Q: We’ve just learned that a registered sex offender lives in our apartment complex. Nothing has happened yet, but we’re very concerned for the safety of our children and would like to move. We’ve got a year’s lease; how can we get out of it? –Cathy and Jim C.
A: There are many situations that justify breaking a lease and moving, such as the landlord’s persistent failure to keep the property fit and habitable, by not providing essential services such as heat and hot water, for example. And certainly, when the landlord doesn’t stop ongoing criminal activity on the property, such as drug dealing, tenants in most states can use any number of legal theories to justify their moving out.
In the situation you describe, however, the resident has not harmed other tenants. This person has an unsavory past, to be sure, but your fear alone that harm will befall you won’t necessarily support you if you break the lease and are sued by your landlord for rent for the remainder of the lease term. Unless your landlord told you before you signed the lease that he would screen out registered offenders or that the property would be completely safe for your family, you don’t have much legal support for breaking your lease.
You’ll surely want to talk to your children and make sure they can recognize and avoid this resident. As you educate your children, you may want to consider these statistics from the U.S. Department of Justice’s Center for Sex Offender Management: “Approximately 60 percent of boys and 80 percent of girls who are sexually victimized are abused by someone known to the child or the child’s family. Relatives, friends, baby-sitters, persons in positions of authority over the child, or persons who supervise children are more likely than strangers to commit a sexual assault. … Adolescents (ages 13 to 17) account for up to one-fifth of all rapes and one-half of all cases of child molestation committed each year.” (“Myths and Facts About Sex Offenders,”.)
Q: I’ve given notice and will be moving at the end of next month. My landlord holds a $2,000 security deposit. I plan on not paying the last month’s rent and having her take that rent from the deposit. My landlord has refused. What’s the risk of just not paying that last month? — Walter H.
A: Your plan is a common one, and landlords hate it. From their point of view, taking the last month’s rent from the deposit leaves them with less money to use in case you leave the apartment in bad shape (with damage or uncleanliness beyond normal wear and tear). For example, if you don’t pay the last month’s rent and leave behind $1,500 worth of damage, the landlord will have to sue you in small claims court for the $500 that’s not covered by the deposit, or write it off. With a full $2,000 deposit to work with, the landlord would be covered.
However, you may be able to work with your landlord towards a solution. Assuming your apartment is neat, clean and undamaged, ask the landlord if she will do a pre-move-out inspection, a few weeks before you move. If she agrees, you’ll be able to show her that she will probably not have to use that deposit to repair damage. True, she won’t get as good a look at the condition of the unit as she will when your belongings are gone, and it’s possible that you could cause damage after she has inspected. But if you are on good terms, you may be able to convince her that letting you apply at least some of that deposit towards the last month’s rent won’t leave her with insufficient funds to address needed repairs.
If your landlord refuses to work with you, you may choose to join the legions of tenants who have done what you propose. Your landlord could legally serve you with a notice to pay or quit, and proceed with an eviction lawsuit should you do neither. But most landlords won’t take this step, realizing that you’ll probably be gone before they get to court. Don’t proceed without thinking carefully, however — in a few states, your ploy is illegal, and pulling it allows the landlord to retain the balance of the deposit. Even if you don’t face that dire consequence, keep in mind that any reference you might need from this landlord when renting in the future is likely to be dim.
Q: I’m an elementary school music teacher, and I give piano lessons in the afternoons and weekends. The lease at my new place says that I can use the premises for a “private residence only.” I thought this meant that I couldn’t rent out a room, and I never imagined that my landlord could use this as a basis for saying that I can’t have students come to my flat for lessons. –Catherine P.
A: Your landlord’s lease clause is a bit ambiguous, but chances are he wasn’t thinking of keeping you from running a hotel open to the public. He was probably focusing on the “residence” part and thinking that this would prohibit tenants from using the rental as a place to do business.
Your afternoon and weekend teaching is indeed a home business, and it will have an effect on the rest of the building. Others will probably hear the piano, encounter your students coming and going, and perhaps compete with them (or their parents) for parking. Your landlord may also be worried about liability; will his policy, designed for a residential, not commercial, setting, cover him if a student is hurt? And even if it will, he’ll probably not want the increased risk of claims posed by the added individuals coming to your apartment for lessons.
Before you and your landlord take entrenched positions, try to sit down and talk over the landlord’s concerns. It might help to involve a mediator, who will guide the discussion and help you towards a resolution (the mediator won’t impose a solution). To find a mediator, call your city manager’s office and ask if the city offers landlord-tenant mediation.
If you can’t work things out, be prepared for the landlord to serve you with a termination notice, demanding that you stop giving lessons or move, followed by an eviction lawsuit if you do neither. Whether a judge would find that phrase in your lease sufficiently ambiguous to rule in your favor is impossible to predict. On your side is the fact that the landlord, not you, drafted the ambiguous clause. When a contract clause is ambiguous, it’s often resolved in favor of the person who did not draft the contract, on the theory that the drafter had a chance to get it right, didn’t do so, and should now suffer the consequences.
Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of “Every Landlord’s Legal Guide” and “Every Tenant’s Legal Guide.” She can be reached at [email protected].