Does a Lease Need to be Notarized or Recorded?
March 8th, 2009 | 
Author: Generally, no.
But, both residential and non-residential leases must be notarized and contain a legal description if the term exceeds a year.[1] The recording statute defines a lease of over two years as a conveyance.[2] Read the rest of this entry »
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How to Repo Lease to Own Housing
Many assume that in a lease to own housing transaction it is a simple matter to regain possession if the potential buyer fails to close and/or fails to pay rent. Not so fast.
A landlord may bring either an unlawful detainer action or ejectment action to evict a tenant. [1]
It is far preferable for the owner to bring an unlawful detainer action. An unlawful detainer action is an expedited form of litigation narrowly tailored to the issue of possession. [2] Counterclaims are only proper if they relate to the issue of the right of possession. [3]
However, unlawful detainer actions can only be brought in situations that fall under the statute. [4]
A buyer who is in possession of real property – as opposed to a tenant in a landlord-tenant relationship – cannot be evicted in the expedited unlawful detainer action. [5] Rather, to evict a buyer in possession the owner must bring an ejectment action. [6]
In an ejectment action the defendant is served a summons answerable in twenty days, rather than only seven in the unlawful detainer action. The ejectment action is a general civil lawsuit, not a special proceeding with a show cause hearing on shortened notice. As a general civil action, counterclaims are not limited to the issue of possession. The ejectment action will generally take longer, cost more, and may have a more uncertain outcome. The ejectment action should be avoided by an owner if possible.
Some possible ways to avoid the ejectment action.
Do not give an option to purchase that can be exercised right away.[7] Grant an option that may be exercised only at the end of a lease period. If the tenant is not reliable with rent the owner may evict via unlawful detainer and avoid ejectment.
Require both written notice and additional consideration to exercise the option.
The terms of the lease should stipulate that a default of the lease voids the option.
Forbid improvements to the property during the term of the lease. Enforce this lease provision with ten day notices to comply or vacate when appropriate.
When faced with evicting occupants, the owner should whenever possible avoid ejectment and proceed with an unlawful detainer action.
Filtered Screening
[UPDATE NOTE: This bill ultimately did not pass.]
A bill is being considered in Olympia that may limit landlord’s access to complete and accurate information and drive up the costs of obtaining tenant screening reports.
The proposed law imposes new credit reporting obligations on tenant screening services. The new law would require them to issue only one complete screening report per tenant per sixty days and to issue a correction if information changes. Read the rest of this entry »
Tags: Landlord-Tenant Law and the Right to Bear Arms
The US Supreme Court recently rendered an important decision on the right to bear arms under the US constitution. The decision applies to government action, not private relationships such as landlord and tenant.
The Michigan Court of Appeals has ruled that a public housing landlord may enforce a lease provision prohibiting tenants from possessing firearms by evicting tenants that violate it. The court cited legal precedents that establish the right to bear arms is not absolute and is subject to reasonable regulation. [1]
It is important to note that although the tenant in question had apparent mental health issues, the court upheld the eviction of the tenant not as a nuisance or threat to other tenants, but upheld the landlord’s right to enforce the lease provision banning all firearms in the leased premises.
The Washington state Supreme Court held in a 2006 decision that a city government acting in a proprietary capacity as property owner could place conditions on firearms on property.[2] The plaintiffs sought a temporary use permit from the city of Sequim for the use of city property for the purposes of a gun show. The city placed several conditions on the use of the city facilities for the show.
The Court noted that by issuing the permit “the city was leasing its property to PNSPA and acting in its private capacity as a property owner” and “that a municipal property owner like a private property owner may impose conditions related to firearms for the use of its property in order to protect its property interests”. Read the rest of this entry »
The Fair Debt Collections Practices Act and Property Managers
The federal Fair Debt Collection Practices Act (FDCPA) applies to any person who regularly collects or attempts to collect debts for another.
The definition might include property management firms under certain circumstances, but does not include landlords acting pro se. The FDCPA exempts attempts to collect debts that were not in default when obtained. For example, this exemption would apply as long as the tenant was not in default when the property management firm was retained. Conversely, if a property manger accepts an assignment of a debt after it has become due and is in default the exemption may not apply and the property manager could arguably be deemed a debt collector.
The FDCPA requires in the initial communication, whether written or oral, a disclosure that the communication is an attempt to collect a debt and that any information will be used for that purpose. This disclosure must also be made in any subsequent communication, except formal legal pleadings.
In addition, within five days of the initial communication the debt collector must also give notice of the certain rights, namely:
- the right to dispute the debt within 30 days
- the debt amount
- the name of the creditor
- that the creditor will assume the debt is valid unless the consumer disputes its validity within 30 days after receiving the notice
- that if the consumer notifies the collector in writing within 30 days that the debt is disputed the collector will mail the consumer verification of the debt or a copy of the judgment against the consumer and
- that the collector will provide the consumer with the name and address of the original creditor (if different from the current creditor).
Any debt collector who violates the FDCPA may be liable for actual damages and humiliation, embarrassment and mental anguish/emotional distress, statutory damages of $1,000 at the discretion of the court, plus court costs and attorney’s fees.
