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The Uniform Residential Landlord Tenant Act requires that in the event there is any material non-compliance (or breach) of any provision of the Lease by a residential tenant, the Landlord may terminate the lease and file an FED only after providing written notice to the tenant of the non-compliance and offering the tenant fourteen (14) days to resolve (or cure) the breach.
Whether you love it or hate it, absent a significant political shift, the ACA is here to stay, at least for the foreseeable future.
The Patient Protection and Affordable Care Act (“ACA”) was signed into law by President Obama on March 23, 2010, and the Supreme Court largely upheld its provisions on June 28, 2012. Whether you love it or hate it, absent a significant political shift, the ACA is here to stay, at least for the foreseeable future.
The 2013 session of the 108th Tennessee General Assembly, which recently adjourned on April 19, 2013, in Nashville, passed into law an important change to Tennessee law, which will benefit multi-family property owners and management companies. In addition, two proposed bills, which would have posed significant additional duties on managers, was defeated.
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.
A question that real estate attorneys often receive is, “why purchase owner’s title insurance?” I, myself, would not purchase a house or any parcel of real estate without an owner’s policy of title insurance. It is a one-time only premium that is paid when you purchase the property and protects your interest in the property against loss due to title defects, liens or other encumbrances against title for as long as you own the property and, in certain instances, even after you sell the property. In the event of a lawsuit attacking title (i.e., someone else claiming an interest in the property, a lender or other creditor claiming that a prior loan or judgment has not been paid off, a defect in title due to a document not being properly signed, a forgery, or other event of fraud or duress, etc.), your title insurance company will defend you and pay your legal fees (which could be very costly) or reimburse you for the actual monetary loss incurred up to the dollar amount of the insurance provided by the policy (generally what you paid for the property; and, under some policies, the coverage afforded actually increases a certain percentage each year that you own the property).
Basically, title insurance is an insurance policy which insures that, upon recording of the closing documents, title to the property will be vested in your name. The policy insures that the property, at the time of recording, will be free from all defects, liens and encumbrances except those which are listed as exceptions in your policy or are excluded from the scope of the policy’s coverage under the standard exceptions, conditions and exclusions from coverage found in the pre-printed portion of the form policy. This is pretty substantial coverage for the one-time premium that you pay in exchange for the policy.
Another reason title insurance is beneficial is because, when examining title, we, as examining attorneys, only review the records for the property and the current owners which are produced by the title company as part of its title search. This actually minimizes the cost to you because if we did not have the title company’s search to rely upon, we would have to conduct our own search of register’s office and local courts in order to give you a proper legal opinion on title, which would be much more expensive than paying for an owner’s policy of title insurance due to the additional time that would be required in order to conduct an adequate title examination. Since our examination of your title is limited to our review of the documents submitted to us by the title company, if you choose not to purchase an owner’s policy of title insurance and a problem appears in the future that the title company’s search may have missed (which happens more often than you might believe), you would be out of luck and could end up facing serious legal fees in sorting out the mess. In other words, as cheap as title insurance is, it is not worth the risk of not having it.
Finally, keep in mind that all institutional lenders are going to require that you pay for lender’s coverage which insures that the lender has a first lien deed of trust against your property to protect them in the event you default. For purposes of illustration only, let’s assume you are purchasing a house for $250,000 and obtaining a loan in the amount of $200,000 to finance the acquisition of the property. In Shelby County, Tennessee, the lender’s base coverage alone, if you did not purchase an owner’s policy, would be approximately $801.25. Since you can get an owner’s and lender’s policies for a simultaneous issue rate of $1,060.12, the owner’s policy, in this case, would really only be costing you about $258.87. That is cheap for $250,000 in coverage (and possibly more depending on the policy) for as long as you own the property.
I hope this helps in explaining the point of title insurance. If you have any questions, feel free to call me at (901) 576-1743.
Increasingly, multi-family owners and management companies are facing issues relating to tenants who hire independent third parties to install satellite dishes on the exterior of their apartments. These dishes provide television, phone, and internet services to the tenant. The law seeks to balance the rights of multi-family owners and management companies to protect their properties with the tenants’ lease based contractual right to enjoy their apartments.
The Federal Communications Commission (FCC), an independent agency of the United States government which regulates all aspects of broadband media, allows multi-family owners and management companies to prohibit placement of satellite dishes in places which might potentially damage or compromise the exterior of the complex’s building, while at the same time prohibiting owners and management companies from “unreasonably” objecting to installation of “pizza-style” satellite dishes, not larger than one meter in diameter, when installed in safe and non-damaging locations.
Specifically, multi-family owners and management companies may prohibit placement of satellite dishes on the following areas:
- Window Sills
- Common Use Balconies
- Exterior Walls
However, multi-family owners and management companies, may not “unreasonably” prevent tenants from installing satellite dishes on private balconies, private patios, and private gardens, so long as, no holes are drilled in outsides walls, the roof, windows, or balcony railings.
Should you have any questions regarding the FCC regulations in specific, or satellite dishes in general, please do not hesitate to contact Josh Kahane at (901) 576-1701.
Owners and managers owe a legal duty to their tenants to provide, as much as possible, a safe place to live. But even the most effective managers and on-site security staff, face incidences of violence involving a tenant or the invited guest of a tenant and, even more often, on-site staff in the leasing office can be subjected to threats of violence against them or the property by disgruntled tenants. In these circumstances, it is most important to quickly apply the protection offered under the Landlord Tenant Act to remove the tenant from the property and ensure the safety and well-being of all other people on site.
Social media activities are exploding, as is litigation involving employee conduct on these social media sites.
The National Labor Relations Board’s (“NLRB”) Acting General Counsel, Lafe Solomon, announced on October 20, 2011 that a major new area of litigation at the Board involves cases where employees contend they were unlawfully treated by their employer for their activity on social networks.
Less than two years ago, teenager Adorian Deck started a Twitter account called @OMGFacts. Deck quickly and quite unintentionally became famous by tweeting "facts" about celebrities and current events. Deck’s online following grew through Twitter almost overnight and by early 2010 had approximately 300,000 followers.
In today’s commercial world, it is common for business agreements and contracts to contain an arbitration provision. These provisions generally require the parties to the agreement to use a neutral arbitrator to decide their disputes and waive each party’s right to file a lawsuit in a civil court. Not surprisingly, the scope and applicability of contractual arbitration provisions have been subject of much discussion in both the state and federal court systems. In Healthmart USA, LLC vs. Directory Assistants, Inc., Case No. M2010-00880-COA-R3-CV, the Tennessee Court of Appeals recently added heft to the viability of contractual arbitration provisions, even when poorly written.
FACEBOOK AND EMPLOYEE PROTECTED SPEECH.
Is Facebook the new after work watering hole where fellow employees gather to share their work experiences and air grievances? Maybe, but with one big difference – there’s a public record of what is discussed and a strong likelihood that what was posted will be disseminated and eventually read by a manager.
In October 2010, the National Labor Relations Board (“NLRB”) brought a first of its kind complaint against American Medical Response, a Connecticut ambulance service, claiming that the company violated federal labor law by firing an employee for making negative comments about her supervisor on Facebook.
Now might be a good time to review your company employee handbook to see what it says about employee use of email. While most people consider communications with their lawyer to be privileged and confidential, that may not always be the case -- especially if it’s an employee using her work email to communicate with her personal lawyer about suing her boss.
In a recent case from California, an employee had filed a discrimination lawsuit against her employer. While still employed, she used her work email account and work computer to discuss her case with her attorney. Her employer later used those emails against her at trial and successfully defended the case. The employee appealed the judgment arguing in part that it was wrong for the judge to let the jury read those emails because they were between the employee and her lawyer.
Effective January 31, 2011, customers in FINRA arbitrations have a new choice when it comes to trying to resolve disputes with their securities broker. FINRA operates the largest dispute resolution forum in the securities industry to assist in the resolution of disputes between and among investors, securities firms and individual registered representatives. As long as the customer’s claim qualifies for a three arbitrator panel, the customer will decide whether a securities industry professional will be a member of the arbitration panel.
After years of contentious debate and strong opposition from trial lawyers, the Mississippi Legislature capped non-economic damages that a jury could award a plaintiff for pain and suffering. Now, the Mississippi Supreme Court could rule on the constitutionality of the current law. This is a decision that plaintiff’s lawyers throughout Mississippi and elsewhere are following intensely.