What is an eviction?

I had a call from a lady this morning and she said she received an “eviction” notice from her landlord. After listening to the lady’s story it became clear that she hadn’t received an eviction notice but rather an “end of term” notice. It’s a common misconception on the part of both tenants and landlords about what an eviction really is. An eviction occurs after a resident is unlawfully detaining the rental. In other words they were given a notice of some sort (3-day pay or vacate, 30 day notice to vacate, etc…) and they failed to follow the terms of the notice which in many cases means they didn’t move out. Once the resident is unlawfully detaining the rental then the landlord can file for an eviction with the courts. If the landlord prevails in court then an order of restitution is granted and the resident can be forcibly removed from the rental if they don’t leave voluntarily. Residents need to understand that landlords have the option to end a lease just like the resident does. When the lease expires the landlord is under no obligation to re-rent to the person again. Just like the renter has the option to move somewhere else, the landlord has the right to ask the renter to move. Simply having lived there for the last few years doesn’t mean the rental is yours. If the landlord wants you to move, you’ll have to move.

How to anger your tenants

I had a phone call from an angry tenant who wanted to sue his landlord.  His refrigerator had died and he reported it to his landlord and the landlord took 8 days to replace the refrigerator.  The tenant wanted to sue his landlord and asked me what steps to take. Unfortunately for the tenant the landlord acted within his rights and within state law. Under the Utah Fit Premises Act-deficient condition a landlord has 10 days to repair or replace a broken appliance such as a refrigerator.  The tenant wasn’t happy and asked if there was anything he could do. I told him his only recourse was to move out when his lease expired. He said he was already planning to do that. It’s unfortunate that the landlord will lose this tenant over something as simple as fixing or replacing his refrigerator in a more timely manner.

Landlord stories

I’ve been unsure of what to blog since I started this site a couple years ago and assumed I had nothing new to offer so why bother writing.  Lately I have had several phone calls from landlords and tenants that have given me an idea.  I normally share experiences in my training classes and will continue to do so, but I am now going to blog about experiences that I hear about first hand.  Here goes:

I recently had a call from a landlord who had taken my training class and was looking for advice on how to handle a “crazy” tenant.  It turns out that this tenant who was “wonderful” when he moved in was now refusing to pay rent, damaging the rental and threatening the landlord and her family.  The landlord said she didn’t bother to call the previous landlord for a reference because this person owned his own coffee shop and was an honest local businessman. She later found out that he was being evicted at the time he moved into her rental. The landlord is expecting a lock out on Monday the 6th but doesn’t want to be part of it because the tenant threatened to kill anyone who tried to lock him out.

This is a great example of why landlords need to be thorough when checking backgrounds.  A few minutes on the phone could have saved this landlord tremendous heartache, loss of rent and damage to her property. She told me that the neighbor she talked to said the guy has already rented another place so the bad tenant has again taken advantage of a landlord who is too trusting.

Utah Landlord’s Guide to Security Deposit Disputes in Small Claims Court

Utah Landlord’s Guide to Security Deposit Disputes in Small Claims Court

Learn how to defend yourself in court in Utah if a tenant sues you for the security deposit.

Know Utah’s Rules for Returning Deposits

The most important thing you can do is to follow state law scrupulously when you return security deposits. Make sure you meet the Utah deadline of 30 days, or within 15 days of receiving the tenant’s forwarding address (whichever is later), for itemizing and returning the tenant’s deposit. If there is damage to the premises, the deadline is 30 days. The itemization should be in writing and state how the deposit has been applied toward back rent and costs of cleaning and damage repair, together with whatever is left of the deposit. For details on state security deposit rules, including any exemptions that may apply and interest requirements, see Utah Security Deposit Limits and Deadlines.

Prepare a Move-Out Letter

To reduce the possibility of disputes over security deposits, write a move-out letter to tenants who have given you notice that they are ending the tenancy. Your move-out letter should:

  • tell the tenant how you expect the unit to be left (be specific about cleaning things like floors, appliances, and window coverings)
  • explain your final inspection procedures
  • list the kind of deductions you may legally make (unpaid rent and necessary cleaning and repairs, outside of “ordinary wear and tear”), consulting your state law for specific guidance
  • remind the tenant to return keys and provide a forwarding address, and
  • state when and how you will send any refund that is due.

Inspect the Rental Unit

After the tenant leaves, you will need to inspect the rental unit to assess what cleaning and damage repair is necessary. Many landlords do this on their own and simply send the tenant an itemized statement with any remaining balance of the deposit. If at all possible, do your inspection with the tenant who’s moving out, rather than by yourself. This will go a long way towards minimizing deposit disputes. Ideally, you will have used some kind of inventory or Landlord-Tenant Checklist when the tenant moved in so you can compare the condition of the rental at the start and end of the tenancy.

It’s also a good idea to photograph or videotape the rental unit so that you have visual proof of the condition of the rental unit when the tenant moved out. Ideally, you will have also done this when the tenant moved in, so you have before and after photos.

You may want to offer the tenant a second chance at cleaning or fixing any damage you’ve identified in the final inspection before you deduct cleaning charges from the security deposit.

Prepare an Itemized Statement of Deductions

Once the tenant has completely moved out and you’ve inspected the premises, prepare an itemized list of deductions for cleaning, repairs, back rent, or other financial obligations required under your lease or rental agreement. List the item (such as repainting living room wall or five days unpaid rent) and the dollar amount of the deduction. Regarding repairs and damage repair, attach receipts (if you’ve already had the work done) or provide a reasonable cost estimate. You can use Nolo’s Security Deposit Itemization Form for this purpose.

If a Tenant Sues You for the Deposit

No matter how carefully you followed Utah security deposit laws, and properly account to your tenants for their deposits, you may be sued by a tenant who disagrees with your deductions, or claims that you failed to return the deposit when and how required. Tenants usually sue in small claims court, where it’s cheap to file, lawyers aren’t necessary, and disputes typically go before a judge (there are no juries) fairly quickly. You don’t need a lawyer—in fact, they’re not even allowed in some cases. The maximum amount for which a tenant can sue in Utah small claims court is $10,000.

See the Utah state court website for more details on small claims lawsuits rules and procedures.

When a Tenant May Sue

Before going to court, your tenant will most likely email, write, or call you demanding that you refund more than you did or fix some other problem involving the deposit. Some states require this type of demand letter before the tenant can begin a small claims case.

Obviously, if you have failed to meet your state deadline for returning the deposit (30 days in Utah, or within 15 days of receiving the tenant’s forwarding address, whichever is later), do what you can to make things right. If not, and the tenant sues you and wins, you may end up losing the entire deposit, plus be assessed hefty penalties or punitive damages if you acted in bad faith when violating state security deposit law.

Settling a Potential Lawsuit

Do your best to stay out of court. Try and working out a reasonable compromise, perhaps with help from a local mediation service. If you reach agreement with your former tenant, sign a settlement agreement in which the tenant agrees to accept payment as full and final satisfaction of your obligation to return the deposit.

If compromise is not possible, your tenant will probably sue you promptly, but may have up to a few years to do so, depending on your state’s statute of limitations (typically, at least one year). So, don’t throw out cleaning bills, receipts for repairs, or photos showing dirt and damage, lest you be caught defenseless.

Preparing for a Small Claims Court Hearing

If the tenant sues you, the court will officially notify you of the date, time, and place of the small claims court hearing. Preparation is key to winning your case in small claims court. You want to make it clear that you knew (and followed) your state security deposit rules. In addition, you’ll want to assemble tangible evidence to take to court (what you need depends on the specifics of your case), such as:

  • a copy of your lease or rental agreement, signed by both you and the tenant
  • copies of any correspondence, such as a move-out letter, spelling out your rules and policies on cleaning, damage repair, and security deposits
  • any move-in and move-out inventories (ideally, signed by both you and the tenant), photos, and/or videos of your rental unit that show the condition of your property at the start and/or end of the tenancy
  • the security deposit itemization you sent the tenant, setting out details on all your deductions
  • backup to the itemization, such as hours spent by you or repair or cleaning people on the unit, copies of receipts for cleaning and related services, and details regarding any deductions you took for unpaid rent
  • one or two witnesses (or written statements from witnesses) who were familiar with your rental unit and will testify that the place was a mess or that certain items were missing or damaged after the tenant moved out, and
  • anything else relevant to your case.

Defending Yourself in Court

Small claims courts are informal places, but you may want to consider watching a few cases a few days before your court date, so you know what to expect. Your court website may also provide useful advice. Before you go to court, practice your statement with a friend or relative, so that you can defend yourself in an efficient and convincing way, backed up with relevant evidence.

The trial consists of both you and your tenant explaining your point of view of the dispute, and presenting any evidence or witnesses. This typically takes less than half an hour, and the judge either announces a decision right in the courtroom or mails it within a few days.

If the Tenant’s Deposit Doesn’t Cover Damage and Unpaid Rent

Tenants aren’t the only ones who can use small claims court. If the security deposit doesn’t cover what the tenant owes you for back rent, cleaning, or repairs, you may wish to file a small claims lawsuit against the former tenant.

Remember that you must provide the tenant an itemization by the state deadline, even if you don’t send money—for example, if the tenant has left owing several months’ rent or the entire deposit did not cover necessary cleaning and damage repair.

Start by writing a demand letter to the tenant, asking for the amount of your claim. Include a copy of your written itemization of how you applied the tenant’s security deposit to the charges (this itemization should have requested payment of the balance). Ask for exactly what you want and be sure to give the tenant a deadline. Conclude by stating that you will promptly file a lawsuit in small claims court if you don’t reach an agreement by the deadline.

If your demand letter does not produce results, ask yourself the following questions before going to court:

  • Do I have a strong case and substantial evidence to win?
  • Can I locate the former tenant?
  • Can I collect a judgment if I do win?

If the answer to any of these questions is no, think twice before filing suit.

See the Utah state court website for more details on small claims lawsuits rules and procedures.

More Information on Small Claims Court and Security Deposits

Nolo’s Small Claims Court & Lawsuits section provides a wide variety of articles on small claims court, including an overview of Utah small claims rules and procedures. The small claims section of the Nolo site also includes general articles on what to do if you are sued in small claims court, how mediation works in small claims cases, how to file an appeal in a small claims court case, and more. For complete details on the subject, see the Nolo book Everybody’s Guide to Small Claims Court.

The Landlords & Rental Property section of the Nolo site includes dozens of useful articles on property management, rental applications, preparing a lease, repairs, and more.

Nolo’s Every Landlord’s Legal Guide includes detailed advice on itemizing security deposit deductions for unpaid rent, cleaning, and repairs; handling deposits when a tenant files for bankruptcy or is evicted; dealing with deposits from cotenants; drafting a settlement agreement; collecting a court judgment if you sue and win your case, and more.

Bedbugs in Utah

Bed Bugs Are Booming In Utah

(KUTV) The very thought of them can make your skin crawl, blood sucking bed bugs! They’re apparently more of a problem in Salt Lake than ever before.

“I would say five or six years ago, we’d maybe get one or two calls a month. Now virtually every day we’ll get a question or a complaint about bed bugs,” Environmental Health Bureau Manager Dale Keller told 2News. He walked reporter Amy Nay through a presentation he gave Thursday to the Salt Lake County Board of Health, detailing the recent bed bug boom. 

“The Centers for Disease Control would tell you that they neither carry or transmit a communicable disease,” Keller went on to say, “Clearly though the ‘ick’ factor is off the chart, something trying to suck your blood while you’re asleep…and we get that and that’s why we see this as a real problem and are making it a high priority to address.” 

“It’s been great for business, but unfortunate for all those people who have to deal with them,” Kurt Anderson from Preventive Pest Control says they’ve seen a 400% jump in bed bug calls. In fact, right after speaking with 2News Friday they went out on a call about bed bugs. He says it’s never easy. “It’s very intense. You gotta’ get into the seams of the mattress… in pictures, the carpet, the baseboards, in drawers… in every single area they can find, they’ll find that crack.” Preventive Pest Control uses pesticides and advises calling in professionals to do that, but Anderson said there are also other things you can do like attracting them to stations, using heat treatment and more.

The University of Utah used heat treatment after bed bugs were detected in the upholstered seating on the library’s first and second floors in October. It was a highly publicized event, but local health experts say, unfortunately, it’s more common than many believe. 

For more information: http://www.slcohealth.org/programs/sanitationSafety/faqs/bedBugs.html

Amy Nay

Companion Animals

The question comes up a lot – does a property have to grant a tenant’s request for a companion animal the same way that it has to consider a request for a service dog or an assistance animal.
The answer is pretty clear. Regardless of what the animal is called – service animal, assistance animal, therapeutic animal, companion animal or anything else – the property must permit the resident to keep the animal if (1) the person seeking the accommodation is a person with a disability, (2) the person needs the animal because of his/her disability and (3) allowing the tenant to keep the animal would not impose an undue financial and administrative burden on the property.
The Fair Housing Act (FHA) does not mention the word “animal” in any context but the United States Department of Housing and Urban Development (“HUD”) has long taken the position that allowing a disabled person to keep an animal may be a reasonable accommodation within the meaning of the FHA. What an animal is called is irrelevant. Although early case law suggested that the particular animal must be individually trained to assist the person with a disability, both courts and HUD have long discredited that suggestion. The controlling question today is only whether allowing the animal is something that is reasonable and necessary to afford a disabled person an equal opportunity to enjoy a dwelling.
Between 2002 and 2010 the United States Department of Justice (“DOJ”) filed ten (10) federal court lawsuits against landlords, arguing that the failure to offer reasonable accommodations to tenants with emotional support animals (“therapeutic” or “companion” animals) violated the FHA. Each of those ten cases was resolved with a consent decree, a settlement or a favorable jury verdict. In each of those cases DOJ sought an accommodation involving emotional support animals, notwithstanding the lack of specialized training.
Claims raised by private individuals and fair housing organizations are getting similar results. In the Orange County, California Superior Court two cases filed by the California Department of Fair Employment and Housing recently settled for $185,000.00 and $200,000.00 respectively. Both of those cases alleged a failure by landlords to permit tenants to keep therapeutic or companion animals as a reasonable accommodation for a disability. Other states, while not quite as generous, saw similar results. In Oregon last year, for example, landlords settled similar cases for $75,000.00 and $50,000.00, in addition to requirements for changes in rental policies and fair housing training. In August 2012 a federal court in Hawaii granted summary judgment for a tenant whose landlord had refused to allow him to keep a companion animal as an accommodation for his mental disability. A North Dakota court reached a similar conclusion in March 2011, where the court said:
Imposing a requirement that only animals with specialized training can be deemed “a reasonable accommodation” in the housing context has the effect of discriminating on the basis of disability. Under such an interpretation, landlords would be required to make a reasonable accommodation for individuals with physical disabilities, such as those that are blind or hearing impaired, but would not necessarily have to accommodate those with a mental disability-related need for support, such as depression or anxiety. A determination that animals need not have specialized training to fall within the purview of the FHA ensures the equal treatment of all persons with disabilities who need assistance animals in residential housing. Such an interpretation is consistent with the plain language of the statute, HUD’s regulations and the DOJ’s position.
Under these cases, as well as under HUD’s and DOJ’s interpretations, a landlord must utilize the same individualized assessment when a resident wants to keep an emotional support animal as it does when the resident wants to keep a seeing eye dog, or other individually trained animal.
That analysis requires the landlord to first consider whether the resident has a disability as the FHA defines that term. For these purposes a disability is a physical or mental impairment that substantially limits or restricts one or more of a person’s major life activities. As set out in the definition, both physical and mental impairments are covered by the Act, and landlords must make accommodations for both of them.
Next, the property must consider whether the accommodation sought by the resident is “necessary to afford the handicapped person an equal opportunity to use and enjoy the dwelling.” “Equal opportunity” refers to the same opportunity that is afforded to persons with different kinds of disabilities and to those without disabilities.
Finally the property has to evaluate whether providing the requested accommodation would impose an undue financial and administrative burden on the property. This financial and administrative burden is not a speculative burden but a requirement that the property show an actual burden that will result from allowing the specific animal that the tenant wants to keep.
This individualized assessment is intended to separate those residents who only want pets from those who need an animal because of a disability. As the North Dakota court wrote:
The Court believes that this analysis ensures that only those with proper disabilities are afforded accommodations such as assistance animals; it will not, as portended by the AOAO, result in everyone who wants a pet being afforded an assistance animal, so long as they label it an emotional support animal. Rather, because the animal must alleviate the disability, only those with disabilities will be afforded this accommodation.
Obviously a determination as to whether or not to permit a person to keep any kind of assistance animal – therapeutic, service, companion or otherwise – is a complex legal question. Properties with any uncertainty about their decision are strongly encouraged to seek knowledgeable legal counsel before making any determinations.