Q: I have attempted, and failed, to evict a problem tenant. This person constantly demanded repairs, complained about our policies, and bad-mouthed management to other tenants. Finally, he did something that was prohibited in the lease — he parked in another person’s parking place one evening. Because my lease says that failure to abide by its terms and conditions is grounds for termination and eviction, I served him with a termination notice and took him to court when he refused to move.

Even though the tenant admitted parking there, the judge said the violation was minor and wouldn’t justify eviction. How can a judge rewrite a lease that the tenant signed, well aware of the consequences of a violation? –Walter H.

A: Courts normally hesitate to interfere with the provisions of a contract, as long as they are not against the law or so unfair as to "shock the conscience." For example, no court will enforce a lease clause that prohibits the tenant from having visitors of a certain race — that’s against fair housing laws. And most judges would hesitate to uphold a clause that, for example, makes the tenant deliver the rent to the rental office at precisely 9 a.m. on the day it’s due, not a minute earlier or later. This is a trivial rule with consequences — the loss of the tenant’s home — that are manifestly unfair.

The provision concerning parking in your lease is reasonable. You can’t run an effective rental operation if tenants are parking willy-nilly — you’re apt to have a whole building full of disgruntled residents. But to evict someone on the basis of only one transgression is a bit harsh. Doubtless your judge thought you were taking advantage of a one-time lapse concerning a minor rule.

Landlords who jump on minor infractions as the basis for an eviction need to keep in mind that judges may also question whether their decision masks another, illegal motive. Did your judge suspect that you were using this parking violation as a way to get rid of someone who is speaking his mind about management (in some states, tenants are protected from retaliation when they engage in tenant organizing)? When basing an eviction on such flimsy grounds, you are practically inviting the tenant to suggest ulterior motives, which, if proven, could land you in legal hot water.

Your solution, pending any significant violation of the rental terms, is to wait out this tenant’s lease and then simply not renew. …CONTINUED

Q: My landlord is taking us to court over damage that he claims we caused in the home we rented from him. Apparently a pipe had been leaking for some time, and we were unaware of it. When we moved out, the damage became evident. The landlord claims that we were careless in not reporting the problem to him; we believe we were blameless, because the leak wasn’t evident. The landlord has kept our deposit and has sued us in small claims court for more. –Sam and Mona M.

A: Whether your landlord can legally pin the water damage on you will depend on whether he can prove to the judge that you knew, or should have known, of the leak, and failed to report it. To show that you knew of the leak, the landlord will need evidence that the effects of the water damage were (or would have been) evident to a reasonable tenant. For example, if the wall was showing signs of dampness, or the flooring was beginning to soften, or the water bill had spiked noticeably, you’ll have a hard time claiming that you were unaware of any problems. Most reasonable people, faced with these situations, would look into the matter or at least report it to the landlord.

On the other hand, you may be able to show that the leak, though ongoing, was stealthy and caused no obvious problems. It would bolster your case if you can show that the landlord himself inspected the property periodically and failed to note any problems.

As you prepare to go to court, don’t overlook the role your renters’ insurance policy can play here. You’re being accused of acting negligently and causing property damage — the very thing that the liability portion of your policy is designed to cover. Call your agent and discuss the matter. If you lose in small claims court (be sure to countersue for the deposit that the landlord kept), the policy may cover the entire amount. (And if you live in a state that allows lawyers to appear on parties’ behalf in small claims court, you may be entitled to representation courtesy of your policy.)

Ironically, if you win, the landlord’s policy will probably not cover him. That’s because most property policies cover water damage only when it’s the result of a sudden and unexpected event, such as a burst pipe that causes immediate (but short-lived) flooding. Policies exclude the very problem you may be dealing with — damage from an ongoing, slow leak — on the grounds that it’s the result of a maintenance problem.

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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