Glankler Brown Business Law. Period.
As December rolls around and apartment complexes and their leasing offices begin to glimmer and jingle with the lights and sounds of the holiday season, owners and managers should be ever conscious of what decorations are and are not permitted under the Fair Housing guidelines.
How to Protect the Apartment Unit from Damage and the Apartment Complex from Liability
Tennessee law allows owners or managers to decide whether to allow tenants with pets to lease an apartment on property. For those communities which do allow pets, particularly those that allow dogs, a well thought out pet policy is very important to ensure the safety of tenants, visitors, staff, and the property itself.
A landlord may make the determination that a tenant has abandoned the apartment during the course of a lease term, and re-take possession without filing an FED and undertaking the standard court process, when certain threshold facts exist:
1. The tenant is unexplainably absent from the premises for more than thirty (30) days without payment of rent; or
2. The tenant has not paid rent for fifteen (15) days past the rental due date and the tenant has removed all of his/her personal property in the premises and the tenant has terminated the utilities to the premises.
On June 25, 2012, the Circuit and Chancery Courts of Shelby County will begin accepting documents for electronic filing in cases currently pending in either court as well as all new case filings.
Most residential leases and rental agreements in Tennessee require a security deposit prior to occupancy by the tenant. The security deposit is intended to cover damage to the premises beyond normal wear and tear and to cushion the financial blow for ownership in the event the tenant skips out early on the lease without paying.
The Service Members Civil Relief Act (SCRA) a/k/a H.R. 100, signed into law on December 19, 2003, by then President George W. Bush, includes provisions which protect service members from evictions during the course of their active service.
If a service member is (1) leasing an apartment, (2) the apartment is in the name of the service member, and (3) the service member has put management on notice of their active status, SCRA protects the service member who's monthly rent is $2,400.00 or less, from being evicted for a period of time if/when the service member has been deployed for active duty.
SCRA does not absolutely prevent a landlord from serving a termination notice for th non-payment of rent; but if the landlord knows of the military status, the landlord when filing suit must tell the court that the tenant is an active service member and the judge will then decide whether the service member’s status in the military materially affects his or her ability to pay the rent.
If the judge determines that status in the military materially affects the service member’s ability to pay the rent, the judge may stay the eviction for up to three months. If the judge decides otherwise, the lawsuit will continue and may result in an eviction.
In order for a service member to exercise his/her protection under the SCRA, the service member must demonstrate the following:
1. The lease was entered into prior to the commencement of active duty service.
2. The service member put management on notice of the military status at the time the lease was signed.
3. The lease was signed by or on behalf of the service member.
4. The apartment is occupied by either the active duty service member or the service member's dependents.
5. Military service materially affects his or her ability to pay rent.
6. The service member is currently in military service or was called to active-duty for a period of 180 days or more.
The service member must promptly deliver written notice to the landlord any time he/she is called to active duty or receives orders for active duty and must provide a copy of the reassignment or deployment order to management in order to implicate the protection. Oral notice is not sufficient.
Should you have any questions regarding the Service Members Civil Relief Act or how it might impact a tenant on your property, please do not hesitate to contact me at (901) 576-1701.
DRUG DEALER EVICTIONS:
Administered by the West Tennessee Violent Crime and Drug Task Force, the Drug Dealer Eviction Program seeks to assist property management prosecute the claims necessary to remove drug dealers from neighborhoods and multi-family residential apartment complexes.
If a drug offense occurs in a rental property and involves drug possession with intent to sell, the violator is now subject not only to criminal prosecution but immediate eviction as well. If management has not already begun the eviction process, the District Attorney’s Office will send a “Notice of Illegal or Drug Related Activity” to the landlord or management company. Upon receipt, management must proceed with filing and prosecuting an eviction, or else, the law allows the District Attorney’s Office to proceed with the eviction on management’s behalf.
The District Attorney’s Office has door-hangers, brochures and signs that can be used by management to encourage citizens to call in tips to Crime Stoppers about drug dealing at multi-family complexes.
For more information, the District Attorney’s Drug Dealer Evictions Task Force can be reached at 901-545-3433.
ANTI – TRESPASS INITIATIVE:
The recently announced Anti-Trespass Initiative is a program sponsored by the District Attorney's Office and executed by the Memphis Police Department and Shelby County Sheriff's Department. The Initiative aims at assisting multi-family owners and management companies in keeping people out of apartment communities unless they are tenants or invited guests.
Under this program, participating properties allow the Memphis Police Department and the Sheriff’s Department free access to the property, with the ability to arrest for criminal trespass anyone who is not a tenant, a family member of a tenant, or an invited guest.
In order to enroll in the Anti-Trespass Initiative, property management must contact Jackie Condrey, Investigator for the Shelby County District Attorney's Office, at (901) 222-1397. Properties will be asked to sign a participant affidavit, place “No Trespass” signs on property, and notify tenants, in writing, of the property’s participation in the anti-trespass initiative.
Once these steps are accomplished, the property will be considered an active participant in the program and the District Attorney's Office will notify the local police precinct to start inspections for anyone that is not authorized to be on the property.
Both the Drug Dealer Eviction and Anti-Trespass Initiatives are valuable tools that management can, and should, utilize to help maintain a safe and productive environment on property.
Should you have any questions regarding either of these initiatives, please do not hesitate to contact me at (901) 576-1701.
Owners and management companies may, at their discretion, decide whether or not to implement no-pet policies at a particular apartment community. A no pet policy prohibits tenants from keeping pets of any kind in their apartments; however, owners and management companies have certain legal obligations to make accommodations to allow certain specific types of animals to reside with a tenant in an apartment even when those apartments are in communities with clear no pet policies.
The law views service and comfort animals, not as pets, but as day-to-day needs of individuals suffering from physical and/or mental disabilities. Because of this, management is required to make reasonable accommodations to allow the presence of the animals in the homes of those who can show the requisite need.
A service animal is one which is individually trained to the requirements of an individual with a disability, such as protection, rescue, pulling a wheelchair, or fetching dropped items. Guide animals for the blind or visually impaired, signal animals for the deaf or hearing impaired, and service animals for other disabled people are all service animals and not considered pets under the law. The law (both at the federal and state level) specifically prohibits management from refusing to rent to a disabled person who needs a service animal. Instead, the law requires that management make reasonable accommodations to allow the disabled individual the use and assistance of the dedicated service animal.
Unlike service animals, there is no law or regulation which specifies that management must allow a disabled person to have a comfort animal. While a service animal is trained to perform physical acts to aid a disabled person, a comfort animal provides love, reassurance, social interaction and other emotional benefits. Advocates of comfort animals say that they provide substantial health benefits, particularly to emotionally disabled persons.
While comfort animals are not within the specific protections afforded service animals under federal and state disability and housing laws, disabled tenants are provided rights to keep comfort animals in apartment communities with no pet policies if they can provide documentation which shows that a medical professional believes that the animal is necessary for the individual’s health, use, and enjoyment of the apartment.
What Management Should Do
Prior to accepting a service or comfort pet in an apartment community with a no pet policy, the tenant should be asked to provide proof of the disability and of the need for the animal. The tenant is not required to provide any particular kind of proof, but must present some evidence that an accommodation by management is necessary. If the animal has an official tag or license showing that it is a service animal, management can probably rely on that as evidence. However, since comfort animals are not eligible for such tags or licenses, tenants who need a comfort animal must show it is necessary by order of a physician or mental health professional.
Interestingly and importantly, in communities where pets are allowed with a pet deposit, pet deposits should not be charged for tenants with service or comfort animals as they are not considered pets.
A landlord who receives a request to allow a service or comfort animal is best served seeking legal counsel. Each situation is unique and the ever changing law and particular tenant's circumstance may alter management’s ultimate decision.
Should you have any questions regarding service or comfort pets or the applicable law, please do not hesitate to contact me at (901) 576-1701.
A tenant bankruptcy filing will impede a landlord's ability to proceed with filing an eviction proceeding or carrying out the court-ordered eviction process. A tenant can stop an eviction by filing for a Chapter 7 (Liquidation) or Chapter 13 (Wage Earner) bankruptcy. Once the tenant files for bankruptcy, federal law, under 11 U.S.C. §362(a)-(b), imposes an "automatic stay" which prevents all creditors, including landlords, from pursuing repayment of debt and/or eviction.