Q: I own a townhouse that I rent out. One of the rules in our development restricts residents and guests from parking RVs in their driveways or on the streets. My tenants just bought an RV and tell me that because there’s no state or local law forbidding anyone from parking an RV at a rental home or even on the city streets, they should be able to do so despite our community rule. Do state laws override our CC&Rs? –Dorothy H.
A: Your community’s rule is a common one that many common-interest communities, such as townhouse developments, place in their operating documents, or "CC&Rs." These rules often regulate issues concerning safety and aesthetics, even going so far as to dictate the color you can paint on your front door. Most CC&R rules are upheld unless they conflict with a federal, state or local law, or are arbitrary and bear no relation to rational business judgment.
The important word for you is conflict. Let’s assume that your tenant is correct, that no state or local laws restrict RV parking on the street. A court would probably uphold the association rule because it does not collide with any specific law or ordinance, and further, it doesn’t violate any important public policy or reflect arbitrary business judgment. Contrast this result with a rule that forbids townhouse owners from renting to people of certain races (such rules were common not so long ago). A court would not uphold a discriminatory rule of this sort because it would violate federal and state fair-housing laws, and is against public policy, to boot. In the future, be sure any tenants are well aware of the community rules before they rent, and include a clause in your rental agreement or lease specifying that if tenants violate CC&R rules, that’s grounds for termination.
Q: We have a one-year lease that’s up in six months. We need to move now due to personal circumstances, and understand that the landlord is required to use reasonable efforts to re-rent (once the unit is re-rented, our obligation for rent ends). But here’s the problem: The landlord is renovating the complex as units become available when leases are up (when we signed our lease, we were told that it wouldn’t be renewed for this reason). I doubt very much that the landlord will offer a one-year lease to any potential renter (that will tie up the unit and postpone its renovation), but who would rent an apartment for the four or five months left on our lease, knowing that they will have to move out so soon? There are plenty of other apartments available in the building. What are our rights? –B.J.
A: You’re right about the landlord’s obligation to re-rent (though a few states, including Florida, Massachusetts and Minnesota, don’t recognize this duty). The landlord must offer the unit at a market rate, and for a reasonable time. Otherwise, the landlord could evade his re-rental obligation (and attempt to stick you with the entire balance of the rent) by spiking the rent to a ridiculous level or demanding, say, a 10-year lease from new tenants.
So, the question is whether it’s reasonable for the landlord to offer a four- or five-month lease. Expect the landlord to point out that he told you that the unit would not be re-rented when your lease was up. Arguably, this disclosure put you on notice that, if you needed to break your lease, the unit would not be very marketable, as you now acknowledge. The landlord may add that you had an opportunity to look elsewhere if you didn’t want to take the risk that any unexpected lease-breaking would leave you and the landlord with a marginally marketable apartment, and that your decision to go ahead signaled your willingness to take that risk.
There are arguments to be made on your behalf, too. You could argue that, under the circumstances, the landlord’s duty to be reasonable includes taking steps to make sure your unit rents, by lowering the price to reflect the lowered value of a short-term lease. Or, he might offer the unit to another resident who’s been displaced and needs an interim place to live. There’s no way to confidently predict how a judge would rule, however, should you end up in court fighting over the remaining months’ rent.
Before resigning yourself to paying for four or five months of rent, get in touch with your landlord and try to work something out. Point out that by leaving early, you’re giving the landlord a chance to do the renovation earlier than planned — and to put the unit back on the market (at a higher rent) sooner than expected. In fact, the result will be more rent for the landlord than if you’d stayed, paying the lower rent. Keep that gain in mind if the landlord offers your unit on a monthly basis at full rent, gets no takers, and sues you for the balance of your rent. That gain should be offset against your debt.
Q: My apartment manager, who’s in the reserves, just returned from a tour of duty overseas. Up until this tour, he worked for me on a month-to-month basis. While he was gone, I hired a management company, which is doing a better job and taking on responsibilities that the original manager couldn’t handle. I’d really rather stick with the management company, but I’m told that I have to hire the manager back. Any suggestions on how I can handle this situation? –Manny B.
A: You were given the right information. A federal law, the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA, 38 U.S.C. §§ 4301 and following), prohibits discrimination against members of the United States military or those who serve in the military reserves. USERRA applies to all private employers, regardless of size. Among its protections is a requirement that an employer reinstate a returning serviceperson and not fire that person except for cause for up to a year.
As you no doubt know, employees like your manager who are not under contract are employed "at will," which means that you can let them go for any reason or no reason, as long as it’s not an illegal reason (grounded on illegal discrimination or retaliation, for example). If your manager had left for, say, a three-month vacation, and you had the same experience with his replacement, you’d face no legal risk in letting him go, because he had no contract and it’s not illegal to prefer a better worker. But USERRA turns "at will" returning vets into workers with a job guarantee: As long as they do the job and don’t seriously misbehave (giving their employers "just cause" to fire them), they can stay for at least a year.
The question for you is whether finding a better employee who can handle more work gives you just cause to refuse to reinstate the returning vet, and the answer is, probably not. Don’t try to work around USERRA by, for example, rewriting the job description in such a way as to make it impossible for your manager to fill it. In the end, your business may suffer a bit as you make due with a somewhat limited employee for a time. Think of it as the price you pay for not having to show up with a rifle yourself.
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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