THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: Saturday, August 20, 1994 TAG: 9408180419
SECTION: REAL ESTATE WEEKLY PAGE: 12 EDITION: FINAL
COLUMN: Landlords & Tenants
SOURCE: William Mazel and Albert Teich Jr.
LENGTH: Medium: 91 lines
I just signed a lease with a family of five, where the wife smokes. I normally do not rent to smokers and when I advertise in the newspaper, I normally make that statement. But somehow, the smoking prohibition did not appear in the newspaper before I rented it to the current tenants.
My tenants appear to be quite a contentious family. The husband says he is trying to get the wife to stop smoking, and she admits she is trying to quit. The rental application lists her as the only smoker and the lease states that if any information given in the application changes, the landlord is to be notified in writing.
While my lease does not say that smoking is prohibited, I did have my tenants sign an addendum in which they agreed that only the wife is allowed to smoke inside the house and all others are to smoke outside.
My questions are, if I do find others in the house smoking, is this grounds for eviction? Could my current tenants lose their deposit if this occurs? When my tenants move, are they obligated to remove the smoking odors if so stated in the lease? I know that you will probably recommend not making any exceptions to begin with, but we do have to take chances sometimes, don't we? Is this chance manageable?
In starting with your last question, as to whether or not the chance is manageable, we are not in a position to answer this particular question. Lawyers only try to interpret the law but not make business choices for their clients.
As for your finding others smoking in the house and whether or not it is grounds for eviction, that is a question that has not been presented to us in the past and we have not been able to find any cases from the courts hat would help us in answering the question. Since there is an addendum that basically says that the wife is allowed to smoke in the house but others must smoke outside, we suggest that if you find other people smoking inside, you give notice to the tenants to cease and desist and tell that if they do not do so, you will terminate their lease. It certainly is worth the effort in your case.
As to whether or not the tenants would lose their deposit if you terminated the lease and they moved, we can only tell you that the only time that you are allowed to retain the deposit is for delinquent rent and all damages exceeding normal wear and tear.
In this case, since you allowed the wife to smoke in the house, we do not believe that you would be able to keep the deposit unless you could prove that the smoking of others added to the residual aroma in the house when your tenants moved. As far as their obligation to remove the smoking odors when they move, we do not believe they would be obligated unless you did have a provision in your lease requiring such action. If you did have a provision that the tenants were to deodorize the house after they left because they were smokers, then they would be so obligated and you would be able to deduct the cost of deodorization from their security deposit if they did not comply with the lease. Yes, all landlords must take chances from time to tome.
We assume that what you really have to balance is the promptness in the paying of the rent. The neatness of your tenants and the difficulty in re-renting when making a decision as to whether or not you ought to make the exception in this case.
When the lease was up on my rental property in May, the tenant notified me that he wanted to rent month-to-month because he had signed a contract on a house and was planning to close in September. In light of that, I listed the property with a real estate agent who sold it to someone who could move in on Sept. 1.
Sounds perfect, right? Well, the tenant called me on June 10 to say that he would be vacating the property on July 15, and on July 1 sent me a check for only half of the month's rent. I really cannot afford to miss any rent payments and of course I cannot rent it out with the pending sale. The buyer cannot move in early as she is locked into a lease herself. Am I entitled to the full month's rent?
Yes, you are entitled to rent for the entire month of July. We even think that you probably are entitled to collect the rent for August. Normally, when a landlord and tenant have entered into a lease on a month-to-month basis, either party, in order to terminate the lease, must give 30 days notice in writing to take effect on a rent day. Any attempt to terminate the lease between rent days is ineffective if the other party does not agree to such mid-term termination. In your case, it is apparent that you and your tenant agreed that the tenant could stay in the premises until Sept. 1.
We interpret that to mean that the tenant and you nave mutually agreed that the lease would end Sept. 1. Therefore, the tenant is liable not only for half a month's rent in July, but we also feel that rent should be paid by the tenant for the month of August. MEMO: Albert Teich Jr. and William Mazel are real estate lawyers based in
Norfolk. Send comments and questions to them at Real Estate Weekly, 150
W. Brambleton Ave., Norfolk, Va. 23510. by CNB