Bye Felicia

by Jacqueline Holmes

Landlord Tips for Kicking Trouble Tenants to the Curb

Whether in the residential or commercial leasing context, it is nearly impossible for a landlord to avoid encountering a trouble tenant at some point in time.  Maybe the property owner agreed to enter into a lease with a questionable tenant against his or her better judgment.  On the other hand, maybe the tenant was an ideal candidate on paper – high credit scores, solid references, and good moral character.  Regardless of the foregoing, a problem tenant will show his or her true colors eventually.  Unfortunately, there is not a foolproof method for vetting potential tenants, although running credit checks and obtaining appropriate financial information is always recommended.

The best protection for a landlord from a less than desirable tenant is a well-drafted lease agreement.  The basics are easy.  Where is the leased property located?  What is the rental amount and when is payment due?  What is the term of the lease?  Beyond these obvious provisions, the lease must be specific when it comes to the details of the leasing arrangement.  First, the lease must be clear with regard to the lessor’s and lessee’s respective obligations.  For example, who is responsible for maintenance and repairs to the property?  Who is required to pay the utilities and real estate taxes?  Second, the lease must expressly set forth the landlord’s remedies in the event that the tenant violates a provision of the lease.  What form of notice must the landlord provide to the tenant to notify the tenant that he or she is in breach of a provision of the lease?  Must the notice be in writing?  Must a written notice be delivered by a particular method?  How much time does the tenant have to cure the alleged breach of the lease?  If the breach is not cured within the specified cure period, what are the landlord’s remedies?  In the event of a breach in the nature of the failure to make payments when due, a lease may provide for the imposition of late charges or other penalties.  Further, with regard to monetary or other defaults, the lease may include a forfeiture provision permitting the landlord to terminate the lease and evict the tenant should a default persist past the cure period following proper notice.

All of the foregoing issues should be explicitly addressed in a lease agreement.  Most importantly, a forfeiture provision should be as specific as possible.  Even if a tenant technically violates provisions of a lease, courts are reluctant to allow a landlord to terminate a lease in reliance on a forfeiture provision unless it is abundantly clear that the landlord is entitled to such a remedy, based on the language of the lease itself.  Courts review forfeiture clauses with considerable scrutiny in both residential and commercial leases.  A lease must define what constitutes a default of its terms and under what circumstances such a default gives rise to a landlord’s ability to terminate the lease.  An unclear or otherwise poorly drafted forfeiture clause may leave a landlord stuck with a bad tenant.  When in doubt, a lease should err on the side of greater specificity, rather than risk vague language which may be subject to various interpretations.  A lease lacking attention to detail may prove to frustrate a landlord’s ability to regain control of his or her property from a problem tenant.  As the wise musical artist Drake once said, “If the devil’s in the details, then I’m Satanic.”

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