October 2014 Landlord Advocate
Gaining Access – It’s your right, not their choice.
Smoking ban expands.
Gaining access – It’s your right, not their choice
On October 6, 2013 we are giving a seminar called “The Appropriately Meddling Landlord” for the CT Apartment Association at Metro Green Apartments and Residences in Stamford, CT (you can learn more about the seminar, and sign-up to attend, at www.ctaahq.org). Among other subjects, the seminar addresses how, when, and why landlords should gain access to their rental units for inspection, repairs, and/or to provide services, whether to address pertinent issues, ensure that nothing more than normal wear and tear is occurring, or seek to prevent or mitigate the possibility of legal liability.
Accordingly, as an introduction to the subject, we are revisiting this article – a primer on how to gain access to a rental unit effectively and without risk.
We start with an actual court hearing, during which the tenant complained to the court that it had been ages since the landlord inspected their unit, and the landlord therefore had somehow given the tenant a “right” not to pay for the tenant’s use and occupancy of the unit. Turns out, the tenant was at least half correct, but also 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 entry to conduct the inspection. Seems the landlord had attempted an inspection many times, but the tenant refused to give consent for the landlord to enter each time. Now, the tenant was attempting to turn the tables, claiming it was the landlord’s failure to inspect that was at issue.
If you have 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.
- A proper “right to access” clause in your lease; and
- Your full compliance with that “right to access” clause by giving the required notice to the tenant in the required fashion and timeframe.
Your tenants cannot deny you access to the apartment, no matter the reason. This is particularly true in emergencies, when consent by the tenant to enter is not required. Even during other non-emergency, reasonable times, 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. Here are the key points:
- Both conditions must be present. If either one is missing, the suggestions we make in this article will backfire on you; and
- You cannot enter the unit if the tenant refuses to give you access despite your meeting both of those conditions; instead, in a non-emergency situation, you must take legal action against the tenant with your landlord attorney (in an emergency, you need to call a first-responder to
assist you, usually the police, but sometimes the fire department).
Therefore, while the right-to-enter rule is simple, its application is less so. Unfortunately, many landlords have ignored these key points, physically pushed past the tenant, and entered the unit. In short, this approach is a recipe for your own disaster. If you use force to enter an apartment after you have been denied access (such as pushing through an open door with someone resisting on the other side) you have the real risk of being arrested by the police for a criminal violation of the law, and could find yourself getting an immediate tour of the local jail.
The law is designed in your favor and if you follow it precisely, it will get you through that blocked door. In the non-emergency situation, it will require some legal paperwork, and a visit to the courthouse for a hearing with a judge and a court order. Remember, you are not 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 legal process, and the tenant continues to refuse access, you have additional remedies that may include removing the tenant from the apartment permanently. In many instances, the tenant will be responsible for any expenses that you incur to exercise your legal rights, including your attorney’s fees and costs, 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 is your right, not their choice. Contact your landlord attorney for assistance in establishing the operational-legal policies and procedures to gain access to units effectively and efficiently, or to address the problem tenant who refuses to grant you such access.
Let me start with a disclaimer: This action is not taking place in CT and is not CT law.
However, it is intriguing nonetheless and may be a sign of what’s “coming down the pike”…
The Springfield, MA Housing Authority has had such success with its one-year-old smoking ban that it has decided to expand
it even further. Seems a year ago, the Authority ordered that its residents and their visitors not smoke inside agency buildings, including the residential units.
Citing the change a triumph, and expecting even further success, the Authority has decided to expand that ban to cover the entirety of the agency’s property, including the great outdoors. The head of the agency is justifying the organization’s efforts by citing that they are trying to make its properties healthier work and living environments, all while improving social awareness on the health issues related
This recent move is being brought to your attention because, as you know, what happens in our neighboring states often influences what happens here in CT.
Additionally, trends across the country, including those within HUD, seem to be moving toward smoke-free, multi-family environments. Both good reasons to be
prudent and keep abreast of the subject.
For those managers and developers looking to create smoke-free communities, there are a number of organizations, like the Springfield Housing Authority, who are blazing their way down this pioneering path. If you hope to follow suit, the first place you will need to start is in your rules and in your lease. Without the proper foundation, current situations in CT will make it nearly impossible to enforce a non-smoking ban. Even with the rules and lease language in place, the way things stand today, you can still anticipate a struggle. However, if you are interested in going down this path, you can find solace in knowing you won’t be the first organization moving in that direction. In fact, a quick internet search will yield communities that have gone smoke-free and quite a number of organizations offering support and assistance on how to get there. Looks like this is a movement with quite a bit of movement.
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.