Everyday Law in Everyday Terms You Can Understand

You cannot deny tenancy to someone based on:

• race,
• religion,
• ethnicity,
• national origin,
• gender/sex,
• familial status (single, divorced, married, etc.),
• age,
• children, and,
• mental or physical disability.

A landlord can deny tenancy to someone on business grounds, such as an ability to pay, or require someone fulfill a certain criteria, such as sufficient income or an adequate number of positive references.

One of the great fears of landlords, in selecting tenants, is that those who are rejected will feel slighted in some way and bring a discrimination lawsuit upon you. The fair housing laws in the US clearly state that you can’t refuse to rent to someone based on a variety of factors such as race, creed, religion, gender, etc (very much like the employment laws on the matter). So, given that information, how do you protect yourself? By clearly writing out why a particular tenant was rejected and those reasons could be credit history, insufficient income, poor past behavior with respect to the references contacted, etc. Ultimately you should document why a tenant was rejected to protect yourself later on.

If you’re a prospective landlord and you’re trying to figure out how to screen a tenant, here are the major factors you should consider:

• Employment, income and credit history – This gives you an idea of the tenants ability to pay.
• Social Security number and driver’s license numbers – This will prove the identity of the person and allow you to request the credit report.
• Rental history – Are there a lot of evictions in this tenants history? Have they moved around a lot? How come?
• Bankruptcies – Again, this goes back to the tenants ability to pay.
• References – Ask the tenants former landlords for information on this one, was your prospect tenant evicted the last time around?

It’s easier to be more stringent in screening than it is to kick out a tenant, remember that.

In general, the landlord can only break the lease if the tenant significantly violates the terms of the lease or significantly violates the law. A few examples of what sorts of behavior constitute violation of the terms of the lease include paying rent late, keeping pets when pets are not allowed, damaging the property or doing something illegal. Just as the landlord is protected if the tenant wants to terminate the lease, the tenant is protected from the landlord arbitrarily terminating the lease – this equal protection is what’s crucial about this relationship. Without it, the contractual relationship is a sham.

The process for terminating a lease, in most states, is pretty clear. The landlord has to serve a termination notice, give them adequate time to respond, and then the landlord, if they so choose, will bring an eviction lawsuit to get the tenant to leave. Different states have different time periods and the tenant has as little as thirty days to as many as a few months to respond.

Usually landlords like tenants, so if it’s a minor issue that can be resolved amicably then a landlord will generally try to achieve it. If you paid rent late, start paying on-time and you won’t be evicted. If you aren’t supposed to have a pet, perhaps you can negotiate a change to the lease to allow pets. Landlords like tenants, they have to have a pretty good reason to want to evict you!

So let’s say you worked at Countrywide (or <insert any mortgage/lending-related company) and recently got laid off.  You may not be aware of this, but there is no federal law that requires an employer to pay severance pay.  For companies in severely dire straits (i.e. in bankruptcy), your severance package is probably not high on the list of creditors owed money.  This “benefit” of severance pay is more of a custom in the United States.  If you are lucky enough to get a severance package, take what you can get because it’s usually not very negotiable as it’s usually based on tenure at the company.  However, your employer may be legally required to give you severance pay if you were promised one in a written employment contract or employee handover, or if your company has a history of giving packages to employees in your position.

In one word, yes.  The Fair Labor Standards Act (FLSA) is a federal law that covers issues such as hours of work and pay.  While your employer can fire you for not working overtime, they must pay you overtime wages (1.5 times your hourly rate) for every hour worked over 40 hours a week.  If you didn’t catch that, the critical point is “every hour worked over 40 hours a week.”  That means that your employer could hypothetically schedule you for 13 hour days 3 days a week, adding up to a grand total of 39 hours a week, low enough to not have to pay you overtime rates.  If you’re stuck in that situation, quit and getting a cooler boss.

Since the tenant can’t just terminate a lease prior to the end of its rental period, what can a tenant do if they want to get out of a lease? In general, the tenant can’t terminate a lease unless the landlord significantly violates the terms of the lease (fails to make repairs, fails to pay bills that they are responsible for, etc.). In some states, the tenant can break the lease if they satisfy some conditions such as health problems, job relocation, or active military service.

What happens if you have no choice and you have to leave? Unfortunately you are on the hook for the entire lease amount. That’s right, you are responsible for all the rents due for the remainder of the lease. The only recourse you have is that the lanlord does have a legal obligation to try to find a new tenant “reasonably quickly.” When they find one, then you are off the hook.

This is where it is in your best interests, if you want to terminate a lease early, to discuss it with your landlord. Your landlord could be compassionate and just let you out of your lease or they could begin the search early and fill your spot before you leave. Finesse beats court action in this case.

With the war in Iraq and Afghanistan still going strong, those people who are in the National Guard are going to be continued to be called upon to serve their country on active duty.  Luckily, the laws surrounding military leave of absence greatly favor the employee over the employer.  Under the Uniformed Services Employment and Reemployment Act of 1994 (USERRA), employers must not discriminate against employees who are called to serve.  The employer must reinstate the employee if they meet the following criteria:

• The employee must give ample notice
• The total time of absence must not be more than 5 years
• The employee must required within the specified timeframe.  this timeframe varies according to the duration of the military leave

It gets better … the employer is not allowed to fire you without cause (i.e. lay you off) within 1 year after your return.  Additionally, your position, salary, benefits, responsibilities, etc must be at the levels they would’ve been if you had never taken the leave and worked continuously, assuming you are qualified.  Even if you aren’t qualified, the employer must help you become qualified.

Basically, if you’re called to serve, don’t worry about your job situation … Uncle Sam has got your back when you return.

In the previous article I mentioned a “rental agreement” and a “lease,” what’s the difference between the two? The difference is with the length of the agreement. If the period of rental is “short,” often less than thirty days, then you would use a written rental agreement. If the period is longer, then it is considered a lease. The two are structured slightly differently (rental agreements automatically renew, leases do not) but that’s the basic difference from a practical perspective.

Why would this matter? In the case of month-to-month rentals, the landlord can change the terms of the contract with written notice every month that the agreement is renewed (generally states require 30 days of written notice, but it can be shorter depending on how often rent is paid or what the two parties agree to).

The lease is much different because of its length. With a lease and a set rental period of six months or a year, the landlord can’t change the terms and a tenant can’t terminate it until the lease expires. At the end of the rental period, the lease will expire unless renegotiated and renewed. Unlike rental agreements, there is no automatic renewal.

Before you move into a place, it’s crucially important that you have, review, and sign a lease or rental agreement. That lease or rental agreement is a contract that establishes the legal basis of the tenant-landlord relationship and will be the foundation on which you will resolve your disputes. If you ever need to go to court, you will need to produce that in order to get any resolution. Ultimately, it puts the landlord and the tenant on the same page with respect to a multitude of issues including but not limited to: the length of the agreement, the amount of rent and the deposits required, the number of tenants in the property, who is responsible for utilities, the access the landlord has to the property, and dispute resolution clauses.

Always get the document in writing and always have both parties sign it. If it’s strictly verbal, you have a lot of opportunity to forget what was agreed to and some states won’t accept verbal agreements. While it might be nice to have something quick and easy like a handshake, you put yourself at risk because you have nothing in writing to refer to. Your memory may seem fine now, but wait 8 months and a few arguments, you may find your memory wrong (or you could be right, but you now have no proof!).

Lastly, if it’s on paper and you can refer to it, a dispute could be resolved simply be referencing the document instead of the expensive route of the court.