FIRST YOU HAVE A TENANCY
A tenancy is created by lease or term. If there is no lease the term is determined by how often rent is paid: weekly, monthly, etc.
A Landlord cannot limit his statutory rights or liabilities in a residential lease §83.46. In Landlord-Tenant litigation the prevailing partymayrecover attorney fees §83.48 (absent a specific statute such as §83.49 or a contract provision in a lease).
Security deposits are governed by §83.49. They are held in either an interest-bearing or non-interest bearing account. If the account is interest bearing some of the interest goes to the Tenant. The Landlord must notify the Tenant within 30 days which option she is using.
PRACTICE TIP: Include the notification in the lease.
When the tenancy is over, Landlord has 15 days to return the security deposit or 30 days to make a claim upon it, which must follow a specific format or the Landlord loses this right §83.49(3)(a). Security deposit litigation includes mandatory prevailing party attorney fees §83.49(3)(c).
It is the Landlord’s obligation to maintain the premises: building codes, roof, windows, screens, doors, floors, steps, porches, exterior walls, foundations, plumbing, and structural components. If the rental is a triplex or larger the landlord must also provide for exterminators, locks and keys, clean and safe conditions of common areas, garbage removal, functioning facilities for heat, running water and hot water §83.51.
Pursuant to §83.64 a Landlord cannot retaliate against a Tenant by increasing rent or evicting him in retaliation for the Tenant’s cooperation with a government agency over housing violations. Example, if Tenant reports code violations, or if the Tenant organizes, encourages or participates in a Tenant’s organization or if the Tenant has complained to Landlord under §83.56(1). Retaliation is a defense to an eviction §83.64(2) but it’s not a defense to a good faith eviction for non-payment of rent or rule-breaking §83.64(3).
Tenant has the responsibility to comply with health regulations and building codes. He must keep his place clean, remove his garbage, and make sure the plumbing is clean, sanitary and in repair. A Tenant must use appliances in a reasonable manner, not destroy property, conduct himself reasonably and not disturb his neighbors §83.52.
A rental agreement may contain a provision requiring Tenant give Landlord notice that he is vacating. The notice period may not be longer than 60 days §83.575. This provision can also state if Tenant fails to provide Landlord with notice Tenant is liable to Landlord for damages. If Landlord wants to collect those damages he must provide Tenant notice 15 days before the beginning of the notification period (example of a notification period is 60 days before the end of the lease term) advising she needs notice and listing the fees, penalties and other charges applicable to Tenant if Landlord does not receive notice §83.575(2).
If a Tenant remains on the premises after the expiration of a lease, with Landlord’s permission, Tenant becomes a month-to-month Tenant. Tenant is then required to give Landlord 15 days notice prior to the end of a month that he is vacating §83.57(3). If Tenant fails to this notice he is liable to Landlord for an additional one month’s rent §83.575(3).
If a Landlord is not in Compliance with her responsibilities Tenant can write her a letter giving her seven days to get intp compliance or Tenant will terminate the tenancy and withhold rent §83.56(1). A Tenant is not within his legal rights to withhold rent without complying with this Statute.
A Landlord cannot: terminate or interrupt any utility service including, but not limited to: water, heat, light, electricity, gas, elevator, garbage collection, refrigeration, whether or not the utility service is under the control of or payment is made by the Landlord. Landlord cannot remove outside doors, locks, roof, walls, and windows, except to repair. Landlord cannot remove the Tenant’s personal property unless it is part of a surrender, abandonment or lawful eviction.
What happens if Landlord violates this provision? She owes Tenant actual damages or three months’ rent, whichever is greater, mandatory attorney’s fees and costs §83.67. This section is called prohibited practices.
PRACTICE TIP: Every lease should contain a provision regarding what happens to the Tenant’s property after he vacates.
If a Tenant causes damage or misuses the property by intentional act or continued unreasonable disturbance the Landlord can give him a 7-day notice to vacate §83.56.
If Tenant causes a problem that can be resolved, such as unauthorized pets, guests or vehicles, unlawful parking or failing to keep the premises clean and sanitary Landlord can give the Tenant a 7-day notice to fix the problem. If the problem is not fixed in 7 days Landlord can then give Tenant 7 days to vacate §83.56.
If Tenant fails to pay rent Landlord can give him with a 3-day notice §83.56. PRACTICE TIP. Non-payment of rent is the easiest way to evict a tenant.
If there is no lease and Landlord wants Tenant to leave she must give the Tenant notice the tenancy is ending as follows §83.57:
Yearly 60 days prior to the end of the year
Quarterly 30 days prior to end of quarter
Monthly 15 days prior to end of month
Weekly 7 days prior to end of week
A Tenant who holds over is liable to Landlord for double rent §83.58. This is a Tenant who remains on the property past their term without Landlord’s permission. If Tenant does not vacate Landlord must sue for eviction to get possession §83.59.
A Landlord gets possession in any of the following ways: eviction, surrender, abandonment for a time period equal to one-half the time of the periodic rental payments but not if rent is current or the Tenant has notified the Landlord, in writing of this absence §83.59(3).
Defenses to an action for eviction are:
1. Material noncompliance with the Landlord’s Responsibilities under §83.51 but ONLY IF the Tenant sent Landlord notice under §83.56(4);
2. Any equitable or legal defense;
3. Retaliatory conduct §83.60 but not if Landlord has a good faith basis for the eviction 83.64(3).
What if a Tenant leaves before the end of the lease? Landlord has 4 options §83.595:
1. Treat the lease as over and take possession 83.595(1).
2. Take possession on account for the Tenant, re-rent, holding Tenant liable for any loss 83.595(2).
3. Do nothing and sue the Tenant for rent 83.595(3).
4. Take an early termination fee, which cannot exceed 60 days rent and must be agreed to in a separate document, not as part of the lease 83.595(4).
5. Landlord is entitled to rent for the month Tenant is on the premises, even if it is a partial month PLUS the early termination fee 83.595(5).