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Assistance Animals: Best Practices for Landlords

Assistance Animals: Best Practices for Landlords

By Tia Politi, General Manager with Acorn Property Management, with assistance from  

Victoria Smithweiland, Former Operations Director with Acorn Property Management

 

A recent spike in Helpline calls about assistance animals highlights the need for owners and managers to have a good handle on this vexing part of reasonable accommodation requests and how they relate to Fair Housing law.

Federal Fair Housing laws prohibit discrimination against people who are members of protected classes, in the advertising, sale or leasing of real estate. For rental owners, that means making exceptions to your standard policies or allowing a modification of the premises in order to allow a member of a protected class (in this case a disabled person) the opportunity to enjoy the dwelling unit the way a nondisabled person could by allowing the keeping of an animal that is not a pet. Under the law, an animal that assists a disabled person is seen as an assistive device.

When it comes to things like wheelchair ramps, visual smoke alarms or shower grab bars, rental owners by and large have no objection to making an exception. Some accommodations such as longer grace periods for rent payments or a dedicated space in a first-come, first-served parking lot, can generate some grumbling. But absolutely nothing causes more upset and opposition than the idea of assistance animals – especially for “no pet” rental owners.

Much of this attitude is based on hard experience in regard to the damage that animals can inflict on a rental property. In my experience, more than half of all residencies involving animals generate at least some animal-inflicted damage to the house or grounds. With pets, rental owners can charge higher deposits and higher rent to offset the financial risks. They can also restrict the size, breed, or types of pets, as well as the number of pets on the property. With assistance animals, rental owners lose a lot of control over those decisions. This seems unfair as they are the ones faced with the expense of repairs that may go beyond the amount of a traditional security deposit. Even though assistance animal owners are responsible for any damage caused by their animal, it can be frustrating to pursue them to repay damages, and difficult to collect.

Also tenants seem to have become more aware of their rights in this regard, leading to a noticeable increase in those who report disabilities and are able to obtain a prescription or other care provider authorization. While we can all see the need for a blind resident to be allowed their seeing-eye dog, a diabetic their blood sugar-detection dog, or an epileptic their seizure-detection dog, the surge in “comfort” animals is creating bad feelings among landlords whose perception is that residents are blatantly abusing the system.

As a rental owner, I completely understand the angst this generates, but guess what? I personally have two dogs and find great comfort in their presence. Numerous studies have shown that the presence of an animal in a residence leads to better mental health for their owners. Dog owners enjoy a markedly reduced risk that their home will be burglarized or that they will become the victim of a violent crime. Now if I were a person seeking a rental, could I make the case that without Stella and Bandit I would suffer? Probably. I certainly would feel more vulnerable to crime and miss their comforting presence. Does that mean I’m disabled and could not get by without them? Maybe. I don’t feel disabled, but I’m thankfully not in a position of having to choose either. I guess the point of telling you that is we often can’t see the invisible anxieties, disorders, fears, conditions, and past traumas of another person that necessitates an assistance animal, and under federal law meets the definition of a disability.

What is a disability?

“The term “disability” means, with respect to an individual a physical or mental impairment that substantially limits one or more major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment.

Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

A major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

The ADA does not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.

The definition of disability shall be construed in favor of broad coverage of individuals to the maximum extent permitted.

An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.

An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing assistances and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; use of assistive technology; reasonable accommodations or auxiliary assistances or services; or learned behavioral or adaptive neurological modifications.”

-ADA website

Additionally, the term physical or mental impairment includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impediments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, Human Immunodeficiency Virus infection, mental retardation, emotional illness, drug addiction, and alcoholism.  This definition doesn’t include any individual who is currently using illegal drugs or is a current user of alcohol who poses a direct threat to property or safety (24 CFR 100.201).

Fair Housing law provides that rental owners shall, without regard to normal rules imposed on tenants, allow for an accommodation to relax those restrictions in order for a disabled individual to enjoy the rental unit the way a non-disabled person could. To the extent that a specific request is “reasonable” a rental owner must allow an exception to accommodate an individual’s disability. That includes allowing animals when they would otherwise be prohibited. Both rental owners and residents have misconceptions about what requirements are lawful to impose upon the owner of an assistance animal. I hope you find the following FAQ helpful in achieving a better understanding of your rights and responsibilities as a landlord:

Is a resident required to ask for the accommodation for an assistance animal in advance? A reasonable accommodation request may be made at any time, including during the eviction process, and the failure to do so does not mean you have a right to automatically decline the request whenever it’s made.

Am I obligated to inform residents of their right to an assistance animal if they have a disability? No, the request must be initiated by the resident or by another on the resident’s behalf, but rental owners are obligated to consider all reasonable accommodation requests from their residents.

Does the request have to be in writing? No, a verbal request is also required to be honored.

Is there any difference between a service animal, an aid animal, a companion animal, a comfort animal or an assistance animal? Not under the law. Any of the above terms may be used to describe an animal that meets the disability-related need of a resident.

Can I restrict the size or breed of an assistance animal? No.

Can residents have both pets and assistance animals? Yes, if your policies allow for pets.

Does an assistance animal have to be specially trained? While many assistance animals are specially trained to assist their owners with physical disabilities, many assistance animals simply provide comfort and peace-of-mind to their owners, ameliorating the effects of mental, psychological, social, or anxiety disorders in the affected party. Post-Traumatic Stress Disorder (PTSD) is a common diagnosis for combat veterans, rape or assault survivors, or protected classes who have, historically, experienced discrimination. Often children with disabilities find great comfort and stability by relating to and caring for animals. The bottom line is, you are not qualified to determine whether or not someone needs this type of accommodation and should never try to be the final arbiter of whether an individual’s condition requires an assistance animal for purposes of considering a reasonable accommodation request. It is the care provider alone who determines whether or not someone meets the definition of a disabled person.

Can I ask what the disability is? No. That is private information and you are not entitled to have it. At my company, however, we are seeing many doctors, nurses and social workers telling us what the condition is in direct violation of HIPAA privacy statutes, yikes! But that’s their liability, not ours.

When I asked an applicant for a care provider authorization, they presented me with a card saying the animal was a service animal and told me it was illegal to require more. Is that true? No, there is often a misunderstanding among disabled people with service or assistance animals that they are allowed to bring an animal onto a rental property with only a service animal ID card they obtained legitimately or one they printed off the internet. While that is often all that is required for access to public stores and buildings under the ADA, it is not true for assistance animals in housing. You can require a care provider authorization in most cases, but remember, if a person’s disability is obvious, it is considered a violation to require that they verify their obvious disability.

What kind of paperwork or verification can I require of a tenant with an assistance animal? You may require a verification from a qualified care provider who has direct knowledge of the disability (unless the disability is obvious, then you may not require the verification). You may require that the animal be vaccinated and licensed as required by law or ordinance. In most cases you may also request that the animal be spayed or neutered (more on that later), and proof of such provided to you. You may request a photograph of the animal. You may request that the tenant name a responsible party who agrees to take the animal and care for it should the tenant be unable to do so.

What is the definition of a “care provider”? A care provider can include a medical doctor, a psychiatrist, a counselor or clergy person, a social worker, or a parent or other family member. Basically, any other individual who provides or has provided care to the disabled person, has direct knowledge of the applicant’s or tenant’s disability, and verifies that the animal is needed to allow the disabled resident to enjoy the unit the way a non-disabled resident could. If an applicant or resident provides a recent care provider verification, it is okay to contact the care provider for verification that they issued the verification, as long as you don’t use that as an excuse not to allow the animal to move in in a timely fashion. Also, it can be construed as improper to require them to re-verify their prescription in writing.

What if the verification says the person would “benefit” from an animal? Well, I would benefit from a million dollars, but that doesn’t mean I’m disabled. It is required that the care provider verify that the person meets the definition of a disability and that they need the animal to meet their disability-related need. You could decline a request when the care provider has determined that the individual does not meet the definition, but be prepared for them to correct the deficiency in their verification, which then obligates you to reconsider the request.

Can I require that the paperwork be completed prior to the animal taking up residency? That depends. You may not place unreasonable barriers in the way of someone seeking an accommodation, but if an applicant makes a request as opposed to an existing tenant, I usually request that they get their care provider authorization in prior to the animal taking residency. But I also work with people whose records are packed away or need time to get their dog licensed because they just moved to town.

One of the more irritating things rental owners have been experiencing are last-minute notifications that an approved applicant makes (often at the time of move-in) that they have an assistance animal. But many tenants are rightfully wary to disclose this due to concern that a rental owner will find another way to deny their application, so they wait until the time of move in to disclose, or wait until they move in and you discover the animal. To try to prevent some of this, we have changed the ORHA application (ORHA form #1) to ask the question: Do you intend to bring an animal onto the property? Yes/no. If so, does the animal require a reasonable accommodation? Yes/no. This can help avoid surprise requests, giving both parties enough time to take care of the paperwork prior to the animal taking up residency. If you have older applications you should get new ones.

Can a rental owner have an assistance animal removed pending a care provider verification of the need for the animal? That is extremely risky and could be seen as placing a barrier in the way of a disabled person. Remember, the disabled individual is asserting that they need that animal to assist them with their disability. You don’t want to be guilty of creating a breakdown for the resident or otherwise causing them to fear discriminatory treatment, which could result in a claim against you even if you eventually approve the accommodation. It’s best to assume, until proven otherwise, that the request is legitimate.

What if a guest brings an assistance animal onto the property, do I have to allow that? Likely, yes, but the visitor is also required to prove that the assistance animal is legit by completing the same paperwork as a resident.

Can I charge a deposit or higher rent for an assistance animal?   No.

Can I require that the assistance animal be spayed or neutered? That is disputed. Even among well-educated people within the Fair Housing agency itself, there is some disagreement on this matter. It is certainly okay to REQUEST that the animal be spayed or neutered, but be open to an explanation of why that may not be possible or advisable. For example, I have a tenant with a balance disorder who has a large specially trained purebred dog that walks beside her to provide stability and keep her from falling. She has a contract with the breeder that prevents her from spaying the dog until it is at least five years old, so I made an exception for that. Also, once an animal is beyond a certain age, it can be physically risky to subject them to that surgery, which could be another good reason to make an exception. Remember, you can’t place unreasonable barriers in the way of the person seeking accommodation.

Can I require that the assistance animal be licensed and current on vaccinations? Yes, if applicable. Owners of assistance animals must still comply with all codes and laws regarding vaccination, registration and licensing of their assistance animal.

How many animals can be allowed per person? That is not defined under the law. Each animal must qualify on its own in regard to the service it provides to the disabled person. And, no, assistance animals are not entitled to their own assistance animal!

What types of animals are allowed to serve as assistance animals? Domestic animals are clearly allowed, but vermin can be excluded. Review each request on its own merits and make exceptions when reasonable to do so. For example, under current law you are not required to allow farm animals as assistance animals, but one of the more popular animals for visual assistance for the blind is a miniature horse. They are no larger than many dogs, can be house-trained, and live up to three times as long as a seeing-eye dog, making them a better long-term investment. Current rules don’t require that you consider allowing vermin species such as most rodents, snakes or even fish, but this area of law is always evolving and if you don’t want to end up as a test case, best to consider ALL requests and grant them when it is reasonable to do so. There was a recent case where a guinea pig was determined to be a valid assistance animal. Could I see a scenario wherein watching fish swim in their tank or have a boa constrictor squeeze your arm have a calming effect related to a resident’s disability? What do you think?

What if I have a severe allergy to a specific type of animal? All requests must be reasonable. The definition of reasonable is open for debate, hence the opportunity for litigation, resulting in case law that provides clarity as to what is or is not allowed. I had a potential client once who had purchased her dream home and intended to live in it during retirement which was a few years away, but wanted to rent it out in the meantime. She had a life-threatening allergy to cats and asked me if she could exclude cats from residing at the property even if they were assistance animals. I discussed it with staff at the Fair Housing Council of Oregon, who agreed that it could be justification for declining assistance cats, but that the woman should be very sure she could prove it if a complaint were filed against her. I would go further and recommend that you obtain your own verification of disability from your care provider in advance, so that if this issue ever arises you will be prepared.

What if the assistance animal damages the property or the resident won’t clean up after it? Assistance animals, just like pets, are not allowed to be destructive, dangerous, or disturb the covenant of quiet enjoyment. Residents are required to take proper care of the animal and clean up after it. Non-compliance fees may be charged and tenancies terminated for failure to clean up animal waste outside the dwelling unit. Residents must pay for any damage caused by their assistance animal and their tenancy may be terminated for failure to pay.

What if an assistance animal disturbs the peaceful enjoyment of neighbors? After a good faith effort to allow the tenant to fix the problem, you would be justified in having the animal removed or ending the tenancy. I got a complaint from a resident in a four-plex that his neighbor had a dog and when she left it would bark continuously, interfering with his right to quiet enjoyment. She was also failing to clean up its waste. I served her a Pet Violation notice and she contacted me to let me know her daughter had brought her the dog and it was an assistance animal. I sent her our assistance animal paperwork, but told her that since this animal had already proven itself to be disturbing the peaceful enjoyment, she would either need to find a way to stop the incessant barking or find a different assistance animal. I also reminded her of the obligation to clean up after the dog and that any further instances would result in the possible assessment of non-compliance fees, leading to either the removal of the dog or a termination of her tenancy. She removed the dog, but of course we remained open to her obtaining another assistance animal. If she had kept the dog, but continued to allow it to disturb the neighbor’s right to quiet enjoyment or failed to clean up after it, I would have served a Notice of Termination with Cause (ORHA form #38) for the violation(s), resulting in either a cure of the notice or termination of the tenancy.

What steps should I take if I see an unauthorized animal in my unit? I start by serving a 10-day Pet Violation Notice (ORHA form #6), requiring the tenant to remove the animal or their tenancy will terminate after 10 days. I also send along a Warning Notice (ORHA form #35) letting them know that if the animal is not removed within 48 hours, they will be assessed a $250 noncompliance fee, with additional fees being charged for every 48 hours the unauthorized pet remains on the property. That usually gets a response. About half the time the resident asserts that the animal is an assistance for a disability.

When that happens, take at face value that it really is an assistance animal until proven otherwise, then provide the necessary paperwork (Reasonable Accommodation Request and Verification – ORHA form #53). Follow up with the resident to make sure that their verification is valid and the animal is spayed or neutered (unless you have made an exception), current on vaccinations, and licensed if required by law. Once the verification is complete, the tenant fills out and signs the Assistance Animal Agreement (ORHA form #46), recording the pertinent information about the animal as well as a Responsible Party Certification. The form also reminds the resident about the rules for their assistance animal and the consequences of violating those rules. Get a photograph of the animal for your records and keep it with the tenant’s file.

Sometimes providing verification of things like spay/neuter records, vaccinations or licensing can take time to accomplish, especially if all the requirements haven’t been met and the resident doesn’t have the funds. There’s no set timeframe within which the resident must fully comply, and there are conflicting thoughts on what is reasonable in regards to compliance, so err on the side of caution. If you terminate a tenancy based on a resident’s failure to provide assistance animal documentation, make sure you are not placing barriers in their way. For example, requiring that everything be completed in two weeks may not be a problem for one resident, but could be a burden to another on a fixed income with no transportation. Sometimes it can take time to get a vet appointment, or come up with the money for licensing.

What is the risk to me for denying an assistance animal? The potential consequences are expensive. The Bureau of Labor and Industries (BOLI) is the enforcement arm of Fair Housing in our state. The system is complaint-driven. What happens after a complaint is filed depends on the nature of the complaint, but testing is often the first step in determining whether or not discrimination has occurred. In one prominent local case a few years back, a rental owner who was advertising their “no-pet” rental was contacted by a prospective applicant who told the owner he had an assistance animal. The owner responded by saying, “We don’t take pets.” The individual filed a complaint with the Fair Housing Council of Oregon, who tested the rental owner several more times. He failed and was fined $16,000 by BOLI for discriminating against the disabled. Discrimination penalties are often much, much higher, going into the tens of thousands or hundreds of thousands of dollars for large cases where a pattern of continuing discrimination is identified.

So, what have we learned?

This is how things are. You may not like it, but you have to follow the law or risk very painful consequences. Can’t bear it? Then go into a different business. Never try to dissuade someone from making a request for an assistance animal. If you get a call on your no-pet rental and are asked whether it’s okay to have an assistance animal, just repeat the following: “I do not discriminate based on any protected class, and I will consider a reasonable accommodation request for an assistance animal at any of my properties. Would you like an application?” Evaluate each request in relation to the reasonableness of the request and the verification provided, and do not make any decision before you have all of the information.

Despite the risks, rental owners are obligated to follow fair housing law, so my best (non-legal) advice to you: Deal fairly. Inspect regularly. Enforce consistently.

This column offers general suggestions only and is no substitute for professional legal assistance. Please consult an attorney for advice related to your specific situation.

The Rain is Coming – Don’t Delay Your Roof Maintenance

By Jim Straub, Owner/Property Manager, Acorn Property Management

One of the biggest “delayed maintenance” items I see on rental properties (and one of landlords’ biggest exposures to property damage) is roof maintenance and repairs.  Not much can do greater long-term damage to your investment than a leaky roof, and do-it-yourself maintenance is easy and inexpensive if you or a trusted friend is able-bodied and willing to get a little dirty.

I like to go around and inspect the roofs on all of my places after the last leaves have fallen from the trees but before the big rains hit.  This is usually around November.  Go after you have had several dry days in a row so any clogged gutters have had a chance to slowly drain.

First, I inspect around the roof vents & pipe flashings for cracks.  (Never walk in the valleys or on the ridges of roofs, as this can actually create leaks.)  Leaf or moss build up in valleys or around vent pipes and roof vents is actually a very common spot for leaks.  Make sure these areas stay very clean.  If you find debris, never use a pressure washer to remove it. This will shorten the life span of your roof.

I use a leaf blower to clean the debris off of the roof and to clean the gutters.  This can be a bit messy until you get the hang of it, and even then it’s still little messy.  I like the leaf blower, because I can do a whole house in about 15 minutes and I’m not stooping or constantly going up and down a ladder.  I feel the little bit of mess outweighs the risk of falling off the roof.  If you get any debris on the house or walkway, just grab a hose and spray it off before it dries.

Moss on the roof is not your friend.  Instead of using name brand moss control agents you buy at the hardware store, buy the active ingredient in bulk.  This is what all the roofing professionals do.  The active Ingredient is zinc sulfate.  Make sure you get the powder and not the granule. I buy mine at Gray’s Garden Center in Eugene (call and verify for current prices).  You may want to buy early, because store supplies can get a bit short that time of year.  It is a big bag, but you should get 6 to 8 houses out of it.  All you need to do is sprinkle a little bit of the zinc sulfate along the ridgelines, and the rain will dissolve it and wash it down over the rest of the roof. If you have a lot of moss accumulation, try a direct application to the problem areas.

It is also good idea to prune back any branches that are getting close to the roof, because the branches can bend and rub against the roof in a strong wind.  If you have gutters older than five or eight years, they are probably attached with long aluminum nails every two feet or so.  I like to make sure they are not working their way back out.  Just tapping them with a hammer a few times should do the trick.

When you are doing roof maintenance, some people use this time to do a walk through to inspect for roof and water leaks. You’re at the property and have to give 24 hour notice to enter anyway.  You may as well take the opportunity to be proactive and catch any roof leaks that weren’t apparent from on top of the roof.  Don’t count solely on your tenants to alert you of leaks.

Finally, I send a weatherization letter to all my tenants this time of year telling them what to do in the cold winter months.  It may seem self-apparent, but some tenants genuinely don’t know how to prepare for cold weather and some just need a quick reminder.  A copy for your reference is included below.

Sample Weatherization Letter

Dear Tenant:

We are entering our cold weather period here in the Willamette Valley.  I would like to remind you that it is the responsibility of the renter to weatherize his/her home and keep the water running inside the building during cold weather.  The following are a few suggestions I would like to make:

  1. Plug Foundation Vents. These are the holes around the perimeter of the house.  They should be blocked off to stop wind and cold from getting under your house and to your pipes.  Snug-fitting cardboard works very well for this.  This will also probably help keep your house warmer.
  2. Disconnect All Outside Hoses. Anytime outside weather is freezing all hoses on the outside of the house should be disconnected.  This helps prevent your outside faucets from freezing.  It is also a good idea to wrap the faucet with rags or newspaper and secure with string or rubber bands when the outside temperatures drop below freezing.
  3. Keep all Water Inside the Building Running. It is important to keep water moving in all of the water pipes to prevent freezing.  It requires more than just a drop — keep the stream approximately the width of a pencil lead (both hot and cold) from every faucet especially when outside temperatures are freezing or below.  If you are worried about wasting hot water, turn off the electric breaker to your hot water heater.
  4. Leave Cupboard Doors Open under sinks. This allows some heat near the pipes.
  5. Washing Machine Faucets. There are usually two short rubber pieces of hose from your faucets to your washing machine.  Disconnect these from your machine and run them into the drain pipe in the wall.  This will allow you to leave both of them running also.
  6. Locate Your Water Meter. The meter is sometimes difficult to find with several inches of snow on the ground or if you are in a hurry.  Be sure to note its location before you need to find it.
  7. Keep heat on and at a reasonably warm temperature. If you are going to be gone be sure to leave the heat on and the water dripping.  Also, let your landlord know if you are not going to be home for several days.

Your efforts to prevent freezing before your pipes freeze will save you both discomfort and expense.  Many times it takes up to a week to get a plumber, and they will charge you approximately $75.00 an hour.

This column offers general suggestions only and is no substitute for professional legal advice. Please consult an attorney for advice related to your specific situation.

 

Taking Over An Existing Tenancy

By Tia Politi, General Manager for Acorn Property Management

As a rental owner, most of the properties hubby and I purchased were vacant or were our primary residence before being turned into rentals. We did have instances however, when we purchased a property with a tenant in place, and in my career as a property manager, certainly it happens all the time. The procedures do vary depending on whether you have a month-to-month (MTM) agreement in place or a fixed-term lease (FTL). So, step by step, here’s how I approach the changeover.

Whether the tenants are MTM or FTL, I send a nice letter introducing myself and letting the tenants know the effective date of the change, where they should pay rent in the future, and how to make maintenance requests. For MTM tenancies (or tenancies with only a verbal rental agreement), I also include a new rental agreement and addendums for them to sign and return to our office. I add a sentence that basically says, “Enclosed you will find a new rental agreement and addendums, please sign and return them to us within 30 days. Should you fail to do so, this is your official 30-day notice of our intent to change the terms and conditions of your rental agreement. Whether you sign and return the documents or not, all the provisions therein, shall take effect 33 days from the date this letter was mailed.” This is the easy part. More often, the difficult part is no application, uncommunicative or uncooperative tenants, or fixed-term leases that are contrary to your current practices. But in the case of MTM tenancies, this “official notice” will cure any waiver problems that could have been created by the previous owner or manager for failing to enforce their terms and conditions, and establish that there’s a new sheriff in town.

Should your tenants decline to return the forms, there is also some risk that you would not have proof that they acknowledge receiving the forms. I’m especially reminded of a presentation by the EPA. If you take over a property built before 1978, they audit you, and you have no signed form from the tenant acknowledging that they have received the pamphlet, “Protecting Your Family from Lead in the Home,” they will not be happy about that, to say the least, and you could incur substantial fines. If the former owner/manager didn’t get one to them, you could inherit a major problem. So, can you make your tenants sign these forms? Not really, but you can serve a 30/14 (Notice of Termination with Cause), which would give them the choice to sign or vacate.

Fixed-term leases present more difficulty as their terms are “fixed,” so while you can request that the tenants sign your lease, you cannot require it without agreement of all parties. For example, if you took over a lease that set the late fee at $25 and requires you to provide lawn care, you are stuck with those terms until the lease expires. You can, however, change things like where to pay rent and make maintenance requests. I have been pleasantly surprised on many occasions though, when tenants in a lease will agree to sign new forms. Also, if there was a missed addendum such as the Lead-Based Paint Addendum that never got properly signed, I believe you can press this issue as it is simply an acknowledgement, not a change in the terms.

Illegal provisions in a rental agreement are another potential hassle that you may inherit from the previous owner/manager. Remember that a tenant cannot waive their rights under landlord-tenant law (even with their agreement), so if you have inherited a defective agreement, whether MTM or FTL, and the tenants won’t sign a new one, and you’re choosing to not push the issue, just don’t attempt to enforce those provisions. Some common illegal provisions that have crossed my desk include usurious late fees; premature grace periods, such as three days instead of the minimum four; allowance for abuse of access; and unreasonable restrictions on legal activities, such as no overnight guests or visiting children.

Habitability issues can also rear their ugly head, so be careful in regards to the condition of a property you purchase or take over for management. If there are substantial problems, I would decline to purchase or manage until or unless the tenants were removed so that I don’t inherit a legal claim for damages from the prior owner/manager. Should you choose to take on that risk, deal promptly with all true habitability repairs.

What if you take over a property containing a difficult tenant? If they are in a FTL, you will just have to find a way to put up with them through the term of the lease unless they directly violate their rental agreement. With MTM tenants, you can serve a no-cause notice of termination, as long as the termination is not retaliatory for any protected behaviors such as reporting maintenance issues, complaints about neighbors, organizing a tenant rights group, or for being a member of a protected class, among other things. I’ve had people (somewhat jokingly) say, “Well, I’ll just raise the rent $300 a month and they won’t be able to afford it and will have to move out!” Unless your unit was under-rented by that amount prior to your taking over, and you can prove that to a judge, this is called Constructive Eviction, and it is illegal.

Just like other areas of life, courtesy and kindness go a long way to drawing people to your way of thinking. Transitions can be particularly difficult for some people and a pleasant, calm, helpful demeanor is always a good idea. I have occasionally had tenants who struggled with the transition at first, but then settled down, so don’t assume that the first reaction you get will be how things go forever. I also had a mentally ill tenant who refused to accept the transition, kept sending rent to the previous manager and was evicted by us for non-payment. You can’t make everything perfect, but in most cases, your attitude will definitely influence the response from your new tenants, so be mindful of that and your chances of a successful transition will increase exponentially.

 This column offers general suggestions only and is no substitute for professional legal advice. Please consult an attorney for advice related to your specific situation.

To Lease or Not to Lease…

By Tia Politi, General Manager at Acorn Property Management

As a rental owner, one of the most basic of considerations is whether to offer your property for rent on a fixed-term lease (FTL) or month-to month (MTM) basis. Many landlords have a strong preference one way or the other; others are open to letting the tenant decide. Whichever choice you make, there are benefits and drawbacks that you should be aware of.

A MTM agreement offers more flexibility for tenants and landlords alike. There is no defined minimum period of time that a tenant must fulfill, which can result in a shorter-term tenancy than you may prefer, the only tenant obligation being a 30-day written notice to vacate. (Notice to vacate from one party to the other may happen at any time during a month and is not restricted to a full rental period as some owners and tenants believe. In the case of Section 8 tenancies, notices from owners to tenants must be for a full rental period, but the reverse is not the case. Section 8 tenants may terminate their agreement with their landlord once it becomes MTM at any time during a rental period.) Certainly, the biggest drawback is the potential for a vacancy at a “bad” time of year, like winter, when your vacancy will be more difficult to fill, or you won’t be able to rent your property for quite as much. On the other hand, many long-term tenancies are MTM. Two of my own tenants have been in place for a long time on MTM agreements – one for more than 10 years, the other for more than seven.

One of the main benefits of MTM agreements, is the landlord’s ability to serve a No-Cause Notice of Termination. The ability to serve this type of notice can be useful when you are dealing with a variety of tenant issues that don’t directly violate the rental agreement, but impact your ongoing relationship with them. Examples range from tenants with difficult personalities, active addictions, or untreated mental illnesses, to ones that don’t keep the property in a sanitary condition. We once had a female applicant who presented well during the application and move-in process. She was neat, clean, well-dressed, educated, and had decent credit and rental history. Only after she moved in did we discover that she was a raging alcoholic with mental health issues. When she was sober and on her meds she acted completely normal, but when she drank, she turned into another person entirely. She started banging on her neighbors doors, asking for beer or wanting to visit, trying to force her way in to their apartments. When the neighbors objected, she got nasty and would yell, scream and curse at them. On two occasions, it got so bad that they called the police and had her arrested, which escalated her inappropriate behavior. She started banging on their windows and walls as she walked by, dropping her dog’s feces on their door mats, and continuing to verbally assault anyone who was outside. Obviously, all these things are violations of the rental agreement and could have been addressed with a 30/14 (Notice of Termination with Cause), but with that type of notice, it was possible she could have cured. I didn’t want to keep dealing with this situation or subpoena the other residents to court to testify against her. Because she was on a MTM agreement, I was able to give her a Notice of Termination without Cause, just to get her to go away. It was a tense month, but in the end, her family was able to get her into a treatment facility and she moved without incident.

Often there are other less dramatic, but still irritating behaviors, such as lack of care of the property, continually paying rent late, parking on the lawn, disturbing the peaceful enjoyment of the neighbors, or any of a number of ways tenants can make a nuisance of themselves. In any case, having the ability to serve a no-cause notice is a huge benefit. Another benefit is that the tenancy just continues on indefinitely and you don’t have to redo paperwork every year. Also, if you want to change any of the terms and conditions of your rental agreement you can do so with a 30-day written notice to your tenant. That includes most law changes, trash service, utilities, etc. As long as the change does not in any way violate a tenant’s rights, you are free to adjust the contract. Also, if you have been too much of a softie and created waiver by letting your tenant get away with violations of the rental agreement, you can send them a 30-day notice to reinstate the original terms and conditions. I see waivers most often in regard to late rent and failure to charge late fees, but also pets and unauthorized occupants.

Leases are not so simple. In a FTL, the tenancy is for just that: a fixed term. Many tenants feel more secure with a lease because they can be assured of retaining possession at the stated price for that time period as long as they don’t breach the terms of the agreement. For landlords, a FTL provides at least some assurance that the tenants will stay for a longer period of time, and most tenants will fulfill that specific time period knowing that they or their co-signer will be held to it, or be required to pay a lease-break fee or actual damages. There are circumstances where tenants can legally break leases without penalty, such as deployment in the armed forces, and in cases of sexual assault, domestic violence, or stalking, as long as certain conditions are met, but in general, leases offer less flexibility to either party. You cannot change any of the terms or conditions without mutual agreement, or raise the rent during the term unless the lease contains an escalator clause. If you make a mistake on the lease document, you are stuck with it until it expires. Leases can also give you a false sense of security as tenant break leases all the time and you still have to re-rent the property and go after them for the fee or damages.

Also, the only way to get rid of a tenant on a lease is a Notice of Termination with Cause (30/14), which means a direct, provable violation of the rental agreement. Even then the notice is curable, but if the tenant commits an act or acts within six months of the date of issue of the 30/14 which are the same or substantially the same you can serve a 10-day Repeat Violation Notice for which there is no cure. The sticky wicket here is that if the tenant doesn’t move and the case proceeds to court you may be required to provide proof of the violation and the repeat violation to prevail, subject to the rules of evidence and/or credible witness testimony. Also, some judges are not excited to evict someone who, for example, doesn’t mow their lawn frequently enough.

I once had a family in one of my own rental homes on a lease where the mother was just a hostile, nasty person any time a repair was needed. This rental is next door to my home, and instead of calling, she would just show up at my door angry, no matter how miniscule the repair. On the other hand, she paid the rent on time and took okay care of the property, so I had no legal basis to get rid of her until the lease expired. I was really happy when they moved as it put me on edge never knowing when Nasty Lady was going to show up on my doorstep. If they had been MTM, I could have moved them out sooner.

Leases can be drawn up in two ways: 1) When the lease ends, the tenant is required to move without further notice, unless the landlord has made and the tenant has accepted an offer of renewal; 2) When the lease ends, unless either party has served notice to terminate the lease or renew the lease, it automatically converts to an MTM. If that is your intent, great; if not, then you are required to notify the tenant, in writing, of your intent to terminate the lease at the end, or to offer a lease renewal under the same or different terms and conditions. If the tenancy has been in place for less than one year, the landlord must provide notification at least 30 days prior to expiration. If the tenancy has been in place for more than one year, the landlord must provide notification at least 60 days prior to expiration (The cities of Portland and Bend may have different requirements, so check your local ordinances for confirmation.).

The timing of lease renewal offers can prove burdensome to track, requiring extra diligence on the landlord’s part. There is legal opinion saying that lease renewals can be combined with a rent increase, in theory bypassing the 90-day requirement for rent increases passed by the 2016 legislature. Problem is, this has not been litigated that I’m aware of, so we have no case law on which to base that opinion. If you want to be super safe, do what I do: Initiate the offer, in writing, at least 90 days in advance.

Tracking the lease expiration date, communicating with your tenants about it within the time allowed by law, negotiating the new terms, and having them sign a renewal takes time and effort, so be sure you’re up for that if you want to keep an FTL in place at all times. Both fixed-term and periodic rental agreements have benefits and drawbacks, make sure that you are making an informed decision when deciding which option works best for you.

This column offers general suggestions only and is no substitute for qualified legal advice. Always consult an attorney for advice related to your specific situation.

Inspections: Take Time Now to Save $$$ Later

By Katie Poole-Hussa, Property Manager at Acorn Property Management – Portland

Inspection reports are often used to prove the condition of the property when a tenant moves in and when the tenant moves out. Even though completing these inspections when the property is vacant is ideal, conducting an inspection on at least an annual basis while the unit is occupied is just as important when making your case. Don’t think of interim inspections as an invasion of privacy: think of it as protecting your investment by ensuring that the tenant is taking care of your property.

Try to encourage your tenants to attend the interim inspections with you. Best practice is to work with the tenant when scheduling the inspection by offering two separate times for the inspection. This not only shows the tenant that they matter to you and that their time is valuable, but it helps build a rapport with the tenant which will be vital in future dealings with them. However, if you propose two separate times for the inspection to take place and the tenant doesn’t agree to attend, the landlord can and should still complete the inspection without the tenant with proper, legal notice: just be sure to note if the tenant was present for the inspection.

Always keep records. In Oregon, landlords are required to keep all documentation including inspection reports for six years after a tenancy has ended. When in doubt think of it this way: if it wasn’t written, it probably cannot be proven. When the landlord chooses not to carry out an inspection either before or after the tenancy, the landlord will have a difficult time proving why they deducted anything from the security deposit for physical damage to the property that goes beyond normal wear-and-tear. If a landlord makes a deduction from the security deposit without adequate proof, the tenant can take legal action to get their security deposit back. That is stress and money you could have saved simply by keeping better records.

Helpful Tips for Completing the Inspection of an Occupied Unit:

  • Try to arrange your inspection during a weekday.
  • Be thorough: open drawers, cabinets, pantries, and closets; get on the floor and look under sinks; inspect the seals, the wear and tear, cleanliness, and overall condition in the refrigerator and the stove.
  • Inspection reports can also include pictures – consider taking a camera or your phone so that you can take pictures or a video. Offer to share the reports, pictures, and videos with the tenants for best practice.
  • Ask your tenants to point out anything that could be considered damage and make sure it gets written down. If the tenant will not be present for the inspection, ask them to leave a note on the kitchen counter listing anything they’d like you to look at or document.
  • Is the housekeeping good? We all know that poor housekeeping will attract bugs and sometimes vermin so you want the home to be clean and tidy.
  • Are there any signs of unauthorized occupants or unauthorized pets?
  • Check for plumbing maintenance needs as well. See if the lint trap in the dryer is kept clean and be sure to take a look at the washing machine hoses. A frayed hose could indicate a potential leak. Inspect the toilet tanks. Check the flapper valve and make sure it seals properly and does not need to be replaced. If the landlord is paying a water bill, there is not always a lot of motivation for the tenant to report a slight leak in that flapper valve. Even if the tenant is responsible for water, it does not take a lot of money or effort to replace a flapper valve.

Think of interim inspection reports as evidence to support a future case. Of course no landlord ever wishes to be part of a legal battle justifying charges against a tenant for damages but it happens all the time. Good record-keeping, proof, and evidence will be your saving grace if you find yourself in that situation.

Your local landlord organization can sell standard inspection forms for purchase by landlords. These forms provide a complete list of important property items so that issues don’t go undetected during your inspections.

This column offers general suggestions only and is no substitute for professional legal counsel. Please contact an attorney for advice related to your specific situation.

Tenant Privacy and Records Maintenance

By Tia Politi, General Manager for Acorn Property Management

An acquaintance of mine who is a landlady thought she was properly protecting her tenant’s information, until her errant son who had moved back home and ended up back on drugs found her files containing her tenants’ rental applications. He took that information and stole their identities to take out credit cards under their names, charging up unbelievable amounts of debt to pay for his drug habit before he was caught. As you can imagine the fallout was extreme as she faced angry tenants, her son charged with criminal ID theft, and the expense of making her tenants whole.

As a rental business owner, you operate under many of the same laws and regulations as any business owner in regards to your customer’s privacy and security of their personal information.

A rental application is an ID thief’s dream: all personal data in one location, likely including name, birthdate, and social security number. So, what are you doing to protect your tenant’s privacy?

Privacy laws are based on Fair Information Practices, first developed in the United States in the 1970s by the Department for Health, Education and Welfare (HEW). The basic principles of data protection are:

  • For all data collected there should be a stated purpose.
  • Information collected by an individual cannot be disclosed to other organizations or individuals unless authorized by law or by consent of the individual.
  • Records kept on an individual should be accurate and up to date.
  • There should be mechanisms for individuals to review data about them, to ensure accuracy.
  • Privacy of records shall be maintained by all appropriate means.
  • Data should be deleted when it is no longer needed for the stated purpose.
  • Transmission of personal information to locations where “equivalent” personal data protection cannot be assured is prohibited.
  • Some data is too sensitive to be collected, unless there are extreme circumstances (e.g., sexual orientation, religion).

The Fair Debt Collection Practices Act similarly limits dissemination of information about a consumer’s financial transactions. It prevents creditors or their agents from disclosing the fact that an individual is in debt to a third party, although it allows creditors and their agents to attempt to obtain information about a debtor’s location. It limits the actions of those seeking payment of a debt. For example, debt collection agencies are prohibited from harassment or contacting individuals at work.

If you are pursuing a past tenant for monies owed, you must comply with this law while continuing to:

(1)  Ensure the security and confidentiality of customer information;

(2)  Protect against any anticipated threats or hazards to the security or integrity of such information; and

(3)  Protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to any customer.

In an attempt to provide further safeguards of personal information, in 2012, the Obama administration, set forth its Consumer Privacy Bill of Rights that would be implemented through codes of conduct and serve to encourage legislative action in regards to the following areas of privacy. Specifically, it provides for:

  • Individual Control: Consumers have a right to exercise control over what personal data companies collect from them and how they use it.
  • Transparency: Consumers have a right to easily understandable and accessible information about privacy and security practices.
  • Respect for Context: Consumers have a right to expect that companies will collect, use, and disclose personal data in ways that are consistent with the context in which consumers provide the data.
  • Security: Consumers have a right to secure and responsible handling of personal data.
  • Access and Accuracy: Consumers have a right to access and correct personal data in usable formats, in a manner that is appropriate to the sensitivity of the data and the risk of adverse consequences to consumers if the data is inaccurate.
  • Focused Collection: Consumers have a right to reasonable limits on the personal data that companies collect and retain.
  • Accountability: Consumers have a right to have personal data handled by companies with appropriate measures in place to assure they adhere to the Consumer Privacy Bill of Rights.

You are holding private and sensitive information about your tenants. As such, you are required to protect that information from misuse and access by unauthorized persons. Your obligation extends well beyond the termination of tenancy.

  • Keep all tenant information under lock and key, keep the key location confidential, and do not give out any information about a tenant, including a rental reference, without a signed release.
  • Take care when providing rental references for past tenants; only answer the questions you are asked, do not volunteer information.
  • Keep all tenant records for a minimum of six years.
  • Destroy all documents with sensitive information in a lawfully approved manner.

This column offers general suggestions only and is no substitute for professional legal counsel. Please consult an attorney for advice related to your specific situation

Water Rights, Wells and Irrigation – Property Owners’ Rights and Responsibilities

By Guest Editor, Michael Mattick, Soon-to-be-Retired Watermaster for Lane & Linn Counties

The construction, maintenance, and use of wells and ground water is overseen by the Oregon Water Resources Department. They publish a booklet called Well Water Owner’s Handbook,

http://www.oregon.gov/owrd/pubs/docs/Well_Water_Handbook.pdf.

If you have a well on your property, this booklet may address some things you wonder about, and may give you some things to consider. In this article I will try to address some of the common questions I have heard over the last 18 years.

Don’t I own the water under my land?

Under Oregon water law, all of the water in the state belongs to all of the people of the state. With some exceptions, a water use permit, certificate or registration (known as a water right) is required to use water; however, you do NOT need a permit if the use is only for:

  • Domestic or Group Domestic of up to 15,000 gallons per day (individual or community use)
  • The irrigation of up to one-half acre of NON-commercial lawn or garden
  • Commercial use of up to 5,000 gallons per day
  • Livestock watering
  • Commercial irrigation of any amount – even one-eighth of an acre – requires a water right.

For example, anyone using a well or stream to irrigate marijuana they intend to sell needs a water right. But just because they want one doesn’t mean they can get one. The state is conservative about protecting stream flows during the summer and they will evaluate any new well permit for its potential impact the nearest stream. A well owner may irrigate one half acre of lawn and garden, for personal use, without a water right, but any commercial irrigation requires some kind of authorization.

What about rain water or ponds?

Under state law, ORS 537.141(1) (h), the use of rain water collected from an artificial impervious surface

(a roof or paved parking lot) does not require a water right of any kind. But a dam across a valley, including man-made ponds, though it may be collecting rain water, would NOT get this exception if it also stores runoff from the natural landscape. With naturally occurring springs, landowners do not need a permit to use that water, as long as it would not naturally flow off of the property in a well-defined channel.

What good is a water right?

Their primary purpose is to figure out who gets to continue using water during a time of shortage.

The oldest water right is the last one shut off. The newest water right is the first shut off (after illegal uses, i.e., those with-out water rights). The exempt uses listed above actually have water rights, they are just not documented with a permit or certificate. If it is necessary to regulate exempt users, the Watermaster determines their priority date from whatever information is available, starting with a well log.

What is a well log?

Since 1955, the State has been recording information on new well construction (Well Logs). The Water Resource Department maintains this database. Well logs provide good information when the property is up for sale or if the well needs work. Unfortunately, it is often difficult to connect an old well to a well log, because we have a different address system than we did in 1955 (no more Rural or Star Routes), tax lot numbers change as parcels get subdivided, and ownership changes over time. In 1996, we required drillers to put stainless steel ID tags on new wells and old ones they worked on. This will help us locate the construction reports for those. All others are required to get ID tags when the property next changes hands. If your well does not have an ID tag, you can request one at any time. See http://www.oregon.gov/owrd/GW/docs/well_id_app_form.pdf.

We try to match existing wells to a well log. In order to positively identify the well log, we may need to know a history of the property ownership back to the time when the well was drilled. The well logs always have the name of the original land owner, but we do not attempt to update subsequent ownership.

Who regulates water quality in wells?

There is no agency which regulates water quality pumped from private wells. Landowners who rent property for residential use are supposed to have a potable water source. If the water is not safe, they may be liable if its consumption results in injury. Any system serving more than 3 hook ups is considered a Public Water System.

The Oregon Drinking Water Services of the Oregon Health Authority tries to ensure that public water systems meet minimum standards. Public systems need to have an identified system operator who is trained and periodically tests the water for contaminants. More information on the Drinking Water Services can be found at http://www.oregon.gov/oha/PH/HEALTHYENVIRONMENTS/DRINKINGWATER/Pages/consumers.aspx

Do landlords have liability for contaminants in ground water?

Yes. We recommend wells be tested for contaminants annually. Any wells drilled in volcanic geology (anything in the hills East of the Willamette River, or South of Eugene) could have high levels of naturally occurring Arsenic. These levels can change over time which is why we recommend annual testing. Other contaminants to look for are Nitrates and Bacteria. The Drinking Water Services web site above has good links to fact sheets on each of these contaminants.

Can a landowner drill their own well?

We discourage it. Few people have access to the equipment, or experience necessary to properly construct a water well. It is best to hire a licensed bonded well contractor. A landowner can construct their own well if they first get a landowner’s permit and bond. The permit currently costs $25, and a bond good for $5000 will cost approximately $500. The bond ensures we have resources to hire a professional constructor if a landowner gets in over their head.

What if it is just an irrigation well?

We look at all wells as Water Wells which may be used as a potable source, if not now, then in the future. All wells must be built to at least the same minimum standard.

What about very old wells constructed before there were standards?

We do not make landowners bring old wells up to today’s standards unless there is some reason to suspect they may be related to a health threat. Any well without a well log may be required to be abandoned (filled with cement, and the casing pulled or ripped) if it, or a nearby well, tests positive for contaminants. The District 2 Watermaster office is located at the Lane County Courthouse (125 E 8th Ave, Eugene) near the Deeds and Records counter. The phone # is 541-682-3620. The new Watermaster is Lanaya Blackely, and she will be up to speed very soon. Contact information for other Watermaster offices can be found in the back of the Well Owner’s Handbook (see above).

Michael Mattick is the primary water-use and well construction official for Lane and Linn counties. After 18 years of service, he is transitioning to retirement but is helping with the transition to a new Water Master.

This column offers general suggestions only and is no substitute for professional legal counsel. Please consult an attorney for advice related to your specific situation.

Pest control in rental properties: Who’s responsible?

Bedbugs, and Spiders, and Bats, Oh My!
By Tia Politi, General Manager, Acorn Property Management – Springfield

ORS Chapter 90 clearly requires landlords to turn over a rental property free of pests at the beginning of tenancy, but provides little guidance for responsibility for pest control during the tenancy. So, who is responsible when pests invade a rental property? As usual, it depends. The law of damages implies that if a problem was fully or partly caused by the negligence or direct actions of one party or the other, that party is fully or partly responsible for the resulting damage. There are few clear-cut guidelines, and the following information is simply my opinion based on experience. Determining financial or personal responsibility in any disputed situation requires a bit of reasoning, thought and investigation, relying on the reasonable person standard.

Pests are everywhere. Some are just minor nuisances like flies and mosquitos; others cause property damage, such as raccoons, or wood-eating insects like termites and carpenter ants. The worst are deadly, such as brown recluse spiders, or for people with severe allergies: bees, wasps and yellow jackets. Pests include insects and spiders, rodents and mammals, feral cats, and even snakes.

Some pests, like ants or spiders, don’t need an invitation, they are able to squeeze through the tiniest of openings, and while they can be attracted to some substance on or in a property, it can be difficult to draw a direct correlation between tenant behavior and infestation. Other pests like bedbugs or cockroaches are hitchhikers and only come along for the ride, pretty much guaranteeing that the tenant or a visitor caused the problem. And tenants can invite pests to the property by purposeful or negligent behavior, such as failing to maintain the home and grounds in a sanitary condition, keeping chickens or other livestock, or feeding wildlife. But the final consideration is, and always should be, whether the cause of an infestation correlated to tenant behavior can be actually proven in a court of law by a preponderance of the evidence.

Bats – I live in a house that has larger shingle siding and some of the openings are large enough to house bats. I love it. They eat lots of bugs and don’t bother me or my pets; however, if they managed to get into my attic space that would be a problem, and if they got into one of my rentals it would be my responsibility to get rid of them. I confess to being a bit of a reality-show geek, and one of the shows I used to watch was Billy the Exterminator. I learned some great techniques for pest removal from Billy. With bats, he would find out where they were getting in and out, seal up all but one entry point, then during daylight hours tack a long, lightweight piece of weighted mesh fabric or screen above the opening. At night when the bats left to feed, they were able to push aside the screen to get out, but were unable to get back in. He would then seal up the entry point and get to work cleaning up the nesting area.

Bedbugs – The general consensus is that bedbugs are hitchhikers and can be considered a tenant-caused problem. In multifamily units, though, bedbugs have been known to migrate from one unit to another through electrical outlets and other openings. That can make it difficult to clearly identify a culprit. There are specially trained bedbug detection dogs that may be able to determine ground zero for the source of the infestation, but if there is no clear source, the landlord may have to treat the entire building at their own expense. If it can be proven with certainty that a tenant caused an infestation, they are financially responsible to pay for eradication, but it can be difficult to prove that a house or unit was bedbug-free on move in, so some landlords are taking the extra step of hiring bedbug detection dogs to certify their units clear, providing concrete evidence that a tenant is responsible for the problem if a dispute arises.

Bees, Hornets, Wasps, Yellow Jackets – A landlord would be hard-pressed to justify charging a tenant for removal of a ground nest of aggressive yellow jackets, a bald-faced hornet nest, or honey bees living in the walls of the unit. (Honey bees are essential for pollinating the food we all eat, so please don’t kill them. There are beekeepers who can remove the hive.) Biting or stinging insect infestations become more urgent for a landlord if there are household members who are allergic to the sting or bite of these kinds of pests, and whose lives are endangered by the presence of the pests. If I ask a tenant to stand back and spray poison on such insects, I may be exposing them to risk as well, so I would likely deal with that situation at my own expense. Paper wasp nests can be easily swept or washed off the exterior of a property, so as long as I have a tenant who is not allergic, I ask them to remove the nests.

Cats – The feral cat population is out of control everywhere, and in my job I have ongoing issues with kind-hearted residents who feel bad for them and either feed them regularly, or allow them to live under the unit by removing the foundation vents. Once under the house, the cats urinate, defecate and claw out the under-floor insulation, creating a nasty situation for the property owner. Tenants can and should be charged for the removal and repair of any damage if they allow or contribute to this problem. For some tenants, it’s an ongoing issue which they can’t seem to stop, and I have had to terminate the tenancies of residents who refuse to modify their behavior.

Cockroaches – If the property was cockroach-free on move in, it’s likely they hitchhiked in with the tenant or one of their guests. If the property is a stand-alone single-family home, I would pass on the charge for eradication, especially if they have lived in the property for some time. In the case of a tenant who reports roaches close to move in, it may not be so clear. In a multi-family unit, it’s also much harder to say, as, like bedbugs, they can easily spread from one unit to another, and are very difficult to completely eradicate. Some buildings have ongoing roach problems that require regular periodic treatment.

Fleas – In my experience, fleas are a tenant-caused problem obligating residents to pay for treatment, but rat fleas are a different story. If you have a property with rats, the fleas that live on the rats under the house or in the walls and ceilings can find their way inside. These are the worst fleas because they can carry bubonic plague – rare, but still present in the world.

Flies – Common house flies are not a landlord’s problem. State law does not require landlords to provide window screens, but the Eugene Housing Code says you must. I do provide screens and I think it’s a reasonable thing for landlords to provide.

One of my tenants recently reported drain flies in the bathroom sink drains. I had never heard of such a thing, but looked it up on the internet and guess what? There are tiny flies that live in sink drains. They are very hardy and can withstand many different types of chemicals, but in my research, I found that hydrogen peroxide down the drains periodically can eradicate them. If your residents report drain flies, ask them to do that, and consider providing the peroxide, or not.

Food pests – Food pests are a tenant-caused problem for them to resolve. If there is no accessible food, there will be no pests.

Gophers & Moles – Usually, a mole or two isn’t going to cause a problem, but I recently declined to take over management of a country property that had an enormous gopher problem. The colony literally had dozens of hills in an area of about a half-acre right next to the house, and the owners didn’t want to do anything about it. The turned-up ground created a morass of tripping hazards creating a liability issue for all concerned. Not the tenant’s problem to solve.

Mice, Voles – You can ask to have your tenants do their best to trap them or put out poison, and at the company I work for we do ask tenants to do their best to get rid of them on their own, but with my personal rentals, I don’t. I just put poison under each of my rentals every year because mice and voles are ubiquitous, and can literally get through a hole the size of a lag bolt. Trapping is difficult, icky, and time consuming. When my household experienced a mouse infestation many years ago, we tried trapping, but the varmints bred faster than we could trap them. Poison took less than a week and the problem was solved.

Raccoons – Coons are wily critters with an uncanny ability to break into attic spaces. Your tenant can’t control them, but they can exacerbate problem by feeding them. I have a tenant (soon to be an ex-tenant) who feeds them. The neighbors are unhappy and so are we, and the tenant has agreed to trap his special coons and remove them along with himself. Landlords should check city code on removal of things like feral cats, raccoons or possums as it might be against the law to kill them, or trap and relocate these pesky critters.

Rats – There is broad consensus that rats in the dwelling unit are a landlord’s problem to eradicate (recently affirmed by a change in the Eugene Housing Code). Rats dig under foundations and chew through floors, walls and ceilings to gain entry, and while tenant behavior can attract them, rats don’t seem to need an engraved invitation. Using poison on rats is not recommended because it can create another problem: the smell of their decomposing bodies in or under the rental unit. It’s nasty, which is why exterminators generally use traps to get rid of them.

Scorpions – Rare in rainy Western Oregon, scorpions have been known to establish nests in sun-drenched rock piles, but there are incidences of scorpions nesting in or under homes. These would be a landlord’s responsibility to eradicate.

Skunks – These odiferous critters love to take advantage of breached foundation vents and nest in open areas under sheds and houses; they are the landlord’s problem, not the tenant’s. Property owners would be well-advised to make sure all areas are sealed up with wire fencing or other effective barrier to prevent entry in the first place. For skunks, or larger mammals like feral cats under the rental unit, one of my contractors has created a great method for getting them out. Purchase a live trap of the appropriate size, cut out the back non-opening end of it, and seal up all access points except for one under the affected building, then attach the open end of the trap securely to that opening. The animals will be frightened to go through it at first, but eventually will get hungry or thirsty enough to push the flap open and get out, but they won’t be able to get back in. Once you’re sure that every unwanted intruder is out, remove the trap and seal up the opening.

Snakes – Common garden snakes are generally not damaging, hazardous or inclined to nest in houses, and are not something that needs to be addressed unless they do establish a nest under the house or are otherwise entering the domicile. Rarely seen west of the Cascades, and even more rarely a problem for residents, we do have rattlesnakes in Oregon. Certainly, tenants should not be responsible to pay for the eradication of dangerous creatures from the home.

Spiders – Common household spiders or spiders in the yard generally would not be something requiring action by the landlord; however, if you discover some sort of problem with a deadly breed of spider, such as the brown recluse, I would make sure that problem gets resolved and not require the tenant to take corrective action or pay for it. We had residents years ago who wanted us to spray the yard for common spiders. We clearly felt the spiders posed no problem, and therefore was an unreasonable request, but offered to have it done if they would pay for it; they declined.

Tiny House Ants – In my experience, most landlords have their tenants take responsibility for eradicating tiny ants. I too, was of that mindset until my home was attacked last year. My family and I lived in our previous home for 15 years with nary an ant problem. We have lived in our current home for the past 13 years. Last year, we were attacked by sugar ants. Nothing has changed about the way we live that would suggest we did anything to attract them. We purchased Terro and diligently set about eradication. After about three months, just as we felt we were getting a handle on the problem, a new colony moved in and we started the process again. This went on and on. Every time it looked like we were winning, here they would come from a totally different place – first it was the kitchen, then they attacked the dog food beside our sliding glass door, then the upstairs bathroom, then from under the fireplace, then in an upstairs bedroom. This year, in addition to the sugar ants, a new type of tiny ant seemed to find our home suitable for residency. These new ants swarm in much greater numbers and aren’t attracted to the Terro. We would have been better off to have hired an exterminator to begin with. If I was a tenant, I would find it ludicrous for my landlord to charge me for an exterminator when I did everything within my power to get them gone. I tell this story to point out that no matter how faithful a resident might be in trying to eradicate the little buggers on their own, it can be virtually impossible. Maybe there are other products that can do the job, and I encourage landlords to share tips in the bulletin, but the bottom line is, how much effort and expense can a landlord expect a resident to exert?

Wood-eating insects – Residents can attract termites and carpenter ants by keeping rotting wood in the yard or against the house, so make it clear that this is a prohibited behavior. Other than that, in general, residents don’t contribute to these critters and they would be a landlord’s responsibility to eradicate.

An ounce of prevention is worth a pound of cure, so here are steps you can take to help make your property less attractive to pests:

  • Keep shrubs, trees and tree limbs well away from the roof and siding.
  • Check for entry points and seal up everything you can find (spray foam is fun); larger gaps and holes can be filled with steel wool to discourage mice.
  • Create a bug barrier to entry by treating the perimeter of the property with borax, diatomaceous earth, or insect killer.
  • Repair any wet or dry rot in the structure to avoid attracting termites or carpenter ants.
  • Don’t permit residents to compost food waste on the property.
  • Don’t permit residents to keep chickens.
  • Don’t permit residents to leave food out for their domesticated pets or assistance animals.
  • Don’t permit residents to feed feral cats or wildlife.
  • Don’t permit residents to pile anything against the side of the structure.
  • Make sure foundation vents are solid. Upgrade from basic screens to rigid, framed vents.

At what point is it wise to step in or bring in a professional? Immediately for a pest that is potentially hazardous to the health and safety of the residents, or damaging to the property; and eventually, if what the landlord or the tenant is doing isn’t working. When the decision is made to hire a professional, be prepared for possible concerns from residents who may have chemical sensitivities, or fears about possible health risks of chemical pest control. Tenants may also object to the idea of pests suffering from ingesting poison, or from being injured or killed by trapping. There are online websites and blogs that tout natural remedies for pest control, and there are pest control companies that specialize in humane removal and natural pest control solutions. Residents are our customers, and as caring and intelligent business owners, we want to do our best to keep them happy, but natural methods may take longer, require more intensive involvement on the landlord or tenant’s part, and cost more. It seems reasonable to charge the tenants for the higher costs incurred for a special type of removal of a particular pest, if tenant objections incur higher expense for the landlord.

Responsibility for pests is sometimes clear and other times cloudy, but if there is concrete evidence that a tenant caused or contributed to a pest problem by their willful or negligent behavior, it is appropriate to charge them for remediation. When in doubt, landlords should imagine themselves in a courtroom explaining their reasoning to a judge. That’s who will be the final arbiter if landlord and tenant cannot agree.

This column offers general suggestions only and is no substitute for professional legal counsel. Please consult an attorney for advice related to your specific situation.

Tenancy Fees – What to Charge, When to Charge, and How to Get Paid!

By Tia Politi, General Manager, Acorn Property Management – Springfield

(Screening charges are charged pre-tenancy, and are not addressed in this article.)

A fee is a non-refundable payment of money from a tenant to a landlord, most often for a violation of the rental agreement, but also for certain landlord expenses. A landlord is not obligated to account for or return to the tenant any lawfully charged fee. A fee must be described in a written rental agreement.

Contractual fees include late payment of rent, smoke/CO alarm tampering, dishonored check, lease-break, HOA/COA move-in or move-out, and municipal or utilities pass-through

Non-compliance fees include late payment of a utility or service charge, failure to clean up animal waste (pet or assistance animal) from a part of the premises other than the dwelling unit, failure to clean up garbage, rubbish or other waste from a part of the premises other than the dwelling unit, parking violations or improper use of vehicles within the premises, smoking/vaping in a clearly designated nonsmoking unit or area of the premises, or keeping on the premises an unauthorized pet capable of causing damage to persons or property, as described in ORS 90.405.

Contractual fees require no further notice prior to assessment, other than being described in a written rental agreement. Once the tenant commits the violation, the landlord sends the bill for the fee.

Non-compliance fees have additional notification requirements prior to assessment, and the amount of the fee varies based on the type of non-compliance. Prior to charging a fee, the landlord must send a written Warning Notice.

 

CONTRACTUAL FEES

Late Rent

A landlord may charge a fee when the tenant pays rent beyond the statutorily allowable grace period, under certain conditions. If allowed by contract a landlord may assess a late fee for any rent payment received after 11:59 p.m. on the 4th day of the rental period. If not allowed by contract, or in cases of reasonable accommodation, a landlord may assess a late fee for any rent payment received after 11:59 p.m. on the 7th day of the rental period. To have the right to charge a late rent fee, the landlord must provide the tenant with information on how and where to submit their rent payments. The fee must be reasonable and is limited by statute to, an amount not to exceed the amount customary in the local area.

If there is no written rental agreement, a landlord may provide a 30-day notice of change-in-terms to effect the change to an oral agreement.

Insufficient Funds

Landlords may assess a fee of $35, plus bank charges for any dishonored check submitted as payment by a tenant.

Lease-Break

Landlords may charge a fee not to exceed 1-1/2 times the monthly rent for a tenant who breaks a lease, with some restrictions: 1) The landlord may not recover unpaid rent for any period of the fixed term tenancy beyond the date that the landlord knew or reasonably should have known of the abandonment or relinquishment. 2) The landlord may not recover damages related to the cost of renting the dwelling unit to a new tenant. 3) The landlord may not charge a lease-break fee in cases of termination of tenancy related to domestic violence, sexual assault or stalking as described in ORS 90.453(2), or for a tenant being called to active duty military service as described in ORS 90.472 or 90.475.

Smoke/CO Alarm Tampering

Landlords may assess a fee for tampering with a properly functioning alarm. The fee is not to exceed $250 per occurrence, and a landlord may not assess the fee if the Fire Marshall has already done so.

HOA/COA Move-in/Move-out

Landlords may pass through move-in or move-out fees assessed by a condominium or homeowner’s association. The fee must be described in the written rental agreement. The landlord must bill the tenant within 30 days of receiving the association’s bill, provide a copy of the invoice with the bill, and allow the resident up to 30 days from the date of billing to pay.

Municipal and Utilities Pass-Through

Landlords may pass on municipal fees and charges to tenants. The pass-through charges must be stated in the written rental agreement. The charge must be imposed on the landlord by a utility or service provider, on behalf of the provider or a government agency for municipal services, or for general use of a public resource related to the dwelling unit, including assessments for street maintenance, transit, public safety, or parks and open space. The landlord must bill the tenant in writing within 30 days of receipt of the provider’s bill, and include a copy of the bill. The landlord must give the tenant 30 days or more to pay. If not stated in the written rental agreement, the fee may be added to an existing periodic agreement with 60 days’ written notice.

 

NON-COMPLIANCE FEES

The late payment of a utility or service charge

A landlord may require tenant to pay utility or service charges as described in ORS 90.315. A landlord may require that a bill to the tenant for a utility or service charge is due upon delivery of the bill. Otherwise, a landlord shall treat the tenant’s payment as timely if the payment is made by a date that is specified in the bill and that is not less than 30 days after delivery of the bill. If payment is not tendered by the specified time, the landlord may assess the fee.  A landlord must provide 60 days’ written notice to a tenant to amend an existing rental agreement for a month-to-month tenancy to require a tenant to pay a public service charge that was adopted by a utility or service provider or a local government within the previous six months.

Failure to clean up animal (pet or assistance animal) waste, garbage, rubbish and other waste from a part of the premises other than the dwelling unit

Assessment of non-compliance fees for these violations requires connecting a specific violation with a specific tenant or tenancy. With a tenant in control of their own yard, determining responsibility is easier than in a multi-unit complex. Additionally, the landlord should be certain that what they consider waste is actually waste. Does the garbage bag on the porch contain trash, or does it hold cans ready to be recycled?

Parking violation, or the improper use of a vehicle within the premises

Assessing non-compliance fees for these violations requires that rules establishing where to park or identifying prohibited conditions or activities related to motor vehicles – be stated in writing. Parking restrictions and vehicle tags, prohibitions against vehicle maintenance on the premises, and requirements that vehicles be operable and current on registration are all examples of vehicle restrictions, and may be cause for assessment of a non-compliance fee or termination of the tenancy.

For the above violations the allowable fee is limited to $50 for the second offense, and $50 plus 5% of the rent amount for all subsequent similar violations that occur within one year of issuance of the required written Warning Notice.

 For two other violations, however, the fee is much higher.

Smoking/vaping in a clearly designated nonsmoking unit or area of the premises

A landlord may charge a $250 noncompliance fee as early as 24 hours after the effective date of the written Warning Notice, and repeated fees for every 24-hour period during which the tenant continues to violate this provision.

Keeping on the premises an unauthorized pet capable of causing damage to persons or property, as described in ORS 90.405

A landlord may charge a $250 noncompliance fee as early as 48 hours after the effective date of the written Warning Notice if the tenant fails to remove the unauthorized pet, and repeated fees for every 48-hour period during which the animal remains on the premises.

 

Prior to charging a noncompliance fee, the landlord must issue a written Warning Notice within 30 days of discovery of the initial violation, (Notice of Non-Compliance – ORHA form #35) that states a specific violaton, and the amount of the fee for a second non-compliance, or for any subsequent non-compliance, that occurs within one year after the issuance of the written Warning Notice.

For any specific violation, the right to charge a fee ends one year from the date of issuance of the first Warning Notice. Once the year has passed, landlords must issue a new Warning Notice prior to charging fees again for that specific violation. Non-compliance fees must be assessed within 30 days of the act constituting the violation.

A landlord may terminate a tenancy for a non-compliance instead of assessing a fee, but may not assess a fee and terminate a tenancy for the same non-compliance. An example might be the service of a Pet Violation Notice. A landlord may include a Warning Notice with the Pet Violation, but if the tenant did not remove the pet timely, the landlord would have to choose between terminating the tenancy for the failure to remove the pet or assessing non-compliance fees for the violation. Landlords may, however, terminate a tenancy for failure to pay prior outstanding noncompliance fees billed to the tenant. Confusing, I know.

Look at it this way, if a landlord serves a Notice of Termination With Cause for a specific violation and also serves a Warning Notice for the violation, and the tenant doesn’t cure the violation within the specified time frame, the landlord would then have to choose between following through with the termination of tenancy or the assessment of fees; however, if a landlord chooses to assess and bill the tenant for the fee, and the tenant refuses to pay the lawfully charged fee, the tenancy may be terminated for that violation.

A landlord may not issue a Warning Notice prior to a violation being committed by the tenant. A landlord’s right to charge non-compliance fees may be added to an existing month-to-month agreement with 30 days’ written notice.

 

GETTING PAID

The first step in collecting a contractual or non-compliance fee is to notify the tenant in writing that they owe a fee. Send a bill stating the violation, the fee they owe, the fee they will owe upon future violations, and how long they have to pay. The length of time a tenant has to pay a fee after notification can be defined in the rental agreement; if not defined, 30 days seems reasonable.

If the tenant does not voluntarily pay a bill for a lawfully charged fee, a landlord may send a Notice of Termination With Cause (ORHA form #38), providing a final opportunity to remit the funds or the tenancy terminates. If the tenant neither pays nor moves, the landlord may evict on that basis.

 

PENALTIES AND OTHER CONSIDERATIONS

Landlords incur a stiff penalty if they charge a tenant a fee in violation of this section. The tenant may recover twice their actual damages or $300, whichever is greater. This penalty applies only to non-compliance fees, and not to contractual fees such as: late payment of rent, smoke /CO alarm tampering, dishonored check, lease-break, HOA/COA move-in or move-out, municipal or utilities pass-through.

Concerns about proof

Landlords must take care to ensure they collect and retain proper documentation and proof of the violation prior to issuing a Warning Notice or assessing a contractual or non-compliance fee. If a tenant disagrees with the landlord’s assessment, the conflict could end up in court, where legitimate evidence will be required.

 

This column offers general suggestions only, and is no substitute for professional legal counsel. Please consult an attorney for advice related to your specific situation.

Top Ten Classic Landlord Mistakes

By Tia Politi, General Manager, Acorn Property Management – Springfield

As a property management consultant, I guide landlords through the processes of dealing with tenant noncompliance, termination, deposit reconciliation, eviction and small claims. Through the years, common themes have emerged regarding lack of knowledge in the following 10 areas:

 

  1. Fair Housing violations in advertising & first contact

To stay out of trouble, follow the rule:  Describe the property not the people. Don’t say things like, perfect for older married couple, ideal for single man who works nights, Buddhist vegans only need apply. And especially don’t say things like, no Section 8, no animals, and now – no criminal history. The HUD Memo of 2016, requires landlords to consider an applicant’s criminal history in context. Landlords need to look at whether the history presents an actual danger to themselves, the property or the neighbors, by considering such things as the type of crime(s), how many convictions, how long ago the crime(s) occurred, and the rehabilitative measures they have taken since. Residents can also request a reasonable accommodation for a waiver of poor history related to domestic violence, or criminal history related to a prior addiction when the applicant has received treatment and stayed clean.

Don’t pre-screen potential applicants when they call, or ask potentially illegal questions such as number of children, source of income, marital status, ethnicity, religious preference, etc. Everything you need to know will be on the application. Some landlords say they do a bit of prescreening so people won’t waste their time applying if they won’t qualify. Unfortunately, this opens the door to saying or doing something that results in a Fair Housing violation against an applicant in a protected class. Offer an application to any who indicate an interest in applying, even if at first contact it appears they might not qualify. All of the information regarding that applicant will be on the application, and that’s when the job of screening begins.

Landlords also get into trouble when they answer questions by disabled applicants related to Reasonable Accommodation of the lease terms, or Reasonable Modification of the premises. The best way to avoid trouble in this regard is to create an auto-response, such as, “I do not discriminate based on any protected class. Would you like an application?” Don’t put the cart before the horse, it will only lead to trouble. If the applicant is approved, the landlord can then move through the request, verification, registration, modification process.

 

  1. Screening poorly or not at all

If you have a decent rental property and good people in that property, there’s no easier job in the world than being a landlord. And that’s the trick: identifying people who will take care of the property, pay their rent in full and on time, and keep to the terms of the rental agreement. The best chance of achieving that is to actually screen potential residents. Require each adult applicant to fill out an application. Check all disclosure boxes for requirements like renter’s insurance, utilities or services that benefit the landlord or another tenant, or yard care. Require applicants to answer every question and fully complete the application before it is accepted, then verify the information. There are many fine screening companies that can help. Apply rental criteria fairly, without regard to race, color, national origin, religion, sex, familial status (families with children), disability, marital status, source of income (including housing subsidies), sexual orientation, gender identity, type of occupation, or domestic partnership. If applicants meet the criteria they are approved or conditionally approved; if not, they are denied.

If a landlord charges a screening fee, there are extra requirements. The applicant must be provided with the landlord’s written screening criteria prior to applying, the landlord must have an available property or one that will be available soon, the applicant must be told where they are in line for an advertised property, the landlord must provide a receipt for the fee, and they must actually screen the applicant, or are required to refund the fee. The landlord must also issue any denials in writing separately to each applicant, and must reconsider the applicant if they provide evidence showing that the reason for denial is wrong in some fashion.

 

  1. Rushing the move-in process

Don’t be pressured by applicants (or finances) into rushing the move in. When move in is rushed, it results in three fatal errors:  1) Failure to fully screen, resulting in poor quality tenants; 2) Failure to document the condition of the property, resulting in disputes over damages at the end of the tenancy; 3) Failure to ensure the property meets habitability standards, resulting in aggrieved tenants with a basis for complaint, and even counterclaim in a legal action. Diligence at the beginning of the relationship is rewarded at the end.

It’s a big red flag when an applicant holds a handful of cash and pressures the landlord to move quickly. Haste makes waste. Prepare the property completely before handing over possession. Verify the transfer of utilities, and make sure the rental agreement and all addenda are completely filled out, initialed and signed by all parties.

 

  1. Confusing pets with assistance animals

A pet is a pet; an assistance animal is a wheelchair. Too many landlords confuse the two, to their detriment. Landlords may restrict a tenant’s right to keep a pet in the rental property by limiting the number, size, species, and breed of pets, and charging increased deposits and rent for the privilege of keeping a pet.

An assistance animal is not a pet, but an assistive device that allows a disabled resident the ability to occupy and enjoy the unit the way a non-disabled resident could; therefore, landlords cannot require any additional deposits or rent for assistance animals, restrict size or breed of assistance animals, and must be cautious in regards to restricting number or species. It’s not unusual for tenants to have more than one animal, or even different animals for different family members.

Landlords may require a third-party verification of disability documenting the need for the animal. They may also require that the animal be vaccinated and licensed as required by law or code, and may request that the animal be spayed or neutered. Be prepared for pushback if the surgery would be contraindicated due to the age of the animal or other considerations.

 

  1. Improper entry and abuse of access

Prior to entering the rental property, the landlord or their agent must provide a minimum of 24-hours’ notice to enter. That notice can be in the form of a written notice that is either posted to the main entrance of the dwelling unit, or mailed first class (mailed notices must provide an additional three days plus the 24 hours required by law, prior to entry). A notice to enter may legally be delivered by telephone or voice message, as well as text and email, if allowed by contract.

What trips up many landlords is their belief that if they’re not entering the dwelling unit itself, it’s okay to drop by. Not so. A landlord has no right of entry to any portion of the premises under the exclusive control of the tenant, including the yard, lot, or land area itself, with specific exceptions. Common areas of a multiplex are exempt from notification requirements, as are entering to perform regular, ongoing exterior landscaping (if specified in a written rental agreement), to serve a notice to the tenant, or in an emergency.  Abuse of access means what it says:  Landlords cannot abuse their right of entry. There is no specific definition, so proceed with caution and respect.

 

  1. Creating Waiver

Only landlords can waive their legal rights; tenants never can – even with their consent. A landlord’s failure to act upon knowledge of a breach of contract by the tenant for three separate rental periods or longer creates waiver. Whether that is an unauthorized occupant or pet; repeated late or partial payments of rent; accepting a payment of rent that extends beyond an outstanding no-cause notice of termination; or perpetuating any known breach, landlords must act or give up their rights. Waiver covers a lot of ground, and the further a landlord heads down the road of waiver, the harder it is to turn around, so act upon every breach, no matter how seemingly insignificant. Waiver can be cured with proper notice in a month-to-month agreement, but not in a fixed-term lease until it expires.

 

  1. Not having a good grasp on preparation and service of legal notice

Selecting the correct notice for the situation is the first hurdle. The second hurdle is meeting the statutory requirements for its preparation and service. Proper calculation of time is essential, as well as specificity in regards to the breaches and cures in for-cause notices of termination. Perfecting service of notice is another minefield. Whether serving personally, by first class mail, or post and mail, each manner has specific requirements created by statute or case law. Notice to a tenant that could result in a filing of eviction must be perfect in every way, because the easiest win for a tenant in eviction court is a defective notice. The worst-case scenario results in landlords with valid claims paying for their tenant’s attorney, or having their credit damaged by an adverse court judgment. Learn how to serve notices legally and perfectly, or hire someone to do it.

 

  1. Maintenance, repair and failure to document

Landlords must maintain rental properties within minimum habitability standards, respond reasonably to tenant maintenance requests, and maintain strict liability in terms of habitability issues – in some cases even when the tenant has deliberately or negligently contributed to the damage. A landlord’s failure to maintain habitability standards and supply essential services is a common successful tenant defense in eviction cases. At a minimum, a residential unit must provide adequate heating facilities; hot and cold running water furnished to appropriate fixtures, and maintained so as to provide safe drinking water; a sewage disposal system approved under applicable law; windows and doors that open, close and lock properly; a unit and grounds free of rubbish, trash and vermin at the outset of the tenancy; effective waterproofing and weather protection; properly functioning utility systems; a secondary escape route for each designated sleeping place in case of fire or other emergency; and safety and security of all components, inside and out.

Failure to document tenant maintenance requests and actions taken is another sticky wicket for landlords. If a tenant accuses their landlord of failing in their duty to provide essential services, and agitates for a diminution in value of the rental dwelling, either in or out of court, where’s the evidence to contradict their claim? In many cases, it’s nonexistent. Memories are fallible, and documentation is essential to proving the landlord’s response and actions.

 

  1. Being a pushover

Excuses are the pavement that builds the road to failure. That’s a really mean thing to say, I know, but it’s based on experience. I’m the despicable character who has to put limits on tenant behavior, enforce compliance, and evict, if necessary. As a property manager, I operate as my clients’ fiduciary, so I must act within reasonable standards. Private landlords can always choose to capitulate to sad tales of woe, but heading down that path rarely ends well. It starts with the tenant making excuses and the landlord making allowances, and ends with the landlord losing time, money and self-respect. Providing housing for other humans is a privilege, but it’s a business, not a charity.

 

  1. Messing up move out and deposit reconciliation

The end of tenancy is where a landlord’s shortcuts at the beginning of the relationship will come back to haunt them. Failure to document the condition of the property at the beginning, the end, or both, can lead to a losing lawsuit. The final arbiter of charges to a tenant’s security deposit is a judge, so charge appropriately, but be fair. Landlords may charge daily rent for loss-of-use, as long as repairs are performed in a timely fashion, as well as a reasonable hourly wage for their own performance of cleaning and repairs, but it can be best to hire out at least some of the work, to avoid accusations of “padding” and to provide a professional third-party who can testify to the condition of the unit, and the remediation required to correct the tenant’s deficiencies.

When assessing charges to a tenant’s deposit, landlords must account for depreciation for the replacement of certain damaged components, such as flooring or appliances. It requires a good faith effort to take into account the age and useful lifespan of the damaged item, versus the landlord’s cost of replacement. Other common errors with deposit accountings include lumping charges together in a general way that deprives the tenant of the detailed accounting the law requires, failing to meet the 31-day deposit accounting deadline, withholding the deposit monies in bad faith, or failing to send the accounting by first class mail, with penalties of twice the amount wrongfully withheld.

Another common misconception is that if the tenant doesn’t provide a forwarding address, landlords are not obligated to mail an accounting. Not true. If no forwarding address is given, the accounting should be mailed to the rental property address with the expectation that the tenant will have their mail forwarded, and copies mailed to any other addresses on file, such as an employer or emergency contact.

 

The Takeaway

Like any specialty business, there is a lot to know about the landlord-tenant relationship, and the burden is on landlords to know the law and abide by it, or face painful and costly consequences. There is an inherent imbalance of power in the landlord-tenant relationship, so the law tilts toward protection of the weaker party. While tenants can suffer the ultimate indignity of eviction, landlords are held to a very high standard of behavior and action with severe financial penalties for violating a tenant’s rights.

This article and the brief description of each of the Top Ten Classic Mistakes, is in no way a comprehensive educational description of the legal and ethical requirements of each topic. The nuances of landlord-tenant law, Fair Housing law, contract law, as well as the obligation to be reasonable and act in good faith, require a broad base of knowledge and education, and are laced with multiple levels of statutory requirements. It is every landlord’s responsibility to stay abreast of law changes, and operate at the highest ethical and legal standards.

This column offers general suggestions only, and is no substitute for professional legal counsel. Please consult an attorney for advice related to your specific situation.

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