Rights and Remedies of a Landlord - Module 5 of 5
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Module
5: Rights and Remedies of a Landlord
Pre-Lease
Protections
When a
tenant materially breaches obligations under a lease agreement, such as by
failing to pay rent, the landlord may terminate the agreement after notice and after
allowing reasonable time to remedy the breach. However, terminating a lease
agreement may involve initiating an eviction proceeding, which can be a lengthy
and costly process. Also, tenants may abandon the premises while still owing
rent, making recovery difficult. Finally, tenants may leave behind significant
damage and waste in the leased premises, which can represent a substantial cost
to the landlord, which may be difficult to recover. For these reasons, many
lease agreements include mechanisms which protect the landlord from future
costs due to a tenant’s misconduct.
One
very common form of such protections is the security deposit. This money
is given as a security at the outset of the lease and is considered to be a
debt assumed by the landlord to the tenant, or, alternatively, it can be placed
into escrow until the termination of the lease.[1] At that point, the deposit
must be returned to the tenant, minus any portion the landlord may retain in case
of rent default or damage to the property. To protect the tenant, some states
require that the deposit be held in escrow in a local bank for the duration of
the tenancy.[2]
A
standard security deposit is one- or two-months’ rent, though the amount is up
to the landlord. Some states, however, do place limits on the total amount that
can be asked as a security deposit, such as capping deposits at two month’s
rent.[3]
In
addition to requiring a security deposit, a lease agreement will often include a
rent acceleration clause. Under the terms of such clauses, should the
tenant fail to pay rent and fall into default, the balance of rent owed for the
entire term of the tenancy immediately becomes payable in full. The
landlord may demand the unpaid rent in one lump sum.[4]
Note,
however, that a landlord may not invoke the rent acceleration clause, demanding
immediate payment in full, and
then terminate the lease. Rent acceleration is a means of protecting the
landlord by rearranging the schedule of payment so that rent for the entire
term is paid in advance.[5] So, in case of rent default,
the landlord must choose between terminating the lease and seeking to recover
past rent owed, or continuing the lease while demanding full payment in advance
for the balance of rent for the remainder of the term.
Termination of
the lease and eviction
If a
tenant fails to pay rent, that is considered a material breach of the terms of
the lease agreement, and the landlord may terminate the lease without waiting until
the lease term has come to an end. First,
the landlord must notify the tenant that he has defaulted and provide time for
the tenant to pay the outstanding rent. Should the tenant fail to submit rent
payments that are owed, the landlord may terminate the lease.[6]
Note
that lease termination is not automatic upon default and breach of the lease.
The landlord may elect to continue the lease and use judicial remedies to seek
damages for the costs incurred by the tenant’s breach, in the form of backpay of
rent and any attendant costs.[7] Should the landlord choose to
terminate the lease, the tenant will be informed, and must vacate the premises,
as she no longer enjoys the right of possession and occupation.
If the
tenant does not vacate the leased premises, the landlord may initiate eviction
proceedings. A similar eviction procedure would be initiated when a tenant
remains on a property after the lease term has come to an end. Eviction
proceedings commence when a landlord files a formal claim in court, known as a forcible
entry and detainer or an unlawful detainer. This is a request for
the court to remove the tenant who is now in unlawful possession of the
landlord’s property.[8] Upon filing of an eviction
claim, the tenant will receive a summons, and may present defenses to eviction,
such as claiming retaliatory eviction, discrimination, proof of payment of rent
or evidence of the landlord’s failure to properly maintain the rental unit.
If the
court rules in favor of the landlord, the judge will issue an order for the
tenant to vacate within a short time, usually several days. If the tenant has
not vacated by the date specified in the order, the designated law enforcement
official can enforce the order, and may remove the tenant and the tenant’s
possessions and change the locks to prevent re-entry by the tenant.[9]
Self-Help Repossession
Under
the common law, if a tenant remained in possession of a property when he no
longer has the lawful right of possession, the landlord was permitted to use
reasonable force to evict the tenant. Today, many states prohibit such a self-help
remedy, in particular when it comes to residential leases, and require all
evictions to be conducted through the courts and law enforcement.
Some
jurisdictions do permit limited self-help, which allows the landlord to
re-enter the premises through peaceable means.[10] However, courts have often
interpreted peaceable means very broadly to discourage self-help.[11] Remedies such as terminating
utilities, changing the locks, removing doors or windows, or removing the
tenant’s property, in order to end the tenant’s occupancy, are also often
prohibited.[12]
Even those states which preserve the right of self-help in recovering
possession may allow for civil liability actions against the landlord, if
self-help crosses the line into the use of excessive force.[13]
Surrender and Abandonment
Tenants
may wish to terminate a rental agreement prior the end of the term agreed upon
in the lease agreement. In such a situation, the tenant may seek to come to an
agreement with the landlord. If the landlord agrees to end lease obligations,
the tenant is considered to have surrendered the lease. At that point,
the lease is terminated, and the tenant must vacate the property. The tenant is
then no longer liable to pay rent.[14]
However,
the landlord is not obliged to accept the surrender, and may hold the tenant to
the original lease terms. Under such circumstances, if the tenant nevertheless
abandons the property and ceases to pay rent without rightful grounds for
abandonment, the tenant who does so is in violation of his obligation to pay
rent under the lease.
Since the
tenant no longer claims possession of the property, there is no need to evict
the tenant. Instead, a landlord whose tenant has abandoned the property has
several options.
The landlord
may effectively accept the tenant’s abandonment and terminate the lease, which
creates a situation of surrender. This can happen, for example, if the
landlord notifies the tenant that he intends to re-let the property that the
tenant has abandoned. This terminates the lease and frees the tenant from
ongoing liability to pay rent.[15]
If the
landlord accepts the abandonment, the tenant is liable for any outstanding rent
at the point of abandonment, and any damages caused by the abandonment.
In
some states, if the tenant vacates and makes it clear that he will not pay
further rent, the landlord need not wait until the rent comes due to terminate
the lease and seek to recover losses. Instead, the landlord may retake
possession and sue for damages in anticipation of the breach.[16]
Another
alternative available to the landlord is to refrain from terminating the lease
or retaking possession. Under this approach, the lease continues to the end of
its term, and the tenant continues to accrue rent obligations despite having
vacated the property.
As the rent comes due in
successive periods, the landlord may sue the tenant for damages, as in his continued
absence, he continues to be bound by the terms of the lease. There is no
obligation on the part of the landlord to try to re-let the property so as to mitigate
damages for the tenant, unless such an obligation is specified in the lease.[17]
However,
in some jurisdictions, the landlord may not simply bide his time and do nothing
as the tenant becomes liable for increasing rents. Instead, the landlord has a
duty to mitigate the damages owed by the tenant by seeking to rent the abandoned
property to other prospective tenants for the remainder of the lease. In these
states, the landlord must make reasonable efforts to secure a replacement
tenant for the duration of the original tenant’s lease.[18] Until a new tenant is found,
however, the original tenant’s obligation to pay rent remains in effect.
Note
that even if the landlord succeeds in finding a replacement tenant, the
original tenant may not be entirely free from any monetary liability. If the
rental rate agreed to with the new tenant is lower than that agreed to in the
original lease, the tenant who abandoned the property remains liable to the
landlord for the difference in the rent. In addition, the tenant may be
responsible to bear the costs associating with seeking a new tenant, such as
advertising the vacancy.[19]
Housing Courts
Housing
courts, also sometimes called landlord-tenant courts, are special courts set up
in certain jurisdictions, particularly in larger cities, to deal specifically
with legal issues arising from landlord-tenant disputes. Typically, cases in
housing courts involve tenants seeking court intervention to obtain repairs
from landlords or to stop harassment by a landlord, and landlords
seeking to collect rent from a tenant in default or to evict a tenant whom the
landlord believes has breached obligations under a lease agreement.[20] However, such courts may also
have jurisdiction over all matters arising from legal matters concerning
residential housing, including tort actions and
criminal proceedings.[21]
When a
party files a petition against the other party in housing court, the other
party will receive notice of the petition, and the date scheduled for a hearing.
Failure to respond to the notice, or being absent from the hearing, may result
in a default judgment being entered against the absent party.[22]
Housing
courts are generally considered to be protective of the rights of tenants. Since
many tenants are not represented by legal counsel, judges and court appointed
mediators will often act to ensure that tenants understand their rights under
the law.
In
addition, since there is usually a disparity of power between landlord and
tenant, and eviction can have serious consequences for the life and well-being
of tenants, housing court judges will often seek to give tenants further
opportunity to remedy a default, and to ensure that the landlord’s claim has
been properly filed before enforcing it. The housing court may also have a Resource
Center which can assist tenants who need help responding to petitions
against them, and to seek further information on housing court processes and
the options available to them.[23]
Generally,
the parties will meet with a judge, court attorney or mediator appointed by the
court, to attempt to settle the dispute between the parties. Such appointees
are specialists in housing law, and they will inform the parties of applicable
state and local law and may be tasked by the judge to investigate and make
determinations regarding the issues in dispute.[24]
If the
parties come to an agreement, called a “stipulation of settlement”, the judge
will review the terms of the agreement to ensure that both parties understand
what they are agreeing to. The stipulation will detail what the parties agree
to and specify the legal consequences of a party’s failure to adhere to the
settlement agreement.[25] Most disputes which reach
housing courts end with a settlement.
If the
dispute does not settle, the case will go to trial before the housing court
judge. The trial may include testimony from witnesses and cross-examination, as
well as admission of evidence, such as copies of the lease agreements, letters written
by the landlords or tenants to the other party, relevant photographs, housing
inspection reports and papers from government agencies.[26]
After
hearing the evidence, the judge will issue a final judgment which will contain
an order resolving the dispute, whether it be a determination regarding the
payment of rent, the lawfulness of eviction or an obligation to repair. It can also
include a timeframe for when the order must be implemented.
Following
the trial, a party may seek further redress from the court or an alteration to
the judgment, by filing a request for an order to show cause. The order
to show cause can be used to compel a party
to do what she was ordered to do or agreed to do, for a party to ask for
more time to comply with the judgment or settlement terms, to present an explanation
for missing a court date in order to overturn a default judgment or to bring to
the court’s attention another reason the judgment should be re-examined by the
court.[27]
Thank
you for participating on the LawShelf course on landlord-tenant law. We hope
that you now have a better understanding of the many legal issues involved in
the relationship between tenants and landlords. We also hope you’ll take
advantage of the other courses we have available in this area. Best of luck and
please let us know if you have any questions or feedback.
[1] Restatement of The Law 2d Property: Landlord and Tenant § 12.1, comment l.
[2] Connecticut General Statutes Sec. 47a-21(h).
[3] See, e.g., Connecticut General Statutes Sec. 47a-21(b).
[4] Restatement of The Law 2d Property: Landlord and Tenant § 12.1, comment k.
[5] Restatement of The Law 2d Property: Landlord and Tenant § 12.1, comment k.
[6] Restatement of The Law 2d Property: Landlord and Tenant § 12.1, comment n.
[7] Restatement of The Law 2d Property: Landlord and Tenant § 13.1, comment l.
[8] Restatement of The Law 2d Property: Landlord and Tenant § 14.1.
[9] See https://www.nycourts.gov/COURTS/nyc/housing/eviction.shtml.
[10] Restatement of The Law 2d Property: Landlord and Tenant § 14.1, Statutory Note.
[11] Restatement of The Law 2d Property: Landlord and Tenant § 14.3, Reporter’s Note.
[12] See California Civil Code 789.3