Q: I’ve been looking at a brand-new apartment complex that advertises itself as a "green community." When I asked the leasing agent about what that meant, she could only point to the recycling bins and the use of high-efficient outdoor lighting. This seemed pretty paltry to me. Are there standards that an owner must meet before being able to claim "green" status for a building? –Max M.
A: In the past it was onsite laundry facilities, then cable TV access, then Wi-Fi. Now, it seems that "green" is the newest amenity that apartment owners hope will set them apart from the competition. But unlike those earlier upgrades (either there was a laundry room or there wasn’t), being "green," or energy efficient, isn’t so easy to measure in a residential building.
Commercial buildings and single-family homes can be measured against the Leadership in Energy and Environmental Design (LEED) program, but no green building standard existed for apartment communities until January 2009, when the National Green Building Standard was approved by the American National Standards Institute.
The first question to ask that leasing agent is whether this complex was built using methods, materials and designs that approximate the new standards. If the complex was designed and built using green approaches and materials, the next question is whether the property is run with "greenness" in mind.
You’ve been shown two green practices — recycling and efficient lighting — but these are only the tip of the environmentally conscious iceberg. To be truly green, this property should practice overall energy- and water-saving techniques, use cleaning compounds low in volatile organic compounds (VOCs), and have low-emission equipment, among other things. To encourage individual tenants to conserve, utilities should be individually metered.
Finally, a successful green building depends on the behavior of the individual tenants. Those who refuse to recycle or who use phosphate-rich compounds or inordinate amounts of water will sabotage management’s efforts to go green. This is where things can get tricky.
To require green practices among tenants, landlords need to write "green compliance" clauses into their leases. If they are to mean anything, these clauses must be enforceable, putting tenants who don’t comply at risk of termination and eviction.
But how does a landlord monitor the brand of soap or amount of water tenants use without violating their rights to privacy? Hopefully, the promise of a green environment (and the premium that many tenants will pay for such a living situation) will attract only those who are eager to conform to the program, making enforcement all but unnecessary.
Q: We have a second home at the lake that we’ve decided to rent out during the summer to our friends. My son, who works in real estate, says I should license the home to the neighbors, not lease it to them, because that will get us out from under the complicated landlord-tenant statutes in our state. Can we do this? –Mike D. …CONTINUED
A: Before you can act on your son’s recommendation, you need to know the difference between a lease and a license, in the context of real estate. A lease gives the tenant exclusive use of the leased premises. Landlords can terminate a lease early only by using the state’s unlawful detainer procedures. A license, by contrast, is simply the privilege to use the premises in a certain way. It can be revoked by the licensor by simply following the rules in the licensing agreement, even without notice if that’s what the licensing agreement allows.
Your son is correct when he says that the licensing process is simpler than the often complex landlord-tenant relationship. But if landlords could circumvent the landlord-tenant laws by simply calling their leases "licenses," you can be sure that lots of them would do so. For that reason, the name that appears on the document will not control whether the deal is a license or a lease — instead, the reality of the situation will control this.
The plan you have in mind looks a lot like a lease. No one is suggesting that the neighbors will be sharing the home with you or anyone else. You are not, for example, offering the use of your dock to owners of a neighboring cabin. That could rightly be termed a license, because you (and perhaps others) would continue to have the right to use the dock, too. Instead, the new occupants will have the right to occupy the house alone, which makes them tenants.
Take a moment to think about whether you really need a licensing agreement instead of a lease. While it is true that landlord-tenant laws can be complex, some of the trickier ones (such as those dealing with security deposits) sometimes don’t apply to one-property landlords (you’ll need to check your state laws to find out).
When it comes to terminations, it’s certainly true that the unlawful detainer process is complicated and can be drawn out — but why are you worried about that now? If you are concerned about how hard it will be to evict them, this alone tells you that renting to them is a bad idea. Whether you call them tenants or licensees, if you think they may be inconsiderate of your property or unwilling to pay the monthly "rent" or "fee," you don’t want them there, period.
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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