Q: I own and live in a fourplex apartment building, renting out the other three units. I want my property to participate in our city’s recycling programs, and have clauses in my leases that obligate tenants to use the recycling containers (including a container for kitchen scraps).

Because I use the containers, too, I have seen that at least one tenant is not recycling, putting kitchen scraps, newspaper, glass and cans into the regular garbage bin. How can I find out who is not recycling without illegally violating my tenants’ privacy? –Jason S.

A: Your compliance with the city’s recycling program is admirable, as is your decision to obligate tenants to join you in this effort. But being able to monitor for compliance is tricky.

Most lease clauses that regulate tenant behavior, such as requiring tenants to keep dogs on a leash, are easily checked for compliance — you see the dog running free, you send the appropriate warning and, if the misbehavior continues, you terminate the tenancy. Obviously, you can’t stand at the trash bins 24/7 and inspect every tenant’s deposit. But you may be able to find out in other, less time-consuming ways.

First, although it sounds a bit unseemly, consider buying a pair of sturdy rubber gloves and taking a look at that bag of mixed garbage and recyclables. You may find addressed envelopes or other evidence that will tell you which unit the bag came from.

Some tenants may object to this intrusion into their privacy, but you have a pretty good reply: First, not every state will even recognize your tenants’ right to privacy when the person doing the looking is another private (non-government) party. (California is a notable example, however).

Even if your state protects its residents’ privacy in a situation like this, your tenants would have to convince a judge that they had a reasonable expectation of privacy under the circumstances. Leaving the bag open, so that anyone can see inside when adding their trash to the bin, hardly meets that requirement.

Most judges would find that tenants who act like this have no reasonable expectation of privacy once they place their visible castoffs into a communal trash container.

Now, suppose the tenants get crafty and seal or otherwise close the bag so that you’d have to undo a knot or cut the bag open to check for compliance — would you then be violating a reasonable expectation? It’s much harder to make the call here — some might argue that using a communal receptacle is enough, in itself, to destroy any reasonable expectation of privacy.

Instead of poking through open trash bags, or opening closed ones, you might want to take a roundabout approach to encouraging recycling. Give some thought as to why the tenants aren’t recycling — are the receptacles in a convenient place? Are there enough of them? Do tenants have convenient ways of collecting recyclables in their own units prior to bringing them to the waste bins?

Send tenants a written letter pointing out that the lease requires recycling and that recyclables are finding their way into the trash. In your letter, ask tenants to comply with the recycling program — and ask for input on how you can make recycling easier.

You may find that there are changes you can make that will make the difference for them (for example, consider supplying tenants with a pail, with lid and odor damper, for kitchen scraps). And it never hurts to remind your tenants why they are being asked to recycle — contact the agency or service that collects trash and recyclables for your building, or your city government, and ask for literature that touts the virtues of recycling.

Q: I’ve been a tenant at my current place for two years, and recently signed up to have my rent payments automatically deducted from my checking account (the management company touted this on its Web site, and it seemed like a good idea to me). …CONTINUED

Unbeknownst to me, the deductions weren’t being made and I was presented with a $50 late fee and a $175 "court fee." The management company admitted that a technical error was made and agreed to rescind the late fee, but said that the "court fee" was beyond its control. I haven’t received any papers from a lawyer or court. Do I have to pay this court fee? –Huascar K.

A: Late-fee clauses are common and, as long as they comply with the law, enforceable as well. But a late-fee practice must be described in the lease or rental agreement (in some states, it’s valid only if it’s in a written lease). Ditto with paying for court costs — many rental documents provide that if the landlord must go to court to enforce a provision in the lease, a losing tenant will pay the landlord’s court costs and attorney fees.

In even-handed leases, such clauses run both ways, so that a victorious tenant will collect from a losing landlord, too; and in some states, these clauses are interpreted as running both ways, not matter how they’re phrased. So the first issue for you is whether your lease has an attorney fees clause. Without a costs and fees clause, management cannot impose such a fee.

Let’s assume that your lease does have a fees and costs clause. Management apparently consulted with its lawyers when it noticed that the rent wasn’t being paid, and the lawyers probably drew up a pay-or-quit notice.

It’s unlikely that they filed anything in court, because in most states, tenants who don’t pay the rent must be given a chance to pay the rent within a few days or leave voluntarily, before the landlord can file for eviction. Even a gung-ho law firm would probably wait to actually write an eviction complaint until they knew it would be necessary.

Maybe you can see where this is going: Management incurred legal fees that were either unnecessary or ill-considered. The supposed nonpayment incident turned out, by management’s own admission, to be a mistake — and not one of your making.

In other words, the "case" against you is a loser. Either management should not have run up those fees in the first place or you are the winning party in this dispute (even though you never got to court). Either way, you are not responsible for management’s legal costs.

So here’s the bottom line: If your lease doesn’t have a fees and costs clause, or it has such a clause that runs both ways (as written or by law in your state), you have very good grounds for refusing to pay that fee.

In practice, you’ll be making that argument as a defense to an eviction lawsuit, so be very sure you’ve got the facts and the law on your side before risking your tenancy.

Actually, if the management company has even an ounce of marketing and tenant relations sense, it’ll absorb the fee and hope that its gaffe doesn’t become known and discourage steady, rent-paying tenants like you from using the automatic rent-paying plan or from continuing to live there.

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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