Q: My daughter, a single mom with two small children, had just gotten out of an abusive marriage three years ago when friends invited her to place a mobile home on a piece of their property. The landowners gave my daughter a signed declaration that she would never have to pay rent and would never be evicted. On the strength of this declaration, she was able to purchase a mobile home. The sellers told her that without the declaration, she would not have qualified for the mobile home purchase.
A year ago, the landowners demanded rent, which my daughter reluctantly agreed to pay. Now they’ve increased the rent, which my daughter cannot pay. She also cannot afford the cost of moving the mobile home and setting up somewhere else. Does she have any recourse? –Nita M.
A: The landowners’ promise to let your daughter live on their land rent-free was a gift (it wasn’t a contract, because your daughter paid or gave nothing in return). This distinction is important because it’s much easier to make a person stick to a contract than to prevent him from revoking a gift. To stop this gift revocation, you’d have to show that your daughter relied on the promise of no rent by taking significant steps (purchasing the mobile home) that she otherwise would not have done, and that this reliance was reasonable and should have been anticipated by the gift givers. If your daughter refuses to pay rent or leave, and the landowners file an eviction lawsuit, to win she would have to convince a judge that to allow the owners to rescind the gift would cause an injustice.
So far, your daughter would have a pretty good case. A gift that’s accompanied by a signed declaration is evidence that the landowners weren’t acting on a whim, but were serious and had given some thought to their action. Your daughter’s response (to buy the mobile home) was reasonable and surely anticipated by the owners — what else could she have done with the right to use the land? By demanding rent, the owners are placing your daughter in a detrimental position that she would not be in but for their revocation.
Unfortunately, there’s a problem: Your daughter went along with the gift revocation a year ago and became a tenant (by paying rent). Now, faced with a rent increase, she wants to know if a court will undo the revocation she implicitly agreed to a year ago. A judge might rule that your daughter gave up, or waived, her opportunity to make the owners stick to their promise of free rent, and now it’s too late. A judge might also conclude that it was not reasonable for your daughter to think that these owners would really give her the right to use the land forever — in other words, she should have expected that the gift would someday turn into a business offer.
It’s really not possible to guess the outcome of a case like this. A lot will depend on the sensibilities of the judge, and how the evidence shakes out. A creative judge might come up with a solution that will ease the burden you daughter now feels, but at the same time not result in the landowners having to host her for perpetuity.
Q: My insurance agent suggested that I require all tenants to carry renters’ insurance — in particular, liability insurance. He pointed out that if the tenant starts a fire, the tenant’s policy will cover the damage, not mine. I like the idea of shifting the cost of tenant-caused damage to the tenant (to his deep-pocket insurance company, to be precise). But when I mentioned this to a member of my apartment association, she said that she’d heard that it might not be legal to make tenants carry renters’ insurance. Can you advise? —Mike M.
A: Your friend’s suspicions are well-founded. In some states, courts will not enforce a lease clause that requires tenants to carry liability insurance. These judges point out that the landlord has property insurance already, which will cover repairs in case the building is damaged by fire, no matter who starts it. The tenants help pay for this coverage, the thinking goes, because their rent money helps pay the premiums. Making them pay "twice" for coverage is economically wasteful, particularly when you consider the result in a multi-unit building, where the same asset (the building) will be insured by multiple policies. The only real winners here are the insurance companies.
Be careful not to assume, as many do, that even if you can’t require your tenants to carry liability insurance, your insurance company can always sue them if their carelessness causes damage, resulting in a claim that the insurance company pays for. Normally, of course, this recourse (called subrogation) is available — when someone hits your car, your insurance company might pay for it, but then turn around and either sue the driver or get reimbursed by his insurance carrier. But if your state has decided that tenants can’t be forced to carry liability insurance because they are helping to pay your premiums via their rent, they’re also saying that the tenants are insured parties under your property insurance contract. And here is where you run up against a time-honored insurance rule: Companies can’t sue their own insureds for reimbursement — if they could, no one would bother buying insurance at all.
Check back with your agent and ask for confirmation that courts in your state will enforce a renters’ insurance clause. Don’t be surprised if the agent doesn’t even know what you’re talking about. The agent should be able to get the answer by checking with the legal department of the insurance company you use. Or, consider bringing this issue to the attention of your apartment association, and ask them to get an opinion from a lawyer.
Despite all this, it’s a good idea to recommend that your tenant purchase renters’ insurance. When tenants are insured for loss of personal items destroyed in a building fire, or covered when their carelessness causes injury to a guest, the funds they set aside for rent will be protected — which is in your interest, too.
Q: We’re going to rent out the home my parents built and lived in all their lives. We want to make sure that we find tenants who will fit in with the neighborhood, which is rather sedate and conservative. We’re well aware of the fair-housing laws, and intend to abide by them, but we are wondering if we’d be breaking the law by specifying that tenants may not place political signs on the property. Would their rights to free speech trump our rule? –Kerry T.
A: As long as you’re a private landlord, you don’t have to worry about infringing on your tenants’ rights to free speech in this context. That’s because any complaint they may have would arise under Section 1983 of the Civil Rights Act, which will apply only when the government is also involved (in legalese, this is called the "state action" requirement). As a private landlord, your restriction may be repugnant to some, but it’s not illegal under federal law. As a practical matter, however, it might be wise to specify that no signs may be posted on the property, even in the windows, rather than limiting the restriction to political signs.
Note that the result may well be different if you accept Section 8 tenants. When you participate in a government-sponsored housing voucher program, your partnership with a state or federal agency may convert your actions as a landlord into state action. Once that happens, your First Amendment restriction may have a hard time surviving judicial scrutiny.
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.
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