How to Protect Your Right to the Security Deposit

Posted: Jul 09, 2019
By: NatEvict
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How to Protect Your Right to the Security Deposit

As a landlord, you may be entitled to keep a portion of your tenant’s security deposit for reasons such as a breach of lease or damage caused to the apartment. However, if you do not follow your state, county, and city security deposit laws exactly, you may be forced to return the security deposit you are rightfully owed. Here are some steps to take to help you protect your right to the security deposit.

Put it in Writing

All information regarding the security deposit basics should be included as a provision in your lease agreement. It should include:

The amount of the security deposit received.
The fact that it is a refundable deposit if the tenant abides by all terms of the lease.
That it will be stored according to your state, county and/or city’s procedures for security deposits. For example; It will be placed in a separate interest-bearing bank account. The bank’s name is “X,” the bank’s address is “X,” and the interest rate is “X” percent.
You will also want to include reasons you, the landlord, may be legally allowed to keep a tenant’s security deposit, such as damage done to the property in excess of normal wear and tear and nonpayment of rent. Legal reasons you may be allowed to keep a tenant’s deposit will vary based on the state, county, and city where your rental property is located.

Take Pictures of the Property, Inside and Out, Before the Tenant Moves In

Print out the pictures. When the tenant moves in, have them sign and date the back of each picture to acknowledge the condition of the property upon move in.

Have a Move-In Walk-Through With the Tenant and Have Them Sign a Move in Checklist

In addition to having the tenant sign and date the pictures showing the condition of the property, you will want to walk the tenant through the property. Turn on the stove, open the freezer, open, close, and lock the windows, run the faucets, and flush the toilets.

Your move-in checklist should include the items in the apartment and their condition. Some examples would be:

Stove in working order
All outlet covers in place
All windows lock
Screens on all windows
Refrigerator in working order
Freezer in working order
Two smoke detectors
Two carbon monoxide detectors
Smoke detectors in working order
Carbon monoxide detectors in working order

As the tenant approves each item, place a checkmark next to it. Then have the tenant sign and date the bottom of the form acknowledging their agreement that the property is in good, habitable condition. If there are any known defects, such as a large scratch in the hardwood floor in the living room, they should be noted here.

Notify the tenant in writing after they move in

Notify the tenant in writing within “X” number of days of their move-in date (as determined by your state; usually between 14 and 30 days) of the name of the bank, the address of the bank, and the interest rate at which their security deposit is being held (if applicable in your state).

Notify the tenant of the annual interest accumulated on their security deposit (if applicable in your state).

Before the tenant moves out, give them a list of move-out procedures.

For example, they should remove all trash, leave the property broom swept clean and should return the keys to you, the property manager or the building superintendent.

Take Pictures of the Property After the Tenant Moves Out

Sign and date these pictures. Make a note of any damage done to the property.

Notify the Tenant in Writing After They Move Out

Send the tenant a letter within “X” amount of days of their move-out (as determined by your state law). Return the applicable amount of security deposit to the tenant. If you have kept any or the entire security deposit, you must give an itemized list of expenses explaining why you have kept the money. If the tenant has not provided you with a forwarding address within 30 days of move-out, you may not be legally obligated to return the security deposit.

Realize That Your Tenant Does Have the Ability to Contest Any Money You Have Kept

The tenant can file a claim in small claims court to try and recover the money. If you have not followed the laws of your state, county, or city exactly, they may be able to take back the security deposit, even if you were otherwise entitled to keep it. For example, in some states, if you did not notify a tenant in writing as to the bank name, address, and interest rate at which their security deposit was held, you may not be allowed to keep any money owed to you.

Tags: Eviction Information, Landlord Information, Security Deposits

Legal Removal of Unwelcome House Guests

Posted: Jun 28, 2019
By: NatEvict
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Legal Removal of Unwelcome House Guests

Any uninformed attempt to “evict” an uncooperative and unwanted house guest can be frustrating and costly for both tenant and landlord. The first step is to establish whether the house guest is a lodger, a bonafide house guest, or a roommate. Legal definitions may vary slightly from state to state, so check with our local housing department for details.

Family members and friends can wear out their welcome through an over-extended stay. When this happens, the most general and direct option is to ask them to leave. Beyond a simple request, other legal options to remove a family member will be governed by the laws of your state.

Learn your rights as a Landlord on NationalEvictions.com Read our Blog. Learn the Process of an eviction in your State.

Tenant or Licensee?

Before you begin any legal action, you must first determine how the law classifies the unwanted family member: Are they a licensee or are they now a tenant? A family member or friend occupying your home may be considered a tenant regardless of whether a lease was signed or rent was paid. If the family member paid for things like utilities or food, the payment of these expenses can be considered rent. Accordingly, some state laws will treat them as a tenant. To remove them from the premises you will have to file a formal eviction proceeding (known as an unlawful detainer action) as in any other landlord-tenant relationship.

If no form of rent has been paid, many states permit you to simply ask the family member to leave and remove their belongings without any legal proceedings. However, in other states, someone who enters your home and stays with your permission will be classified as a licensee. This status grants the family member more rights than a general guest. To revoke the permission you gave them to remain on your property, you will need to go through the steps of a formal eviction to have them legally removed.

Preparing for Eviction

If your state’s laws classify the family member as a tenant or licensee, your next step is to prepare for an eviction, or unlawful detainer action. Before you can file suit, you must first serve your family member or friend with a notice to vacate (or notice to quit) the premises. This is a more formal way of asking the person to leave your home. The notice must be given before the suit is filed. In some states this notice can be for as little as 3 days prior, in others, as much as 30 days. Each state has its own rules regarding how and when to serve the notice. Be sure to follow all legally required steps. If your family member or friend fails to leave by the requested date, you can then file an eviction petition.

Once you file your petition, you must request an unlawful detainer hearing. This is a short court hearing in which you explain the reason for the eviction and present evidence of the prior notices to vacate. If the judge agrees with you, the judge will issue an order of eviction and a writ of possession (or your state’s equivalent). The order will usually set a vacate date for the family member or friend. If they still refuse to leave in violation of the order, you can then call law enforcement and to have them removed, using physical force if necessary.

Eviction or unlawful detainer actions are not generally complicated lawsuits. However, the rules of tenancy and procedure vary by state. Before jumping into a lawsuit, you should speak with an attorney in your area to learn your state’s rules and local procedures. They can advise you on the correct legal steps required in your jurisdiction. While having an attorney represent you in this type of case is not mandatory, you can avoid more problems by having one. If you fail to comply with all of your state’s eviction procedures you will delay removal of the unwanted guest. You may even find yourself on the receiving end of a lawsuit for unlawful eviction. Remember, follow the law and don’t be tempted to use self-help measures such as changing the locks or physically removing the person yourself.

Protective Order

Finally, if a family member or friend living in your home is abusive and putting you in fear for your safety, the quickest temporary solution under such circumstances is to apply for a protective order from your local family court or criminal court. Depending on the laws in your state, a protective order can exclude the unwanted family member from using the residence for 30 days or for a number of years. Even if a protective order is granted, you should still consider eviction proceedings to remove the unwanted family member permanently.

Rights of Homeowners

In general, if you own and live in the dwelling unit or home, and the individual rents a room in the dwelling, he or she is considered a lodger. As a homeowner, you have the right to terminate the lodger’s tenancy by written notice to vacate. If you are unsure of what the notice should outline, written notice to vacate templates are readily available through a number of reputable online sources.

Written notice is usually served with a 30 day notice period. Once the period expires, any agreement that you may have with the lodger is terminated by operation of the law. Homeowners in these cases are also entitled to police assistance in removing the individual from the home. Formal eviction procedures are not required in these cases.

Rights of Renters

If you are renting a home or apartment, working on a solution within the letter of the law can be more difficult. Lodging laws do not apply to renters. Renters do not own the unit or home, so they are not entitled to the same legal options as homeowners. If you have a house guest and would like them to leave, you must establish whether the guest is a roommate or truly a guest. Unfortunately, the guest can delay any legal action by fabricating a story about an oral rental agreement between you, the renter, and the guest.

To have the house guest removed via legal proceedings, the renter must establish that he or she has control over the unit and is responsible for maintaining the unit. The renter must also prove that he or she is the only person with a set of keys to the unit, that he or she is the only person paying the rent, and that he or she has been living in the unit from the beginning of the lease up to the date of the complaint. Unfortunately, there is a catch. If the house guest has been living in the unit for more than 30 days, the courts might consider him or her a tenant. In this case, you may only terminate tenancy by formal written notice, regardless of whether the individual’s name is on the lease. If the house guest (who is now considered a tenant) does not vacate within the notice period, you will have to begin formal eviction proceedings.

For unwanted house guests that have been living in the rental unit or home for less than 30 days, the laws are disturbingly sparse. Although the law might not recognize the individual as a tenant, any physical attempt to remove the individual could result in a lawsuit. For example, if you place the individual’s property on the lawn or street and change the locks, the individual might attempt to sue for unlawful eviction by claiming that he had a verbal agreement with you. The individual may also attempt to sue for any perceived damages to his or her property. In cases such as this, the best way to protect yourself would be to serve a formal written notice of termination of tenancy. If you feel that written notice will not be enough to get rid of the house guest, do not wait until the last minute to begin the eviction process. Be prepared to file eviction papers as soon as the notice period ends.

Tags: Eviction Information, Landlord Information

Leasing, Disputes and Evictions

Posted: Jun 13, 2019
By: NatEvict
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Leasing, Disputes and Evictions

“Primary challenges faced by clients involve preparing, reviewing and revising the lease and legal relationships in the Landlord Tenant area of Law.”

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Find Local Companies that are ready to help with Legal, Filing, Document Service and Tenant Screening.

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Disputes between landlords and tenants often arise over issues such as the length of the lease, the amount of rent to be paid, maintenance, repair and replacement obligations, size of the space to be provided, and what services are to be delivered. Challenges can also surface as a result of corollary issues such as renewal and purchase options, rights of first refusal and accommodations required by lenders. NationalEvictions has the top attorneys with extensive experience in representing both landlords and tenants of Residential, Commercial and Industrial properties.

We understand that every situation is different—that some cases require more representation than others. We are prepared to assist property owners, property managers and landlords through the lease preparation process by carefully explaining the terms of each lease, as well as issues they may not anticipate, such as landlord or tenant bankruptcy and many other legal issues.

Weather you are a Landlord or Tenant, on NationalEvictions.com you can find information for Evictions in your State.

Including Laws, The Eviction Process, Filing an Eviction, Defending an Eviction and Official Court Forms for the State the property is located in.

If you are considering seeking advice from counsel, here is what we suggest you keep in mind:

Consult with legal counsel during the lease preparation process.
Seek legal counsel with the necessary expertise representing both landlords and tenants in real estate development.
Anticipate all of the potential issues that can surface outside the scope of your original plans or expectations.

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Tags: Eviction Information, Legal Articles, Tenant Information

When there is property left behind and a tenant moves out?

Posted: Jan 27, 2019
By: NatEvict
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When there is property left behind and a tenant moves out?

While it can be tempting to simply throw it all away and move on with your life, this may not always be the best solution. There are specific legal steps that you must take, and your tenant may even owe you money for their actions.

Did you know that you may even have to enlist some help from your local Sheriff? Learning the proper steps from alerting the tenant about their property to filing with local law enforcement for property removal is essential for landlords. By following the correct procedure, you’ll know exactly what to do with property left behind when a tenant moves out in the future.

What you need to know.

Why Did The Tenant Leave?

The first thing that you need to do is review why the tenant has left the property. Depending on their reason for departure, they may still have some rights to the property they left behind. Before you dispose of or sell anything, check their reason for leaving on the following list:

Lease Ended
Most states give you nearly full freedom to dispose of any belongings left behind if a lease period was ending.
Termination Notice Served
If you gave them a termination or early-lease ending notice and they left on time, most states give you nearly full freedom to dispose of any belongings left behind.
Evicted
If you had to have your tenant evicted, often with involvement from the Sheriff, you may be responsible for ensuring that their belongings get back to them. Every state has different rules about this, so you will want to check your state’s laws.
In most cases, evictions will be handled fully by local law enforcement, including the removal of their property and what property you are entitled to sell to receive payback for any unpaid rent. Since evictions are handled by specific court processes, the specifics are not covered in this article.
Leaves Without Notice
Similar to the eviction case, tenants that disappear without any notice may still have some rights to the property they left behind depending on where you are located. Check your local laws before disposing of or selling anything.

Warning: Check The Local Laws

While all of this advice can be used no matter where you live, it is important that you check your local property and tenant laws before you remove property. As previously mentioned, it is possible that the tenant still has rights to the items. Most jurisdictions have specific procedures that landlords must follow before they can get rid of belongs. If you follow the laws, you will be protected from any former tenants attempting to come after you for damages or loss of property fines.

How To Find Your Local and State Laws

As you have probably already noticed, the way that you must deal with regarding property left behind when tenant moves out is very dependent on where you live. Because of that, you will need to get in contact with local jurisdiction or review state laws to be sure that you are following the proper course of action. However, finding these laws isn’t always easy. Here are a few resources to help you find the information that you need to deal with property left behind when a tenant moves out.

State Laws & Statutes

Find your state’s listing on this page to find out which law or statute you need to refer to for specific information about your situation.

Local Landlords

Are you friends with other landlords or aware of a few high-stakes landlords in the area? Reach out and ask for advice about your situation. They are likely to be familiar with the rules. If that doesn’t work, you can try reaching out to the National Apartment Association or National Multifamily Housing Council for advice on how to find out more information.

Lawyers

If you are dealing with a lot of valuable property that has been left behind, it is probably worth contacting a lawyer to be sure that you are able to dispose or sell the property. Lawyers can give you the best advice in these situations, as they can research any local laws for you.

Review Your Rental Terms

Because left behind property can be a big issue for landlords, you may decide to include a clause in your original rental contract that addresses any property that is left behind. Before touching any belongings, double-check the rental contract for any terms that may refer to this type of situation. Depending on the contract used, you may even be entitled to disposal fees for getting rid of your former tenant’s property.

Adding a Rental Clause About Abandoned Property

It’s always a good idea to include a clause about abandoned property in your rental contract. Some tenants may not worry about cleaning up trash or merely leaving behind old items they do not want anymore when they move out. While it may not seem like a big deal, it can be costly to dispose of larger items. While it may seem excessive to add this type of clause to your rental contract, doing so will protect you from future costly events.

Talk to your advisor or lawyer about adding a belongings clause to your contract:

State that there will be a disposal fee for excessive trash or abandoned property left behind.
Specify that belongings must be disposed of.
Include the potential for a separate agreement for storage as needed (i.e., you can offer to keep the former tenant’s furniture on the property for a specific period until they can pick it up).

Give The Tenant Legal Notice

Once you have familiarized yourself with the specifics of local laws as well as the rental agreement that was in place between you and the former tenant, it’s time to reach out to the tenant. Many states require that you give tenants that have left abandoned property behind a specific legal notice and period during which they have to collect their belongings.

What To Include In The Notice

When you’re documenting the following information for an abandoned property notice, it is essential to have an objective observer come along to protect you from any fraudulent charges. Additionally, photos and video can be helpful in case the situation should escalate.

Include the following in your notice:

Description of abandoned property (hint: do not open anything that is locked)
Estimated value
Where the property will be held
Deadline for retrieval (the length of this period is typically indicated by local or state laws)
What will happen after that period

Inventorying Items

The notice you give your tenant must have a detailed inventory of the items left behind, and this means that you must create such an inventory. It is imperative that you have a written and/or photographic record of everything that is left behind. Any property that has value must be recorded and stored. Since assigning a value to various personal belongings differs from person to person, the safest thing to do is to inventory everything that was left behind in great detail. When inventorying items, be sure that you do not open any locked items. These items should remain locked until you have a clear decision on what will be done with the property.

It is legal to keep the items on the rental property, but many property owners want to begin cleaning the space for the next tenant. If that’s the case, you are permitted to secure the belongings in a storage facility or similar space. Information about where the items are being stored must be included in any official notices or documents.

How To Send The Notice

When you send the notice, be sure that you request a return receipt. This will give you proof that the tenant received the notice should they not claim their belongings and return at a later date.

Handling Removal

If the notice period passes and the tenant does not return to get their belongings or they have no right to belongings left behind based on your local laws, it is time to move on to disposal and sale of their abandoned property. Check state laws before selling or disposing of property. In some areas, the abandoned property must be given over to the state. In others, you are free to dispose of it as soon as the notice period ends. The following tips refer to how to dispose of items economically and efficiently.

Dump Any Trash

If you haven’t already done so, you should remove any trash from the property. Trash is anything that is obviously not a valuable piece of personal property, and this can usually be removed without any other state requirements. The clean-up costs from removing trash (which can be expensive) can legally be deducted from the security deposit that your tenant paid down on the property, so be sure to subtract them.

Organize a Sale or Keep The Items

Many states require that you hold a public sale of the abandoned items. You can set this up with a local bond agency, and the proceeds of the sale can often be used to cover the costs of storing, selling, and advertising. Depending on the state, you might be able to keep the remaining proceeds. In some states, the balance must be paid to the state. If your state does not require you to pay anything back or hold a public sale, you can simply sell off the items as you please. You can even keep the items if you prefer to do so.

Can You Pay Yourself Back?

Most state laws share one similarity: You can be paid back for unpaid damages and rent from the sale of abandoned property. If your tenant left without paying for damages or rent, the proceeds from the belongings sale can often be used to pay off this debt. State laws will dictate the specifics of how this must be handled. In many cases, you should keep an itemized list of the items and can deduct the cost of disposing of them from the security deposit.

Exception Items

There are two main categories of items that you do not have to worry about these rules for, as they have exceptional statutes related to their abandonment.

Motor vehicles

If a car or other motor vehicle is left behind, it should be considered an abandoned vehicle and reported to local police. Law enforcement will handle its filing, removal, and return.

Fixtures

Permanent fixtures installed at the property by tenants – such as built-in bookshelves or lights – are considered part of the property. They are yours to keep and do not need to be reported. If the tenant added permanent fixtures that you did not approve, you are allowed to use the security deposit to cover the cost of removal. You should always check for this type of issue before releasing a former tenant’s security deposit to protect yourself from any extra losses.

Know Your Rights

There may be cases where a former tenant will return well after the end of their legal notice period and expect to receive their belongings or the value of the items. If this is the case, your state should have specific laws on what they can or cannot receive. If you sold the items, it is possible that the former tenant has a right to receive the proceeds beyond what was required to pay you back for the sale and storage of the items. There is typically a limitation period on this type of situation. If you kept or disposed of the items, however, the tenant typically has no rights to compensation for the items. They did not come during the notice period, so the belongings became yours.

A Complex Process

As you can see, handling any tenant property left behind is not as simple as just selling or disposing of it. Due to the complex nature of rental and tenant laws, you must follow your local rules to handle the situation legally. Some people might even leave their pets behind! (Really, it has happened). Still, you have to follow the rules to handle even the most extreme cases.

In its most basic form, this is what you need to do when a tenant moved out and left their belongings:

Determine why they left & check local laws for specific rules
Review your rental terms for clauses related to abandoned property
Document and inventory the abandoned property and damages
Give former tenant legal notice of abandoned property
Sell, dispose of, or store the property, depending on local laws
Pay yourself back for unpaid rent, etc.
Know your rights by getting in contact with a local lawyer

If you stay organized throughout this process, you’ll be able to reclaim your rental property and deal with the abandoned property while minimizing your monetary risk, if any. You will have to spend a lot of time on this process, but handling it legally and adequately will pay off in the long run.

Tags: Eviction Information, Landlord Information, Legal Articles, Tenant Information

You now have what you think might be an abandoned rental property?

Posted: Jan 27, 2019
By: NatEvict
Comments: Comments Off on You now have what you think might be an abandoned rental property?

You now have what you think might be an abandoned rental property. It’s The Tenants Junk Not yours!

However, proceeding as if the tenant is long gone can be a costly mistake for you. When it comes to abandoned rentals, you must avoid the 3 biggest mistakes landlords can make to keep things legal when recovering your rental property.

Mistake #1: Assuming It’s Abandoned When It’s Not

Sometimes it is obvious when a tenant abandons a property, such as when they move out in the night and leave you a note and a property full of garbage. Other times, it may be difficult to tell whether the tenant has abandoned the rental unit. In their hurry to turn over a rental unit and get rid of a bad tenant, some landlords may make the mistake of assuming the property is abandoned when in fact it is not.

If you are unsure about whether the tenant has truly abandoned the property, find the answers to these questions:

Is the tenant behind in paying the rent? Many states won’t consider a rental abandoned if the rent is current.
Are the utilities shut off? A quick call to the utility company will provide you with this information, however, this also may be a coincidence for nonpayment and not necessarily abandonment.
Is there anything left in the rental unit, like furniture or clothes? If there are valuable items left behind, it’s less likely to be abandoned than if you find garbage or rotting food.
Did the neighbors notice anything significant? If others witnessed a moving truck at the property the other day, or the tenant told them they were leaving, it helps to solidify other evidence of abandonment.
Has a change of address been submitted to the post office? A quick visit to the local post office will help you figure it out.
What do the tenant’s emergency contacts say? You must get in touch with the tenant’s emergency contacts to see if they offer any insights into the tenant’s absence.

No single factor is conclusive—instead, you must consider several things before you can conclude that the property is abandoned. It’s a fine line between a tenant abandoning a property and simply being gone for a while. Unusual circumstances, such as an extended vacation or business trip, a hospital stay or even jail time can make it seem as if the tenant has abandoned the property when legally they are still in possession as long as they have not broken the lease terms.

Mistake #2. Disposing of Personal Property

When tenants leave in a hurry, whether it’s due to eviction proceedings or another reason, they often leave personal property behind. Even if you’ve established that the rental unit is indeed abandoned, you are still required to put in some time and effort into dealing with the tenant’s possessions. New landlords may mistakenly claim the abandoned property as their own and keep it or try to sell it to recoup some lost income. However, this is illegal unless done in the proper way.

While different states have varying requirements, in general, a landlord must store the tenant’s personal property for a time and use reasonable care to keep it safe from harm or theft. While this seems strange—to care for the abandoned junk of a former tenant—the laws are quite clear that at least for a designated time, the landlord is responsible for those possessions.

Here are some examples from states across the country on dealing with a tenant’s personal property that has been left behind:

California requires landlords to move the property and store it safely, then deliver a notice to the former tenant, if possible, as well as any contacts he might have that gives a deadline of 18 days for the tenant to claim the property. The tenant is required to pay the landlord the reasonable cost of storage before reclaiming the property. If unclaimed and the property is worth less than $300, the landlord can keep it or dispose of it. If it is worth more than $300, the property must be sold at a public bidding.
Kansas landlords must store possessions for 30 days and at least 15 days before sale or disposal, attempt to notify the tenant. Unlike most other states that require the notice to be mailed or delivered personally, Kansas law requires landlords to publish the notice in the local newspaper. After 7 days from publication, the landlord must mail a copy of the published notice to the tenant’s last known address. All proceeds from a sale go to the landlord.
North Carolina law requires landlords to store abandoned property in a county warehouse for 10 days, after which the landlord may sell, keep, donate or dispose of the property. If the landlord chooses to sell the abandoned property, he must send a written notice at least 7 days in advance to the tenant’s last known address. Proceeds first go to the landlord to offset any remaining costs from the tenant and the balance goes to the county.

Mistake #3. Failing to Document the Process

Even if they’ve covered all your bases in judging that the rental is abandoned and they’ve properly disposed of any of the former tenant’s possessions, many landlords make the mistake of failing to document the process of recovering an abandoned rental property. If you make the wrong call and face a wrongful lockout claim from the tenant, you’ll need to have evidence on your side in court to show why you made the call you did.

Here are some things you must do in order to properly document your discovery process in recovering an abandoned rental property:

Take pictures of the property, including instances where it seems like the tenant has abandoned it, such as rotting food in the fridge, lack of furniture, abandoned pets, unkempt lawn, and so forth.
Write down the names, times and dates of interviews with neighbors or the tenant’s emergency contacts, along with a summary of the conversation.
Collect any documents you get from the utility companies about shutoffs.
Keep copies of any official notices you send to the tenant at the last known address or to the tenant’s workplace to show your attempts at communication.
Document the costs for moving and storing any possessions left behind using receipts or invoices.

Abandoned Apartment Key

If your apartment is abandoned but there is no key to be found you will want to have the locks changed as soon as possible. Kwikset makes locks that are easy to rekey with Smart Key technology. Just be sure that you take back full control of the apartment before rekeying the locks.

In general, when a tenant abandons a rental property, they don’t intend to return but there have been too many instances where an eager or uninformed landlord has moved too quickly and outside the law, and made these critical mistakes. When in doubt, consult with an attorney who specializes in landlord/tenant issues and make sure you are proceeding in such a way as to minimize the time the unit is empty without compromising on following the laws of your state.

Tags: Eviction Information, Landlord Information, Tenant Information

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