Q: I manage a mid-sized apartment complex, and have recently been asked by a prospect who uses a wheelchair for a parking space next to the unit she is considering. We can do that, though we have a waiting list for parking, but it will involve reassigning other tenants’ parking spaces, buying signs and painting the pavement, and creating curb cuts. Who pays for all this work? –Sean D.
A: Requests from tenants and prospects with disabilities fall into one of two categories. A request for a structural change to the property is a modification request, while a request that you change, make an exception to, or adjust a rule, policy, practice or service is an accommodation request. Generally, tenants pay for modifications (except in Massachusetts and in federally financed buildings) and, if it’s feasible, can be asked to pay for undoing interior modifications. Landlords must shoulder the costs of accommodations.
Sometimes, providing a parking space will not involve physical changes, but instead will require changing a policy, such as your practice of giving parking spaces on a first-come, first-served basis. Tenants who are disabled are entitled to "jump the queue" and receive a parking place, even when there’s a seniority-based waiting list. (The rule is a bit different in an employment context, where an employee with a disability has the right to be transferred to a vacant position as an accommodation, but doesn’t have the right to jump the seniority-based line for that position.) The request you describe is a bit of a hybrid, because you not only must vary your policy, you also have to physically modify the space. Courts have treated hybrid parking requests like this as accommodations, and place the responsibility for paying for their preparation and upkeep on the owner. Remember, you can’t charge the disabled person extra for the parking, either.
Q: Several weeks ago, my college-age nephew signed a one-year lease with several students in an apartment complex. He paid the first month’s rent and a portion of the security deposit. A few days later he learned that a dorm room is available and wants to get out of his lease. His roommates and the landlord are upset and are demanding that he continue to pay rent until he finds someone to take his place on the lease. They also want him to forfeit his share of the security deposit. The landlord offered to let him out of the lease if he pays a penalty equal to his share of the rent for two months. Isn’t there a grace period that would allow him to change his mind? –Robert G.
A: Your nephew has broken his lease even before moving in, and has potential legal problems with both the landlord and the roommates. Before you can advise him, you need to understand the law (Can the landlord impose a penalty? Is your nephew responsible for finding a substitute?) and the market (How desirable is this rental? How difficult will it be to find a suitable replacement?). After you see the whole picture, you’ll know what to do.
Unfortunately for your nephew, however, there’s no easy out here. A few consumer transactions do come with a legally required cancellation period — under the Federal Trade Commission’s "cooling off rule," you have until midnight of the third day to cancel a door-to-door sales contract for more than $25, or a contract for more than $25 made anywhere other than the seller’s normal place of business. Many states have additional cancellation rules, covering contracts for dance or martial arts lessons, credit repair services, health club memberships, dating services, weight loss programs, timeshare properties and hearing aids — but not leases. The moment he penned his name to the lease, he obligated himself to its terms.
The landlord’s solution to this lease-breaking — imposing a penalty — is not a legally sanctioned response, and your nephew doesn’t have to go along with it. Judges routinely enforce contract provisions that make people pay for the actual damages they cause when they break a contract. A penalty, on the other hand, is designed to punish, not to fairly compensate the other side. Judges won’t enforce penalties, particularly in a contract between a business and a consumer (rather than a business-to-business transaction).
Landlords don’t have to resort to illegal penalties to make sure that they don’t lose money when a co-tenant breaks a lease. They are entitled to the entire rent from the remaining co-tenants, courtesy of the principle of "joint and several liability" (think of it as the legal version of the Three Musketeers’ "All for one and one for all"). The landlord may be concerned that without your nephew’s contribution, the remaining tenants won’t be able to come up with his share of the rent and the landlord will have to evict them. In that case, he can choose to accept a short rent check and make up the difference with funds from the deposit, but savvy landlords won’t go this route. After all, they might need to use the deposit to cover more unpaid rent or to pay for repairs when the tenants move out. Most landlords will demand the entire rent and leave it up to the remaining roommates and the departed co-tenant to work it out among themselves.
This puts your nephew’s roommates in a difficult spot, having to shoulder his portion of the rent until they find (and the landlord accepts) a substitute. They cannot just sit back and expect your nephew to produce a new roommate, however — they have to take reasonably prompt steps to replace him (and of course, your niece should help in the search). Once they find a sub, your nephew’s obligation to pay rent ends. If it takes them a month to find a new occupant and they’ve had to dip into their pockets to cover his share of the rent, they can sue him for that amount. If the rental is desirable, the price is right, and the roommates are an attractive bunch, they might find a new co-tenant right away, and your nephew’s losses would be minimal. If the opposite is true — the rental is in a college town awash in vacancies, with many opportunities for better digs at lower prices — he could be responsible for his share of the rent for the entire lease period.
Now, let’s put this all together. Because the landlord’s "penalty" is unenforceable, your nephew can ignore it if he’s pretty certain that he and the roommates will land a substitute in less than two months (he’ll still have to pay his share until that person takes over). But if the market is soft, or the rental just isn’t that attractive, settling for those two months might actually be the smarter thing to do. If your nephew ends up paying rent at two locations for a time, he can think of it as additional tuition, for a class called "Contracts."
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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