Landlord Training Manual

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PART 2 OF 3, PAGES 31 - 60

 

 

How to Verify Information

Many landlords are surprised to receive calls from other landlords inquiring about the quality of a past tenant. Apparently it doesn't happen often enough. As one landlord put it, “you can spend $100 in time and money up front or be stuck with thousands later.” As another put it, “99% of these problems can be avoided through effective screening. There is no better investment you can make.”

As you review the following list, keep in mind that you will not have to do every step for each applicant, but the basics, written in bold letters, should be done every time. If you implement no other recommendations in this manual, implement these:

1. Compare the I.D. to the information given. Make sure the photo I.D. matches the applicant and the information matches that given on the application form. If the picture, address, and numbers don't match the application information, find out why - you may have cause to turn down the application. Unless obvious inconsistencies can be explained and verified to your satisfaction, you don't have to rent to the applicant. For discussion about photo I.D. issues in New York law, see page 22.
2. Have a credit report run and analyzed. A credit report will provide independent verification of much of the application material. You can find out about past addresses, court ordered evictions, credit worthiness, past due bills, and other information. The reports are not foolproof, but they provide a good start. Here are your options:

• Join a credit bureau directly. If you are managing a number of units and are likely to be screening multiple applicants every month, you may find it cost-effective to join a credit bureau directly and spend the time to learn how to interpret their reports. While this is an option, note that even some very large management companies go through associations or contract with applicant screening firms to gain the benefit of their outside expertise.

Or:

• Have a third party pull the report and offer interpretation. If you are not screening a sufficient volume of applicants, or would like assistance in interpreting the reports, contact an applicant screening firm or local rental housing association for assistance. Services vary from organization to organization and you should shop for the organization that best meets your needs. At one end of the spectrum are organizations that handle the entire applicant screening process for you. At the other end of the spectrum are organizations that simply pull the reports and mail you a copy. There are many variations in between.

3. Independently identify previous landlords. The most important calls you make are to the previous landlords. The best indicator of a tenant's future behavior is his or her past behavior. To begin, verify that the applicant has given you accurate information:
   • Verify the past address through the credit check. If the addresses on the credit report and the application don't match, find out why. If they do match, you have verification that the tenant actually lived there.
   • Verify ownership of the property through the tax rolls. A call to the county tax assessor will give you the name and address of the owner of the property that the applicant previously rented.

(Title companies and real estate brokers typically have ready access to this information as well.) If the name matches the one provided by the applicant, you have the actual landlord.

If the name on the application doesn't match with tax rolls, it could still be legitimate - sometimes tax rolls are not up to date, property has changed hands, the owner is buying the property on a contract, or a management company has been hired to handle landlord responsibilities. But most of these possibilities can be verified. If nothing else, a landlord who is not listed as an owner on the tax rolls should be familiar with the name of person who is listed - so ask when you call.

• If possible, cross check the ex -landlords' phone numbers out of the phone book. This will uncover the possibility of an applicant giving the right name, but a different phone number (e.g., of a friend who will pretend to be the ex -landlord and vouch for the applicant). If the owner's number is unlisted, you will have difficulty verifying the accuracy of the number provided on the application. The local phone company may be willing to give you the name of the person who uses the number on the application, although in most cases they won't.

Another approach for verifying the name of the previous landlord is available in the case of applicants who were on the Section 8 program at their last address. In such a situation a landlord can verify both the previous address and the name of the previous landlord through the Rental Assistance Corporation Authority.

Now you have verified the landlord's name, address, and perhaps even phone number. If the applicant gave you information that was intentionally false, deny the application. If the information matches, call the previous landlords.

Remember, if the applicant is currently renting somewhere else, the present landlord may have an interest in moving the tenant out and may be less inclined to speak honestly. In such an instance, your best ally is the landlord before that - the one who is no longer involved with the tenant. Be sure you locate and talk to a past landlord with no current interest in the applicant.

4. Have a prepared list of questions that you ask each previous landlord. Applicant verification forms - generally available through rental housing associations or through legal publishing companies - give a good indication of the basic questions to ask. You may wish to add other questions that pertain to your screening criteria. In particular, many landlords we spoke with use this question: “If given the opportunity, would you rent to this person again?”

Also, if you suspect the person is not the actual landlord, ask about various facts listed on the application that a landlord should know - the address or unit number previously rented, the zip code of the property, the amount of rent paid. If the person is unsure, discourage requests to call you back - offer to stay on the line while the information is looked up.

5. Get co-signers if necessary. If the applicant meets one of your defined “borderline” criteria - such as having rented from a relative previously - and you have posted the appropriate rule, require that a co- signer apply with the applicant. Verify the credit and background of the co-signer just as you would a rental applicant. To ensure the legal strength of the co-signing agreement, you may wish to have your attorney draw up a document you can use for such purposes.
6. Verify income sources. Call employers and other contacts using phone numbers from the directory. If an applicant is self-employed, get copies of bank statements, tax returns, business licenses, or a list of client references. Don't cut corners here: many drug distributors wear pagers, have cellular phones, and generally appear quite successful, but they cannot verify their income with tax returns, bank statements, or references from established clients.
7. Consider checking for criminal convictions. The options for getting criminal background information available to a landlord in Buffalo include:

• Court records search. Outcomes of court proceedings are generally public record and as such can be obtained through the local court system. Generally, therefore, landlords (and other citizens as well) can access adult criminal conviction information through court records. The ease of getting such information can vary significantly from jurisdiction to jurisdiction, depending on access policies and the method of record keeping used. No permission from an applicant (or any other person) is required to review this type of “public record” information.
• Police and Sheriffs records. In addition.to reviewing court records directly, Buffalo landlords can also access law enforcement records through the Buffalo Police Department. However, this process does require the permission of the applicant. On forms provided by the law enforcement agency, the landlord will need to get a signed release from the applicant permitting the Buffalo Police - Department to give information from their records about the applicant. The signature must be notarized, and a small processing fee is charged by the law enforcement agency. Call the Identification Section of the Buffalo Police Department at 851-4444 for information on costs, forms, and where to go to obtain this information.

Some landlords will avoid the entire form and notarization process by requiring that applicants visit the law enforcement agency directly, get a copy of their own record, and bring it back to the landlord. However, such a process may have the undesirable effect of causing some qualified applicants to object to the extra process and choose not to apply.

• Private screening companies. Some landlords hire private screening companies to conduct screening background checks - including criminal background checks - on their applicants. The approaches used by the screening firms will vary, but most will use variations of the two listed above. Depending on the screening firm used, a possible additional benefit to using a screening company will be the company's ready knowledge of the process for researching criminal background in other counties and other states.

Your chances for getting verifiable information are best if you have the applicant's name, date of birth, social security number, and current address.

One cautionary note: many attorneys advise that conviction - but not arrest - may be used as a basis for rejecting an applicant. Patterns of arrest have proved to be discriminatory against protected classes and, as such, would be inappropriate to use as a screening criterion.

Finally, resist the urge to rely too heavily on this screening technique - there are many drug criminals who have not yet been convicted of a crime.

8. Verify all other information according to your screening criteria. Remember, before you call employers, banks, or other numbers listed on the application, verify the numbers through your local phone book or long distance directory assistance.

 

Federal and County Housing Beneficiaries

The Section 8 Program. “Few landlords realize it, but you can screen a subsidized applicant the same way you screen any applicant. Most don't screen subsidized applicants for rental history - either because they don't know they can, or because they are too excited about the guaranteed rent check.” “For landlords the message is simple. Bottom line, if you screen your tenants, Section 8 is a very good program.” - A Section 8 Program Director.

The Section 8 Tenant Based Renter Assistance Programs. Section 8 Programs are funded by the federal government and regulated through the U.S. Department of Housing and Urban Development (HUD). In Erie County there are three Public Housing Agencies (PHA's) administering rental assistance programs: Belmont Shelter Corp., Rental Assistance Corp (RAC) and Buffalo Municipal Housing Authority. HUD recently consolidated the renter assistance programs into one program, the Housing Choice Voucher Program.

A Family's eligibility for a Housing Choice Voucher is based on their gross annual income. The voucher helps eligible families to access modest housing by filing the gap between reasonable rents and the amount very low-income families can afford to pay for rent and utilities.

Once a family has been selected from the wait list, determined eligible and issued a voucher, the task remains to locate a privately owned apartment where the owner is willing to participate in the program. Belmont pays a subsidy (Housing assistance Payment or HAP) based primarily on the family's monthly income directly to the owner and the remainder of the rent is paid by the tenant.

 

Some Benefits of the Section 8 Program:

• The owner is assured the full amount of the subsidy every month, assuming program requirements have been met.
• The PHA conducts annual inspections of the unit to assist in the maintenance of the property.
• The Conventional landlord/tenant relationship is preserved.
• Tenants are provided with a level of subsidy comparable to that available in traditional public housing while allowing a much greater choice of housing.

 

What Owners Should Know:

• The PHA is not acting as your agent in leasing the unit, does not manage the unit and does not assume the responsibilities of the landlord or tenant in connection with the leasing of the unit.
• The PHA does not screen applicants for suitability as tenants. However, the PHA can provide owners with the prospective tenant's current address and the name(s) and address(es) of the assisted family's current and previous owner to assist you in screening.
• It is recommended that you collect a security deposit just as you would from an unassisted tenant. When the tenant moves from the unit, you may use the security deposit (subject to state and local laws) as reimbursement for any unpaid tenant rent, damages to the unit or other amounts owed under the lease.
• All apartments assisted through the section 8 programs must meet housing Quality Standards (HQS). These national standards simply ensure that the unit is decent, safe and sanitary. Inspections are conducted, at minimum, on an annual basis by the PHA and are free of charge. A basic inspection checklist is attached for your review.
• Landlords and tenants are required to execute a one-year lease that complies with state and local laws and submit a copy to the PHA. The lease that is used with your unassisted tenants would generally be acceptable for use with those who receive Section 8. A HUD -prescribed tenancy addendum will be added to your lease. Rules and .regulations that your tenants are expected to follow should be put in writing as an addendum will be added to your lease. Rules and regulations that your tenants are expected to follow should be put in writing as an addendum to the lease, signed by both parties and submitted to the PHA along with the formal lease.
• It is the owner's responsibility to enforce the lease provisions. Serious and/or repeated lease violations (generally supported by a court ordered eviction) are grounds for termination of a family from the Section 8 programs.
• Any drug-related criminal activity on or near the premises or any criminal activity that threatens the health, safety or right to peaceful enjoyment of their residences by other residents or persons living in the immediate vicinity of the premises is grounds for termination of tenancy.
• Tenancy may also be terminated for other good cause, including:
  • Not accepting the offer of a new lease or lease revision.
  • A history of disturbance to neighbors, destruction of property, or living or housekeeping habits which result in damage to the unit or premises.
  • Owner opts to use the unit personally or for a family member, or for a nonresidential purpose.
  • A business or economic reason such as sale of the property, renovation or the desire to lease the unit at a higher rent.
• The owner is required to sign a contract with the PHA. The contract enables the PHA to make payments to the owner on behalf of a particular tenant. The owner's contractual agreement with the PHA is as follows:
  • That the unit will be maintained ( in accordance with HQS);
  • Only the agreed upon rent will be demanded from the tenant;
  • Agrees to comply with applicable equal opportunity statutes, Executive Orders, and regulations prohibiting discrimination on the basis of race, color, religion, sex, national origin, age, familial status, or disability;
  • Among other things, the owner is certifying that to the best of their knowledge the assisted family is occupying the contract unit and it is the family’s only residence.
• The amount of rent charged by the owner is not restricted by the PHA, so long as the rent is not greater than that charged of unassisted tenants and it is comparable to that charged in similar rental units. However, the amount of the subsidy is limited and families may spend no more than 40% of their monthly income for their housing expenses in the first year of their lease. Therefore, families are required to search for units within a certain price range and units can be rejected for certain families if their costs will exceed 40 % of their monthly income.

 

 

A CHECKLIST FOR HOUSING QUALITY STANDARDS

All units must be “decent, safe and sanitary” according to Housing Quality Standards in order to be approved for Section 8 assistance. This checklist will help you to determine if the unit will meet basic inspection guidelines.

PLEASE REVIEW THIS CHECKLIST AND MAKE NECESSARY REPAIRS BEFORE AN INSPECTION IS SCHEDULED. UNFORTUATELY, WE ARE UNABLE TO CONDUCT AN INSPECTION TO REVIEW THIS LIST WITH YOU.

Please be advised that Belmont CANNOT conduct an inspection unless:

1. ALL UTILITIES ARE TURNED ON.
2. UNIT IS VACANT OR OCCUPIED BY THE TENANT WHO WILL BE RECEIVING SECTION 8 (may not be occupied by tenant intending to vacate)

MOST COMMON FAIL ITEMS

____ Are the windows and frames in good condition: no broken or cracked glass? Do they remain open unassisted? Do all windows on the ground floor have an operable lock?

____ Is there a handrail for all stairways with four or more steps/risers? (If you lift your foot 4 or more times a handrail is needed). Does the handrail extend the length of the stairway?

____ Is there a working smoke detector installed on every level of the building? Is a smoke detector located near the sleeping areas of the apartment as well as in the attic and basement?

____ Is there a shut-off valve on the furnace and hot water heater? Do all hot water heaters and all boilers have a pressure relief valve and a discharge line to within five inches of the floor?

 

GENERAL ITEMS

____ Are all painted surfaces free from chipping, peeling and cracking? (required: children under 6)

____ Are all walls, ceilings and floors in good condition?

____ Is all the plumbing in unit working properly and free from leaks?

____ Do the furnace and the hot water heater work properly and are they in good condition?

____ Does the furnace provide adequate heat for all rooms, including the bathroom?

____ Is the immediate neighborhood free from conditions which pose a threat to health and safety?

____ Does the unit have at least 2 exits?

____ Are all rooms and halls well-lit with natural or artificial light to prevent injury?

____ Are all rooms free from electrical or other hazards?

____ Do all porches and balconies that are 30 inches or more above the ground have a secure railing?

____ Are all of the utilities (gas, electric, water) that the tenant will be responsible for separately metered?

____ Are there cover plates on all switches and outlets?

____ Are all electrical connections injunction boxes with covers?

____ Are the house and yard free from trash and other debris?

____ If there is a fuse box, are there any fuses larger than 20 amp? Please replace; 20 -amp maximum.

 

LIVING ROOM

____ Are there at least two working duplex electrical outlets or one duplex outlet and one permanently mounted light fixture?

____ Is there at least one window? If openable, does it stay open unassisted?

 

KITCHEN

____ Do the stove and refrigerator work properly? Are all stove controls present?

____ Is there at least one duplex and one permanently mounted light fixture?

____ Is there adequate space for storage and food preparation?

 

BATHROOM

____ Are the tub, sink, shower and toilet in good condition and working properly?

____ Is there an openable window and/or a working exhaust fan in all bathrooms?

____ Is there a permanently mounted light fixture?

 

BEDROOMS

____ Are there enough bedrooms for the family? (no more than two people per living/sleeping area)

____ Is there an openable window in each bedroom, and if it is on the ground floor, can it be locked?

____ Does it remain open unassisted?

____ Are there two working duplex electrical outlets, or one duplex outlet and one permanently mounted light fixture in each bedroom?

 

BASEMENTS

____ Are all spliced wires enclosed in a junction box with a cover?

____ Are all unused gas lines capped?

____ Is there a working smoke detector in the basement?

____ Are all knife switches in all fuse boxes covered?

____ Are there any broken windows?

____ Is there trash and/or debris in basement?

____ Are there any combustible material within three feet of the hot water tank or furnace?

 

NOTE: WE EXPECT THE UNIT TO PASS THE FIRST INSPECTION. In the event the unit does not pass inspection, a summary sheet will be sent to the landlord and tenant. Once Belmont is notified that the work is completed, our office will schedule a re-inspection as soon as possible.

 

If you have any questions or need more information, contact the Inspections Department at 884-7791.

 

Erie County Department of Social Services. The Department of Social Services, as the primary source of income for welfare recipients, plays a unique role in the rental market. Thus, we have started new policies to bring more fairness and accountability into this process for both landlords and tenants. These new policies include:

1. Issuing direct, one-party checks as payment for rent to landlords;
2. Requiring 30 days written notice to the Department of Social Services (DSS) from recipients before making any changes to the one-party rental check;
3. Requiring one-party direct checks for recipients who fail to pay rent;
4. Withholding one-party checks from landlords who fail to maintain their property according to specified community standards.

 

1. Option of One -Party Direct Checks. The Department currently makes restricted rent payments by a two-party check. A new option, the one-party check, payable to the landlord and mailed to his or her address, will be offered to clients who request it.

Because we expect a large demand for new one-party checks, this change will be phased in over time. Recipients who are already receiving rent payments through a two-party check will not be given the new payment option until they move to a new address or appear for their re -certification interview.

2. Advance Notice Requirement for Changes to One-Party Checks. Recipients who request a one-party check will be required to give DSS 30 day’s written notice before the Department will make any change to that payment. This includes to whom the check is made payable and where it is sent. If a client fails to give proper notice, the next rent payment would go to the current landlord as planned and the requested change would not be made until the following month.

This requirement will give the Department the opportunity to mail out a notice to landlords approximately 20-25 days prior to the change occurring and would provide some protection to landlords with a more timely notice of changes to these payments. In the case of an emergency or a valid tenant -landlord dispute, there are exceptions to this requirement.

2. Mandated One -Party Direct Checks for Mismanagement. Mismanagement is determined when a client fails to pay rent or to pay it on time for two or more consecutive months. If a recipient fails to pay rent and it is documented in writing by the landlord, that recipient will be required to have the landlord paid directly by a one-party check. Once a mismanagement determination has been made, it follows the client to a new address. One-party direct checks would continue unless the new landlord declined to accept them. For one-party direct checks only the New York State set shelter rate, not the full rent, can be paid. Erie County has also requested that New York State approve a 30 -day written notice for any changes to mandated one-party direct checks. This request is still pending.
3. Landlords - Safe Housing & Good Neighbor Responsibilities. In order to receive one-party direct checks from DSS, landlords must be willing to meet their responsibilities in providing housing which meets all applicable Housing and Health Department Codes and in assuring that their properties do not become the focus of illegal activity in the community.
   1. When a serious housing or health code violation is reported to DSS for a property for which the landlord is receiving a one-party check, these payments will be stopped and held in escrow until the violations have been corrected.
   2. When the City of Buffalo through its “Save Our Streets Program (SOS)” or other communities through similar programs, identify property owners as failing to meet community standards by allowing their property to become a center of drug sales or other illegal activity, those landlords will be prohibited from receiving one-party direct checks from DSS for any of their properties.

Current rules that limit how much we can pay for rent and under what circumstances remain in effect. This means that in most cases the Department cannot make a direct payment without the client's written request and cannot pay more than the New York State set shelter rate without the client's permission.

The Department of Social Services has created a special hotline for property owners to call if they have questions about their new polices. The number is 858 -RENT (858-7368). This number will be available from 10:00am until 4:00pm, Monday through Friday.

 

Regarding “Borderline” Applicants

The preceding criteria include a number of examples where exceptions are made in borderline cases if the applicant can provide a co-signer. Alternately, some flexibility can also be introduced by setting rules that require borderline applicants to provide larger deposits or more prepaid rent. Introducing such flexibility to your application process can make sure, for example, that you do not turn down good applicants who have a single, justifiable problem on their credit report. Use of such borderline conditions can result in a more fair process for your applicants as well. As with all aspects of managing rental housing, apply your policies for borderline applicants consistently regardless of the protected class of the applicant.

 

 

How to Turn Down an Applicant

In general, if you have posted fair rental criteria and you screen all applicants against those criteria, you may safely reject an applicant who does not meet your guidelines. Opinions vary regarding the amount of information that is required to be given to an applicant who is denied a rental unit. (Note: if you are managing public housing or publicly subsidized units, your disclosure requirements may be greater than the ones described here.) We recommend, at the minimum, following the guidelines defined by the federal government in the Fair Credit Reporting Act for denial of credit. Check to see if your local jurisdiction requires additional disclosure.

The following is intended as a general overview of how it works for two different types of applicant rejections. See the law itself for an exact description: ⑥

 

• If the rejection is based on information, in whole or in part, from non-paid sources (the word of a previous landlord, for example): While landlords of private housing are not required to disclose immediately the reason for rejecting applicants in these situations, private landlords are required to advise applicants of their right to submit, within 60 days, a written request for that information and their right to a response from you, within a reasonable period of time, disclosing the nature of the information upon which the adverse decision was made. (Note that, in many types of publicly -assisted housing, landlords are required to explain the basis for rejecting an applicant without waiting for a written request.)

Sample wording: “Based on a check of information you provided in your application, you do not meet our posted rental criteria. If you have questions about this decision, you may submit a request in writing to (your name and address) within 60 days, and we will explain the basis for the decision within a reasonable period of time.”

Of course, if you receive such a request, then report the nature of the information upon which the adverse decision was based. Again, if your screening criteria are free of illegal discrimination and you have applied your criteria consistently, then you may safely reject applicants who do not measure up.

Note this small additional requirement if the rejection is based on information from a person who is your “affiliate” (e.g. a co-worker or co-owner): The process is identical to that described above, except that the required response time is specifically stated: 30 days or less from the date the landlord receives the rejected applicant's written request.

Of course, when possible, keep it simple. For example, if you are turning down an applicant simply because you accepted an earlier applicant, just say so. Or, if one look at the application indicates that the person doesn't have nearly enough income to rent the unit, don't make the applicant wait a week to find out - again, just say so.

 

⑥ For more information, contact the Federal Trade Commission by phone at (202)326-3128, or by mail at: 6th Street & Pennsylvania Ave., NW, Washington, DC 20580. A full copy of the text of the FCRA can be obtained over the Internet at http://www.ftc.gov.

 

• If the rejection is based, in whole or in part, on information from a credit report, screening company, or other organization that you pay to provide screening information: Because of the potential for abuse of, or misinformation in, credit reports, the Fair Credit Reporting Act requires that very specific information be provided to applicants who are rejected based on information obtained from a “consumer reporting agency.” While the information may be provided orally, it is a good idea to give written notification just to make sure you are in full compliance with the Act. The following is only intended as a brief orientation. The screening company or other consumer reporting agency you work with should be able to answer your questions and provide you with a simple, written form to help ensure you are in full compliance with the Act.

In situations where adverse decisions are based, in whole or in part, on information from a consumer credit report, a landlord is required to provide the rejected applicant all of the following information:

• Notice of the rejection. Sample wording: “Based on information we have received from your credit report (or other paid source) you do not meet our written rental criteria and we have therefore chosen to deny your application for tenancy.”
• The name, address and telephone number (including a toll-free number if the agency is one that keeps nationwide consumer files) of the consumer reporting agency used that furnished the information.
• That the consumer reporting agency did not make the decision to reject the applicant and therefore it is likely that they will not be able to explain the reason for the adverse decision.
• That the applicant has the right to contact the consumer reporting agency within 60 days to receive a free copy of their report.
• That the applicant has the right to dispute the accuracy or fairness of information in a consumer report furnished by the consumer reporting agency.

 

(Note: Have applicants get a copy of their consumer report directly from the credit reporting agency, rather than, for example, providing the applicant with a photocopy of the report you received.)

Again, in the interests of proving you have met disclosure requirements, you may want to hand out an information sheet with the disclosure process described and appropriate addresses provided. Contact a local property management association for more details, and again, check your local law for additional disclosure requirements.

 

Other Screening Tips and Warning Signs

The following are additional tips to help you screen applicants. You should also be familiar with the warning signs described in the chapter on Warning Signs of Drug Activity.

• Consider using an “application interview.” Some landlords have started conducting a brief oral interview, often at the same time they accept the written application. Landlords who use this approach find it has these advantages: First, applicants don't know which questions are coming, so it is harder to make up a story - something that shouldn't bother an honest applicant, but may uncover a dishonest one. Second, the landlord has the opportunity to watch responses and take mental notes of answers that seem suspicious. For example, honest applicants usually know their current phone number or middle name without having to look it up.

The interview involves, at minimum, making sure the applicant can repeat basic information requested on the application form without reading it. For example, the landlord might ask the applicant to verify his or her full name, current phone number, current address, and other pieces of information that most honest applicants will be familiar with without having to look up.

As with all policies you set, if you decide to do application interviews, you should include a commitment to making reasonable accommodations for those who cannot comply due to status in a protected class - e.g., a handicap that causes a speech problem, or possibly language skills associated with a particular national origin.

If you choose not to use an interview approach, at minimum observe the way the application is filled out. Applicants may not remember the address of the apartment they were in two years ago, but they should know where they live now, or just came from. Generally, honest applicants can remember their last address, the name of their current landlord, and other typically “top -of -mind” facts about their life.

• Consider a policy requiring applications to be filled in on site. Some property managers require all application forms to be filled in on the premises - an applicant may keep a copy of the form only after it has been filled in, signed, and a copy left with the landlord or manager. Applicants who are unsure of some information should fill in what they can, and come back to fill in the rest. Such a policy should not be a barrier to honest applicants - in most cases, they would have to return to bring back the signed application anyway. However, the policy can dampen the ability of dishonest applicants to work up a story.

Assuming you have communicated your commitment to keeping illegal activity off your property, such a rule may also allow dishonest or dangerous applicants to exit with minimal confrontation - without an application in hand they are less likely to pursue making up a story and, once off the premises, they may simply choose not to return.

Again, if you use such a policy, make sure it includes making reasonable accommodation for people whose particular handicap, or other protected characteristic, would otherwise result in the policy being a barrier to application.

• Watch for gross inconsistencies. When an applicant arrives in a brand new, luxury sports car and fills out an application that indicates income of $1,000 a month, something isn't right. There are no prohibitions against asking about the inconsistency or even choosing to deny the applicant because the style of living is grossly inconsistent with the stated income. You may also deny the applicant for other reasons that common sense would dictate are clearly suspicious (credit reports can also reveal such oddities - for example if the applicant is paying out much more per month to service credit card debts than the applicant is taking in as income, something isn't right). Many don't realize it, but unless such a decision would cause a disproportionate rejection of a protected class (e.g., race, color, religion, and others) the law allows room to make such judgment calls.

While you may not discriminate on the basis of race, color, religion, sex, handicap, national origin, familial status (the presence of children), marital status, age, and in the City of Buffalo, sexual orientation, you may discriminate on the basis of many other factors, provided the effect is not a disproportionate denial of a protected class. If you deny the applicant for such a reason, record your evidence and the reason for your decision. Be careful when making decisions in this area, but don't assume your hands are tied. The law is written to prevent discrimination against protected classes. You are not required to look the other way when gross inconsistencies are apparent.

• Be aware that people involved in illegal activity may use “fronts” to gain access to your property. You may rent to someone who has an acceptable rental history and no record of illegal activity, yet once that person moves in, boyfriends, girlfriends, or other acquaintances or family members move in and begin dealing drugs and generating other crime or nuisances. In some cases, the people you thought you rented to don't move in at all - after using their good references to rent the unit, they give the key to drug dealers, for a fee. Across the nation, it is the permission given by tenants to guests and others who have not signed the rental agreement that causes the greatest degradation in the quality of life in rental housing communities - both public and private.

Warning applicants that they will be held accountable for their household members and guests, and then enforcing such a requirement with your tenants, is a cornerstone of protecting your property and the surrounding neighborhood. Make sure your tenants know that they must control their household members and guests, and if they cannot, they should ask for help quickly. Tenants must understand that lease violations committed by non -tenants who are on the property with the permission of the tenant can bear the same consequences as would apply if the same act were committed directly by the tenant. Further, your rental agreement can set some limitations on the number of additional occupants who may move in with the tenant, however the State of New York's “roommate law” (RPL § 235(f)) does not permit a landlord to restrict occupancy to those on the rental agreement only (for more on this topic, see the discussion on this point in the chapter on Rental Agreements, page 46).

• Watch out for Friday afternoon applicants who say they must move in that very weekend. Drug dealers know that you may not be able to check references until Monday, by which point they will already be in the rental unit. Tell the applicant to find a hotel or a friend to stay with until you can do a reference check. Could it cost you some rent in the short run? Yes. Will it save you money in the long run? Absolutely. Ask any landlord who has dealt with a drug problem in a rental unit. It is worth avoiding. (Some landlords allow weekend applicants to move in if they can independently verify their story. But you are better off waiting until you can verify the entire application.)
• Observe the way applicants look at the unit. Do they check out each room? Do they ask about other costs, such as heating, garbage service, and others? Do they mentally visualize where the furniture will go, which room the children will sleep in, or how they'll make best use of the kitchen layout? Or did they barely walk in the front door before asking to rent, showing a surprising lack of interest in the details? People who are planning an honest living care about their home and often show it in the way they look at the unit. Some who rent for illegal operations forget to pretend they have the same interest.

Also, if the applicant shows little interest in, any of the property except the electrical service, take note - both meth labs and marijuana grow operations can include rewiring efforts.

• Consider alternate advertising methods for your property. Houses that are within a few miles of colleges or business parks may be desirable housing for students or professionals. Some landlords have found success in posting advertising at such locations, thus targeting people who already have a credible connection with the community.

If you are going to consider such an approach, keep in mind that fair housing guidelines apply in all aspects of managing rental housing, including advertising selection. Advertising through community colleges only may be acceptable, because such colleges typically enroll a broad cross-section of the community. But, for example, it would be inappropriate to advertise exclusively through a church newsletter or through the newsletter of a private club whose membership is not representative of the greater community. Such approaches could set up patterns of inappropriate discrimination. Either expand your media selection or change it altogether to make sure you are reaching a fair cross-section of the public.

• Consider driving by the tenant's current residence. Some property managers consider this step a required part of every application they verify. A visual inspection of applicants' current residences may tell you a lot about what kind of tenants they will be. Be sure you are familiar with drug warning signs before you look at previous residences.
• Announce your approach in your advertising. Some landlords have found it useful to add a line in their advertisements announcing that they do careful tenant screening or that they run credit checks. The result can be fewer dishonest applicants choosing to apply in the first place. Select your wording with care - you don't want to use phrasing that in your community might be interpreted as “code” for telling a protected class that they need not apply. Again, it is important to make sure that the opportunity to apply for your units - and to rent them if qualified - is open to all people regardless of race, color, religion, sex, handicap, national origin, familial status, marital status, age, and sexual orientation.

 

A Note about Hiring Employees

Many rental property owners hire employees to assist with tenant screening, routine maintenance, and other tasks. It is critical that resident managers and other “agents” of the landlord be screened even more thoroughly than applicants for tenancy. In general, when an employee breaks the law while on duty, both the employee and the employer can be held responsible by the party that is harmed by the action. When the employee violates an element of rental housing law, the liability you will hold for employee misbehavior should be reason enough for extra screening efforts.

One screening tool that you will want to seriously consider for job applicants is a criminal conviction check, even if you don't check criminal backgrounds on prospective renters. Once property managers are hired, make certain they are trained in effective applicant screening, along with the warning signs of dishonest applicants. Also, be sure they understand, and follow, the requirements of fair housing laws.

 

 

RENTAL AGREEMENTS

 

Get it in writing.

 

ADVICE WE WERE GIVEN:

“We've solved a lot of problems by using the right paperwork at the beginning of the rental term - it improves our legal position and it lets the tenant know we are serious from the start.”

 

The Basics

Minimize misunderstandings between you and your tenant, thus building a basis for clean and fair problem resolution down the road.

 

Use a Current Rental Agreement

In New York, even more than in most states, the quality of the rental agreement ⑦ is the cornerstone of the landlord's legal ability to maintain appropriate control over rental property. With a well -constructed rental agreement (and a commitment to enforcing it), a landlord can expect to keep most problem behavior from getting out of hand and good tenants can expect to enjoy a rental community that is free of chronic crime and nuisance problems caused by adjacent tenants or their guests.

Unfortunately, some landlords don't use a rental agreement at all, and many continue to use the same rental agreement they started with years ago. Federal and state law can change yearly, and case law is in constant evolution. By using an outdated rental agreement, a landlord may be giving up important rights. If a problem tenant chooses to fight in court, an outdated rental agreement could cost the landlord the case.

Sources for up-to-date rental agreements will vary by state. In many areas property management associations provide rental forms and consider it their job to make sure they are consistent with current law. Local legal document publishing companies may also be good sources for effective rental agreements. Some landlords use a custom -developed rental agreement designed in partnership with an attorney or a New York -tailored rental agreement commonly available at stationery stores. If you plan to use an “off the shelf” rental agreement, make sure that you are buying a form developed specifically for use in the state of New York. “Generic” rental agreements, sold nationwide, will not work as well as more tailored agreements.

 

⑦ In this chapter the term “rental agreement” refers to both long-term residential leases, as well as month-to-month style agreements.

 

Month-To-Month, Or Long-Term Lease?

Throughout Buffalo, a landlord can use a month-to-month rental agreement that allows either party to terminate the tenancy without specifying a cause by giving at least a month's notice. ⑧ (Although this option is available in most private party rental situations, it is generally not available in situations where a tenant's rent is either publicly subsidized or regulated by rent control laws.)

While the maximum power to evict is gained by using a month-to-month rental agreement whenever it is legal to do so, such an arrangement may not be the best in every situation. Market factors, as well as the expectations of local landlords and tenants, will also play a role in determining the best approach.

Regardless of the type of agreement used, keep in mind that no tenant is protected from a landlord's enforcement action if the tenant repeatedly fails to comply with a legal provision of a lease or rental agreement. If tenants are in violation of key elements of New York State's landlord -tenant laws, or are not in compliance with the lease, a landlord may require the behavior to be corrected and, if it isn't, terminate the rental agreement and require the tenant to move out.

Also, while the terms of your rental agreement are important, even the best rental agreement is not as valuable as effective applicant screening. The most important part of any rental agreement is the character of the people who sign it. No amount of legal documentation can replace the value of finding good tenants.

 

Elements to Emphasize

Inspect the rental agreement you use to see if it has language addressing the following provisions. If they are not in the rental agreement, consider adding them. To gain the most prevention value, you will need to point out the provisions to your tenant and communicate that you take your rental agreement seriously.

Note that this list is not at all comprehensive - it only represents elements that are occasionally overlooked and are particularly important for preventing and/or terminating drug-related tenancies. The discussion offered below is intended to be general in nature and is not intended to be used as a template for specific lease language. The actual language used to express the concepts described below varies substantially in some of the New York leases reviewed for this project.

1. Subleasing is not permitted without the advance written consent of the Landlord. Make it clear that the tenant cannot assign or transfer the rental agreement and may not sublet the dwelling without the express, written permission of the landlord, which permission will not be unreasonably denied. ⑨ You may also want to clarify that a violation of this provision will be considered a substantial violation of the terms of the tenancy and would render the tenancy “objectionable.” In general, your best approach will be to require those who wish to sublet the apartment to be screened just as you screened the original tenant. Assuming your screening process is reasonable for the original tenant, it would seem reasonable to apply the same criteria to others who require your permission prior to moving in.

 

⑧ The definition of “a month's notice” is described in the following manner. “Either party may terminate a month-to-month tenancy by giving at least one month's notice before the expiration of the term. For example, suppose rent is due on the first day of each month. The landlord must tell the tenant by September 30th before the October rent is due that he wants the tenant to move out by November 1st.”

⑨ Under New York law, in buildings that have 4 or more units, a landlord cannot unreasonably withhold consent to sublet. Note that, in buildings with three units or fewer, landlord could use a lease clause that forbids subletting entirely. Nevertheless, permitting subleasing if the applicant meets screening requirements seems to be a reasonable approach in any size unit.

You must maintain control over your property - too often the people who run the drug operation are not the people who rented the unit. This provision will not stop all efforts to sublease, but it may prevent some and it will put you in a stronger position if you have to deal with a problem subtenant.

 

2. In private rental situations, require tenants to comply with occupancy limitations permitted by New York's “roommate” law and forbid total occupancy to exceed that allowed by local code. New York's “roommate law” (RPL 235f) in effect allows a tenant to move in immediate family members as well as one other person not related to the tenant (known in the tortuous language of the statute as an “occupant”) and that “occupant's” dependent children. ⑩ The law expressly prohibits a landlord from lease language that would limit a tenant's rights under the roommate law. Nevertheless, it remains important for a landlord to specify that compliance with the allowable limitations of the roommate law is required, so that, should a tenant allow a number of unrelated occupants to move in (an occurrence that sometimes coincides with an increase in illegal activity), the landlord can take lease enforcement action.

In addition to generally requiring compliance with the law's allowable limits, two elements are particularly important to emphasize in the lease:

• “The tenant shall inform the landlord of the name of any occupant within thirty days following the commencement of occupancy by such person or within thirty days following a request by the landlord.” The preceding sentence is a direct quote from the roommate law. ⑪ Although we have a bias in this manual to relying on plain English, we must note here the roommate law defines no less than four types of people who can take up residence in a dwelling unit: tenants (essentially those adults who sign the lease); immediate family members of tenants; occupants (adults who are not members of the tenant's immediate family); and occupant's dependent children. Under the law, the only additional residents whose names need be disclosed to the landlord are those of “occupants.” Use of this type of requirement will help regulate the number of unrelated people who move into a rental.

An exception to the “roommate” law requirement is found in publicly assisted housing, because in this case, the Federal guidelines take precedence over the State guidelines. In the state of New York, a landlord of HUD assisted housing - including, in this case, Section 8 tenants - could set some restrictions that private landlords cannot. For example, in public and Section 8 housing, a New York landlord can deny the right of any additional adult resident - immediate family member or not - to move into a rental unless the tenant meets the requirements that the Housing Authority will have for such an occurrence, which will include among other issues, disclosure of that additional adult's income.

 

 

⑩ To be exact, if only one tenant is recognized by the lease, that person may move in both immediate family members and one additional occupant as described above. However, if two or more tenants sign the lease, while each may move in immediate family members, a landlord could forbid an additional “occupant” from moving in unless one of the tenants on the lease moves out.

⑪ RPL 235f

 

The reason why these issues are being raised in a manual on keeping illegal activity out of rental property is this: While most of the time that tenants invite additional people to move into a dwelling it is for appropriate reasons, there is also a high correlation between illegal drug activity and the presence of unidentified additional people living in a dwelling unit. Across the nation, the number one source of illegal drug activity from rental property is from the actions of people not on the rental agreement who have been permitted to dwell at the property by a legal tenant. Assuring your tenant that you will take these clauses seriously may curb illegal behavior by others. Having the stipulations spelled out in the rental agreement will put you in a better legal position should it become necessary to enforce.

3. No illegal activity generally, and no drug activity specifically. Make it clear that the tenant must not allow the distribution, sale, manufacture, or usage of controlled substances on the premises. You could also add various other types of crimes such as prostitution or other felony level criminal behavior on the premises. It's already illegal, but spelling it out in the rental agreement can make it easier to take lease enforcement action for the problem.
4. The tenants are responsible for conduct on the property. Tenants should understand that they will be held responsible for the conduct of themselves, all others whom they permit to live on the premises, and any visitors on the premises with the tenant's permission. Generally speaking, landlord -tenant laws are designed to allow the tenant the same “my home is my castle” right to privacy as that enjoyed by any owner-occupant. However, with the right to private enjoyment of the “castle” comes the responsibility to control what goes on there and this type of lease language emphasizes that concept.

For people who plan to “front” for illegal activity, this underscores the point that they will be given as little room as possible to protect themselves by claiming that acquaintances, and not themselves, were involved in the activity.

Wording on this provision should be done with care - you may not go so far as to hold victims responsible for the behavior of people who abused or intimidated them into silence.

5. The tenant will not unduly disturb the neighbors. Make it clear that the tenant will be responsible for making sure that all persons on the premises conduct themselves in a manner that will not interfere with the neighbors' peace. The issue here is not the occasional loud party. The issue is prevention of chronic nuisance behavior that can severely impact a neighborhood if the behavior is left unchecked.

What does disturbing the neighbors have to do with drug crimes? It doesn't necessarily. But we know that managers who attend to their own obligations and require tenants to meet theirs are far more effective in preventing drug activity than those who look the other way as complaints of noncompliance roll in. It is almost never the case that a drug criminal's first observed, evictable offense is the dealing or manufacturing of narcotics.

 

6. The landlord may cancel the lease if the tenant is found to be “objectionable.” Unless the agreement specifies that the landlord has the power to cancel the lease due to violations of it, with the exception of a few statutory violations (e.g., nonpayment and conducting illegal trade or business), a landlord in the state of New York could not terminate the lease of a tenant who commits serious lease violations, such as chronically disturbing the neighbors' peace or even causing substantial, intentional harm to the property. ⑫ In effect, very few of the lease provisions recommended in this section would be enforceable without a clause in the lease that permits the landlord to cancel it in the event of serious or repeated violations. This is one of the key reasons that residential lease language in the state of New York is so important.

 

Pre -Move -In Inspection

Prior to signing the rental agreement, walk through the property with the tenant and make a visual inspection together. Some landlords use check in/check out forms developed for the purpose, others take photographs which are then signed by both parties, and still others make a pre -move -in video tape with the tenant. Regardless of the approach, agree on what repairs need to be done. Write down the agreement and have both parties sign it. Make any agreed-upon repairs and document that those have been completed as well. Give copies to your tenant and keep signed and dated copies in your files.

Note, if you are accepting Social Service applicants and wish to enter into a “Tenant Responsibility Agreement” this type of pre-move in inspection will be required on forms provided for the purpose.

Now, should your tenants damage the property, you have a way to prove it happened after they took possession of the unit. (Note: This also protects tenants - the pre-move -in inspection can prevent a bad landlord from trying to hold a tenant responsible for problems that predated the tenancy.)

The pre -move -in inspection can reduce the likelihood of some tenants causing damage to the premises. It can also protect you against the rare case of a tenant who may attempt to block a legitimate eviction attempt by damaging the premises and then claiming that the damage was preexisting.

 

“House Rules”

Many apartment managers, as well as some single-family housing managers, provide “house rules” that spell out general rules of the property and its common areas. Generally, property managers have found success with development of guidelines that restrict excessive noise levels, define behavior for common areas of the premises, and spell out rules for use of unique facilities such as pools or common laundry areas.

In general, managers of apartments may set additional rules for those common areas that are, in effect, “occupied” by management, not tenants. For example, as the “occupant” of the common areas of an apartment complex, a manager may be able to ask police to remove visitors who are engaged in fights or other intimidating behavior taking place in the courtyard of the complex. In this instance, as in others, managers may exercise more direct, immediate control over problems in the common areas of the property than they can over problems occurring on or inside the specific, privately rented property.

 

⑫ See Real Property Actions & Proceedings Law §711.1

 

The following is an adaptation of “house rules” that have been used successfully to establish guidelines for regulating behavior in the common areas of rental property. In multifamily property, it is important to set rules for the common areas to ensure that the manager has the ability to exclude nonresidents and that the manager has established guidelines for the appropriate behavior of residents.

This is just one example of an approach. Prior to use, it should be modified for your needs and reviewed by your attorney.

 

If any tenant, household member, or guest of any tenant engages in any of the following prohibited activities, such activity shall be considered a violation of the tenant's lease. Any nonresident will be directed to leave if that person does one or more of the following prohibited activities. Prohibited activities include:

1. Making unreasonable noise.

2. Engaging in fighting or in violent, tumultuous, or threatening behavior.

3. Substantially interfering with any right, comfort, or convenience of any (Name of premises) resident or employee.

4. Engaging in any activity on or near the premises that constitutes a criminal offense.

5. Damaging, defacing, or destroying any property belonging to (Name of premises) or to any employee or resident.

6. Littering on (Name of premises) property.

7. Driving in a reckless manner on or near the property.

8. Consuming an alcoholic beverage in the common areas or possessing an open container of any alcoholic beverage in the common areas.

Any nonresident who fails to leave the premises after being directed to do so will be subject to arrest and prosecution for criminal trespass.

 

Key Pickup

As a final prevention step, some landlords require that only a person listed on the written rental agreement may pick up the keys. This is one more step in ensuring that you are giving possession of the property to the people on the agreement and not to someone else.

 

 

ONGOING MANAGEMENT

What to do to keep the relationship working.

 

COMPLAINTS WE HAVE HEARD:

“The tenant moved out and someone else moved in without us knowing it. Now we have drug dealers on the property and the courts insist they are legal tenants, even though they never signed a lease.”

 

ADVICE WE WERE GIVEN:

“You need to follow one basic rule - you have to actively manage your property. The only landlords who go to court are the ones who don't actively manage their property.”

 

“For most property managers the experience is one of putting out brush fires all day long. If property managers can take a more proactive approach to the process, they can build an ever improving set of renters, avoid a lot of legal hassles, and have fewer brush fires during the day.”

“If your training teaches landlords nothing else, teach them that the neighbors in an area are not their enemies.”

 

The Basics

Maintain the integrity of a good tenant/landlord relationship. Strengthen communications between the landlord, tenants, and neighbors. Help build a sense of community.

 

Don't Bend Your Rules

A key to ongoing management of your property is demonstrating your commitment to your rental agreement and to landlord -tenant law compliance. Once you set your rules, enforce them. Make sure you meet your responsibilities, and make sure you hold your tenants accountable for meeting theirs. By the time most drug problems are positively identified, there is a long history of evictable behavior that the landlord ignored.

• When aware of a serious breach, take action before accepting the next rent payment. If a landlord accepts rent while knowing that the tenant is breaking a rule, but the landlord has not acted to correct the behavior, the landlord could lose the right to serve notices for the behavior. Landlord -tenant laws generally consider acceptance of rent equal to acceptance of lease violating behaviors about which the landlord has not objected. Further, regardless of the characteristics of your local law, it doesn't pay to teach your tenants that they are allowed to break the rules. So, at minimum, as soon as you discover violations of local landlord -tenant laws or of your rental agreement, give tenants written notice that they are required to correct the problem. Then accept the rent.
• If someone other than the tenant tries to pay the rent, get an explanation. Also, note on the receipt that the payment is for your original tenants only.
• If you believe that unknown additional occupants may be living in the rental, pursue the issue immediately. Subject to a few limitations, tenants in New York are generally permitted to move in as many immediate family members as they wish, plus one additional “occupant” along with that occupant's dependent children. However, if your rental agreement so specifies, you certainly do not have to permit a tenant to move in more than one additional “occupant” (essentially an adult who is not a member of the tenant's immediate family). Further, a landlord has a right to require a tenant to disclose the name of any “occupant” they move in within 30 days of a request by the landlord to do so. The key is to enforce lease requirements on this issue promptly, thus reducing the likelihood of the tenant moving in illegal occupants and increasing your reputation as a landlord who requires compliance with rental agreement language. If you are aware that a tenant has moved in more than one additional occupant, either require the additional occupants to fill in a rental application and apply for tenancy, or serve the appropriate notice that would require your original tenant to remove the additional occupants under threat of eviction if the action is not taken.
• Fix habitability and code violations at the property quickly. Maintaining habitable housing for tenants is the most important of a landlord's responsibilities. In addition, as discussed earlier, failure to maintain a unit could compromise a landlord's eviction rights. Tenants may be able to use a “retaliation” defense when a landlord attempts to evict after a tenant has complained that the rental is substandard.
• When a tenant doesn't pay rent, address the problem. Some landlords have let problem tenants stay in a unit, not just weeks after the rent was overdue, but months (and occasionally even years). While flexibility is important in making any relationship work, be careful about being too flexible. There is a big difference between being willing to receive rent late during a single month and letting your renters stay endlessly without paying. Nonpayment notices (directing the tenant to pay or face termination of the lease) are some of the faster eviction notices that a landlord can serve.
• If neighbors call to complain of problems, pursue the issue. Although it does happen, few neighbors call landlords about minor problems. If you get a call from a neighbor, find out more about the problem, and take appropriate action. If there are misunderstandings, clear them up. If there are serious problems with your tenants, correct them. The chapter on Crisis Resolution gives additional information about steps to take if a neighbor calls to complain.

Bottom line: If you respect the integrity of your own rules, the tenant will too. If you let things slide, the situation can muddy fast. It may mean more work up front, but once the tenant is used to your management style, you will be less likely to be caught by surprises.

 

Responsibilities Defined

For a legal description of the responsibilities of landlords and tenants, review your local landlord-tenant law, local maintenance codes, and the requirements of the Section 8 program if it applies to your units. Also - to state the obvious - if you haven't already, check your rental agreement. Rental agreements typically spell out various responsibilities of both the landlord and the tenant. The following is an overview of the typical responsibilities of both parties.

Landlords. A landlord's responsibilities typically fall into three areas: the condition of the premises as delivered to the tenant, the obligation to maintain the unit once it is occupied, and the obligation to respect the rights of the tenant. A landlord's responsibilities generally include:

• Prior to move-in, provide the tenant with a clean, sanitary, and safe rental unit. This typically means the unit should be cleaned, garbage and debris from previous tenants removed, pest control problems addressed as appropriate, the various systems (plumbing, electrical, heating) working appropriately, the unit adequately weatherproofed, the structural integrity of the unit maintained (e.g., no rotting steps), fire safety issues addressed (e.g., smoke detectors installed and access to secondary exits assured), working locks installed, and any other potential safety hazards addressed.
• After move-in, make sure the unit remains “habitable.” For occupied units, landlords generally are responsible for all major repairs and are granted both the power and the responsibility to make sure that tenants are doing their part to maintain the habitability of the unit. For example, rental agreements typically require tenants to do sufficient basic housekeeping to keep the dwelling unit safe and Buffalo's City Charter requires residents to ensure that plumbing, cooking and refrigeration fixtures and appliances are maintained in a clean and sanitary manner (242-10 section F). Therefore, if the tenant is not complying with the City Charter, the tenant, in this instance, would also be in violation of the rental agreement. If the City is attempting to determine whom to cite for a violation - the owner or the occupant - a record of the cleanliness of the unit at move -in combined with a paper trail showing the landlord's willingness to notify the tenant of the lease violating behavior will go a long way to clarifying accountability, not to mention potentially solving the problem before it gets so out-of-hand that the City need get involved.
• Respect the tenant's right to private enjoyment of the premises. It has been a basic characteristic of landlord-tenant relationships for hundreds of years that once the tenant begins renting property, the tenant has the right to be left alone. With some specific exceptions for such activities as serving notices, conducting maintenance inspections, doing agreed-upon repairs, or showing the unit for sale, the landlord must respect the tenant's right to private enjoyment of the unit in much the same way that an owner - occupants right to privacy must be respected. In those areas where a landlord does have a right to access, the landlord must generally follow a carefully spelled out notification process prior to entering the rented property.
• Avoid retaliation against a tenant. Generally, a landlord may not retaliate against a tenant who is legitimately attempting to cause the landlord to meet his/her responsibilities. For example, a landlord may not increase rent, decrease service, attempt to evict, or take other retaliatory action in response to a tenant asking a landlord to repair a worn out furnace, fix a rotting step, or take other actions that fall within the landlord's responsibility under the law.
• Avoid illegal discrimination. Nationwide, landlords may not discriminate on the basis of a tenant's (or an applicant's) race, color, religion, sex, handicap, national origin, or familial status. As mentioned earlier, the State of New York add marital status and age and the City of Buffalo adds sexual orientation. This means that you may not use such class distinctions to screen applicants or to treat tenants differently once you enter into a rental agreement. For more information about the application of civil rights laws, see the chapter on Applicant Screening.
• Enforce the terms of the rental agreement and landlord -tenant law. While both the rental agreement and the law will identify various required behaviors of tenants, in general it is up to the landlord to make sure the tenant complies. If the tenant is not in compliance, the law generally gives landlords the power to serve various types of “cure” and “no-cure” notices to correct the behavior or require the tenant to move out. Essentially, unless the landlord takes action to correct the problem, there are few other mechanisms to correct difficulties associated with problem tenants. (Of course, if your problem tenants are involved in criminal behavior for which there is enough evidence to make an arrest, the police may be able to arrest the tenant and have that person serve jail time. However, while arrest may remove the tenant from the property, you may still need to bring an eviction proceeding to regain possession of the property. See the chapter on Law Enforcement for more information.)

 

Tenants. A tenant's responsibilities are fundamentally to ensure that no harm is done to the unit and to pay the rent. A tenant's responsibilities generally include:

• Do basic housekeeping, comply with the rental agreement, and avoid harming the unit. In addition to complying with rental agreement provisions, tenants are typically required to use the premises in a reasonable manner, cause no damage to the unit beyond normal wear and tear, keep the premises free of accumulations of garbage and other waste, and do sufficient housekeeping to avoid safety and sanitation hazards. Some landlord-tenant laws also spell out a requirement that tenants be good neighbors - that tenants and their guests may not disturb the neighbors' peace. Also, from a civil standpoint, tenants are generally considered responsible for the behavior of others they invite onto the premises. For example, tenants typically cannot defend a landlord's eviction action by claiming that all alleged violations were committed by friends who visited, with the tenant's permission, on a regular basis. As discussed earlier, it is particularly important in the state of New York for a landlord to spell out the type of obligations listed in this paragraph in the rental agreement and to emphasize in that document that serious or repeated violations of the rental agreement would render the tenant “objectionable” and, as such, be valid cause for termination of the lease or rental agreement.
• Pay rent. Landlords have the right to receive rent for the use of their property and tenants have an obligation to pay it. Exceptions exist only in those circumstances where landlord-tenant laws allow tenants to withhold rent when a landlord refuses to meet the landlord's responsibilities. For example, if a landlord refuses to fix a broken furnace, the tenant may have the right to withhold rent .until the repairs are done. In such a circumstance the tenant may also be able to collect other fines or financial penalties from the landlord as well. (Tenants, however, are well-advised not to withhold rent from a landlord, in such a circumstance, without first speaking with a qualified landlord -tenant attorney about the situation.)
• Enforce the terms of the rental agreement and landlord -tenant law. Just as it is up to landlords to make sure that tenants comply with the rental agreement and landlord-tenant law, tenants generally hold the primary responsibility for making sure their landlords comply. Tenants have various powers to abate rent and/or take other action to cause a landlord to comply. For some problems, specific agencies can assist in enforcing the law - problems associated with building code violations and fair housing issues are two examples. However, the enforcing agencies often do not get involved unless they are first notified by the tenant. Therefore, chief among the powers generally granted to a tenant is protection from the landlord's retaliation should the tenant attempt to assert a right defined in the law.

 

Property Inspections

A cornerstone of active management is the regular inspection. Unless you inspect, you can't be sure you are meeting your responsibility to provide safe and habitable housing. In addition, maintaining habitable property protects your rights as well. If a bad tenant can also claim that you are not meeting your responsibilities, you may have difficulty succeeding with an eviction. Conversely, if it is clear you make every effort to meet your responsibilities (and you document it), a tenant will be less inclined to fight an honest eviction effort.

While the purpose of a maintenance inspection is to care for the unit and ensure its habitability, regular inspections will also deter some types of illegal activity. For example, if tenants know that the landlord actively manages the property, they aren't likely to start making illegal modifications to the rental in order set up a marijuana grow operation. Further, inspections can help catch problems associated with illegal activity before they get out of hand. For example, it is common for drug dealers to cause damage to a rental unit that is way beyond “normal wear and tear” - a problem that could be observed, documented, and addressed through the process of a regular inspection program. Though early discovery of such damage is a possibility, the more frequent impact of an inspection program on illegal activity is basic prevention. Illegal activity is less likely to happen at property where the landlord has a reputation for concerned, active management.

The key to successful property inspection is avoiding the adversarial position sometimes associated with landlord-tenant situations. An inspection program done properly should be welcomed by your honest tenants. Steps include:

1. Set an inspection schedule and follow it. At minimum, every six months. It is a rare home that doesn't need at least some maintenance or repair work at least twice a year.
2. Give appropriate advance notice. Generally, landlords have the right to do maintenance inspections of rental property if the tenant is given proper notice. In New York, “reasonable” prior notice must be given, which is most often interpreted as being at least 24 hours in advance. In an emergency, such as a fire, a landlord may enter an apartment without a tenant's consent.

If the inspection is routine, keep the approach friendly. To help address all maintenance needs efficiently, ask tenants to take note of any concerns they have in advance of the inspection date. Again, when done appropriately, good tenants should appreciate your attention and concern for maintaining the unit.

3. Find and address code and habitability problems. When you inspect the property, check for maintenance problems and handle any routine maintenance, such as replacing furnace or air conditioning filters or putting fresh batteries in a smoke detector. Discuss with the tenants any concerns they have. Make agreements to remedy problems. Then repair what needs to be fixed.

 

Finally, note this caution: while the law permits a landlord to enter an occupied rental with reasonable prior notice, it does not permit the landlord to force his/her way into a unit when a tenant refuses that entry, even though appropriate prior notice was given. This is why a tenant's repeated failure to permit a landlord to enter, after receiving reasonable notice, should be defined in the lease as a serious violation of its terms and cause for termination. With such a lease clause in place, a landlord can then notify the tenant that unless entry into the unit is permitted, the lease will be terminated. Without such a clause in place, a landlord has less recourse in the face of a tenant's refusal to permit entry.

 

Utilities

There are some instances when the shutting down of utilities is a symptom of drug activity - as dealers or heavy users get more involved in their drugs, paying bills can become less important.

Remember: If your lease has the appropriate language stipulating that the tenant is responsible for utility bills, and the tenant stops paying for those services, you have grounds for notifying the tenant that, unless the tenant gets back into compliance with the lease, the lease will be terminated, and should the tenant fail to then move out, eviction proceedings begun. This may be particularly important to do if shutting off the utility would result in the unit no longer meeting habitability standards.

 

Keep a Paper Trail

Verbal agreements carry little weight in court. The type of tenant who is involved in illegal activity and would choose to fight you in court will know that. So keep a record of your agreements and provide copies to the tenant. Just having tenants know that you keep records may be enough to motivate them to stay out of court. For example, most termination notices and lease violation notices that a landlord would serve on a tenant in the state of New York can be either written or oral, and served in a number of ways, so long as the notice is “timely, definitive, and unequivocal.” However, most authorities interviewed for this manual recommend written notices and emphasize the value of a keeping a paper trail over the relative ease of giving notices verbally. Essentially, it is important to keep documentation that shows your good -faith efforts to keep the property habitable, to give your tenants opportunities to correct lease violations, and to show any changing agreements with a tenant - ideally dated and signed by both parties.

 

Trade Phone Numbers with Neighbors

Landlords of single-family residential housing sometimes don't hear of dangerous or damaging activity on their property until neighbors have written to the mayor, or the police have served a search warrant. Quite often the situation could have been prevented if the landlord and area neighbors had established a better communications link.

Find neighbors who seem responsible, concerned, and reliable. Trade phone numbers and ask them to advise you of serious concerns. You'll know you have found the right neighbors when you find people who seem relieved to meet you and happy to discover you are willing to work on problems. Conversely, if neighbors seek you out, work with them and solicit their help in the same way.

Note that landlords and neighbors tend to assume their relationship will be adversarial. Disarm any such assumptions and get on with cooperating. If you both want the neighborhood to remain healthy and thriving, you are on the same side and have nothing to gain by fighting each other.

 

 

APARTMENT WATCH/PROMOTING COMMUNITY

How to turn an apartment complex into a community

 

COMPLAINTS WE HAVE HEARD:

“We already have an `apartment watch.' The tenants get together and watch the manager to see if I screw up!”

 

ADVICE WE WERE GIVEN:

“Please teach landlords that their good tenants can help.”

 

The Basics

Good landlords and good tenants must learn to work together for the common goal of a safe community.

 

Benefits

In multi -family units, unless your tenants report suspicious behavior, you may not find out about drug activity until the problem becomes extreme. Some people - tenants and homeowners alike - are frightened to report illegal activity until they discover the “strength in numbers” of joining a community watch organization. Whether you call your efforts “apartment watch,” “community pride,” or “resident retention programs,” the goal is the same: transforming an apartment complex into a community.

Organizing a community is more than just encouraging tenants to act as “eyes and ears.” In the absence of a sense of community, the isolation that residents feel can lead to apathy, withdrawal, anger - even hostility - toward the community around them. Organizing efforts can lead to profound changes: as apartment residents get to know each other and the manager, a sense of community - of belonging - develops, and neighbors and tenants are more willing to do what it takes to keep a neighborhood healthy.

Complexes that enjoy a sense of community often have more stable tenancies and lower crime problems than comparable complexes that are not organized. Managers who have initiated such efforts note these benefits:

• Lower turnover, leading to considerable savings.

• Less damage to property and lower repair bills.

• Reduced crime.

• A safer, more relaxed atmosphere for the tenants.

• A positive reputation for the complex, leading to higher quality applicants and, over time, increased property values.

 

Key Elements

The key to effective cooperative community building is to have the property manager take the lead and make sure the efforts are ongoing. Community organizing that is run entirely by tenants may have less long- term stability, simply because it is the nature of rental housing that tenant turnover will occur and key organizers will move on. For this reason, having the manager keep the program going is an important part of a successful program. Further, if management waits until the tenants are so fed up that they organize themselves, the relationship may be soured from the start. If management takes a proactive role in helping tenants pull together for mutual benefit, the opportunity for a positive working relationship is great. Tips include:

1. Clean house. If you have tenants who are involved in drug activity, illegal gang activity, or other dangerous criminal behavior, resolve the issue before inviting tenants to a building -wide meeting. Your good tenants may be frightened to attend a meeting where they know bad tenants might show up. In addition, they may question your motivation if you appear to encourage them to meet with people involved in illegal activity. So before you organize, you will need to evict problem tenants and make sure that improved applicant screening procedures are in place. Until then, rely on informal communications with good tenants to help identify and address concerns.
2. Make community activities a management priority. Budget for the expenses and consider promotion of such activity a criterion for management evaluation. It is not an afterthought. It is not something that resident managers should “get around to” if there is time. Unless managers make community organizing a priority, it will not get done.
3. Hold meetings/events quarterly. Don't expect major results from the first meeting, but do expect to see -significant differences by the time the third or fourth is held.
4. Meet in the common areas if possible. While small meetings can be held in the manager's office, a vacant unit, or - should a tenant volunteer - in a tenant's apartment, more people will feel comfortable participating if they can meet on “neutral” territory. Also, if you can hold events in courtyards or other outdoor locations, you may have more room to structure special events for children in the same area.
5. At each event, encourage people to meet each other. Regardless of other specific plans for meetings, take basic steps that encourage people to meet each other. Simple steps done faithfully can make a big difference over time. At each event:

• Use name tags. This simple step is important in helping to break down the walls of unfamiliarity for newcomers.

• Begin any formal meeting by having people introduce themselves by name.

• Allow time at each event for people to socialize. Make sure that some of this time happens after the meeting agenda is underway. Once the event is underway, participants will have the shared experience of the meeting with which to start a conversation.

• Offer refreshments. Whether it is as simple as coffee and pastries or as involved as a potluck or a summer barbecue, free food can attract many to a meeting who might not otherwise have attended.

• Include activities for children and teenagers, as well as for adults. Getting children involved in games and other events will provide a positive experience for the children and help encourage parents to meet each other. Also, like adults, when children and teenagers get to know their resident manager better, they are more likely to share information. This is important because teenagers, in particular, may have information about a community problem of which the adults are unaware.

6. Hold “theme” events and special meetings as appropriate. There is a balance between holding a purely social event and a meeting for the purpose of addressing an agenda. The balance at each meeting can vary, but it is important to provide some of both. At least one of the meetings held each year should be primarily for the purpose of celebration - a holiday party in the winter or a “know your neighbor” barbecue in the summer. Others can offer a time for socializing and a time for covering an agenda. Meeting agendas can be as varied as the types of apartments and people who populate them. In general meetings should:

• Respond to issues that are a direct concern to a number of tenants. If there are immediate concerns, such issues should take priority over other potential agenda items. If tenants are concerned about gang violence in the neighborhood, less pressing topics may seem irrelevant.

• Provide new information about the local community. This could take any number of forms. You might invite merchants from the area, fire fighters, police officers, members of neighborhood associations or other community groups, social workers, employment counselors, or any number of other people who could share useful information with tenants.

Also, remember the importance of keeping meeting agendas on track, interesting, and focused on tangible, measurable outcomes. If tenants feel that meetings rarely address the published agenda, interest will shrink quickly.

7. Nurture a sense of shared responsibility. While it is important for management to continue providing support for the community -building process, it should not be a one-way street. Leadership in the complex should be nurtured, and volunteers recruited at each meeting to assist with the next meeting, program, or event. The more residents experience the community -building process as a joint effort of management and residents, the more they will appreciate it. Promoting a sense of shared responsibility can be accomplished in many ways. Here are just a few tips:

• Ask for volunteers to serve on a “tenants' council.” The council could meet informally once a month to discuss issues of concern in the complex and to plan the upcoming community -wide events. Don't be discouraged if only one or two people get involved initially. With success, more will join.
• Whenever possible, have tenants set the meeting agendas. Whether it is through a tenant council or simply by collecting suggestions at community events, make sure tenants know they play a key role in defining the direction of community -building efforts.

• Give tenants a chance to comment on plans for the property. Even the simplest issues can be turned into opportunities for community building. For example, if a fence is going to be built or replaced, before going ahead with the work, discuss the plans at a meeting and allow tenants to air concerns or suggestions. You may hear some new ideas that can make the end result more attractive. In those situations where you cannot act on a suggestion, you have the opportunity to explain your reasons to your tenants, and at least have them experience a level of participation that they did not previously have. Along similar lines, by listening to tenant concerns, you may discover that a relatively simple adjustment in policy can result in a significant increase in overall tenant satisfaction.

8. Pick projects that can succeed. Don't promise more than you can deliver. Make sure that easily implemented changes are done promptly so that tenants can see the results. While it is important to take on the larger goals as well (such as getting rid of drug activity in the rest of the neighborhood), short-term results are needed to help tenants see that change is possible.
9. Develop a communications system. This can be as elaborate as quarterly or monthly newsletters, complete with updates from management, articles from tenants, advertisements from local merchants, and referrals to local social service agencies. Or it may be as simple as use of a centrally located bulletin board where community announcements are posted. Whatever the process, the key lies in making sure that your tenants are aware of the information source and that they find it useful enough to actually read it.
10. Implement basic crime prevention measures. In addition to the general community- building techniques described, various traditional crime watch techniques can also be implemented. Apartment watch training should be provided to your involved tenants prior to getting underway. Contact a crime prevention officer in your area for more details. Crime prevention specialists can help facilitate the first apartment watch meeting and discuss the practices of local law enforcement. Examples include:

• Make sure tenants have the manager's phone number readily accessible, and that they know to call if they suspect illegal activity. Of course, tenants should call 9-1-1 immediately if they witness a crime in progress or any life-threatening, emergency situation. They should also contact police non -emergency services to discuss illegal activity that is not immediate in nature. Encourage tenants to contact the manager after they have contacted 9-1-1, in the case of immediate and life-threatening situations, as well as to contact management any other time they suspect illegal activity in the complex. The sooner your tenants advise you of a problem, the more opportunity you have to solve it before the situation gets out of hand.
• Encourage tenants to develop a list of phone numbers for each other. By sharing phone numbers, tenants will be able to contact each other with concerns, as well as organize reporting of crime problems by multiple tenants. Note that sharing phone numbers among tenants should be done on a voluntary basis only—those who do not want to participate should not be required to do SO.
• Distribute a list of local resources. The resource list should include numbers for police, fire, and medical emergency services (9-1-1 in most areas) as well as hotlines for local crime prevention, substance abuse problems, domestic violence problems, employment assistance, and any number of other services and organizations that may be able to assist your tenants.
• Purchase a property engraver for each complex. Encourage tenants to engrave their driver's license number on items of value - video recorders, cameras, televisions, etc. Then post notices of the fact that tenants in the complex have marked their property for identification purposes. Burglars would rather steal property that can't be traced.
• Apply “crime prevention through environmental design” changes. If tenants cannot see the problem, they cannot report it. The chapter on Preparing the Property covers environmental design approaches in detail. Essentially, it is important that lighting, landscaping, and building design combine to create an environment where drug dealers, burglars, and other criminals don't want to be. Make it difficult to break in, close off escape routes, and make sure accessible areas can be easily observed by people throughout the complex.

Encourage nearby neighbors and apartment complexes to get involved. Solving the whole problem may require encouraging similar steps in adjacent apartment complexes or making sure