Restraining order may provide lease-break rights

Rent it Right

By Inman News Feed
Add Comment Add Comment | Comments: 1 | Posted Mar. 1, 2012

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Rent it Right

Janet Portman
Inman News®

Q: I've been asked by one of my tenants for permission to break her lease. She has a restraining order against her estranged husband, and wants to move away. I told her I'd hold her to the same standard I apply to anyone who breaks a lease -- she'll be responsible for the rent until I can re-rent, and I expect her to pay the back rent that has piled up (two months' worth).

I feel badly for this lady, but I can't afford to lose the rent, either. --Mark S.

A: I'm not sure which question you're asking -- whether it's morally OK for you to proceed as you plan, or whether it's legally permissible. I'll leave the first one to you and your spiritual advisers; me, I'm only about the law.

And the law might, depending on where you live, have something to say about treating this person the way you'd treat any lease-breaking tenant who has no legally justified basis for leaving the rental.

Justifiable reasons include a landlord's failure to offer and maintain fit and habitable premises, but they also include, increasingly, the tenant's need to leave because of fear of continued domestic violence.

When the tenant leaves because of a legally recognized event or reason, the tenant's responsibility for future rent due under the lease is extinguished (though unpaid back rent will still be due).

States began recognizing a domestic violence victim's need to leave as a valid reason for breaking a lease after Congress passed the Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA).

That federal law applied only to people renting with public assistance, in public housing or private housing (Section 8). It relaxed the rules concerning when a recipient could move without jeopardizing their right to continued assistance.

States soon followed with laws that applied to private landlords renting not just to assisted individuals, but to regular tenants as well.

Today, slightly less than half of the states extend some form of protection to victims, typically allowing them to break a lease and move without responsibility for future rent when they have documented the abuse and have notified the landlord in a timely manner.

One such state, Texas, goes one step further: Landlords are allowed to collect unpaid back rent, as you intend to do, only if their lease contains a statement like (or substantially like) this: "Tenants may have special statutory rights to terminate the lease early in certain situations involving family violence or a military deployment or transfer." (Tex. Prop. Code Ann. 92.016.)

In other words, unless Texas landlords educate their tenants of their rights to terminate, whether as domestic violence victims or because they've received deployment or transfer orders, they will lose their right to any back rent that exists when the tenant leaves.

That's pretty strong stuff -- the reader is left wondering whether the Legislature enacted this proviso in response to Texas landlords' practice of denying tenants their rights to terminate in these situations.

Q: I'm about to move into a rental situation in which I'll be the third roommate, replacing someone who's leaving. The departing tenant wants me to buy him out of his deposit. But what if the landlord charges us later for damage that happened before I moved in? How can I protect myself from this? --Jason S.

A: This scenario is very common and doesn't, unfortunately, have a simple solution. To handle this fairly, you'll need the good-faith cooperation of all roommates, and ideally, your landlord's cooperation too. Here are some avenues to try.

1. Ask for an inspection now. Although it's a long shot, you might consider asking the landlord to conduct an inspection now, when the person you're replacing moves out.

Like an end-of-tenancy inspection, this one would look for damage beyond ordinary wear and tear. A landlord who agrees to a midtenancy inspection might be able to spot problems that he'd deduct for, if the entire tenancy were ending right then.

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1. Anonymous said... on Apr 13, 2012 at 12:00AM

“I was lifelighted away from abusive ex husband 8 years ago with a broken neck stayed in a shelter for abused women after hospital ..have a protective order against him had physical therapy for almost a year along with counseling have been divorced for 7 years from him a rental company is coming after me for lease .does anyone know what my rights are”


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