Challenging a lease termination notice

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Q: Our family has just received a termination notice from the landlord, for bogus reasons. He claims that we’re committing criminal acts on the property because my son was in a fight with a neighboring boy. It’s true that there was a fight, but my son acted in self-defense. Since when is it a crime to defend yourself? Doesn’t there have to be a conviction, or at least an arrest, before we can be tossed out? –Liam N.

A: Almost all landlords use written leases or rental agreements that allow the landlord to terminate the tenancy for disruptive behavior. Even in the absence of such a clause, landlords still enjoy this legal right because of the mutual duty of landlord and tenant to honor the "covenant of quiet enjoyment." The idea here is that tenants are entitled to reasonable peace and quiet, but they also have to act in a way that honors the same right of other tenants.

The landlord, for his part, must control all tenants so that everyone enjoys peace and quiet. If the landlord fails to reprimand (and evict, if necessary) a tenant who doesn’t honor the covenant, other tenants who are affected by the unruly behavior have the right to break their leases and leave. To avoid that result, landlords terminate the lease of the troublemaker.

Neither the legal definition of the covenant of quiet enjoyment nor most lease clauses that enforce it include a requirement that an actual conviction (or even an arrest) occur before the landlord may terminate. Instead, common-sense notions of how much commotion is acceptable prevail. Though frustrating, this standard of "reasonable peace and quiet" works precisely because it is flexible.

For example, we all know that noise at noon on a Saturday is not as disturbing as noise at midnight on a weekday, but would you want a noise standard to include actual decibel levels, days and times? Once you begin to get specific, a "reasonable peace and quiet" standard would grow to many paragraphs, and still wouldn’t cover every possible situation that might come up.

It’s interesting that your landlord has cited not disruptive behavior (the covenant of quiet enjoyment), but criminal acts as the basis for his termination notice to your family. In recent years, many states have given landlords a way to terminate when tenants aren’t just disruptive (that is, violating the covenant of quiet enjoyment), but are violating their state’s criminal law. These tenants don’t get a chance to change their ways and stay. In these situations, states sometimes address whether the tenant must have been arrested or convicted before a landlord may take such a harsh step.

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For example, in New Jersey, the tenant must have been convicted or entered a guilty plea to one or more specified offenses before a "no second chances" termination on the basis of specific behavior will stick. (N.J. Stat. Ann. Section 2A:18-61.1.)

Other states aren’t so precise — in Missouri, for example, "allowing the illegal possession, sale or distribution of controlled substances upon the premises," which is also a criminal offense, is grounds for voiding the lease and demanding that the tenant move immediately — but no arrest or conviction is needed. (Mo. Rev. Stat. Section 441.020.)

Even HUD, in its model lease for Section 8 tenants, gives landlords the right to terminate "if the landlord determines" that the tenant or a guest has engaged in criminal behavior. (HUD Section 8 Model Lease, Section H(i)(8).)

You’ll need to take another look at your termination notice. If it gives you a chance to cure, or reform, your household’s behavior, take advantage of that opportunity and ask for a meeting with the landlord (and perhaps the other boy’s family). Discuss what happened and try to steer the conversation towards what the adults can do to help their children avoid future fights. You may be able to convince the landlord that you have "cured" the problem that resulted in his termination notice. …CONTINUED