POVERTY LAW CLE Landlords Tenants Ben Many Pisgah

POVERTY LAW CLE Landlords & Tenants Ben Many Pisgah Legal Services

Pisgah Legal l What do we do – – – – Domestic violence prevention Homelessness prevention Foreclosure prevention Access to public benefits Debtor’s rights Immigration Misc. (guardianship, expunction, advance directives, etc)

Pisgah Legal l What we don’t do – – – Criminal law matters Personal injury Workers Comp Probate of wills Class actions (usually)

Pisgah Legal l Who are our clients – – – Buncombe, Henderson, Madison, Polk, Rutherford, and Transylvania Counties Meet our income requirements Have a qualifying legal issue Basic needs in jeopardy Not a conflict of interest

Who am I…the disclaimer l l l I am a lawyer, but I am not your lawyer; I can’t provide you advice today; Nothing you tell me is necessarily confidential. If you need a lawyer you can call Pisgah Legal or the NC Bar Attorney Referral Hotline Law is not a science. The answer is usually: it depends. This presentation is not intended as advice.

Rights and Duties Governed by Statutes & Codes & Terms of Lease l Federal Statutes / HUD Regulations – – l State law – – – l Public Housing Section 8 Tax Credit Fair Housing Act Private Leaseholds Chapter 42: Landlord & Tenant Interpreted through Statutes & Common Law City and County Ordinances – Buncombe County – Rental Housing Ordinance l – Ordinance 98 -1 -6 (Sections 8 and 9) Municipal Ordinances l l l Asheville Black Mountain Woodfin

Am I a Tenant, a Guest, or a Trespasser l l Why does it matter How will a court decide – l Fact dependent analysis Subtenant issues

Types of tenancies l For a term – l Tenant at will – l If not agreed upon, usually determined by how often you pay rent Unusual tenancies Subtenant

THE LEASE l l Can be oral or written Written lease can modify some, but not all of the requirements in the NC Statutes – l l Often as it relates to notice (more later) If lease is oral, the law will supply most of the terms Do I still have a lease after it expires?

The Lease Continued l Landlord is master of his own contract, but certain terms are non-negotiable – – l l § 42. 46 provisions on late fees Art. 6: Security Deposits Self Help issues Bad Check Fees Habitability issues Quiet Enjoyment issues

Obligations of each party l § 42 -41 Mutuality of Obligations Tenant’s obligations: (1) to pay rent under the rental agreement, (2) to maintain the premises (42 -43) – Landlord’s obligations: to provide fit premises and make repairs(42 -42) – Shall be mutually dependent – l § 42 -44(c): Tenant may not unilaterally withhold rent prior to judicial determination

§ 42 -42(a) Landlord Obligations: l l l Comply with all applicable housing codes Make all repairs and keep premises in a fit and habitable condition Keep all common areas in safe condition Provide operable smoke alarms Repair or remedy any imminently dangerous condition on the premises l l l Unsafe wiring, flooring, ceiling, chimney Lack of potable water, operable locks, heating, operable toilet and bathtub or shower, rat infestation due to structural issues, excessive standing water, sewage, or flooding problems NO RENTING “AS IS”

What Should You Do if Repairs are needed – – – Take pictures of all defects. Contact the fire marshal or building inspector for a safety check. Request Repairs in writing in order to place landlord on notice of defects. Keep a copy DON’T PAY FOR REPAIRS DON’T WITHHOLD RENT!!!!!!

Quiet Enjoyment l l l Implied in every lease is the Tenant’s right to quiet enjoyment of the premises Can the Landlord be arrested for trespass on property that they own? Yes Right of Landlord to be on premises usually governed by the lease – No mandatory notice to enter at law

Tenant Obligations l l Pay Rent Maintain Dwelling Unit – – – Keep premises safe and clean Dispose of all garbage Keep all plumbing fixtures as clean as their condition permits Be responsible for all damage in the tenant’s exclusive control Notify the Landlord in writing of the need for replacement or repairs to a smoke alarm l Follow lawful terms in the lease

Termination of Tenancy

MISCONCEPTIONS l l No automatic right to a 30 day notice (or in some cases, any notice) No exceptions made for disabled, elderly, people with children, people who have fallen on hard times If you are being evicted, you are being sued Landlord does not have to “work with you”

Basis to terminate tenancy 1. Failure to Pay 2. Breach of Contract 3. Holdover Tenants 4. Criminal Activity

FAILURE TO PAY 42 -3 l 42 -3 – Pay to Stay. – – – l Implied forfeiture if Tenant Fails to pay within 10 days of Demand can be oral or written Must be clear unequivocal demand for rent- “get out in ten days” does not work Tendering rent and cost of court is a defense

BREACH OF CONTRACT l l Typically only available when lease is written Lease must reserve the right to evict for the breach specified Breach can be for failure to pay rent too Lease can determine form of notice

HOLDOVER l 42 -14 – Notice Requirement- LEASE CAN ALTER – – Annual lease: 30 day notice to quit Month to Month: 7 day notice Weekly Tenancy: 2 day notice Mobile Home Lot Lease: l l – 42 -14. 3 Mobile Home Park closing l l 60 days Notice Provides tenant time to move home 180 day Notice. Must coincide with the end of the term

Criminal Activity – limited right to eviction l manufacture, sell or deliver, or possess with intent to manufacture a controlled substance l Other criminal activity that threatens the health, safety, or right of peaceful enjoyment of the entire premises by other residents Can’t evictim of domestic violence for acts of domestic violence for abuser Good faith exception l l

DEFENSES TO EVICTION ACTION l l l Retaliation Set off Waiver Inadequate notice Unconscionability Protected Tenant Status

WHAT LANDLORD CAN’T DO WITHOUT PROCESS l l l No self-help Can’t turn off utilities Can’t have police remove Can’t change locks 42 -25. 8 – Can’t contract around these provisions

LL’s Right to Abandoned Personal Property after service of Writ l 42 -25. 9(d) – Landlord can take abandoned personal property to Good Will or other Charity. – – l Post notice on door and send notice to tenant Charity must keep property for 30 days 42 -25. 9(g) – Landlord may – – dispose of property after seven (7) days, or sell it at auction, providing notice to Tenant

HOUSING DISCRIMINATION l l l Can’t refuse to rent because of protected status Can’t evict because of protected status Protected status includes – – color, gender, status as domestic violence victim, disability, national origin, age, presence of children Does not include sexual orientation or citizenship

SECURITY DEPOSITS l l l Non – Negotiable Tenant must provide forwarding address LL must provide – – – information about location of Security Deposit LL must keep it in a trust account interim accounting within 30 days 60 days for final accounting LL forfeits security deposit if they violate these rules.

Security Deposit Cont. l l If month to month, can only demand 1 ½ months rent If term is longer, can demand 2 months rent May apply to: unpaid rent, cost of court, late fees, damage beyond normal wear and tear, etc Transfers from old LL to new LL if property is sold.

MISC l l Rent to own and contract for deed often turns ugly- talk to a lawyer first If buying a mobile home, demand to see a title first before money exchanges hands Don’t improve a LL’s property without a separate written contract OUTSIDE the lease LL can’t charge a daily late fee- can only be the greater of $15 or %5 of the rent

MISC. Cont. l l Pay rent in a check where possible. Keep your lease, receipts for rent, written requests for repairs, letters from the landlord, etc in a safe place. LL can charge a non-refundable pet fee. READ YOUR LEASE

PISGAH LEGAL SERVICES l PISGAH LEGAL- 253 -0406