Q: I have located a beachfront condominium for a three-month rental by my elderly parents. The condo owner has agreed to a three-month lease and will give us a standard written lease for my parents to sign.
However, the owner says that she is selling her condominium. Before my folks sign the lease, I plan to ask the owner if it’s already listed with a real estate agent. If it is, what language can we insert in the lease that will protect my parents’ right to lease the unit for the three months this coming winter should it sell and close prior to their occupancy and the expiration of their lease?–Susan H.
A: You’re wise to be thinking ahead. Besides asking outright when the owner plans to sell, it’s a good idea to check the local listings to see if the property is already on the market (unfortunately, you can’t be too careful.)
As for the lease, understand that as soon as your parents sign a lease, even one that will commence in the future, that signed document is legally enforceable against the current and any new owner. A new owner will have to honor it and not, for example, ask your parents not to show up because the new owners want to live there, or leave early because they want to move in. But again, be careful, and read the “standard lease” presented to you very closely. These documents are written by lawyers who work for landlords and owners, and they give every benefit to the owner. It’s not unusual to encounter a clause that specifies that in the event the property is sold, the lease will terminate (or terminate early). You’ll want to cross out any clause like this.
Finally, try to get some protections for your parents in case the condo is aggressively marketed during their stay. The last thing they want is to have agents and would-be buyers disturbing their winter vacation. Check out the rules in your state governing owners’ rights to enter rental property, look for special language on showing it to prospective buyers, and make sure the lease doesn’t try to limit tenants’ rights (most “standard leases” are not written with a specific state’s laws in mind, and rarely include correct statements of the law in any state.) If your state doesn’t give tenants much protection, or if the lease is silent on the issue, there’s nothing stopping you from negotiating for them on your own. If the market for renters and buyers is soft, you may have the edge when it comes to getting what you want.
Q: My tenant has a one-year lease that will end in six months. Our lease stipulates that she is responsible for the lease amount for the entire year (even though she pays monthly). She has given notice that she intends to break the lease in 30 days. I’m willing to let her out of the lease because I understand the personal situation that compels this decision. Am I legally allowed to keep the security deposit and not refund it because she is breaking the lease? –Armand D.
A: You may not automatically keep the deposit just because your tenant has broken her lease. Here’s why: When tenants sign a lease, it’s true that they are always responsible for paying the entire rent, even though they pay periodically. Many leases drive that point home by stating the total rent due for the length of the lease. However, this statement won’t vary another legal rule that’s true in most states: If your tenant breaks the lease, you must take reasonably prompt steps to rerent and, when that’s accomplished, your original tenant’s responsibility for rent for the balance of her lease is over.
Let’s assume you live in a state that imposes this rule. This means that you should begin advertising the unit now, and once it’s rerented, your original tenant will be off the hook. Most of the time, you’ll need a month or so (unless the market is really soft) to land another tenant. If this is your experience, you may use the deposit to cover the rent you lost during that period, and if the deposit won’t cover it, you could sue in small claims court for the shortfall. So you see, whether (and to what extent) you may keep your lease-breaking tenant’s deposit depends on how quickly you rerent the unit, using reasonable efforts and setting a market rent.
Q: Last month, I took my daughter Kim to play at my apartment complex’s playground. Although I was watching her, I couldn’t stop a tenant’s dog from approaching. Trying to snatch Kim’s snack, the dog bit her face. This dog has been a constant problem, running loose and aggressively charging people. Kim is severely traumatized, required many stitches, and may need plastic surgery in the future. I don’t think the owner has much money, but we’re facing big expenses. What should we do? –Nancy C.
A: You may be able to look to the landlord — or more precisely, the landlord’s liability insurance policy — as a source of compensation for Kim’s trauma and present and future medical costs. Whether you can successfully collect on a claim depends in part on being able to say “yes” to the following questions:
1. Was the landlord aware that this dog posed a danger? You’ve mentioned that the dog is aggressive and had bothered other people. If the landlord (or the manger) knew about the problem — from personal experience or other residents’ complaints — they had a duty to take reasonable steps to keep residents safe.
2. Did the landlord fail to take proper steps to keep his tenants and guests safe? A proper response to a tenant’s aggressive, uncontrolled dog might be to insist on leashing, muzzling and control at all times by a responsible adult. If these measures fail, landlords can insist that the dog leave the property, and follow through with a tenancy termination if the owner refuses.
3. Did the landlord’s failure to require control lead to the biting incident? You’ll need to find out how the dog got loose. Suppose the dog was safely locked inside but got out when a burglar left the front door open — it may be hard to pin that on the landlord. On the other hand, if the dog was on his usual unsupervised, unleashed romp through the property, then you can connect the landlord’s failure to try to stop those romps with your daughter’s attack.
You might consider talking with a personal injury lawyer about your situation. Bring with you information about the dog, its owner and the incident itself, with names of witnesses and their contact information. A lawyer may decide there’s enough to proceed with a claim, which will typically mean a letter to the landlord, advising him of the probable lawsuit. At that point, the landlord will call his insurance carrier, and negotiations begin. Expect the whole process to take at least a year or two, and to pay the lawyer one-third (or more) of your settlement or judgment amount.
Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of “Every Landlord’s Legal Guide” and “Every Tenant’s Legal Guide.” She can be reached at janet@inman.com .
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