Evict a tenant, receive a lawsuit

Landlords who want to evict a tenant often face a problem. The tenant will claim a breach on the “warranty of habitability” as their defense to counteract the eviction. In order for this to work the tenant must show four things

  1. A Substantial defect existed in the rental unit
  2. The landlord had actual knowledge or constructive knowledge of the condition
  3. The landlord failed to remedy the issue
  4. Tenant neither majorly contributed or substantially prevented the landlord from fixing the condition.

Though it seems easy to avoid these issues, there have been instances where the judge will rule in favor of the tenant saying that the landlord breached the warranty of habitability when the owner knew nothing about it. Constructive knowledge means that a reasonable inspection would have revealed the problem. But owners cannot just barge into the property whenever, in order to do a “general inspection.” So what are the landlord’s obligations? How do they maintain the property legally? There are only 4 basic circumstances which a landlord is permitted to enter a tenant’s residence.

  1. Emergencies
  2. with the tenant’s permission
  3. To provide services and/or make agreed or necessary repairs
  4. To show the property to prospective purchasers, lenders, or tenants

Make sure your lease has verbiage to require the tenant to provide access to the landlord or it’s agents and prohibit the tenant from changing the locks without the landlord’s prior written consent. If on a month to month, you can serve a 30 day notice o change of terms of tenancy to add the provisions, otherwise, it can be changed with the new lease agreement. Legitimate purposes must be used for regular interval checks such as checking and maintaining carbon monoxide detectors or smoke detectors. Should be allowed at least 3-4 inspections. What about the time in between? Some owners will provide receipts of rent payments that have check boxes on the bottom that say “My residence requires maintenance or service” and “My residence does not require maintenance or service at this time.” Have the tenant sign and check the property box and this can cover the time in between to protect the landlord.

Finally, landlords must put the property in a condition fit for residential occupancy prior to delivering to the tenant as well as at the time of renewal. They also have duty to inspect the unit for dangerous conditions and repair all subsequent dilapidations.




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