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The LandLord Advocate Feb 2011

Lead Article:

Gaining access – It’s your right – not their choice.

I recently attended a court hearing where a tenant complained to the court that it had been ages since the landlord inspected their unit – and that since that was the case, the landlord was somehow not entitled to be paid for the tenant’s use and occupancy of the unit. Turns out, the tenant was at least half right. Also turns out, the tenant left out half of the story.

The correct half was that the landlord had, in fact, not inspected the unit for some time. The missing half was the tenant’s repeated refusal to allow the landlord in to conduct the inspection. Seems the landlord had attempted an inspection many times, but was refused. Now, the tenant was attempting to turn the tables, claiming it was the landlord’s failure to inspect that was at issue.

If you’ve ever experienced a tenant who refuses to allow you access for any reason, inspection or otherwise, there is a simple solution to your problem. However, you must have a couple of preliminary baseline items in place.

  • You must have a proper “right to access” clause in your lease.
  • You must have complied with your “right to access” clause by giving the required notice in the required fashion in the required timeframe.

Your residents cannot deny you access to the apartment, no matter the reason. You have a right to enter the unit and, if you meet the requirements set forth above, you can take decisive action in order to gain that access. NOTE: Both conditions must be present. If either one is missing, the suggestions we make in this article will backfire on you.

Unfortunately, whereas the right-to-enter rule is simple, its application is less so. While we have covered this topic in seminars in the past, we have later learned that landlords have decided, without seeking legal advice, that if the laws say they can go in, they can go in on their own. Our message remains consistently clear – this is not allowed and is a recipe for your own disaster. In fact, if you use force to enter an apartment after you have been denied access (i.e. – pushing through an open door with someone resisting on the other side), you may very well be inviting police involvement and could find yourself getting an immediate tour of the local jail, leaving fingerprints in little boxes designated for each digit.

The law is designed in your favor and if you follow it precisely, it will get you through that blocked door. It will require some legal paperwork, a visit with a judge and an order of the court but, remember, you aren’t the one who drew the battle line in the sand. You just want to get in the unit to inspect it or complete some necessary repairs. Your tenant is the one who is making this much more complicated than it has to be. If you follow the proper process, and the tenant continues to refuse access, you have additional remedies that may include removing the tenant from the apartment permanently. And, in many instances, the tenant will be responsible for any costs incurred to exercise those legal rights, along with any financial losses incurred during the time you were refused entry.

So, if you are standing at that line in the sand wondering what to do, resist the urge to storm the beach. Instead, take a field trip with your attorney to the courthouse, get the necessary order from the judge, and politely and gently erase that line in the sand. When the tenant redraws it, they are just drawing themselves a map on the path out of town.

It’s your right, not their choice.

My tenant is “gone”. Can I change the locks?

We receive calls weekly from landlords about tenants who have “left” or are “gone,” the landlord wants to change the locks and re-rent the apartment, and the landlord asks about the applicable legal requirement(s). The landlord may change the locks only if one of three situations exist:

  • The tenant(s) have returned the keys to the landlord or the landlord’s attorney;
  • A marshal has satisfied an execution following a summary process (eviction) case; or
  • You and your landlord attorney have applied and completed correctly the statutory abandonment notice process.

Let’s turn to these situations individually and the mantra that we have assigned for each to help landlords remember them. “The key is the return of the keys” is one of our first and favorite mantra for regaining possession. Keep it simple – you have possession when you get the keys from the tenant(s).
We have had many calls and cases over the years where landlords have wanted to act on the promise of a tenant or his/her attorney that the keys “will be returned.” This is simply not good enough. We recently had a matter where a tenant claimed that she had “left” and would return the keys “soon” to her landlord. This went on for a while, so the landlord hired us to address the situation. Sure enough, after we served the tenant with a notice to quit and a complaint, the tenant filed an answer in court stating that she still occupied the premises and had no intention of leaving. Ultimately, we settled the case with a final stay stipulated judgment that required the tenant to vacate and return the keys under court order (which she did).
In another case, after our summary process (eviction) case had reached a court date, a tenant’s attorney assured us that the tenant had moved-out and had given the attorney the keys. The tenant’s attorney demanded that we withdraw the case and then he would return the keys. We refused and said that we would withdraw the case upon receipt of the keys and not a minute sooner, because a withdrawal would require the landlord to restart the summary process case from scratch if the tenant reneged on the deal (meaning more delay and expense for the landlord). In short, it took several weeks for us to receive the keys from the tenant’s attorney after his initial demand for a withdrawal without keys-in-hand. Here were the tenant’s attorney’s stories: first, the tenant’s attorney reported that the tenant had given him the “wrong keys,” then he had the keys (but did not) based on the tenant’s “promise” to deliver them to him, and finally that he actually had the correct keys and we should “believe him.” We did not believe him until we actually had the keys in-hand, and then we filed the withdrawal.
“Judgment is not enough” is our next mantra about summary process (eviction) cases. Yes, the landlord has won the case when it receives “judgment for immediate possession” by default, trial, or agreement, but this does not permit the landlord to evict the tenant or change the locks. Connecticut’s governing statutes give the tenant five (5) days from the date of judgment (not counting Sundays or legal holidays) to vacate the premises. If the tenant has not vacated by the end of that period, the landlord’s attorney will obtain a court-signed execution that the marshal can then use to carry out an actual eviction.
Moreover, it is not enough that the tenant vacates after the marshal serves the execution but before the eviction date (unless the tenant returns the keys – see Mantra #1 above). The marshal must still “satisfy” the execution, which the marshal does by completing the eviction process on the date and time that the marshal specified on the execution (although movers would not be necessary).
“One man’s junk is another man’s treasure” is our third and final mantra about tenant abandonment and the statutory process available to recover possession without a summary process case. We covered this subject extensively in our January 2009 article “How to Avoid Getting Sucker-Punched by a Missing Tenant” and want to emphasize here that the tenant and, more importantly, the court are not required to – and do not – have the same definition of garbage as the landlord might have. For example, we had a case where a landlord faced arrest for criminal lockout after attempting to complete the statutory abandonment process himself. In short, although the tenant’s possessions remaining in the apartment were dilapidated, broken, worn, and sometimes thoroughly disgusting, the tenant could have (and claimed he did) live there, and the city’s health department had not (and would not) condemn the unit because it was inhabitable. We helped the landlord avoid arrest by giving the tenant keys to the new locks, and then regained possession through a summary process case.
We also get calls at least monthly from landlords who have already changed the locks and are now facing a criminal lockout and civil entry and detainer actions by the tenant. That is unfortunate news and they face a difficult time in court. Landlords should play it safe, instead. When facing a tenant that has “left” or seems “gone,” landlords should always first reference these three mantras and then call their landlord attorney for assistance (as needed).

Train your Tenants.

You have a vision for your community and the environment you wish to create for your tenants. Whether you manage a 300-unit garden style community, a high-rise in an urban area or a 4-family home in the suburbs, you know what you want, what your community should look like, and how your tenants should conduct themselves while they reside there. However, you also have a problem in your community (and its environment) when your tenants don’t share that same vision.

The simple fact is that some tenants aren’t willing to adjust their conduct to comply with your rules and your lease, despite their commitment to do so as evidenced by their signature on the lease. Whether it’s playing loud music that disturbs other residents, keeping an unauthorized animal, or improperly disposing of waste outside their unit, a tenant’s behavior can and should be modified to meet expectations.

  • What can you do? Easy – train them.
  • But how, you ask? By implementing a system that, like your rent collection system, tracks conduct that violates your lease and community rules.

Just as you use your payment accounting system to initiate legal action to modify a tenant’s payment habits, you may also use your “tenant conduct accounting system” to train them on how to abide by the lease and rules. Document the improper conduct (or the fact that you heard about improper conduct from other tenants) and use this documentation as the baseline source for obtaining behavioral change. Apply your system and documentation to get your tenant’s conduct in check and back in line with your expectations the same way you would for those who don’t pay the rent.

Rest assured the legal system in Connecticut is designed to help you make that happen. The eviction process is a sobering experience to many tenants. It costs them time, money, and makes them answer specifically for their conduct on your property. It can also be a powerful training tool.

You’ve invested a great deal of time, money and effort in your community – a community in which you provide units that everyone can be proud of. You prepare the units for new tenancy, you screen applicants to ensure they could live appropriately on the property, and you keep up your end of the lease deal by meticulously maintaining the community and its amenities. If your problem tenant appreciates these facts and wants to remain in their unit, they may gladly accept an offer proposed during a summary process action that allows them to change their conduct instead of being evicted.

So how do you get started? We often suggest to clients that they take a moment to determine the top five problems they face with tenants on their properties. They may be extreme problems, or just simple ones. However, if you have tenants that act in these ways, yet you would otherwise want to keep them (should their conduct change), consult with your landlord attorney on how best to eliminate the problem behaviors through a court-monitored program. The positive impact will be felt throughout the community and many of the other minor concerns you face will start to rectify themselves – allowing you to turn your attention to other concerns on your property.

Section 8 tenancies? Remember BOTH contracts.

Landlords with Section 8 tenants often refer to the “Section 8 lease” as the governing document in the rental of a residential unit. There is no such thing. Instead, a landlord with a Section 8 tenant has two contracts governing the rental of the apartment – the Lease with the tenant, and the Landlord/Section 8 Contract with the Section 8 administrator (usually a government or quasi-government agency) – and the landlord must comply with both of them.

As we discussed in our February 2009 article “Section 8: So many contracts, so little time”, a Section 8 tenancy creates a triangular relationship among the landlord, tenant, and the Section 8 administrator:

Our February 2009 article contains a thorough discussion about each of these three (3) contracts and the triangular relationship in general. The point here is to emphasize that landlords are a party to only two (2) of those contracts, which are with different parties and contain different obligations. Let’s look at them separately with admittedly somewhat repetitive language – the repetition is purposeful, to hammer home the point that these contractual relationships are different and the landlord must approach them separately (even though they relate to the same Section 8 tenancy).

Contract #1 – Lease

In the residential setting, the Lease defines the landlord-tenant relationship:

Under the Lease, the landlord and the tenant have obligations to one another, and must seek compliance with each other. If the tenant fails to comply with the lease, the landlord must seek compliance from the tenant. If the tenant is unwilling to change his/her behavior, the landlord must seek compliance (or eviction) from the court. Notice that the Section 8 administrator is nowhere in this discussion.

So, if a tenant is not complying with the Lease, does the landlord call the Section 8 administrator? No, the landlord should contact its attorney to develop a strategy to address the situation with the tenant.

Contract #2 – Landlord/Section 8 Contract

In a Section 8 tenancy, the Landlord/Section 8 Contract defines the rules under which the landlord can receive all or a portion of the rent from the government on a monthly basis:

Under the Landlord/Section 8 Contract, the landlord and the Section 8 administrator have obligations to one another, and must seek compliance with each other. If the administrator fails to comply with the Landlord/Section 8 Contract, the landlord must seek compliance from the administrator. If the administrator is unwilling to change its behavior, the landlord must seek compliance from the court. Notice that the tenant is nowhere in this discussion.

So, if a Section 8 administrator is not complying with the Landlord/Section 8 Contract, does the landlord go after the tenant? No, the landlord should contact its attorney to develop a strategy to address the situation with the Section 8 administrator.

Contact your landlord attorney if you have, or are about to have, a Section 8 tenant, and make sure that you understand the triangular relationship among the parties and, more importantly, how to handle properly the landlord’s rights and responsibilities under the Lease and the Landlord/Section 8 contract.

Quick Tip:

Economy leads to higher numbers of unauthorized occupants.

The National Alliance to End Homelessness recently released its annual State of Homelessness in America report that among many other things, reported a 12{b3839be935df112798d4ec5997aa1a27aa9a9725854b075bcbd0000f0c7f06fc} increase in the number of families “staying on the floors and couches of their family and friends”, essentially “doubling up.”

In addition, the US Census Bureau announced that nearly 500,000 additional adults (ages 35 or older) have packed up their households and are now bunking with in-laws, siblings, parents or other family members.

Compounding the trend, the agency also reported that the total number of multifamily households (including nonrelated roommates) has grown at a historically high rate – rising 11.6{b3839be935df112798d4ec5997aa1a27aa9a9725854b075bcbd0000f0c7f06fc} — to 15.4 million — since 2008.

While these facts probably do not surprise many among us (given the current state of the economy and unemployment) it should cause alarm to landlords as these additional family members and friends, despite their economic situation, are deemed unauthorized occupants when they claim a spot on the floor or couch of an apartment leased by others.

Consult with your landlord attorney if you feel the total number of occupants in any or your units now exceeds what’s listed in the lease.

“Doubling up” and taking in friends and family, may be a rising nationwide trend, but it doesn’t need to take root in your community.

Quick Tip:

Family members do NOT have automatic right to dead tenant’s unit.

A deceased tenant is often a difficult situation for the landlord. Despite the enormous pressure family members may bring to bear on the landlord, the landlord must protect (to the extent possible) the dead tenant’s possessions and personal effects from those who may not have a legal right to them (including, possibly, some family members).

Landlords must keep in mind that there is no state statute mandating that they give the dead tenant’s family members access to the unit. There is a statute that permits landlords to address matters with the dead tenant’s next of kin, but only if the landlord has facilitated that process in the lease and its property management operations. In addition, landlords have recourse to a summary process case to regain possession of the unit, which is often the most cost effective and least risky approach.

We covered this subject in detail in our June 2009 article, “Dead tenants: How to deal with the fact that they can’t take everything with them” and recommend it to you again.

Contact your landlord attorney if you need assistance to accomplish your business goals and objectives with dead tenants, or if you are unclear how you want to handle these situations and need to identify, make, and implement the necessary business decisions.

DISCLAIMER:

The reading of this newsletter does not form an attorney-client relationship. The contents of this newsletter are for informational purposes only and do not constitute legal advice. Nothing in this newsletter is intended to imply or predict the outcome of any legal matter that you may be considering or be involved in. The Landlord Law Firm makes no warranties of any kind regarding the information contained in this newsletter.