Obesity not a valid reason for eviction

Question: This is a classic problem. I took a downstairs apartment out of desperation. The people upstairs are of the heavy type. This is a cheap apartment. There is no soundproofing. They are so heavy that when they stomp (excuse me ? walk) across the floor, they make it sound like I am living near Baghdad. I have tried to talk to them but they say it is not their fault. My only answer is to move if the landlord won't kick them out. Now they have moved another entire family into the apartment, which is clearly a violation of the lease. So now there are four large adults and two babies up there. I have notified the management, they claim to have given them a warning. These people are so heavy that you can actually see floor joists are bowing down. I am afraid the ceiling is going to collapse. Can't the landlord just tell them to leave?

Landlords' attorney Smith replies:

Fair housing laws require the landlord to have an open rental policy to qualified tenants. It would be illegal to evict them based solely on their physical characteristics. However, there is a distinct violation by having extra people occupy the rental. For this reason alone, the landlord could take legal steps to evict them and probably should do so under the circumstances given the over-occupancy and the disturbance issues. You could vacate the premises, but it's my view that the landlord could still hold you to the lease. Also, if you can literally see the floor above you move, then you may want to have the landlord send someone in to check that out.

Question: I have a rental property where one of the tenants just moved in last month and signed a six-month lease. These are standard, boilerplate lease forms that we got from Professional Publishing. At the time this tenant signed the lease we asked him for first month, last month and a security deposit. He told us he couldn't pay the entire security deposit or anything towards the last month's rent before moving in. But he indicated that he was getting paid his commission soon and would pay the rest of the security deposit and the last month's rent in two weeks. This turned out to be a lie, but we did eventually get the last month's rent from him over two months after move-in. Once again he promised to pay the balance of the security deposit but he never comes through. He has now become surly when we ask him for the deposit. The rental agreement he signed with us clearly stated that he would pay first, last and security. Since we now have a last month's rent from him, at what point can we consider him to be in breach of the lease and give him a 30-day notice?

Landlords' attorney Smith replies:

Your tenant is in violation of the lease agreement under which he holds possession of the premises. The lease violations you refer to subject the tenant to possible eviction. However, you may not use a 30-day notice. The 30-day is used to terminate month-to-month tenancies only, not leases. In this case you have a 6-month lease. You will need to legally serve a notice to perform or quit, which requests payment of the balance of the deposit or possession of the premises within a limited number of days after service. If he fails to comply with the legal notice, you will have the right to evict despite the six-month lease. Your retention of the last month's rent should not defeat your right to evict based on the lease violation. In residential cases, I encourage my landlord clients to get away from collecting "last month's rent," and, instead, call the entire amount held "security deposit." This gives you your maximum use of the money for rent, cleaning and damages. By calling the entire sum "security deposit," you are not required to give credit against rent before the tenant vacates.

This column on issues confronting tenants and landlords is written by property manager Robert Griswold, author of "Property Management for Dummies" and co-author of "Real Estate Investing for Dummies," and San Diego attorneys Steven R. Kellman, director of the Tenant's Legal Center, and Ted Smith, principal in a firm representing landlords.

E-mail your questions to Rental Q&A at rgriswold.inman@retodayradio.com.

Questions should be brief and cannot be answered individually.

Copyright 2005 Inman News