Judge Casados: Landlord and Tenant Issues

Landlord and Tenant Issues

By JUDGE PAT CASADOS
Los Alamos Magistrate Court

Are you thinking about moving and renting a new home? Are you going away to college and will not live in the dorm? Are you sending a student off to rent an apartment or share a house with other students?

Renting a place to live presents many important questions and can have legal consequences. Lack of information or wrong information may cause disputes that can turn into headaches including court action leading to eviction.

The first and most important piece of advice I would give anyone is to KEEP RECORDS.

In looking for housing ask yourself “Do You need renters insurance for your personal property? Landlord’s insurance policy seldom provides coverage to loss of the tenant’s property. Examples of loss can be fire or theft.

Next step: “What is your rental agreement?” You need a clear understanding on what the tenant and landlord have agreed upon. Types of tenancy can be periodic tenancy, which is month to month or fixed term, which is six months to one year. In a fixed term, rent will not be increased. Early move out may result in fees. There are different rules for termination of the contract or lease. Month to month could have a rent increase and there is a shorter time for termination of the contract or lease.

What are the extra costs? Will you pay for water, sewer, trash? Are utilities included? Check on deposits. There are many different types. Damage deposit, first and/or last month’s rent, or deposits to hold the property till move in. Is that deposit refundable if you change your mind about renting? Landlords have the right to retain deposits in some certain situations. They may be entitled to some rent or other damages to re-advertise the property.

Some agreements are oral, others written. New Mexico law requires written rental agreements or lease. Some landlords don’t use them. If yours is oral they can be serious misunderstandings. If the agreement about the term is not in writing it may be difficult to prove term or other issues in court.

If written it is important for both parties to have a signed copy. Written rental sets out the promises landlord and tenant make to each other. To avoid disputes in the future, a written fixed term is usually the best deal. It offers security of continued occupancy and unchanged rent. Remember that not only the landlord’s promises are included but tenants have also agreed to things. For example, when two roommates co-sign a lease, either one can be held entirely responsible for the entire rental agreements.

Tenants need to read the lease and be sure you understand everything in it. There are form leases, so look them over and make sure all blank space are filled in or marked NA (not applicable).

Check carefully about sub-leasing if you want to have a roommate or have someone else take over your lease. Some leases prevent having friends visit as a guest. A tenant is entitled to have a reasonable number of guests stay for a reasonable time. Remember what is reasonable to one person may not be reasonable to another. Is there a guest fee?

Check the items about automatic renewal. Are there late charges? Who is responsible for utilities: sometimes they are included in the rent? Do you need to put then in your name? Is there a deposit required with the provider? What about appliances—landlords are not required to provide them but if he does, his obligation is to make sure that they are in good working order. Look in the lease for these items. Who is responsible for repairs, yard work, trash removal, snow removal and general maintenance around the property? Is this in writing?

Pets: check before you have a pet. This may require another deposit.

Gest the address of the owner landlord or person authorized to manage the rental property. You will need this for communication.

Deposits are very important. A Deposit is money the tenant pays in advance to protect the landlord. Landlords can ask for first month’s rent, last month’s rent, damage deposit and as mention before things like pet deposit. These can be negotiable. The law provides a number of protections for the return of the deposits. A tenant needs to know if the deposits are refundable or nonrefundable. The law is clear that if property is not damages the tenant is entitled to get the damage deposit back. Fees are different: Landlords may charge an application fee for the credit and/or background check. The tenant is not necessarily entitled to the return of this fee.

Damage deposit or cleaning deposit is the cost of making property ready for the next renter. The deposit may not be more than one (1) months’ rent if the lease is one year or less. GET A RECEIPT. This is where courts see many cases. Tenants are surprised the landlord would not give the deposit back. Or landlords sue because there is more cost in damages than the deposit covers. Landlords have to take notice of normal wear and tear in determining damages. Best practice is to take pictures when moving in: carpet, cleanliness of kitchen, cabinets, appliances: refrigerators, stove or microwave, bathrooms, windows and yard.

Inspect property when moving in. Do a walk through with the landlord or property manager. Do a checklist of items and have both parties both sign and keep copies. With the first few weeks if you notice anything that requires attention, send it in writing as well as a call or an e-mail. Keep repair requests for your files. 

Photos for a walk through when moving out with the checklist are a good idea. Do this before you are to move out to give time to maybe do what the landlord sees as a problem. Items might include carpets, trash removal, stove, cabinets, behind appliances, and the bathroom. Your idea of clean and the landlord’s idea may be very different. This will give you a better chance of getting the deposit back

Landlords have 30 days to return deposits or provide a letter telling the tenant why and what is begin deducted. This is why giving a forwarding address is important. If they have none, they will send it to the last known address, which may be the property in question.

Please inform the landlord of absence of more than seven days. This could avoid the issue of abandonment of the rental unit.

Two things can lead to the eviction process: Non-payment of rent or illegal conduct. The law states if the tenant knowingly does certain acts or allows others in the tenant unit to do certain acts the tenant can be evicted: Drug use or selling drugs, use of deadly weapons, sexual assault of another person, thief of another person or reckless damage in excess of $1,000. The tenant dos not have to be convicted of a crime to face eviction. Check out other provisions in the lease as it may also include loud parties, etc.

Keep receipt of all your rental payments. This can be important if you are in court on a non-payment issue.

Court actions for eviction are serious lawsuits. You may need to seek legal advice. There are remedies. There is a good source of information at the library “RENTER’S GUIDE, A handbook for tenants and landlords.”

Important: as of August, rental payment history can be used in your credit reports. This could affect your credit and your future. 

As this column stated in the beginning: “Renting a place to live presents many important questions and can have legal consequences.” Please KEEP RECORDS. This is not a complete view of all the obligations of the landlord and tenant. Please look at resources for information. We need informed landlords and tenants.

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