What’s reasonable notice to enter unit for repairs?

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Q: My tenant has asked that I repair the dishwasher as soon as possible, and I’ve agreed to do so. But she is insisting on 48 hours’ notice of the repairperson’s entry. The repair shop says they can "work me in," but that may mean that they’ll call at the last minute. Do I have to follow the 48 hours’ notice rule? –Ella T.

A: I think you’re dealing with a rather unreasonable tenant. Someone who wants an immediate response to a non-emergency problem should be willing to forgo the normal notice period that would apply to normal repairs.

While many states do protect tenants with notice laws, all states make it possible for tenants to give consent to entry for certain purposes with less or no notice. It’s simply a matter of compromise: If you expect an immediate response to a non-emergency situation, you have to be willing to bend a little when it comes to notice.

But apparently your tenant isn’t alone when it comes to unreasonable demands. At least one state, Alabama, has addressed the issue of notice following a tenant’s request for repairs.

In Alabama, a tenant’s request for repairs or improvements is deemed consent to enter to do the work — see Alabama Code Section 35-9A-303(e). Interestingly, Alabama’s notice period (two days) applies only when the landlord wants to enter to show the premises; other entries can presumably be made without notice.

But even in Alabama, common sense should prevail — the landlord should give as much notice as he can, even if it’s, "Hi, Ella! The repair truck will be there this afternoon." And the tenant should be willing to accept this in exchange for your prompt response.

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Q: We live in an apartment building that was recently taken over by the bank at foreclosure. The bank gave us a 90-day notice to move, and also delivered a questionnaire that asked for information about our relationship with the prior owner, our monthly rent, and for copies of any leases we might have. Do we have to fill this out? What might happen if we refuse? –Emily D.

A: The bank that took over at foreclosure is probably trying to figure out whether you and the other tenants are entitled to the protections guaranteed under the federal Protecting Tenants at Foreclosure Act of 2009.

Under that law, tenants with leases are entitled to stay until the end of the lease or 90 days, whichever is longer (prior to the act, most tenants lost their leases upon foreclosure). Tenants who rent month to month may be terminated, but they’re entitled to 90 days’ notice (previously, the notice period depended on state law, none of which was as long as 90 days).

But tenants cannot take advantage of these protections unless they are "bona fide," which means, first, that they are not the spouse, child, or parent of the former owner; second, that the tenancy was the result of an arm’s-length transaction; and third, that their rent (unless it is a subsidized rent) is not substantially below fair market value.

These requirements were imposed in order to prevent defaulting owners from cutting sweetheart deals with tenants at the last minute, in order to tie the hands of an acquiring bank.

You can see how the questions you’ve been asked will enable the bank to determine whether you’re a bona fide tenant. If it learns, for example, that you’re the child of the former owner or that your rent is way below what the unit is worth or that you extended your lease for two years just before the bank foreclosed even though you had several months remaining on your original lease, it might have grounds for denying you the benefits of the act.

Tenants in these situations would understandably not want to return the questionnaire — why give the bank the information it needs to evict you?

On the other hand, if you have a lease that specifies a reasonable rent and will run for another nine months, the bank will know to leave you alone. In this situation, returning that questionnaire might be to your advantage.

Suppose you’re not sure whether you will qualify for protection as a bona fide tenant, and accordingly, refuse to return the questionnaire? Importantly, the bank apparently hasn’t accompanied the form with a threat that refusing to complete it will result in a decision by the bank that you’re not bona fide (thus allowing the bank to oust you quickly).

Perhaps the bank has learned that this approach won’t work — it was tried by Bank of America in New York in 2010, and a judge shot it down (Bank of Am., N.A. v. Owens, 903 N.Y.S.2d 667 (2010)).

In that case, the court ruled that the act puts the burden on the purchasing bank to prove that a tenant is not bona fide. To allow a bank to conclude that a tenant is not bona fide because the tenant has refused to prove his status is completely contrary to the federal law’s intent — to protect tenants, not to help foreclosing banks accomplish swift evictions.

Accordingly, you should be able to ignore this questionnaire and not face the threat of termination on the grounds that you’re not bona fide. But a word to the wise: If it’s pretty clear, even to you, that you are not entitled to the act’s protections, give some thought now to preparing to leave.

The bank might conclude that those tenants who did not return the form have something to hide, and they may investigate their status to see whether they can be terminated according to state, not federal, law. This is, to be sure, a rather sneaky way to smoke out non-bona fide tenants, but whether a judge would prohibit a bank from engaging in this ploy is another question entirely.

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 janet@inman.com.

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