Unwanted visitors can get you evicted

Rent it Right

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Mar. 3, 2011

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Rent it Right

Janet Portman
Inman News™

Q: I am the resident manager of a large apartment community. The police have come to our property several times recently because of one tenant. She told me that she has had to call the police because her former husband insists on coming to see her. I don't like the disruptions, and I am worried about the community getting a bad reputation because of the frequent police presence. Am I entitled to terminate this woman's tenancy? --Warren W.

A: Before taking action, have a talk with this tenant. Your question implies that she has not invited the abuser to the property -- but has she obtained a protective, stay-away order from the court? If she has not, that may be the place to start, and if you're lucky, the ex may respect it and keep away.

Now let's suppose that the tenant has such an order, and it's not doing any good. Whether you may evict will depend on the type of tenancy this is, and whether any laws in your state give protection to domestic violence victims -- and narrow eviction rights to landlords.

No matter what state you're in, if your tenant is a Section 8 tenant (or you're running a public housing project), you are subject to the federal Violence Against Women Act (VAWA), which became law in 1994.

One of its many purposes is to protect women who are victims of domestic violence (as well as stalking and dating violence) from eviction, unless the landlord can show that there is an "actual and imminent threat" to other tenants or staff if she is not evicted.

Note that a "bad reputation" will not justify an eviction. If your tenant gets the protection of VAWA, you won't be able to evict based on the harm done to your property's standing in the community.

If you are a private landlord whose tenant is not part of the Section 8 program, you'll need to look to your state's laws to see whether such victims are protected. Over half of the states followed the federal lead after VAWA, enacting protective laws that sometimes gave victim women the status of a "protected class," like members of a race, religion, and so on.

Most laws required women to substantiate their experience of abuse before being entitled to the laws' protections, by reporting incidents to the police or obtaining a protective order.

Many states with domestic violence protections nevertheless realized that as sympathetic as one might want to be when domestic violence is concerned, there may come a point when the safety of others is imperiled by the presence of the victim on the property. When that point arrives, landlords should not be expected to subject other residents, staff or even themselves, to physical harm.

For instance, California recently passed a law, which took effect Jan. 1, 2011, that allows landlords to evict a domestic violence victim who, despite having been given a three-day notice to stop allowing the perpetrator access or leave, continues to give the abuser permission to enter the premises.

And the landlord has the power to evict if, even in the absence of such permission, the landlord "reasonably believes" that the perpetrator poses a physical threat to other tenants, guests and business invitees, including the victim herself (see California Code of Civil Procedure Section 1161.3(b)).

Oregon and Indiana have similar laws, but like California those states require a threat of physical harm, not simply harm to the property's reputation.

Finally, suppose you're in a state without domestic violence protections? If your tenant's altercations with her ex are severe enough to justify police intervention, chances are they would support a termination based on the tenant's violation of her legal duty to not disturb the quiet enjoyment of other residents.

Your tenant might find a lawyer who would advance a creative defense, however, arguing that ousting an abused ex-wife amounts to discrimination based on the tenant's sex or familial status. Whether such an argument would work in your state is anyone's guess.

Q: We are students in a university town. The city council passed an ordinance that's intended to curb loud student partying in rented homes. We got charged with violating that ordinance and got fined, and our bible college also hauled us before the student behavior review board. Now, our landlord is using the incident as the basis for evicting us. Isn't that double jeopardy, being punished twice, if not three times? --Amy D.

A: Although it may feel like the world is piling on, I don't think you'll be able to avoid the municipal fine or the college's sanction based on a claim of double jeopardy. As for your landlord, maybe your best approach is to throw yourself on the mercy of the court.

First, the rules: Double jeopardy is a concept that comes from the Fifth Amendment to the U.S. Constitution, which prohibits a criminal defendant from being made to stand trial twice for the same offense. As an extreme example, it prevents the government from retrying a defendant whom the jury has acquitted.

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