Q: My mother and I rented an apartment about 15 years ago under month-to-month rental terms. The apartment is rent-controlled. The apartment and utilities are listed in her name. I’ve always lived with her from the beginning, and I give her money for the rent and she pays it with her check. A few years ago, the building was sold but the rental terms remained the same. If my mother dies, can I continue to rent under the same agreement? Can the owner evict me or impose a new rental agreement with a substantial rent increase? –Harold W.
A: Apart from any impact of the rent-control ordinance, if your mother passes away, you’ll be entitled to keep the apartment if you can prove that you are a co-tenant, since a co-tenant has rights (such as the right to stay) that are equal to those of any other co-tenant (your mother). On the other hand, if you’re a mere subtenant, who rented from the tenant (your mother), the tenant’s death would extinguish your right to continue to live there under the same terms. This would mean that the apartment would go on the market, the landlord could set a current, market rent, and you’d be like any other applicant vying for it.
Your challenge will be to marshal as many arguments as you can to show that although you are not formally on the lease, you have full status as a co-tenant because management has treated you in all other respects as a full-fledged co-tenant. For example, you could point to the owners’ knowledge, from the outset, that you’d be a permanent and co-equal member of the household, or point to their willingness, over the years, to respond when you asked for repairs and maintenance (most landlords won’t deal with requests from subtenants). It will help your cause if management has turned to you, and not your mother, when issues came up that needed resolution (such as accommodating a pest control program, or adjusting mail delivery processes, and the like) or when announcing new rules and regulations for the building. Unfortunately, the fact that you were the source of the rent and utility money doesn’t do much for you — the owners don’t care where the tenant gets the rent money (as long as it’s from a legal source), and supporting your mother won’t transform you from a subtenant to a co-tenant.
That’s how your situation would play out normally, but a rent-controlled situation isn’t the usual. In some places with rent control (notably New York City), situations like this have been addressed by the rent-control ordinance and the courts. You may also be able to take advantage of special privileges extended to those who are caretakers, even when they aren’t formally on the lease. Because this issue is so important, it will be well worth it to consult with a local attorney who represents tenants (in any rent-controlled city, you’ll find such experts). You might ask the lawyer about the wisdom of trying now, while your mother is alive, to get your name added to the lease. This would give you an opportunity to get a sworn declaration from your mother regarding management’s open and continuous acceptance of you as a co-equal tenant. If you wait until she passes away, this evidence will be lost.
Q: I recently purchased a new home in a brand-new subdivision as a rental investment. Three weeks after tenants moved in, they called to complain about problems with ants. I advised them that I had spoken to the builder about this problem before buying the home, and was told that ants are a common problem when there’s construction that disturbs the top soil. I had the exterminator spray the house for ants before the tenants moved in, but the ants have come back again. The owner of the neighboring house had recently begun work on installing his landscaping, and this is, no doubt, contributing to the problem.
I offered to re-spray my rental property myself, but it would have to wait about 10 days until I have time to make the 1.5-hour drive out to the property to do so. In the meantime, I recommended that the tenants use ant traps to eradicate them at the source. The tenants don’t want to try the traps, and they aren’t willing to wait 10 days. Am I within my rights to insist that they wait until I come out? –Gene G.
A: In all states but two (Arkansas and Colorado), landlords are required to offer and maintain fit and habitable housing. This obligation includes the duty to rid the rental of vermin and rodents — and certainly ants. Unless you can prove that the infestation was caused by the tenants (which often happens when tenants are poor housekeepers), the work and the expense fall to you. In a few states, you can off-load such responsibilities to tenants (in single-family rentals only) in the lease, but even if state law makes this option available to you, you haven’t done so here.
From the sounds of your letter, it’s pretty clear that your tenants are not to blame, and neither are you. But the fact that you haven’t caused the problem doesn’t affect your duty to deal with it. Asking your tenants to use traps to kill the ants “at the source” seems odd, since you have acknowledged that the recent infestation may be due to your neighbor’s landscaping activities (do you expect your tenants to place traps on his land?). And I wonder at the efficacy of your home-grown spraying plans, since I would think that a professional, licensed exterminator would probably have access to more effective chemicals (and more toxic ones, perhaps, but that’s another issue). Maybe that’s why you hired a pro the first time, rather than doing it yourself. Finally, consider the cost of that three-hour drive, the price of the chemicals you intend to spray, and factor in the value of your time. I’ll bet that total isn’t too much below the cost of an exterminator’s visit.
Q: Until recently, my two roommates and I shared this house with the fourth occupant, who had been here the longest and always dealt with the landlord. When each of the three of us moved in, we bought out the security deposits ($500 each) of the roommates we replaced. Last month, the main tenant suddenly died, and we three would like to stay on. The landlord claims that he had to use the $2,000 deposit to cover the rent sometime in the past (certainly not while we’ve been here), and that we all need to replenish that deposit in order to stay. We think this is shady, but we want to stay. Any suggestions? –Brent J.
A: This sounds shady indeed. Don’t go along without getting some documentation that the landlord in fact used the deposit to cover the rent. For example, most landlords will deliver a late notice, or even a “pay or quit” notice when rent isn’t paid, and they should keep records. In addition, many states’ laws require landlords to give tenants written itemizations when they use the deposit — though many statutes refer to the landlord’s use at the end of the tenancy, the principle (making the deposit use transparent, with a paper trail) applies equally to its use during the tenancy. Finally, it’s highly unlikely that a landlord would use up the entire deposit without demanding immediately that it be replenished.
Your landlord may back off when asked to come up with proof that he used the deposit as he claims. If he persists in spite of having no documentation, consider bringing the deceased tenant’s estate into the picture. Since the deceased also had a $500 deposit, his estate is entitled to its return. A call from an executor or administrator or, better, a lawyer handling the affairs, may jostle this landlord out of his scam.
If all else fails and rentals are tight and you don’t want to move, consider compromising for the sake of convenience — it will benefit both sides. If you all move out, the landlord will have at least a month of no rent, and will have re-renting expenses to boot. In addition, he may not get decent tenants the next time. In short, it’s an expensive risk to kick you out. On the other hand, you too will have expenses connected with moving, and may not like the living situation where you land, either. To avoid these costs and risks, offer to split the difference with the landlord (by paying $250 each). The landlord will “lose” $1,000, and you’ll each be out $250, but those costs are less than each side will face if you don’t compromise.
Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of “Every Landlord’s Legal Guide” and “Every Tenant’s Legal Guide.” She can be reached at janet@sandbox.inman.com.
