Favoring families over frat boys
Rent it Right
November 12, 2009
By Janet Portman
Inman News®
Q: For the past three years, we have been renting out our summer cottage for two- or three-day overnight periods to a group of university boys. We were given their Greek name, which we interpreted to be a Greek honorary group. This is a relatively new fraternity and when we began renting to them, we could find little information about them.
During a recent rental, our neighbors became concerned because the boys were conducting some kind of a ritual on our deck involving chanting, robes and candles (I believe it was a new membership ceremony). We now know that this is a fraternity for gay, homosexual and progressive men.
We are uncomfortable with the activity that goes on when they rent. We do not feel they were totally honest with us about their fraternity when they first started renting. Is it illegal to tell them that our summer home is now only for family vacationers? --Marilyn and Don H.
A: When I began reading your question, I was sure I was going to hear the familiar lament about renting to college kids, particularly fraternity boys: the noise, the parties, the inconsiderate treatment of property and neighbors … behavior not shared by all college renters, to be sure, but common enough. Landlords facing these problems have many remedies, including using lease clauses that make it clear that rowdy behavior and significant property damage will be grounds for termination.
In fact, the answer to your question lies in understanding why the law allows landlords to prohibit these types of activities and behavior. It's the behavior, not the nature of the renters themselves, that landlords may legitimately target as grounds for termination. The landlord has a right to protect his property and has an obligation (to neighbors and the government) to prevent tenants from causing a disturbance or worse. No matter who the renters are, inconsiderate behavior and property damage should result in losing the rental, and it's fine for landlords to enforce these rules.
It's a very different situation if a landlord targets particular types of tenants rather than particular types of behavior. For example, a landlord can get into trouble by refusing to rent to students as a whole -- some cities actually include "matriculation status" as a protected class. In these cities, a landlord who will not rent to students is a candidate for a discrimination lawsuit, as much as if he'd said, "No pregnant women" or "No blacks."
You write that you're not "comfortable" with the "activity that goes on." Does this mean that the deck activities observed by your neighbor are not consistent with your good-tenant standards, which you'd disapprove of no matter who performed them? Would you be equally concerned if this were a heterosexual fraternity? If so, you are certainly entitled to tell your university renters that their outdoors activities are disturbing the neighbors, and they should cool it or at least move indoors.
But you also say that your preference would be to rent only to families. Your solution suggests that your real beef is with the nature of the renters themselves, regardless of their initiation activities. And here is where things can get tricky.
To refuse to rent to a group comprised of gay men, simply because they're gay, would indeed be illegal discrimination in some states and cities. Many states -- including California, Connecticut, Maine, Maryland, Massachusetts, Minnesota, New Jersey, North Dakota, Oklahoma, Oregon, Utah, Vermont, Wisconsin, and even Washington, D.C. -- extend such protection. And even in states that don't, some cities within those states have passed their own protective ordinances, including Atlanta, Chicago, Detroit, Miami, New York, Pittsburgh, St. Louis and Seattle (for more information, check out lambdalegal.org).
You'll need to sort out your true motivation for wanting to sever your rental relationship with tenants who, until now, have not posed a problem. If you really don't want to do business with gay tenants, no matter how they behave, you'll need to find out what your state and local laws say about discrimination based on someone's sexual preferences. But even if you can stop renting to these fellows without legal ramifications, give some thought to whether it makes good business sense. Two or three years of hassle-free renting tells you that these guys are good risks. Besides, you never know who you'll get instead -- perhaps a "traditional" fraternity, complete with beer kegs and a stadium-worthy sound system. Robes and candles might be preferable.
Finally, your advertising solution -- only families need apply -- is itself problematic. Does this mean that you won't rent to two heterosexual but unmarried people, excluding even those who are not romantically involved? You might run into "familial" or (in some states) "marital" discrimination issues here, again depending on your state and local interpretation of the law. The lesson is clear -- rather than trying to exclude classes of people, focus on their track records as tenants and their treatment of neighbors and property when renting from you. Bad behavior, no matter who does it, is always grounds for rejection or termination.
Q: I'm renting an apartment to two college kids. I've got their parents on the lease as guarantors. When I collected the security deposit, it came as two checks, in equal amounts, from each set of parents. Does the fact that the parents have paid the deposit mean that I have to include them in the move-out inspections? Does it give them the right to contest my use of the deposit money, including any deductions I might make at the end of the tenancy? Can they take me to small claims court, instead of or with their kids as plaintiffs? I'm worried because one of these parents is a lawyer. --Henry H.
A: Even if all four parents were lawyers, I doubt that they'd succeed if they tried to assert the tenant rights that you mention. By furnishing the security deposit (or even paying the rent, for that matter), these parents have indirectly given their children a gift, or at most a loan. Unless you agree that these gift-givers or lenders can have a seat at the landlord-tenant table, the parents are out of the picture, legally speaking.
There are lots of situations where parents (or others) pay the bills but don't enjoy the rights that traditionally come with their purchase. For example, many parents pay college tuition, but this does not entitle them to view their children's academic or other records, nor does it entitle them to attend class! Parents often pay insurance premiums for their kids, which insurance companies are happy to receive. But parents don't have the right to start using the pediatrician as their primary care physician; they'll need to purchase or rely on their own health insurance for their own medical needs.
In the world of commercial leasing, however, the rules are somewhat different. There, the "parents" (to the landlords, in this case) are often banks that have lent landlords the money to buy a building. The bankers want to make sure that the landlord doesn't do anything that might jeopardize his ability to repay the loan. To protect their investment, the banks insist on being part of every leasing transaction. The banks often review the leases and take other steps to make sure things work out as planned.
It's conceivable that your tenants' parents could insist on a similar arrangement, getting you to agree in a lease provision, for example, that they will be notified of any inspections and any deductions you intend to make from the deposit. But that's about as far as they could go. Even if you wanted to, you probably cannot give them the right to take you to court on behalf of their children because the right to sue -- called "standing," in legalese -- is something the legislature, not a private party, confers. Because the parents are not technically your tenants, they also don't have the legal rights granted to tenants by state law, including the right to sue a landlord. Your answer to the parent who expects that his check-writing will entitle him to assert his child's tenant rights should be a polite, "I don't think so."
One would hope that instead of trying to figure out how to intervene in future disputes with their children's landlord, parents might consider spending that time educating their kids in the rights -- and responsibilities -- of being a tenant. If the student-tenant doesn't get the picture, and loses some of that deposit to well-founded deductions, he can think of this as yet another college class -- Hard Knocks 101.
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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