Q: I’ve lived in my non-elevator building for a few years and now have mobility problems that require me to use a wheelchair. I’ve got a ground-level apartment, but none of the door openings are wide enough (unfortunately, I could probably get through the entryways in the upper units, but because there’s no elevator I can’t get there).
My building was constructed in 1995. My landlord says that he doesn’t have to widen the doorways because that’s an unreasonable expense. Do I have any options? –Beth F.
A: The date your building was constructed provides the answer to your question. Under the federal Fair Housing Act, buildings that were built for first occupancy after March 13, 1991, must comply with the Act’s design and construction requirements.
Among them is the requirement that, in non-elevator buildings, all ground-level units must meet minimum accessibility standards. This includes doorways that are wide enough to allow a wheelchair to pass through.
When tenants request changes to a building’s structure that are major and would present an unreasonable expense to the property owner, owners may refuse to make them on that basis. For example, if your building had been built in 1985 and the landlord could show that widening doorways was prohibitively expensive (a big "if"), he might be able to convince a judge that he should not be required to do the work.
The picture changes, however, if the modification the tenant requests is one that, because of the building’s age, should have been done in the first place, when the structure was built. That appears to be your situation: As a 1995 structure, your non-elevator building should have been designed with accessible ground-floor units.
At least one federal court has held that, in these circumstances, an owner cannot rely on the "unreasonably expensive/disruptive" argument to get out of belatedly making the building accessible for tenants with disabilities.
Q: We rent a single-family home under a three-year lease that we signed two years ago. Our landlord refinanced the home after we moved in, and has just lost it to foreclosure. At the foreclosure sale, a man bought it and says he wants to live here, so he gave us a 90-day notice to get out. But we want to stay until the end of our lease, almost a year away. What are our options? –Laura and Steph
A: Fortunately, you do have some options. Here’s why. …CONTINUED
The new owner’s decision to give you a 90-day notice reflects his awareness of the new federal law, Protecting Tenants at Foreclosure Act of 2009. That legislation established a national rule that governs what happens to renters when their home is foreclosed on.
Barely a few paragraphs long, it provided, among other things, that when someone buys rental property at a foreclosure sale and intends to live there, he may oust existing tenants who would otherwise lose their lease, but must give them at least 90 days’ notice. Previously, in most states, such tenants could be asked to leave with very little notice, sometimes as little as a few days.
So, at first blush, it would seem that the new owner’s action was correct. However, the end of the new law includes some very important "buts." Specifically, it specifies that "nothing under this section shall affect … any state or local law that provides longer time periods or other additional protections for tenants." (Protecting Tenants At Foreclosure Act, Title V11, Section 702(a).)
This is good news for you, because as a tenant whose lease predates the mortgage that was subject to foreclosure (you tell us that the refi happened after your tenancy began), your lease survives the foreclosure, no matter who buys the property or what they plan to do with it.
Known as "first in time, first in right," this old common-law rule is precisely the kind of "additional protection" that Congress must have been thinking about when it passed this legislation, which provides relief for tenants whose leases were signed after the mortgage was recorded.
(Under the old rule, these tenants saw their leases wiped out completely by the foreclosure). To interpret the new law differently would be absurd; it would give you, a tenant whose lease predates the mortgage, less protection than you would have enjoyed under the old common-law rule. This result would frustrate the intent of the legislation, which is to make foreclosure less of a disaster for existing tenants.
Knowing the rules gives you power. You can politely point out to the new owner that, as a pre-mortgage tenant, your lease has survived the foreclosure intact, and you have the right to stay until it ends. Having the upper hand, however, will also allow you to bargain for a buyout should you decide that leaving early would be worth it.
Basically, you’d be asking the new owner to pay you to leave — something the banks have been doing for months under the "cash for keys" slogan.
If the rental market is still soft in your town, you may want to take advantage of it by looking now for a bargain rental that you can lock in with a lease. But if you need to stay until the end of your lease, because of job commitments or school attendance, leaving early might not be feasible.
In that event, get familiar with the new law and use it in your defense if the new owner is foolish enough to try to evict you. And make sure to pay your rent on time, take care of the unit, and otherwise do nothing to give your new landlord any legal justification for kicking you out.
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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