Slam the Gavel Blog
|Posted by Matthew J. Hornsby on August 30, 2012 at 6:20 AM||comments (341)|
It will come as no surprise to most people that landlords often prohibit their tenants from keeping pets on the rented property. For the most part, this is to prevent pet damage, stained carpets, etc. A less familiar, but equally important, reason for such restrictions on pets is the potential for liability, especially with so called “vicious dogs.” And when it comes to dogs, we all know that pit bulls have a reputation (fair or not) for being an especially vicious breed.
There is a recent trend of cities passing laws banning pit bulls altogether. In Maryland, the state legislature recently passed a law labeling pit bulls as “inherently dangerous” and increasing the legal liability imposed on pit bull owners – and their landlords – for dog bites caused by pit bulls. As you would expect, the reaction of landlords, in fear of finding themselves on the business end of a dog bite law suit, was to send out letters to tenants, demanding that the pit bulls be removed from the rental property or face eviction.
I’m not sure where I stand on the idea of pit bulls being inherently dangerous. Certainly, we hear stories of pit bull attacks all the time. But do we hear these stories because pit bulls truly are more dangerous, or because an attack by a pit bull grabs headlines better than an attack by a beagle?
I don’t believe you can blame the landlords for requiring the removal of the pit bulls. In a society where a huge money judgment from a dog bite case can cost the landlord everything he/she owns, how do you expect the landlord to respond? Demanding the removal of the dog is an act of self-preservation, and it’s wise, legally speaking. The harsh truth is, these pet owners now have to make a choice between giving up their beloved pet – or moving their family out of their home. It’s the result of a legislature passing a law intended to protect people, but instead, making their lives more difficult. Sound familiar?
|Posted by Matthew J. Hornsby on August 10, 2012 at 6:15 AM||comments (299)|
A large part of my practice involves assisting landlords throughout the rental process. I have written before on tips on being a successful landlord. I also have a portion of my website devoted to this topic. Here are several questions (and my responses) involving some of the issues that seem to come up time and time again as I represent landlords.
Prior to Renting
Q: Is there a way I can run a credit check or background check on a prospective tenant?
A: Yes. There are multiple websites (just search "tenant credit check") where you can purchase a credit report of a prospective tenant. The cost ranges from $20-$40 depending on how much information you are seeking. You should require the tenant to pay this upfront as an application fee, and also make sure you have the tenant sign a statement (included on the application itself) authorizing you to have these checks conducted.
Q: What information do I need to collect from a prospective tenant before renting to them?
A: I recommend having a standard application form filled out. The most important pieces of information are 1) full name, 2) multiple phone numbers, 3) social security number, 4) date of birth, 5) current employment information, and 6) prior landlords. All of this information will be useful in screening the person prior to renting or collecting on a money judgment after evicting. Email me at firstname.lastname@example.org and I can provide you with an application form.
Q: Where can I get a residential lease agreement?
A: Email me at email@example.com and I will be happy to provide you with a tried and true lease agreement.
Q: How do I know what terms/provisions to use in the lease agreement?
A: Your best bet is to ask an attorney to assist you with filling out the lease agreement. Most of the common terms are easily understandable, however some rogue leases out there include provisions prohibited by law, so you want to make sure these are not used.
Q: How much can I take as a security deposit?
A: Normally, you can take an amount equal to 1 month’s rent as security deposit. So if the monthly rent is $1000, the security deposit should be $1000, or less.
Q: If the tenant fails to pay rent one month, do I have to apply the security deposit towards that unpaid month?
A: No, the tenant is required to pay the monthly rent even if a security deposit was paid at the start. This does not have to be credited to their account during the lease period.
Q: What do I do if the tenant stops paying rent?
A: As soon as the rent is late under the terms of the lease, you should provide a written notice of intent to terminate the lease. I recommend seeking assistance from an attorney at this step, at least for the first such incident, so that the attorney can ensure that you provide a proper notice.
Q: What do I do if the tenant has allowed other people to move in?
A: If this is a breach of the lease agreement (and it needs to be) you should provide a written notice of intent to terminate the lease. Note: this notice is very different from the type of notice used in cases of non-payment of rent, therefore I recommend seeking assistance from an attorney at this step.
Q: What do I do if I think the tenant is destroying my house?
A: Normally, you should provide a 48 hour notice of a particular time that you intend to enter into the property for the purposes of inspecting the property. If the tenant is indeed destroying the property, you should provide a written notice of intent to terminate the lease.
Q: How do I get rid of this tenant?
A: Only by filing an action in court, called an unlawful detainer. In Alabama (and most other states) the landlord does not have the right to “self help.” That means that you must go through the court system and have the sheriff’s department physically remove the tenant and their property.
Q: Can I shut off power, water, or other utilities to the house?
A: No, no, and no. I often have a landlord-client who, prior to retaining me, and acting out of understandable frustration, called the power company or water board and instructed that services be stopped. The law can severely penalize a landlord for these actions, even if the tenant is not paying rent. The safe bet is to retain an attorney before things escalate to that point.
Q: How long will it take to evict the tenant?
A: Depending on the circumstances, usually 4-6 weeks.
Q: Is it possible to recover my money after evicting the tenant?
A: Yes, and this is made easier if the landlord has collected certain important information in the application process. It is possible to garnish the wages of the tenant if their employment is known, and that is usually the best option for collecting on your judgment.
|Posted by Matthew J. Hornsby on June 28, 2012 at 9:25 AM||comments (0)|
As everyone has surely heard by now, the United States Supreme Court has upheld the Health Care Law. The impact of this ruling is both obvious and extreme. A quick read of any number of news websites will tell you what that impact is.
However, the way that the Supreme Court arrived at its decision is perhaps as significant, and surprising, as any effect the law will have. When the law was passed by congress, it included a provision mandating that, for the most part, all individuals were required to purchase insurance or face a fine. Importantly, the legislation was written without the word “tax” being used in that provision. People running for office know that voting for taxes is generally not the best way to get reelected. So it was called a “penalty.” The distinction is more than simple politics at play. Congress has undisputed broad powers to tax almost any person or any thing that it chooses…but it does not have power to enact penalties for these types of things. By using the word “penalty” members of congress (and Barack Obama, who pushed for and signed the Bill into law) were trying to avoid the dreaded “T” word that could doom their reelection chances. At the same time, many believed by trying to save their reelection chances, and calling it a “penalty,” they had doomed the Health Care Law’s ability to pass.
Apparently, the Supreme Court decided that words do not in fact mean certain things. The Court basically interpreted (even manipulated) the language of the law in an effort to allow the law to pass. The penalty was interpreted as a tax and the law was largely allowed to stand, because of congress’ broad taxing powers. Or as the conservative dissenters of the Supreme Court wrote "The Court today decides to save a statute Congress did not write. It rules that what the statute declares to be a requirement with a penalty is instead an option subject to a tax."
The immediate impact is the upholding and enacting of a law which is unpopular with the people of this country. The ultimate impact may be those same unhappy people voicing their displeasure in November – displeasure for the legislators and president responsible for what now becomes one of the largest tax increases in United States history.
|Posted by Matthew J. Hornsby on June 26, 2012 at 3:05 PM||comments (0)|
In a case that will have a significant impact on a similar Alabama law, the Supreme Court has partially upheld the controversial Arizona immigration law enacted in 2010 to combat the influx of illegal aliens in the state.
The Supreme Court actually struck down 3 of the 4 provisions at issue, however the remaining provision is perhaps the most important. That provision, known as the “show me your papers” provision, requires Arizona police officers making any stop, detention, or arrest to make efforts to verify the suspect’s immigration status, if the officer has reasonable suspicion that the person is illegally in the United States. So for example, if a person (whether he be named Jose, Jamaal, or John) is stopped for speeding or arrested for vandalism, and the officer has reasonable suspicion (less concrete than both “probable cause” and “beyond a reasonable doubt” that the person is illegally in the United States, the officer is required to check into their immigration status, either by asking for proof of citizenship, or checking with the Feds (ICE). Opponents of the law have called this portion legislative racism, while supporters have called it a necessary course of action after the Federal government has neglected immigration enforcement for decades.
The Obama administration (after weeks of political turmoil) and like-minded liberals are claiming a victory because of the provisions that were overturned. The AZ governor and other conservatives are claiming a victory because of the Court’s approval of the “show me your papers” provision. The truth is, neither side will be very happy with the result, as the left will cry foul over the possibility of racial profiling with the “show me your papers” provision, while the right will long for the banned provisions that would have enabled the state and local governments to punish illegal immigrants located within the state.
But in any event, by allowing the “show me your papers” provision of the AZ law to stand, the Supreme Court is basically saying that that portion of the law is not unconstitutional on its face, and that the state has a right to administer the law and see how it plays out. There will certainly be challenges to the methods used by the police officers and state officials so we may see this law, as well as a similar law enacted in here in Alabama in front of the Court again, so the Court can rule on the specific manner in which the states are carrying out the law. But until that time, you will see both sides spin the latest Supreme Court decision in the light most favorable to them, in the ever-present battle for political capital heading into the election this fall.
|Posted by Matthew J. Hornsby on June 26, 2012 at 9:15 AM||comments (0)|
In 2005, the United States Supreme Court abolished capital punishment for defendants who committed their crimes while juveniles. This week, in a 5-4 decision, the Supreme Court has taken it a step further, and now has also abolished the practice of sentencing juveniles to life without parole. Many states have mandatory sentencing schemes that call for a life sentence without the possibility of parole, for capital offenses where the death sentence is not given.
In Miller v. Alabama, the Supreme Court ruled that sentencing juveniles to life without parole violates the Eighth Amendment prohibition on cruel and unusual punishment. (As an interesting side note, Justice Kennedy, often viewed as the moderate “swing vote” on many controversial issues sided with the 4 liberal Justices on both the 2005 case and this case).
One basis of the Court’s opinion resides in the belief that a juvenile’s mind is not as well-developed as the mind of an adult, and thus the punishment for his misdeeds should not be as severe. Of course, logic may tell you that a juvenile capable of the type of cold-blooded murder that would qualify for life without parole is not likely to see his mind develop for the better. In fact, it may be that a 16 year old capable of such heinous crimes will escalate even further later in life, perhaps even murdering again.
|Posted by Matthew J. Hornsby on June 6, 2012 at 3:45 PM||comments (0)|
Yesterday's post addressed the importance of properly screening potential tenants and having a knowledgeable attorney review the lease you intend on using. Here are two more important things to consider if you are planning on renting residential property.
3. Familiarize yourself with the basic rights and limitations of a landlord. In Alabama, these can be found under the Alabama Code. There are things you can do, things you can’t do, and certain timeframes that must be abided by in nearly everything you do. Different types of tenant breaches call for very differnt procedures. Certain situations allow for the landlord to enter the property and certain situations don't. An attorney can really help you stay out of the mud here.
4. No matter how much work you do at the front end, occasionally you get a tenant that needs to go. Maybe they won't pay their rent, or they commit a crime on your property, or they just insist on breaching every lease provision known to mankind. In that instance, don’t waste your time trying to evict the tenant without an attorney. It never fails that when I am in court on an eviction, there will be another case on the docket where a landlord tried to go it alone. It usually ends with the Judge dismissing the landlord's case because of some legal technicality - and the tenant gets to remain in the property. After having already spent hundreds on court fees, and weeks or months trying to get to court, the landlord has to start all over and pay an attorney anyways. A four or five week process can turn into a four or five month process, costing thousands in lost rental income.
Being a landlord can be almost like playing Russian roulette. But there are things a wise landlord can do to give himself or herself the best chance possible of having a good experience, and hopefully making some money while at it. Unlike most things in life, common sense will not necessarily lead a landlord to the proper conclusions about how to handle a situation. Having a knowledgeable attorney assist you along the way can help you save time, money, and lots of frustration.
|Posted by Matthew J. Hornsby on June 5, 2012 at 3:45 PM||comments (0)|
What could go wrong, right? When you’re dealing with rental property, perhaps the better question is “what won’t go wrong?” The fact of the matter is, there are lots of things to look out for as a residential landlord, from the initial screening process of prospective tenants, to getting rid of the tenant who just won’t pay the rent. With laws constantly changing, it can be hard to keep track of your rights and responsibilities as a landlord and the legal procedures you must adhere to.
The current real estate market has forced many homeowners into the landlord business. Often, it can take a seller 9-12 months or longer to find a buyer for their home. Many sellers, after months of frustration, turn into inexperienced landlords by default, renting their house out to complete strangers. So as a landlord, how can you protect yourself from legal issues down the road and help the arrangment be both profitable for you and enjoyable for your tenant? Read on….
1. Avoid knee jerk reactions while looking for a tenant. Before you start the tenant search, have an approval process plan and stick to it. It is always a good idea to require the prospective tenant to fill out an application, detailing their past tenancies, social security number, and current employment information. Those are probably the three most important pieces of information because they can help you at virtually any stage of the rental process if things go awry. A quick call to their prior landlord will probably tell you most of what you need to know about their worthiness as a tenant up front. Their social security number and employment information can help you recover unpaid rent from them in the future. It is also a good idea to obtain the prospective tenant’s written permission to run a credit check. Knowing how financially stretched he or she is will tell you from the start the odds of getting your rent on time or at all.
2. Before you sign a lease with a tenant, have an attorney review it. State law governs the provisions of a lease and the interpretation that courts will give them later on. There are many very popular provisions that appear in leases that are illegal in Alabama. For instance, did you know that it is unlawful (and subject to monetary penalties) to include a lease provision requiring the tenant to pay attorney fees in the event of an eviction action? Or that it is unlawful in most situations to require a deposit in excess of the monthly rent? An attorney familiar with the ever-changing landlord-tenant laws can quickly determine deficiencies and/or provide you with a court-tested lease.
More tips on being a successful landlord, including understanding your rights and responsibilities as a landlord and how to deal with a bad tenant, will appear in my next blog post.
|Posted by Matthew J. Hornsby on May 23, 2012 at 3:45 PM||comments (0)|
Imagine your friend approaches you one day with an idea. He has found a great deal on a car. They have the terms hammered out, and now the dealer or bank just needs him to sign the finance documents. Oh, and he needs someone else with decent credit to co-sign on the loan with him – you. “It’s really just a technicality,” your friend says. He assures you that he can easily afford the payments, and it’s 100% his responsibility. What could go wrong?
Well, your friend’s statement that the loan is 100% his responsibility is correct – that is unless he stops making the payments. Then it becomes your responsibility. All of it. Under Alabama law, the lender can go after either your friend or you for the money, and it sounds like your buddy’s fresh out of cash. If you’re lucky, the bank repossesses the car from your friend and everyone goes their separate ways. In this case, your credit may be trashed, which is no small thing, but you may not be out any money. If you’re unlucky, the bank sends you a letter informing you of their expectation that you pick up the payments. In that case, your credit is still trashed and you have a new liability to squeeze into your budget.
The same situation can arise in an apartment or house rental situation. Often, a landlord may be uncomfortable with a particular prospective tenant, so he requires another person, with better credit or employment, to co-sign on the lease. The landlord is not getting the co-signor on board as a character reference for the tenant. He’s getting another source to go to for money when problems arise. The co-signor is, in a way, acting as the collateral to the landlord, bearing all of the risk, but enjoying none of the benefit.
While there are unique situations where it may be acceptable to co-sign on a loan or lease (i.e. for your twenty year old college student’s apartment lease), make sure that you are aware of the risks associated with doing so, and never assume that anybody is “too responsible” to default on their obligation.
|Posted by Matthew J. Hornsby on May 21, 2012 at 3:40 PM||comments (83)|
The future of our country could depend on the upcoming election, and it’s not for the reason you are thinking. As we are all aware, this November our country will choose either Barack Obama or Mitt Romney as our President for the next four years. We are all aware of how important a presidential election is. Presidents have the power to push legislation through Congress and to veto legislation they disagree with. The President has powers of military action abroad, even without a congressional declaration of war, and powers to issue executive orders or signing statements that more or less amount to “executive legislation.”
However, one of the most important duties that a President has is the nomination of Supreme Court Justices. Over the next four years, there is a reasonable chance that multiple Justices currently sitting on the bench will choose to retire. Currently, four of the nine Justices are 74 years of age or older (2 conservatives, 2 liberals). It stands to reason that the next President could have the opportunity to change the balance in the Supreme Court, by replacing a retiring conservative Justice with a liberal Justice, or vice versa. In recent years, a number of monumental cases have seen the Court split the vote by a 5-4 margin.
For those who believe the Supreme Court would never allow for the banning of handgun possession, the case of D.C. v. Heller ended with the Supreme Court’s 5-4 vote striking down a Washington, D.C. law that attempted to do just that. For those who believe the Supreme Court would never order 46,000 inmates released from California prisons, it was a 5-4 decision that recently made such a ruling. It was also a 5-4 ruling that, in 2007, upheld the nationwide ban on partial-birth abortions. There are dozens of other recent cases of extraordinary importance – that were decided, in essence, by one individual. A tie-breaking, earth-shattering vote cast by a Justice appointed to the bench by a former President. A President just like the one who will be leading our country for the next four years.
|Posted by Matthew J. Hornsby on May 17, 2012 at 3:35 PM||comments (0)|
This is the final Estate Planning pitfall in this series of posts. The first two were using an online company for your estate planning documents and neglecting to review your beneficiaries after important life events. This last one should be the easiest, however we often have a hard time doing it. It is:
Not discussing your estate plans with your loved ones.
This can be a tricky subject matter. You may not wish to tell your children and other family members about what they will or won’t be getting when you die. That’s fine. But they do need to be aware of the existence and location of your estate documents. It's unfortunate when a family member knows their parent or loved one had a Will, but does not know where it is. (I always keep a copy of every Will I draft for a client in my office, just in case. Hopefully their attorney did too.)
Further, the person whom you name to be your executor, trustee, or guardian of your children, needs to know about that future role. Particularly with your guardian, this needs to be the subject of a conversation at some point before you execute your Will. It is important that the person or persons who will be trusted with your most beloved asset - your children - will willingly and lovingly accept that duty. It is not necessary to go into detail about gifts being made in your Will, but a little communication about certain things now can save a lot of grief and expense later on.