Can tenants refuse a surprise police search?

Rent it Right

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Feb. 16, 2012

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Rent it Right

Janet Portman
Inman News®

Q: I'm an apartment house manager. Last week, a couple of uniformed police officers came to the office and asked to be let into one of our residents' apartments. I agreed, and watched while they looked around. When my tenant found out, he was furious. Did I do something wrong? --Mike M.

A: It sounds as if the police did not show you a search warrant -- a piece of paper, recently signed by a judge, that gave the police permission to enter a specific household and to search for specific items.

Warrants are issued by judges after they receive information from police officers, often under oath and contained in affidavits. Police affidavits must establish more than that there's suspicious activity afoot, but they don't have to provide proof beyond a reasonable doubt.

There are exceptions to the warrant requirement, but you don't give us any reason to think that any of them would apply here. For example, police can enter a home when they're in hot pursuit of someone suspected of a serious crime, and to prevent the imminent destruction of evidence.

Absent an exception to the warrant requirement, the police cannot enter and search. Your tenant, had he been asked directly, could have legally refused entry. The officers probably expected this, and may have deliberately waited until he was away to try their chances with you. Now the question is: Did you have the authority to let them in?

The answer is no. You may enter for many legally recognized reasons, such as to deal with an emergency, to show the property and make repairs (with proper notice), or (in some states) after a tenant's extended absence. But entering your tenant's home in order to cooperate with police who themselves have no legal basis for entering is not among those reasons.

Q: Recently, you answered a question from a tenant whose lease specified that each tenant pay his own water bill, as measured by submeters.

The landlord wanted to abandon the meters and charge tenants using an allocation system, which you thought he couldn't do. But what if the lease doesn't mention submeters -- (and) that's how water usage has been measured and paid? My landlord wants to switch to a flat rate, which ends up being about $20 higher than my average bill under the meter system. Can she do this? --Al F.

A: You've posed an interesting variation on the earlier question. In that one, the landlord was obligated to maintain the meters because the lease itself specified that the tenants would pay for water as shown on their individual meters.

Disregarding this system, which is a term or condition of the tenancy, isn't an option for the landlord, just as deciding that you'll have a dog isn't an option for you if your lease says "no pets."

Your situation is different, and how it's resolved may have a lot to do with the precise language of the lease. Suppose it says, "Tenant will pay for the following utilities: water ... and so on." That's no promise that you'll pay only for the water you use.

"But," you say, "all along I have been paying for just that, courtesy of the meter." This may be your best argument. Legally, your landlord may be held to the practice she's adopted in fulfilling her obligations under the lease.

If you have lived there for years, with the same lease clause and with submeters, you may be able to convince a judge that the landlord's own practice over time makes it reasonable for you to conclude that the clause meant personal water consumption, which can be measured only by meters.

If the landlord wanted to give herself the option of using different billing methods during the lease term, she could have done so when drafting her lease.

Keep in mind that this argument will work only as long as the lease runs. At the end of the lease (or with proper notice, if you're month-to-month), this billing issue is up for negotiation. You landlord will be free to impose a flat charge ... and might lose you in the process.

It's odd to learn of a landlord going from submetering to a flat fee; submetering is the way of the future because it encourages frugality and it's fair. Most landlords would forgo the chance to make a few bucks by way of flat fees in order to attract and keep good tenants.

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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