Christmas Countdown & Court Deadlines

Today is Thursday, November 19; you have 36 shopping days left until Christmas.  If you have been served a home Foreclosure Summons, you have even fewer days than that to respond, and if you have been served a Three-Day Notice to Pay or Quit at your rental unit, you have even less time. Once you receive a Foreclosure Summons, you only have 20 days to file a response or you could be defaulted in the case.  Note:  those are 20 calendar days as the crow flies, not around weekends and holidays.  The clock is ticking through Christmas, Chanukah, Kwanzaa, and Festivus. By contrast, Landlord-Tenant Law works off the courthouse calendar, not Wal-Mart hours.  Landlord notices come in increments of less than ten days.  Because that is such a short amount of time, the court does not count holidays or weekends to allow the tenant time to get things done.  Plus it is harder for a tenant to pay a landlord on holidays and weekends when banks are closed.  Thus in renter eviction, holidays and weekends do not count in notices. Regardless of how many shopping days you have left, if you received a Foreclosure Summons or Three-Day Notice, the clock […] Read More

Frozen Out in Tenant Eviction

Actor Jack Whitehall had a small part in the movie, Frozen, just one line, but he was so excited to be in a big Disney production.  Then when the movie came out, his line was cut.  His animated character appeared on screen, the lips moved through the words Whitehall had recorded, but the character had no voice.  The same thing can happen to property managers who try to represent their corporation in court in a contested tenant eviction. Showing up to court is good, but being able to voice your side of the case is better.  A property manager may show up to represent an owner, but unless he is the owner’s attorney, he does not have a legal say in a contested tenant eviction (and his cause may not get very far); the Judge gets to hear a one-sided argument…from the tenant. The property management company can file tenant eviction paperwork as long as the eviction is uncontested and for possession only (not money).  However, if the tenant raises a legal defense, then the property manager has to let it go, and either the property owner has to represent himself or herself in court, or be represented by an […] Read More

Evicting Dr. Frankenstein

Dr. Frankenstein was a terrible tenant.  There were strange smells, late night excavations, and complaints from undertakers about missing corpses.  Furthermore, Dr. Frankenstein never paid his rent.  His landlord was fed up and wanted Dr. Frankenstein out. What the landlord did not know was that Dr. Frankenstein was conducting his greatest experiment, a matter of life and death!  Dr. Frankenstein was building a superhuman with the legs of a running back, the arms of a weightlifter, and the head of a law professor.  Just at the moment when Dr. Frankenstein was going to unite the various body parts with a surge of electrical current, the landlord shut the power off. However, also at that moment a storm was approaching.  Dr. Frankenstein hoisted the lifeless collection of body parts to the highest point of his rental property, and then tied a kite to his creation. Sure enough—SHAAA-ZAMMO! Lightning struck with ten thousand times the voltage that would have come from  Dr. Frankenstein’s washer/dryer outlet, and behold…the creature came to life!  With superhuman strength and the madness only possessed by law professors and judges who’ve sat on the bench too long, the creature took off in a rampage, destroying everything in its […] Read More

Abominable Snowman & the Rental Unit A/C

The Abominable Snowman rented a place in Florida one summer, eager to check out the beach and what everybody saw in those tourist billboards up North. “No pets,” was the first thing Larry the Landlord said when he got a look at Mr. Abominable. After they got over the issue of the Abominable Snowman being the renter himself and not a pet, and after they got over the negotiation of an extra security deposit to cover hair removal from the drains, Larry the Landlord and the Abominable Snowman signed a lease agreement. One night the Abominable Snowman was in his rental unit having pizza with his southern cousin, the Swamp Ape, when suddenly the air conditioning cut out. “I got to go,” said the Swamp Ape, and he cut out faster than the A/C because he was wanted—everybody was always trying to post his picture and get an interview. The Abominable Snowman was furious and overheated, and he withheld rent for every day of the lease that he did not have air-conditioning. He went to court to raise a fuss, but because he had not paid his rent (not even into the Registry of the Court) he had no say […] Read More

Fifty Ways to Leave Your Landlord

There must be fifty ways to leave your landlord, but if you want your security deposit back, it is more complicated that to just drop off the key to get yourself free. If you slip out the back to terminate your lease early, you may not be able to get your security deposit, and furthermore, you may still owe rent after you have gone. If you hop on the bus and do not leave a forwarding address, it will be difficult for your landlord to send you your money (or notice of what happened to it). The answer is easy if you take it logically: Landlords have fifteen days to return your security deposit.  That gives them the opportunity to examine fully the property for damages.  Then, the landlord has up to 30 days to send you written notice after you leave to tell you they are keeping all or part of your deposit.  If you think that is a dirty deal, you have 15 days to notify your landlord in writing (Certified Mail, return receipt requested). There must be fifty ways to leave your landlord, but if you want your security deposit back, the best way is to follow […] Read More

An Enforceable Lease

Not all contracts have to be written in order to be enforceable, but some do.  Real estate contracts and any contract that cannot be performed within one year (like a lease of more than a year) must have written contracts. Real estate agents are allowed to do a lease up to a year using pre-made legal forms.  These forms have been prepared by attorneys, and the real estate agent uses the check boxes to tailor the agreement.  Also, a lease of a year or less does not need witnesses to be enforceable. When in doubt, seek competent legal counsel.   Attorneys do not have to be expensive and they do not have to be obnoxious.  Furthermore, an attorney can be the difference between an enforceable lease, and a useless piece of paper.   Read More

Closure in a Landlord-Tenant Case

You cannot always get what you want, but in court sometimes, you get what you need.  Such was the case recently in a landlord-tenant dispute on a commercial property. The Tenant was paying rent; the Landlord was not cashing the checks. When the Landlord leased the space, he did not realize there was a restriction against the Tenant’s business.  While the lease between them stated to only use this property for Purpose A, the Covenants and Restrictions stated that the property could not be used for Purpose A.  After the build out of the space, the Property Owner drove by and saw the problem. It was a mutual mistake.  The issue was that there was no adequate remedy under the law to fix it. Both sides were deeply prepared, and the case was argued well.  The facts came out, and the Judge figured out what to do:  he got the two sides to make a deal.  They agreed to a rescission, the Tenant kept his money from rent, and the Tenant got 90 days to move out. Something was going to happen one way or the other, and this gave the Tenant closure, which was the right thing for the […] Read More

Speechless in Eviction

There are certain things you should not say in court…and sometimes you are not allowed to speak at all.  More than a matter of courtroom decorum, if you are a non-attorney property manager representing a corporation, you do not have subject matter jurisdiction in a contested tenant eviction.  Thus you could be left speechless in eviction. “Your Honor, the landlord’s representative is to an attorney and is trying to represent a corporation.  He does not get to talk.” A property manager may show up to represent an owner, but unless he is the owner’s attorney, he does not have a legal say in what goes on (in which case his cause may not get very far). The property management company can file tenant eviction paperwork as long as the eviction is uncontested and for possession only (not money).  However, if the tenant raises a legal defense, then either the property owner has to represent himself or herself in court, or be represented by legal counsel.   Read More

Residential and Commercial Leases Are Different

With residential leases, you are not going to use a lawyer all the time to set up a rental.  A commercial lease, however, is more sophisticated. Residential landlords own the dirt and the building they are leasing out.  Commercial leases, however, have a lien on the stuff inside the building.  As a commercial tenant, you cannot just leave in the middle of the night.  Your landlord has a lien on your furnishings and equipment. Also, unlike a residential lease, a commercial landlord can put a chain on your door in certain circumstances, denying you access to your property and rental space. Do not get stuck in a lease you do not understand.  Whether it is residential or commercial, if you do not understand the terms of the lease, seek competent legal counsel to look over your shoulder.  An attorney who represents you and only you can help ensure you are getting wheat you think you are getting.   Read More

My Favorite Landlord

My favorite landlord to oppose is the one who locks out their tenant—I love the smell of bad landlords in the morning! There is a proper way to do tenant eviction, and then there are a lot of improper tenant eviction techniques, like locking out the tenant or shutting off the water, heat, electricity.  Some landlords get creative in their self-help eviction…but the law is not on their side. The landlord can be liable for damages or 3 months’ rent (whichever is greater) for improper eviction.  Renters in possession have rights…even if they have not paid the rent.  If you infringe on those rights, it could be you who gets billed. Tenant eviction is a Summary Procedure, meaning it takes a shorter time than a regular lawsuit.  While a regular lawsuit gives a homeowner 20 days to answer, a renter only has 5 days.  Do not try to speed up the process by changing the locks or cutting off the utilities.  And let the sheriff’s deputy do his job in serving the eviction notice. Know and follow the proper procedure for tenant eviction; they are available free online at http://www.rustylaw.com/wp-content/uploads/2011/10/Evictions.pdf . You can also read the entire Landlord/Tenant statute at […] Read More