LandlordTenant Overview Pisgah Legal Services Hotline CLE Is

Landlord/Tenant Overview Pisgah Legal Services Hotline CLE

Is it in fact a LL/T relationship ? ? ? ? ? § Innkeeper/guest § Look at length of stay, exclusive possession, sole and permanent residence § May be entitled to LL/T protection § Other examples: cotenant; employer/employee

Buyer/Seller, not LL/T § Rent to Own is not LL/T

Is the housing subsidized? § Obvious – Public Housing (Housing Authority) § Section 8 voucher § Less obvious – development contains a mix of low-income, subsidized tenants with full paying tenants. § Subsidized tenants are entitled to protection under federal regulations

Subsidized or not subsidized …. That is the question § The tenant does not always know !!!!!! § Ask if the tenant if the amount of rent is based on their income

Housing cases that PLS does not represent: § Landlords § Representation is solely to delay § Commercial § Disputes b/t co-tenants

Housing cases that require PLS staff follow-up § § § § Tenant to bring in documents Utility cut-offs or lock-outs Summary Ejectment judgment has been already entered (10 day appeal) Some Subsidized Housing LL fails to repair after written request Criminal (drug) eviction Pending Summary Ejectm’t w/ defenses

Classic HLA Housing Cases § § § Summary Ejectment time periods How to request repairs Liability of roommate for rent Return of security deposit Wants to vacate prior to expiration of lease term

EVICTIONS § May only be dispossessed by Sheriff under Writ of Possession after a Complaint and then Judgment in Summary Ejectment § Time Period § Notice (depends on type of action) § Service of Summons to Court Date (must receive 48 hours before hearing) § 10 days to appeal to District Court

GROUNDS FOR SUMMARY EJECTMENT § 4 grounds for summary ejectment under AOC form: § § (1) Nonpayment (2) Holdover (3) Breach (4) Criminal Activity

NONPAYMENT § 10 days notice – oral or written § Tender is complete defense (must include court costs) and must be cash/money order § Service by posting – no money judgment

HOLDOVER § Amount of notice is governed by term of lease § Classic oral lease = mo to mo = 7 days § Lease term 6 mos or more = 30 days § Mobile home LOT rental must have 60 days notice § End of notice must run with end of lease term

BREACH § § § Notice governed by lease Must have forfeiture clause Tender is not a defense – LL does not have to accept rent § Waiver defense

Criminal Activity § If tenant OR member of household OR guest commits criminal activity ON OR IN IMMEDIATE VICINITY § Standard of proof – preponderance of evidence § Criminal activity = drugs or activity that threatens the health, safety or right of peaceful enjoyment of premises § Must prove fault on part of tenant

Reasonable Accomodation § Defense to Eviction action § Physical or mental impairment = substantially limits one or more major life activity (NOT disability – lesser standard) § Must prove a link between the impairment and the non-conforming behavior

Appeal of Sm. Claims § § Trial de novo Notice of Appeal (served on Plaintiff) 20 days to pay Appeal Costs Bond to Stay Execution – pay rent to clerk – 10 day deadline is non-negotiable § Petition to Appeal as an Indigent waives appeal costs and judgment, but still must pay rent from date of judgment forward

WRIT OF POSSESSION § After expiration of appeal period, Landlord can get Writ from Clerk and Sheriff serves on Tenant § Sheriff must give at least 2 days notice of lockout date/time § Tenant has 7 days after lockout to retrieve property

Other issues besides evictions ………. . § Landlord fails to repair ……… § MAKE REQUEST IN WRITING

RETALIATORY EVICTIONS § 12 Month bar to eviction if good faith request for repairs § Must prove retaliation is the substantial cause for the eviction (therefore very difficult to prove in nonpayment case)

SUBSTANDARD CONDITIONS § GS 42 -42. § The Landlord shall: § Comply with housing and building codes § Keep the premises fit and habitable § Keep common areas in safe condition

The Landlord shall…. § Provide operable smoke detectors § Maintain electrical, plumbing, sanitary, heating, ventilating, air condition, and other facilities and appliances supplied or required to be supplied § ONLY PROVISION REQUIRING WRITTEN NOTICE BY TENANT (but not when it is an emergency)

The Landlord shall also… § Provide a carbon monoxide detector for each level of the home § Within a reasonable period of time based upon the severity of the condition, repair or remedy any imminently dangerous condition on the premises after acquiring actual knowledge or receiving notice of the condition.

Imminently Dangerous Conditions aka “The Dirty Dozen” § § § Unsafe wiring. Unsafe flooring or steps. Unsafe ceilings or roofs. Unsafe chimneys or flues. Lack of potable water. Lack of operable locks on all doors leading to the outside. § Broken windows or lack of operable locks on all windows on the ground level.

The Dirty Dozen continued § Lack of operable heating facilities capable of heating living areas to 65 degrees Fahrenheit when it is 20 degrees Fahrenheit outside from November 1 through March 31. § Lack of an operable toilet. § Lack of an operable bathtub or shower. § Rat infestation as a result of defects in the structure that make the premises not impervious to rodents. § Excessive standing water, sewage, or flooding problems caused by plumbing leaks or inadequate drainage that contribute to mosquito infestation or mold.

More on 42 -42 § LL not released by tenant’s explicit or implicit acceptance of the LL’s failure to comply § LL and T can make subsequent written contract for tenant to perform work with adequate consideration OTHER THAN the leasing of the premises

Practicalities § Mutuality of obligation – T’s obligation to pay rent is dependent on LL’s obligation to comply with 42 -42, BUT… § GS 42 -44(c) – T may not withhold rent prior to a judicial determination of the right to do so

Evidence § A picture is worth 1, 000 words

More Evidence § Third parties § Inspectors § Social Workers, teachers, nurses, law enforcement § Real Estate Professional

Housing Inspectors § Asheville and Buncombe County § Cities of Hendersonville, Spindale, Forest City, Black Mountain, Woodfin and Marshall and Henderson County § If water/sewer problem, call Health Department (Environmental Health)

Rent Abatement § § The difference between: FMV as warranted and FMV as is Multiplied by number of months the tenant lived there and paid rent § 3 year statute of limitations

Rent abatement example: § § § FMV as warranted = $800 FMV as is = $200 T lived there 18 months and paid rent each month § Damages = $10, 800

Unfair Trade § Landlord/tenant relationships subject to Chapter 75 – Unfair and Deceptive Trade Practices Act § What constitutes unfair and deceptive acts? § Promising repairs and not making them § Demanding rent knowing of defects § Lots of other things

Unfair trade, cont. § TREBLE DAMAGES § ATTORNEY’S FEES § Double-edged sword: If don’t make case for UDTP, the court may award attorney’s fees to the other side!

SECURITY DEPOSITS § LL must return Sec Dep w/in 30 days or provide itemization of actual cost of repairs for damage beyond ordinary wear and tear or unpaid rent OR provide interim accounting within 30 days and final accoutning within 60 days § Advise on pro se representation with Complaint for Money Owed

Breach of Covenant of Quiet Enjoyment § LL has no right to enter premises unless: § Lease reserves right § Tenants gives permission § Tenant gives implied permission by requesting repairs § Emergencies

Tenant is being sexually harassed § Offering to rent to someone in exchange for sexual favors is a crime, and therefore, likely an unfair trade practice.

Tenant Requires More Time to Move after LL gives notice § Court process gives an amount of time that tenants often do not know they have. § Tenant may negotiate for more time.

Tenant wants to break lease and move early § Tenant liable for balance of lease term, depending on the actual language in the lease. § Tenant can mitigate damages with permission of LL (sub-letting) § LL required to mitigate damages. § Historically, tight rental market; tenants don’t usually get sued.

Liability of roommate who moves out early § Remaining roommate still liable for rent. § Remaining roommate can pursue roommate who moves out early with claim for money owed.

Tenant wants to recover property held by LL § LL cannot hold property in order to collect debt. § Small Claims action: Recovery of Personal Property § After writ of possession executed, tenant has 7 days to make demand get property.

PROTECTION OF DOMESTIC VIOLENCE VICTIMS IN HOUSING CASES GS 42 -42. 2 § Cannot: § Terminate a tenancy § Fail to renew a tenancy § Refuse to enter into a rental agreement or § Otherwise retaliate in rental of dwelling § Based substantially on status as victim or terminating a lease under 42 -45. 1

Who § Victims of: § Domestic Violence § Sexual Assault § Stalking

Victim Protection Statutes § 3 statues § 42 -42. 2 – nondiscrimination § 42 -42. 3 – change locks § 42 -45. 1 – early termination

Evidence § MAY include the following: § Law enforcement, court or federal agency records § Documentation from a DV or sexual assault agency § Documentation from a religious, medical, or other professional

Change Locks § GS 42 -42. 3 § Perpetrator NOT a tenant: § Oral or written notice to LL § No documentation required § LL to change locks or give permission to tenant within 48 hours § Tenant bears cost § Must give LL a key

Change locks, cont. § Perpetrator IS a tenant § Victim MUST provide copy of an order issued by a court ordering the perpetrator stay away § LL not liable for excluding perpetrator from unit, denying access to belongings or key, unless court order says perpetrator can return for belongings § Excluded perpetrator remains liable for rent and damages

Change locks, cont. § LL has 72 hours to change locks or give permission to victim § Victim bears cost § Must give key to LL

Early termination § § § GS 42 -45. 1 30 day written notice Documentation: § Protective order (not ex parte) § Criminal restraint order § Address Confidentiality Program card § Copy of safety Plan from agency

Early termination, cont. § Victim liable for rent up to effective date of termination § Not liable for any other fees § Tenancy continues for remaining tenants § Excluded perpetrator remains liable under lease § CANNOT BE WAIVED OR MODIFIED

Finally ………. § § § Get the correct name of the landlord Confirm call back number DON’T HESITATE TO ASK US!!