By Sarah Jane Delano Pavlik
What are your options?
First, as with any question regarding a document, you need to read your lease.
You should always have a lease, although an oral lease may be enforceable for a time period of less than one year. As with all oral agreements, however, the problem is proving the terms of the agreement.
Termination of a Lease. Assume a tenant’s lease is set to terminate on Jan. 31, 2014. If the tenant wants to terminate the lease, he generally must give written notice within a specified time period. Thirty days’ notice is a common lease provision. If the tenant does not provide notice, the lease may continue as a month-to-month lease.
If a lease is not for a specific term, it may be terminated by either party with proper notice. The type of lease will generally be determined by the payment of rent. If rent is due once a year, the lease is year-to-year. If rent is due once a month, the lease is month-to-month, and so forth. If the lease is year-to-year, either party may terminate the lease by giving sixty days’ written notice. The notice must be given after the sixth month of the lease and before the beginning of the eleventh month. If the lease is week-to-week, either party may terminate the lease with seven days’ written notice to the other party. Most other leases can be terminated with thirty days’ notice.
Return of a Security Deposit. If the rental property consists of five or more units, after the tenant vacates the property, the landlord must return any security deposit or, within thirty days, send to the tenant an itemized statement of the damage allegedly caused to the property and the estimated or actual cost for repairing or replacing each item on that statement, attaching the paid receipts, or copies thereof, for the repair or replacement.
Delivery of the itemized statement must be in person, by mail directed to the tenant’s last known address or by email to a verified email address provided by the tenant. If the landlord makes any of the repairs himself, the landlord may include the reasonable cost of his labor to repair such damage. If estimated costs are given, the landlord must send the tenant copies of paid receipts within thirty days from the date the itemized statement was sent. If the statement and receipts are not furnished to the tenant, the landlord must return the security deposit in full within forty-five days of the date that the tenant vacated the property.
If a court finds that a landlord has refused to supply the required itemized statement or has supplied the statement in bad faith, and has failed or refused to return the security deposit, the landlord will be liable for an amount equal to twice the amount of the security deposit due, together with court costs and reasonable attorneys’ fees.
Terminating a Lease for Cause. If either party breaches a lease, the lease is not automatically terminated. Either party may sue the other for damages. In addition, each party has certain other rights.
If a tenant does not pay the rent, the landlord may evict him. The landlord must send the tenant written notice demanding payment of the rent. If the rent is not paid in full within five days after the notice, the landlord may file suit to evict the tenant. If a landlord wishes to terminate a lease for a reason other than failure to pay rent, he must serve written notice on the tenant to correct the breach.
For example, if a lease provides that no pets are allowed in an apartment, and the tenant has a dog living there, the landlord can serve the tenant with notice to remove the dog. If the dog is not removed within ten days, the landlord may file for eviction. Landlords should be careful however. Depending on the breach, if the landlord accepts a rent payment after giving the ten days’ notice, he may have waived his right to terminate the lease.
If a landlord breaches the lease by failing to maintain the property in livable condition, the tenant may claim “constructive eviction,” i.e., that because he cannot safely live in the unit, the landlord has essentially evicted him. In that case, the tenant may be able to vacate the property and terminate the lease.
Small repairs and repairs that are not made immediately will not constitute constructive eviction. Likewise, housing code violations do not automatically constitute constructive eviction.
Before leaving the property and terminating the lease under the theory of constructive eviction, a tenant should consult an attorney. As long as a tenant remains in the unit, he is obligated to continue to pay rent, and may be evicted for failing to do so. Therefore, a tenant will want to consult an attorney before withholding rent.
Abandonment. If a tenant abandons the property, the landlord may be left with the tenant’s personal property. A lease should have a provision regarding abandonment allowing the landlord to re-lease the property and dispose of any personal property. Abandonment generally consists of being absent from the property for at least thirty-two days and failing to pay the rent.
Whether you are the tenant or the landlord, you will want a written lease specifying each party’s duties and responsibilities to avoid potential disagreements or misunderstandings.
Sarah Delano Pavlik is an attorney from Springfield.