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August 20, 2008 09:39 AM
Family challenges 'cure or quit' notice
Rent it RightAugust 20, 2008 09:39 AM
By Janet Portman
Inman News
Q: My wife and I received a three-day "Notice to cure or quit" from our property manager. The manager claims my child was throwing thrash and making excessive noise inside the apartment complex. When we asked for proof, they said that they did not have any. In fact, we found out that there were several other children playing with our child on the alleged date, and their parents did not receive notices. I smell discrimination! --Robert
A: Your family may have experienced unequal treatment, but that's not necessarily the same as illegal discrimination. Here's the basics: Landlords may not single out people and treat them differently because of a protected characteristic (race, color, religion, national origin, families with children, pregnancy, disability, and sex). For example, landlords may not reject prospects because of their race or terminate the leases of certain tenants because of their religion. Nor should a landlord choose to "write up" a black child and not a white child, for the same rule-breaking behavior. But you haven't told me anything to indicate that your family was singled out on the basis of your race, religion or any other protected characteristic. Unless you can place yourself within a legally protected class and argue that management chose to send the 'cure or quit' notice to you because of your status, you don't have a discrimination beef.
If you're not dealing with illegal discrimination, give some thought to what may be going on here. Perhaps your child is perceived as the ring leader, and management wants to remove him to quiet things down. Or, maybe they want to get rid of you for other reasons, and are seizing on this opportunity to send a notice. As unpleasant as some of these possibilities may be, you cannot deal with the situation until you've considered them and honestly evaluated them.
It would be a good idea to ask for a meeting with management, hosted by a local mediator (many cities provide landlord-tenant mediation at no cost -- contact your city attorney for information). At the meeting, where the mediator will elicit both sides' versions but won't hand down any decisions, you may get to the bottom of why you, and not the others, received a notice. If you're seriously interested in maintaining good relations with management, you'll need to spend a little time working on it. And in the meantime, speak with your child -- noticeably absent from your question was a denial that the kids were out of line. If they were causing an unreasonable ruckus, that has to stop.
Q: My ex-tenants owe me rent but have moved to another state. Can I sue them for nonpayment of rent? What happens if they leave the country? --Kerri
A: Suing tenants who are no longer in your state is legally possible, but it may be difficult to accomplish. Let's assume you'd use small claims court, because of the relatively small amount of money involved, and because it's faster and cheaper to handle the case yourself (in fact, if you're suing over a few thousand dollars, it will cost you that much or more to hire an attorney). To get your case before a judge, you'll need to give the tenants the court papers that announce your lawsuit and tell them how to respond (this is called "serving" the defendants). But here's where you encounter a problem: In regular trial courts, you can serve the other side wherever your process server finds them, even out of state (there's a special process for serving defendants in another country, too). But in small claims court, unless the defendant injured you in a car accident in your state or owns property in your state, you have to serve the defendant within the boundaries of your state.
Because you probably don't know whether the tenants still visit your state, let alone how to find them if they do, suing them in your home state in small claims court isn't going to work. The next option is to sue them in the state where they now live. Depending on the geography, this might be doable. Some states allow you to initiate a small claims court lawsuit -- and serve the court papers -- by mail, though you will have to show up for trial. Needless to say, suing someone who has moved out of the country isn't an option for you.
Landlords who find themselves burned by "skips" have found various ways to respond, from turning the debt over to a collection service to using online "bad tenant" Web sites to blacklist the tenant. Collection agencies have a blunt way of getting some debtors to pay attention -- they threaten to report the debt to a credit reporting agency, which may then place the debt on the debtor's credit report. Often, this threat is enough to get the debtor to pay up, or at least pay a portion. The collection agency will take some of what it recovers as a fee, however, so you may end up with only a small percentage of what you're owed. If you're interested in using a collection agency, tell them how far you're willing to compromise.
Q: My sister is in a long-term (six years) rental situation. She had a one-year lease, then went month to month. All has been rosy with her out-of-state landlord until this year. He's announced that he needed to sell the house immediately in order to satisfy an IRS debt.
My sister is on housing assistance, so her options for moving are very limited. The agency assists with the rent, but does not help with security deposits. In order to move, my sister needs a refund of her security deposit from her current place. Unfortunately, the landlord made it clear that he expects her to stay (and continue delivering the rent) until he sells, and he has refused to refund her deposit until then. This sticks her there, unable to secure a new home, until he sells, at which time she may have as little as 15 days to get out. My sister always pays on time and keeps a spotless house, so I can't imagine that the landlord will even need the deposit.
My sister has now been advised to file a lien against the house in order to recover her deposit so she can begin looking for a new home. She hopes that the threat will bring about action, but I'm not so sure. I don't believe she can afford an attorney, and I'm not sure how well this approach would work. --Krista T.
A: Your sister's landlord is entitled to keep the deposit until she moves out, though he must return it (in most states) within a specified or at least a reasonable period of time, minus deductions for only unpaid rent and damage beyond normal wear and tear. Your sister isn't alone in being squeezed at moving time, needing to come up with a deposit on a new home before the deposit from the old has been returned. With rents as high as they are these days, a tenant can easily have a few thousand tied up in the old deposit and need several thousand more for the first month's rent plus the new deposit (which in some states can be twice the monthly rent). Her options are limited, and her best course might be to appeal to family or friends for a very short-term loan. If the place really is in great shape, she should be able to pay off the loan as soon as the full deposit is returned to her.
Your sister definitely should not file a lien against the property in an effort to pressure the owner to return her deposit early. A lien is a legitimate device when used properly, by someone to whom the property owner owes money. For example, contractors or subcontractors who have performed work on a property but have not been paid are entitled to a lien, as is the IRS if the property owner owes back taxes. If the matter isn't resolved, the lienholder can force a sale of the property to satisfy the unpaid debt. Because liens stay with the property no matter who owns it, the presence of a lien on a property's title report is a "cloud" on the title, and it will diminish the value of the property and certainly discourage many would-be buyers. A seller will normally clear up any liens before placing a piece of property on the market.
If she files a lien, your sister will be doing so fraudulently, because she has no claim of an unpaid debt. The owner will get it removed, but that's not the end of the story. Abusing the legal process will expose your sister to a lawsuit from the owner for intentionally interfering with his business opportunities. Needless to say, she doesn't need this trouble. She'd be better served to begin looking for alternate housing now, giving the legally required notice once she finds a place, and lining up her supporters for help with the new deposit.
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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Copyright 2008 Janet Portman
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