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Landlord & Tenant

Many years ago, relations between landlord and tenant were considered to be private matters to be governed by custom and the contract between the parties. The landlord’s remedy for non-payment of rent was commonly “self help”-removing the tenant’s property and changing the locks-while the tenant’s remedies for all but the most serious problems were


non-existent. Within the last thirty or forty years, however, that situation has changed dramatically, and in most states the relationship between landlords and tenants is highly regulated. Today, most states have laws governing many aspects of the relationship, including issues such as habitability, discrimination, security deposits, how and when a landlord may enter the rental unit, and how the tenancy may be terminated. In this legal climate, it is important that both landlord and tenant understand their legal rights and responsibilities.

Presently, five state jurisdictions-California, the District of Columbia, Maryland, New Jersey, and New York-have statutes that contain rent-control provisions. These provisions limit the ability of a landlord to charge more than a certain amount to tenants who rent in their buildings. In addition, some municipalities have local ordinances that prohibit landlords from making excessive yearly increases in rent by limiting the amount that a landlord can increase the rent to a certain sum or percentage increase. In most situations, however, if a new tenant comes into the building the landlord can set the rent for that individual at any sum which the market will bear, regardless of whether that sum would be greater than the allowable annual increase for other tenants already residing in the building.

One area of landlord and tenant law that is becoming increasingly complex is the process by which the landlord may seek to evict the tenant for failure to pay rent or other breaches of the lease or rental agreement. In most cases, self-help is absolutely prohibited and is punishable both civilly and criminally, and the landlord may not engage in acts such as changing the locks, removing the tenant’s belongings, or attempting to forcibly remove the tenant. While state law eviction procedures vary, most provide a relatively rapid and simplified form of court action to handle an eviction proceeding, which is often called a summary dispossess action or an unlawful detainer action. Often these statutes provide for a specific method by which the landlord must give the tenant a notice to quit (leave) before starting the eviction proceeding. If the rent remains unpaid (or other situations are not remedied), the landlord may file the action. The tenant is then served with a form of summons and complaint, a hearing is usually held within a very short time (commonly seven to fourteen days), and if the court rules in favor of the landlord, the tenant is usually given a short period of time to move out before law enforcement officials will act to forcibly remove the tenant. Most states have special procedural rules that must be followed in cases involving residential leases; failure to understand and follow these rules may result in the eviction case being dismissed.

Another area in which the scope and complexity of statutory regulation is increasing is the nature of the defenses that the tenant may present at the hearing in an eviction action. While tenants have always been able to assert factual defenses, such as a mistake in the accounting for the rent, numerous other defenses are often available.

One frequently litigated issue is the doctrine of retaliatory eviction, which prohibits the landlord from taking retaliatory action (such as eviction) against a tenant in response to the tenant’s good-faith effort to protect his or her rights. Most commonly, the doctrine is applied when the tenant reports the landlord for housing code violations and alleges that the landlord responded by attempting to evict the tenant, raising the tenant’s rent, or retaliating in other ways.

Another area in which the tenant has significant rights is in forcing the landlord to maintain the condition of the premises. Every residential lease contains an implied promise (often called an implied warranty of habitability) that the rental unit will be maintained in livable condition. This does not mean that the rental unit will be perfect but means at minimum that it is suitable for human habitation and provided with such necessities as heat in winter, working plumbing and electricity and the like. In many states, either by statute or otherwise, habitability issues may also include violations of any safety, housing, fire prevention, or housing maintenance code applicable to the structure. Breach of the warranty of habitability will entitle a tenant to terminate the lease and move out or sue the landlord for damages.

Many states have also enacted “repair and deduct” or “tenant remedies” statues. These statutes are designed to encourage maintenance and repair of rental property and allow the tenants to correct problems by making the necessary, reasonable repairs and then deducting the costs from future rent. In some cases, the tenant will be entitled to withhold all rent until the problem is corrected, or reduce the rent paid to an amount equal to the fair rental value of the premises in view of the problem, with the court determining an appropriate rental amount. Usually, the tenant must pay any withheld rent into court or into an escrow account, and the landlord may, in some circumstances, be allowed to use the withheld funds to pay for repairs to the property.

Given the growing complexity of this area of law, a real property attorney experienced in landlord and tenant issues can provide a valuable service to both landlords and tenants, both by apprising them of their rights and responsibilities and by advising them regarding the procedural complexities of the law when a problem arises.

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