Q: We live in a multifamily community whose management assures us that they take their screening duties very seriously (the result, perhaps, of a crime committed by a resident a couple of years ago). They claim that they hire a screening company, that they check "every legitimate source" of information on an applicant. We know they look on the Internet — when the manager gave us the keys, he complimented us on the photos on our family Facebook page!
But the guy who moved in next door must not have been screened — his blog goes back years, filled with racist rants. As members of one of the races whom he hates, we feel very uncomfortable living near him, and would like to break our lease and move. Can we do so legally? –Bill and Janelle P.
A: Tenants may break their leases and leave when the landlord fails to honor explicit, important promises made before the lease was signed. For example, a promise made during a tour that the pool will be up and running by summer is one that the landlord must keep or risk losing his lease-holding tenants to whom the pool was a real deal-breaker. The reason is straightforward: When the promise concerns a significant matter, and the tenant relies on that promise in deciding to rent the property, the promise becomes part of the deal. The landlord’s failure to deliver on the promise constitutes a breach of the lease, enabling the tenant to walk away.
Let’s assume that management did not look up your neighbor on the Internet (from what you’ve told us, it’s unclear whether they consulted the Web or not). Is an applicant’s blog one of the "legitimate sources" that management promised they’d check? You could make a good case that it is — that the contents are a sort of "super application" that gives landlords added information about their applicants. Written by the applicant himself, the contents are surely "legitimate."
This is not to say that every landlord must check online for blogs and posts. But once a landlord says that he will cast a very wide net, however, that arguably becomes the kind of promise that must be kept.
Although we may have answered your stated question, a thornier one lies beneath. Suppose the landlord actually did see your neighbor’s racist blog (or would have seen it had he looked)? There’s no question that he could have rejected this applicant on this basis alone, without fear of fair housing repercussions, because posters of racist rants are not a "protected class" under fair housing laws. But what about the next question: Would he be obligated to turn this person away? In other words, once a landlord learns that an applicant has such beliefs, is he legally required to reject him?
The answer is probably no, as long as the applicant has a track record of paying the rent on time, treating property and neighbors respectfully, and showing no signs of allowing his below-the-surface bigotry to surface in antisocial behavior. Some landlords might consider his racist beliefs to be irrelevant, as long as he acts the model tenant.
Likewise, if your new neighbor does not cause problems by using racist language or epithets, your landlord would have very little on which to base a termination or eviction. And for this reason, you might have a hard time justifying breaking your lease. In the context of this question, breaking a lease without responsibility for the balance requires that you point to a dangerous or illegal situation on the property that the landlord has failed to remedy. Your neighbor’s abhorrent beliefs alone, without resulting acts, may not give you the reason you need.
Q: Our lease says that we can renew our lease for another year, "at market rates." Now it’s time to renew, but the management company has given us a rent figure that we think is way over market. How can we convince management to get real? –Margaret M.
A: Unfortunately, your renewal clause has been written very poorly. As anyone with any real estate experience will tell you, "market rates" is a somewhat subjective term. And that could doom your renewal right.
When a contract (including a lease) provides for something to happen, but that act is not certain or clear (that is, a judge cannot easily order the parties to comply with it), the contract or that portion of it might be held unenforceable. If you end up in court trying to force the landlord to renew "at market rates," a judge may refuse to issue the order simply because it’s not clear what "market rates" really are. (Incidentally, this is why, in many leases and other contracts, you’ll see a "savings" clause at the end, providing that if any portion of the contract is ruled unenforceable by a court, the balance of the contract will survive.)
But all may not be lost if you and the management company really want this renewal to happen. You need to agree on a procedure for coming up with a figure for market rent that you can both accept. This shouldn’t be too hard. You could each nominate another real estate professional (a broker who deals with rentals, or other management companies), and ask them to arrive at a figure. If they can’t agree, each of you could agree on a third professional who would break the tie.
You shouldn’t have to pay for this service; these professionals should offer their time and expertise in the spirit of helping their colleague (the management company responsible for the poorly drafted clause), and in hopes that you will remember them when and if you decide to become a homebuyer.
In the future, if you encounter another renewal clause, make sure that it contains a mechanism for arriving at "market rates." You might use the method just described if the landlord and tenant cannot initially agree. And be sure to specify when the tenant must exercise this right to renew (it should be a month or more before the lease’s ending date, to enable the landlord to re-rent before the term ends, if the tenant decides to move). Finally, make sure the lease tells the tenant how to notify the landlord that he or she plans to renew (written notice is always best).
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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