March 31 2016 Christina Magráns Legal Aid of East Tennessee Outline Basic Laws Uniform Residential Landlord amp Tenant Act URLTA Larger Counties Common Law Rural Counties Illegal Evictions ID: 707751
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Slide1
Landlord-Tenant Basics
Tennessee Faith & Justice Alliance
March 31, 2016
Christina
Magráns
Legal Aid of East TennesseeSlide2
Outline
Basic Laws
Uniform Residential Landlord & Tenant Act (URLTA) – Larger Counties
Common Law - Rural Counties
Illegal Evictions
Fair Housing Laws/Violence Against Women Act
Protected classes and covered markets/individuals
Discrimination
Common Topics: Disability/Handicap and Domestic Violence
Questions and AnswersSlide3
Uniform Residential Landlord & Tenant Act
URLTA applies in larger counties (26 in East TN)
Lease agreements can be written or verbal
Late rent
Maximum late fee charge of 10% of monthly rent
Late fee cannot be charged until after the 5
th
day of the
month*
Security deposits and pet deposits can be required
Landlord
must
provide a habitable
unit
Withstands
weather
Conforms with safety and building codes
Has running water, heat, power, etc
.Slide4
Repairs under URLTA
LL generally has a duty to make repairs to keep the rental unit habitable
Can be modified by agreement in the lease
Repair requests MUST be made in writing
For non-essential repairs, LL has 14 days to make the repair (2 days if it’s an essential repair like heat or water)
If LL doesn’t repair:
Tenant
cannot
withhold rent and stay indefinitely!
Tenant may be able to break the lease and move (caution: balance, deposit)
For essential repairs
only
, Tenant may be able to move and charge LL for the substitute housing, or to repair and deduct from rent (caution: risk eviction!)
Landlord
can charge tenant (or even evict) over repairs if:
Tenant is behind on rent,
Tenant or a guest caused the damage, or
Damages are so extensive that landlord can’t make repairs with tenant
thereSlide5
Eviction Process under URLTA
Notice
of lease termination (determined by type of lease and violation)
Written
agreement
Waiver for
nonpayment of
rent only
means no notice required
Curable breaches: 14 days (if occurring again in 6 months, 7
day notice)
Non-curable breaches: 14 days
Oral agreement
If tenant pays monthly,
14
days
If tenant pays weekly, 10 days
Criminal activity (written or oral agreement): 3 days
After notice period expires, issuance
of a detainer
warrant
Detainer hearing (at least 6 days from issuance of warrant)
10 daysSlide6
Common Law for Rural Counties
Common law applies
in
more rural counties where population is below 75,000
Lease agreements can be written or verbal
Security
deposits and pet deposits can be
required
Landlord
has a duty to provide a habitable rental unit and make repairs to keep it habitable
Withstands weather
Conforms with safety and building
codes
LL must repair emergency issues immediately if the problem is a code violation (i.e. water pipe bursts or heater breaks)Slide7
Eviction Processin Common Law Counties
Form of Notice
Oral or written
Timing of Notice
The Tenant gets 14 days for any of the following lease violations:
1) Tenant hasn’t paid rent on time, or
2) Tenant/guest has damaged the rental unit, or
3)
Tenant/guest
in the rental unit has been violent or threatened the health, safety, or welfare of others.
For all other lease violations, the Tenant gets 30 days.
NOTE: Lease can arrange for different notice periods
Ability to cure default
If the Tenant hasn’t paid rent, owes a late fee, or has damaged the rental unit, the Tenant can cure the breach by paying within the 14 day notice period!
After notice period expires, issuance of a detainer warrant
Detainer hearing (at least 6 days from issuance of warrant)
After judgment, 10 days to move (including weekends
)Slide8
Illegal Evictions in ANY County
Shutting off essential services (power, water, heat, etc.) to make a tenant move, even if the tenant is behind on rent
Locking a tenant out of the unit, even if the tenant is behind on rent
Landlords cannot get possession back without going to court.
A tenant cannot agree to self-help evictions in a lease agreement!Slide9
Fair Housing Act
Legal Authority
42
U.S.C. §
3601 et. seq.
24 C.F.R. § 100 et. seq.
Tenn
. Code Ann. § 4-21-601
Goals:
To afford everyone the opportunity for fair housing, regardless of a tenant’s status in a protected class
To prohibit discrimination by landlords and by those who work in markets affecting housing
Potential areas of overlap:
Violence Against Women Act
Americans with Disabilities Act
HUD rules and regulationsSlide10
FHA: Protected Classes
Race
Color
National Origin
Religion
Creed (Tennessee protection)
Family Status (number of children)
Gender
Disability or Handicap
Note: Sexual orientation, gender identity, and marital status may be added soon under HUD rulesSlide11
FHA: Markets Covered
The Fair Housing Act applies to
dwellings
and the
rental, sale, and use
of those dwellings
Applies to private landlords, HOAs, subsidized housing, public housing, Section 8 landlords, etc.
It also applies to special markets concerning housing including:
Lending
Insurance
Publishing
AdvertisingSlide12
Discrimination under the FHA42 U.S.C. §§ 3604 & 3617
Applying different or harsher terms to those in protected classes
Evicting due to status in a protected class
Lying
about availability
“
Blockbusting”
Harassing
, intimidating, coercing someone on account of membership in a protected class (i.e. retaliation for pursuing, or helping another pursue, their Fair Housing
rights)
Refusing to allow reasonable modifications or reasonable accommodations for tenants with disabilities/handicaps
Other
acts concerning residential
housingSlide13
FHA: Disabilities & Handicaps
Handicap v. disability
They are essentially the same. Federal law uses the term “handicap” while state law uses the term “disability.”
What is a disability/handicap under Fair Housing law?
Tenant has a physical
or mental impairment that substantially limits
1 or
more
major
life
activities, OR
Tenant has a record
of having such an
impairment, OR
Tenant is regarded
as having such an
impairment
NOT as strict a definition as the one Social Security
u
ses, so a tenant can be disabled for Fair Housing purposes but not be receiving SS fundsSlide14
FHA: Disabilities &Handicaps (
ctd
.)
Disabilities/handicaps are not always obvious
Asthma
Depression
Substance abuse (
legal
drugs only)
Arthritis
Exceptions: FHA does not protect:
Abusers of illegal drugs
Sex offenders
Juvenile offenders
Those who pose a non-speculative direct threat to others, where the threat
also
cannot be reasonably reduced or eliminatedSlide15
FHA: Reasonable Modifications
Tenant with a disability/handicap needs to modify a physical aspect of the property due to the disability/handicap
Example: grab bars in a bathroom, removal of cabinets under sinks in a kitchen for wheelchair, etc.
If the tenant meets the definition of disabled or handicapped, then the LL normally must grant permission for the modificationSlide16
Notes on Reasonable Modifications
Tenant
may be responsible for
payment
if the property is built before March 30,
1991
Tenant
may have to undo the modifications upon
vacating
Example: remove grab bars, but not restore a widened door frame
Tenant is responsible for maintenance of the
modification
LL can require tenant to get building permits if required
LL can require that the modification be made in a “workmanlike manner.” LL, however, cannot require any particular contractor
LL cannot require more expensive plans, unless the LL agrees to pay for the excess cost
LL cannot usually require an alternative design, especially if the modification must be removed when tenant leaves
HUD rules have additional protections for tenants in subsidized housingSlide17
More Informationon Reasonable Modifications:
Joint Statement from the Department of Housing and Urban Development and the Department of Justice, March 5, 2008 on Reasonable Modifications available at:
http
://www.hud.gov/offices/fheo/library/huddojstatement.pdfSlide18
FHA: Reasonable Accommodations
Tenant with a disability/handicap needs
an exception, adjustment, or change to a LL’s policy or procedure
Example: Tenant asks to be allowed to have her emotional support dog despite LL’s “no pets” policy
If
the tenant meets the definition of disabled or handicapped, then the LL normally must grant
the accommodation,
unless
:
It poses a direct threat to others
It requires an unreasonable financial or administrative burden
It requires a fundamental alteration of the LL’s normal dutiesSlide19
Important Notes on Reasonable Accommodations
LL cannot ask for medical records in most cases
A statement from tenant, proof of receipt of SS funds, or letter from doctor/therapist/nurse should be enough in most cases
Requests for additional information may violate the Fair Housing Act
Tenant cannot be charged for
making
the accommodation
Tenant with asthma can’t be charged a transfer fee to get away from a neighbor who smokes
LL cannot charge a pet deposit or pet rent for a service/support animal
Tenant
can
be charged for damages
Ex: damages to a service animal causes to a carpet
The accommodation should strive to bring the tenant back into
compliance
with the lease
The tenant must be willing to participate in the reasonable accommodationSlide20
More Information on Reasonable Accommodations:
Joint Statement from the Department of Housing and Urban Development and the Department of Justice,
May 17, 2004 on
Reasonable
Accommodations available at:
http
://
www.hud.gov/offices/fheo/library/huddojstatement.pdf
Department
of Housing and Urban
Development, April 25, 2013 on Service and Support Animals available
at
:
https://
portal.hud.gov/hudportal/documents/huddoc?id=serv
animals_ntcfheo2013-01.pdfSlide21
Examples of Accommodations
Tenant is prescribed an emotional support dog, but LL has a no-pets policy. LL must make an exception and
not
charge pet rent or a pet deposit.
Tenant with mental illness cannot remember when or if she paid rent. As part of an accommodation, the eviction might be put on hold while her mother becomes her representative payee so that mother may make timely rent payments for her daughter.
Tenant whose child had severe asthma was granted the ability to move to a unit away from a smoker without the imposition of a transfer fee.Slide22
Best Practices
Tenant should request a reasonable modification or accommodation in writing and state a deadline
Ask for a meeting to discuss alternative arrangements that can be made, if the LL determines the accommodation/modification is not reasonable or feasible
If the request is denied or ignored, tenant may file an informal complaint or bring a lawsuit
Tennessee Human Rights Commission
Office of Civil Rights (tax credits)
Department of Housing & Urban DevelopmentSlide23
FHA: Protections for Domestic Violence Victims
The Fair Housing Act prohibits discrimination of
women
who are victims of domestic violence based on
gender
discrimination
Disparate impact
Remember the FHA applies to all
dwellings
regardless of funding
Note: a domestic violence victim can be evicted for
other
reasons unrelated to domestic violence (non-payment of rent, drug activity, etc.)Slide24
Violence Against Women Act:Additional Protections
Tenants at subsidized or public housing units have additional protections under the Violence Against Women Act (
VAWA)
VAWA does
not
apply to private LLs who do not accept government funds
Enforcement/Remedies:
A victim’s lease cannot be terminated due to domestic violence against the victim
A victim can ask for a transfer to another unit in public housing or to take the voucher and move
A lease can be bifurcated to evict the abuser and leave the victim’s portion of the lease in place
Victim’s chance to qualifySlide25
VAWA/FHA Violations
“Your boyfriend broke into your apartment and assaulted you, resulting in damages to the apartment.”
“You were stabbed in your apartment by your ex-boyfriend. We do not tolerate this criminal activity.”
“Police called me at 2 a.m. for the 3
rd
disturbance at your unit
.”Slide26
Preventing Evictions of Survivors
Documentation of abuse
Victim’s sworn account of abuse
HUD’s DV Certification
Police report*
Court records (Order of Protection, divorce, DA’s dismissal of criminal charges against victim)
Statement of employee, agent, social services provider, attorney, or medical professional helping with the abuse
Common problems
Abuser calls police first and charges victim
Abuser lies to police or landlord and states that he lives there
Abuser uses housing to control victim (i.e. drugs)Slide27
Important Notes
LL can accept victim’s verbal statement alone regarding the abuse
LLs cannot require a tenant to get an Order of Protection as a condition of keeping their housing
Blount County Circuit Court has ruled that an eviction based on domestic violence cannot be cured by the LL with a supplemental notice
Evictions on the basis of domestic violence are “fatally flawed” from the beginningSlide28
Questions?For clients:
Complete an intake by calling LAET at 865-637-0484
For advocates, agencies, etc.:
Christina
Magráns
Legal Aid of East Tennessee
865-637-0484
cmagrans@laet.org