Law Asked by MikeyC on September 16, 2020
I understand why it would be imoportant for Landlords to request certain information about employment and also to be allowed to establish rules like no smoking or no pets allwed in a dwelling. But I’ve noticed that some leasing advertisements have stipulations that seem to imply that they will not lease to certain people based on specific activities, even if they take place outside of the rental. And many lease applications, will ask for this kind information in advance without specifying how or if it will be used in tenant selection. For example, tobacco and e-cigarette use is often specifically mentioned in leases. I get that this could be justified as tobacco smoke lingers on a user etc. I’m just using it as an example because it’s so common in lease agreements. I’m just curious how much control landlords can legally exert over a tenant’s personal behaviors, in and out of a rental unit.
I know there is a small subset of protected classes that can’t be used for tenant screening, like religion, age, race, family status, and maybe now sexual orientation. But are there any requirements for landlords to justify other exclusionary stipulations or requests for personal information? Or can a landlord legally refuse a tenant for any non-protected reason, including for activities that take place outside the rental property? Like, could they craft a lease in such a way that tenants could be unilaterally evicted if they were seen using a Juul in a public space, or having a beer at the pub? Could they theoretically make a hard and fast rule against all knitting and crochet in rental unit? Just trying to understand the theoretical limits of landlord control over tenants.
A limitation has to be expressed in lease and must not violate laws related to housing discrimination that apply to the place where the leased property is located.
There are also other terms of a lease that are statutorily prohibited or prohibited at common law (e.g. imposition of a penalty interest rate in excess of the rate allowed by usury laws).
But, the general rule is that anything not prohibited by law is allowed.
A secondary analysis is that one of the common law prohibitions in contracts is a "penalty" which means a fixed monetary sanction not easily calculable based upon the measurable economic harm to a party to the contract after the fact. In those cases, the clause, called a "liquidated damages" clause must be a reasonable attempt within reason ex ante to quantify the harm caused by a breach of the contract triggering the liquidated damages clause.
If the termination of a lease for a violation of a lease term involving a tangential personal life activity unrelated directly to the premises, and has the effect of making a tenant subject to liability for the balance the lease payments, it might be disqualified as a penalty which is void as contrary to public policy.
On the other hand, if it simply operated to terminate the lease as the next convenient juncture (perhaps the next of the next month more than 30 days from the violation) with no financial penalty involved, it would probably be valid.
Answered by ohwilleke on September 16, 2020
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