Don't get stuck paying for tenant blight

Rent it Right

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Aug. 4, 2011

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Rent it Right

Janet Portman
Inman News™

Q: My tenants incurred a fine from the city, which claimed that their poor housekeeping (really, their yard-keeping) was a violation of city codes. The ordinance says I'm responsible for paying the fine, too. I think that's unfair -- after all, I can't just enter the property and take their junk and clean it up! --Walter H.

A: It sounds like your city inspectors concluded that the yard constituted a blight: an unhealthy or extremely unattractive condition that they thought was offensive and needed to be cleaned up. Typical examples of blight include junker cars parked on lawns, discarded furniture and appliances, and extremely overgrown foliage.

When conditions deteriorate badly, they may even be a "public nuisance," which is another way of saying that the public sense of cleanliness and order has been offended. Blight and nuisance laws are very common; almost always, the owner is given a chance to clean up the problem before facing fines.

When a tenant occupies the property, the city's initial response will be no different than when the owner himself is in residence: notice of the violation and a chance to clean up. But because you have considerable say in how your property is used by a tenant, the city will also look to you if the tenant doesn't get busy. While it is true that you cannot enter the premises and unilaterally dispose of the tenant's belongings, you can take steps that would indirectly accomplish the inspector's goals.

Your state doubtless imposes "good housekeeping" rules on residential tenants, which include the duty to take reasonably good care of the property. Violations of this duty enable the landlord to terminate the tenancy and evict if needed. Upon learning of the violations contemplated by the inspectors, you should have put your tenants on notice of their failure to abide by the legal requirement to use the property with care.

Faced with the prospect of losing their tenancy -- backed up with a properly worded "cure or quit" notice -- your tenants might have cleaned up.

Tenants who stubbornly refuse to deal with the blight they create should lose their tenancy. If you had tried unsuccessfully to get the tenants to cooperate, you could have contacted the city to tell them of your plans. I suspect that inspectors who realize they're dealing with a motivated landlord would have held off on the fine and waited for you to complete the eviction process (if not contested, it should be fairly quick).

You can probably use the tenant's deposit to cover the cost of the fine. That may be cold comfort; from the sounds of things, you'll need that deposit to deal with damage, and it may not even be enough to cover your losses.

Q: The apartment we moved into has bedbugs -- and we think the landlord knew but didn't tell us (the neighbors say an exterminator came the day before we moved in). Can we break the lease and move out? --Wes and Wendy

A: Your desire to jump ship is certainly understandable. You've been handed the keys to a rental unit that's infested with bedbugs; in anybody's book, this makes it unfit. And not only have you spent time and effort moving into a place that you're going to leave, but you may find some of the bugs hitchhiking on your moving boxes, clothes, even yourselves.

If this landlord knew the place was infested and not definitively cleaned up, he's not only inconvenienced you; he's put you in the position of a being a potential carrier. How will you answer the next landlord's question, "Have you stayed anywhere that had or has bedbugs?" Many landlords are asking such questions as part of their screening process. You can imagine how a "Yes" answer will affect your chances of being offered the place.

But first things first. To know for sure that your lease-breaking will not result in a successful claim for lost rent by the first landlord, you'll need to be able to prove that he knew of the infestation and had not been told by a reputable exterminator that the problem had been taken care of.

These days, many outfits claim to be effective exterminators; few actually are. Reputable exterminators will explain the situation to the owner, which includes a frank discussion of how hard it is to rid premises of these bugs. Often, multiple treatments are needed before the job is done. It's hard to imagine that one treatment, without follow-up examinations and additional treatments if necessary, could have done the job.

Even if your landlord was sold a bill of goods by a fly-by-night exterminator, that doesn't mean that you have to make do with an infested unit. Well-meaning efforts to make a rental habitable will not defeat the tenant's right to move out if the efforts are unsuccessful.

State legislators are beginning to write laws that address the situation you've found yourselves in. In Arizona, for example, a new law prohibits landlords from knowingly leasing infested rentals. The landlord must give tenants educational materials on bedbugs; tenants, in turn, must not knowingly move infested belongings into a rental, and must notify landlords of any infestation.

The law does not apply to single-family rentals. Importantly, it does not limit any other tenant rights, such as the right just described to leave an unfit rental.

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