and a chance to repair conditions that materially affect the health and safety of the tenant, the landlord failed to repair the conditions despite reasonable departure, and the tenant vacated the premises within 14 days of providing their landlord with the notice and an opportunity to repair.
How to Settle a Tenant-Landlord Dispute
Disagreements between tenants and landlords are common. Examples include: In some cases, legal action may be necessary. Generally speaking, landlords and tenants should first attempt to settle disputes among themselves. Good communication is required. Logically address the issue and focus on a logical solution. In the event that an agreement cannot be reached, you may wish to hire a mediator. A mediator is an impartial third party who helps both sides reach an agreement, usually at a cost of several hundred dollars. The mediator does not make a decision but rather facilitates discussion until a consensus is reached. Institutions such as the Better Business Bureau offer dispute resolution services. When landlord-tenant disputes cannot be reconciled, sometimes court intervention is necessary. If you feel you have been wronged and want to initiate legal action, contact a reputable local attorney.
Know Fair Housing Rights and Anti-Discrimination Laws
Fair housing and anti-discrimination laws are designed to protect tenants from unlawful discrimination in housing practices. These laws prohibit discrimination based on factors such as race, color, religion, sex, national origin, familial status, and disability.
Landlords and property owners are prohibited from discriminating against potential tenants, those who seek to rent an apartment or house. They cannot refuse to rent to a tenant because of one of these protected characteristics, nor can they advertise or make statements indicating that race, color, sex, religion, national origin, familial status or handicap will affect their ability to secure housing.
They also cannot subject tenants to different application procedures, impose different rental amounts, have different terms and conditions, falsely deny that housing is unavailable, or retaliate for enforcing one’s fair housing rights.
In addition to federal protections, there are fair housing laws also at the state and local levels. An important example of a state law is the New Jersey Law Against Discrimination (LAD). This is a civil rights law that protects individuals against discrimination in housing and other areas based on race, color, national origin, ancestry, age, marital status, familial status, gender, sexual orientation, religion, and disability.
Under these laws, a tenant has choices. They can file a complaint with the U.S. Department of Housing and Urban Development (HUD) or appropriate state agencies. However, a lawsuit may also be filed in court. Tenants must investigate all options to determine which is the best one for their specific situation.
If a tenant feels they have experienced discrimination, a number of federal and state agencies exist to help them remedy the situation. HUD will investigate the situation and provide legal services . Other organizations provide helpful resources to guide you through the process.
The Office of Fair Housing and Equal Opportunity (FHEO) investigates fair housing complaints on the basis of a protected class under the Fair Housing Act (raced, color, religion, national origin, sex, familial status, and disability) or other federal laws. The complaint would begin by calling the national toll-free number, which takes customers through a series of questions to assess the situation.
Citizens can file complaints with HUD’s Office of Fair Housing and Equal Opportunity (FHEO) online, by mail, at a local FHEO office, and by phone. HUD FHEO charges no fees to file a complaint, and investigations are confidential. Attorneys are not required, but legal guidance is available upon request.
In New Jersey, the Division on Civil Rights (part of the Department of Law and Public Safety) enforces the New Jersey Law Against Discrimination (LAD), including complaints about housing discrimination. They investigate complaints of discrimination in employment, housing, places of public accommodation, and lending.
The law prohibits a landlord or owner of housing accommodations from refusing to rent or sell to any person based on a protected characteristic.
All complaints must be filed within 180 days of the alleged violation, but the New Jersey Division on Civil Rights conducts an investigation that will help determine the number of violations and can prosecute to end continuing discrimination. If they find reasonable cause, an Order of Probable Cause (OPR) will be issued, and the case will be referred for conciliation or administrative hearing. During the course of the investigation, complainants may be called upon to provide additional information such as a written statement or an interview.