Q: I’ve recently rented a privately owned condo. The landlord failed to disclose the constant noise from 8 p.m. to 11 p.m. and 4 a.m. to 8 a.m. The noise varies from delivery trucks to dumpster trucks, generators and more.
The noise disrupts my sleep and affects my performance at work. He also misled me to believe that natural sunlight comes through the windows. The lack of natural light puts me in a state of depression, which is taking a significant toll on my mental and physical health.
I have e-mailed my landlord multiple times regarding my concerns but he refuses to allow me to end my lease. Is there anything I can legally do to get out of the contract without losing my security deposit or having to pay rent until the end of the lease? –Hanah P.
A: Disclosures to potential renters, like disclosures to potential house buyers, are a tricky subject. Well, only half-tricky, because some disclosures are explicitly required by law, and as long as you know the law, it’s easy to know what to say. Federal law requires all landlords to disclose the known presence of lead paint hazards, for example.
Many states have detailed disclosure requirements, such as the need to tell tenants the name and address of the property owner or manager (most states); whether any of the deposit is nonrefundable; whether the tenant will share utilities; whether the building has outstanding code violations; and most recently, whether the property is subject to a notice of default or is already in foreclosure.
My favorite is the rule in Oregon that requires certain landlords to tell tenants of the opportunity to recycle.
The second half of the disclosure rule isn’t so neat and tidy, however. It simply says that the landlord must disclose all information that he knows, or should know, the prospect would want to consider before making a decision; and the duty to disclose rises as the ability of the prospect to learn the information in another way decreases.
So, say you were dealing with a family with school-age children, and the closest elementary school is on the other side of a busy thoroughfare. Do you need to point this out or can you assume that if the safety of the route to school is important, the family will check it out before renting?
My guess would be the latter, because the family can easily figure out how to get to the school and draw their own conclusions.
Or suppose your rental abuts an open space: a large and wooded tract in an already rural area. Do landlords need to disclose what types of wildlife live there and occasionally stray beyond its boundaries? Again, probably not, because — this is the "Duh!" rule — people are expected to have a certain amount of common sense born of experience in the world.
On the other hand, hidden defects or important aspects of a rental, which neither reasonable diligence nor common sense could uncover, are more apt to be subjects of required disclosure.
That the backyard tends to flood from heavy winter rains, for example, would be a candidate for disclosure, as would the regular Sunday morning gatherings at the house next door for a barbecue breakfast and worship, making sleeping, parking and smoke-free Sunday mornings impossible.
Most reasonable renters would want to know these things before committing, and renters would have no reason to ask or know about them, unless they’re looking at the property on a Sunday morning (or during a heavy winter rain).
Within this framework, let’s look at the two complaints you have about your landlord’s candor and honesty. First, candor: You say that he did not tell you about the noise.
I doubt that any state law or local ordinance requires a landlord to disclose normal city noise, so we’re thrown into the second category of disclosure requirements: Was this noise something that any tenant would want to know about, and is it something that you could not easily learn yourself (or be expected to know)?
Here, I’m afraid you may fail the "Duh!" test. If the building is in an urban environment, where dump trucks and delivery trucks normally operate at wee hours, you may be expected to know that they will make noise. As long as the noise frequency and decibels are nothing extraordinary, this is a fact of urban life that residents expect and learn to live with (or they flee to the country).
Your second complaint, however, concerns dishonesty rather than mere nondisclosure. Your landlord allegedly represented that sunlight would flood your windows. If the landlord knew this was untrue, that was a misrepresentation, not a failure to disclose. And on this score, you may have a better case. …CONTINUED
A misrepresentation of an important fact, especially if the landlord knows it’s important to this particular renter, may be grounds to break the lease. If you made it clear that direct sunlight was essential to you, your chances of being able to break the lease are high.
But if, on the other hand, your exchange involved a casual mention of the beauty of natural light, followed by the landlord’s chatty reference to sun in the windows, you have less to work with.
Finally, if the landlord’s statement was not intentionally false but a careless characterization of the quality of light in the windows, you may have a harder time still. Negligent misrepresentations will allow you to break the lease only if they concern a crucial issue that the landlord should have known about.
Unless you made it very clear that the absence of direct light was a deal-breaker, it’s doubtful that a judge would invalidate your lease on the basis of your landlord’s casual carelessness.
Q: We’ve had a "no pets" policy at our small apartment building for many years. A family just applied for one of the units, and they have a dog. They’re renters because they just lost their home to foreclosure. The dog appears to be well-behaved, and we’re afraid that if we turn them down, they may end up having to take the dog to a shelter. Can we let them have the dog and still enforce a "no pets" rule for everyone else? –Jimmy and Grace W.
A: Your instincts concerning the fate of this family pet are spot on. According to No Paws Left Behind, a nonprofit organization dedicated to finding homes for pets whose families have lost their homes to foreclosures, 63 percent of all American households have pets. Foreclosures are growing in record numbers and experts agree that anywhere from 2 million to 4 million residents will lose their homes before the crisis ends.
That leaves more than 1.25 million companion animals at risk. Allowing this pet to live on your property might save it from a very risky fate. Although lots of caring and generous people support shelters and adopt pets, the supply far outstrips their abilities.
But you’re also correct to be concerned about the effect this will have on your other residents. Legally, you are free to apply your policy selectively, assuming you have not promised other residents that the property will be dog-free. Don’t assume that you have made no such promise simply because you have never explicitly promised a dog-less environment.
You may have promised unwittingly, depending on how your "no pets" clause reads. If the clause forbids having a pet but also states that the property is pet-free, you may be bound to honor that representation. Tenants who have no intention of getting a pet and who want to be assured that they won’t encounter them on the property may reasonably conclude that this statement is an implicit promise that pets won’t appear.
Assuming you get beyond this issue, you may selectively impose a no-pets policy as long as you don’t do so in a discriminatory or retaliatory manner. For example, you couldn’t prohibit elderly tenants from having dogs (perhaps on the misguided theory that an older resident wouldn’t have the energy to take proper care of the animal), because that would constitute age discrimination.
Likewise, suppose you had a month-to-month dog-owning tenant who properly used a repair-and-deduct procedure. Angered, you might be tempted to change the terms of his tenancy by adding a no-pets clause, but that would be illegal because it would be in retaliation for his exercise of a legal right.
What you’re legally entitled to do, however, and the practical effects of what you are considering, are two different things. Once you let one dog in, other residents are sure to ask for permission to get a pet. And don’t be surprised if you hear one of them tell you that they’re going to the local animal shelter to rescue one of the many animals whose owners have had to turn them over following foreclosure. How are you going to respond?
Perhaps a better approach would be to rethink the policy itself. If you’re worried about destructive or disruptive pets, there’s no need to ban them altogether. You simply need to do some screening, just as you do for potential tenants.
Talk to a tenant’s current landlord and get the lowdown on how responsible this tenant is; interview the vet; and last but not least, interview the pet.
Find out whether the owners will arrange for daytime care (if they are planning on being gone for extended periods), and make that arrangement part of your lease or rental agreement. If the owners renege, leaving the pet miserable and alone (and noisy and destructive) all day, you have grounds to evict for violating a lease clause.
You may be surprised to find that you’ll end up with grateful, super-conscientious tenants who will realize their good fortune in finding a rental that will take their pet, and who will go to great lengths not to jeopardize their tenancy.
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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