Metro Apartment Manager, July 2005

Q: Is this the tenant from hell? She moved in on April 15, signing a lease for a year. Two weeks later she complained I hadn’t disclosed to her that the water bill she’s paying also provides water for a small studio next door. Unfortunately, she’s right; I forgot to make the disclosure. Then, when she didn’t mow their lawn for three weeks — this is springtime in Oregon and it was a foot high — as the lease required, I went over and mowed it. She came out to give me part of the rent, but complained I came on the property without notice. Finally, she said last week — it was the 18^th — she’s moving out because I violated her rights, but she wouldn’t give me keys until the end of the month, because she’s paid through that time. When I said she’d only paid part of the rent, she said she told me a social service agency was paying the balance. How do I get out of this?

A: Whatever your religious persuasion, it’s a fact: tenants from hell do exist. I know from first-hand experience. But, however bad you think your situation is, it doesn’t qualify. A true tenant from hell will not only tie you in knots over rights and responsibilities, but also cause you to incur significant legal bills while destroying your property.

Most disagreements between tenants and landlords can be worked out easily, because most often one or the other doesn’t understand rights and responsibilities. Some information, some knowledge, some training, and all is put right. Problems become more complicated when there is error on both sides, which is the case here.

You’ve made two mistakes: you took a partial payment, and you went on the property without proper notice. I do both of those things all the time. But I don’t do them when the relationship even hints at becoming adversarial. Lots of landlords refuse to take partial payments, and for good reason. Partial payments — besides being a bookkeeping headache for some companies — are a trap for the unwary, and if you go to court you run the risk of — even if you fully comply with the requirements of law — getting a judge who just feels if you accept a partial payment, you lose your right to use a 72-hour notice. Still, I take them because I’ve found over time that I save more tenancies than I lose.

Access presents similar difficulties. The other day, when a tenant had borrowed our vacuum cleaner and wasn’t home, we simply went in and retrieved the vacuum. No 24-hour notice; no nothing. Do I recommend you do that? No. But this is a tenant whom we’ve known for years and we know — it was ratified later — would want us to come get the equipment. We run the risk — knowingly — that it can cost us a month’s rent, but the relationship is of such tenure that the likelihood is so slim that we go ahead. But if the relationship were different, our behavior would be as well.

She has made mistakes, as well. (A mistake in this context is a failure to comply with one’s responsibilities under law.) She didn’t mow the lawn. She didn’t pay the whole month’s rent. She is breaking the lease.

Oregon landlord tenant law — while seemingly opaque or obscure to the casual reader — is well organized. One section is titled “landlord rights and obligations” and another “landlord remedies.” A different section is titled “tenant obligations” and the one following “tenant remedies.” While the wording is slightly different, the law recognizes that both parties have both rights and responsibilities, and the other has remedies.

In a case like this, it’s useful to think about the remedies each side has. You have several. The tenant didn’t mow the lawn, so you’re entitled to be reimbursed the cost of that. The tenant didn’t pay all of the rent; you don’t care who it comes from, you just want the money. She probably also owe you a late charge. Finally, your tenant is breaking the lease, so you’re entitled to damages or a lease-buyout fee if your lease contains that.

On the other hand, you may owe the tenant some money. The failure to disclose is a clear violation of law, and ORS 90.315(3) provides a penalty of one month’s rent. Mowing the lawn may have provided some personal satisfaction, but going on the property without proper notice or invitation is also a violation of law, with a resulting penalty of one month’s rent.

Not all of those are a given. You will argue the tenant is breaking the lease; she will argue you forced her out. She will argue an illegal entry to mow; you will argue you were mitigating damages. Still, the analysis enables you to tote up what each side might be owed, helping you see where you are negotiating from. It may be you will give her back her deposit, but if you have a large lease-buyout fee, you may not.

The other question you raise is, when do you have the property back. She’s refusing to give you possession. Possession only transfers after the tenant says so, or a termination notice spires and the tenant has moved out, or if the property is abandoned. If she didn’t give you a written notice and she’s not giving you the keys, then only if the property is abandoned, can you claim possession. If rent has been paid, it’s highly unlikely you could claim it abandoned. I believe if you’ve accepted partial payment for the month, you can’t claim it abandoned. So you are stuck until the end of the month when you hope she will give you the keys.

You should consider giving a for-cause notice for nonpayment of the balance of rent. That will create a termination date of later than the beginning of next month, but it will at least get one clock going. If she gives you the keys before, that’s great. If she doesn’t, and it would end sooner than the for-cause notice you’ve sent, you might give a 72-hour notice next month.

What can you learn from all this? Making the proper disclosures is simply something you must do. Figure out a way — I use checklists — to ensure you complete the paperwork properly. When a tenant violates the agreement, pause before you jump at a solution. Should you have accepted that partial payment? Given what else was going on, perhaps not. When the lawn wasn’t mowed, you should have told the tenant to mow it. Whether you did that with a warning notice, or a formal for-cause notice, or even verbally, you could have said, mow it by Wednesday or we will on Thursday; that would have constituted notice and saved you a month’s rent.

Remember, this is a business. I suppose there really are tenants from hell, but really they’re all just tenants. If you follow the rules when she doesn’t, you will end the relationship as soon and as cheaply as possible.

My usual reminder: each circumstance is unique, so your case will be different. Before you act, be certain about what you do. Don’t rely solely on this general advice; read the law and consult others as appropriate.

This entry was posted on Sunday, July 31st, 2005 at 2:35 pm and is filed under access, partial payments. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.