February 7, 2016

Landlord/Tenant 411

I’ve been doing an awful lot of research into landlord/tenant issues for the past several years.  It had become more and more apparent that Omaha has a slumlord problem.  As time has progressed, others in my social circle have come forward with their own questions and concerns about their experiences as renters with questionable landlords.  I've tried to compile the information I have gathered in one place to be used as a resource by anyone who needs it below.  But first, a disclaimer:
I am not a legal professional or an attorney. This advice is general in nature and should not be taken as advice from a professional. If you have encountered difficulties with your landlord, please consult an expert in your area before proceeding.

Now that that’s out of the way, let us begin.  

For purposes of this writing, we shall assume you’re in an apartment or house.  Mobile home rentals have some separate statutes in Nebraska and I haven’t included them in my research.

Legal Aid of Nebraska makes an absolutely fantastic booklet available to renters called the landlord and tenant handbook.   I will be referring to it frequently.  It doesn’t matter if this is your first apartment out of college or the third time you’ve moved this year, this has wonderful information in it.  I highly recommend downloading it and reading it from cover to cover.    

Let's assume you've found your new place.  I can't stress this enough, inspect the actual unit you will be leasing.  If you are offered to look at a unit with the same layout, insist on seeing the actual property for rent.  This could save you from a bait and switch situation and avoid a huge headache trying to nullify a lease and recover a deposit and any pre-paid rent should the actual unit be unfit.  

If you find yourself in the unfortunate situation where your new unit is unfit and you wish to break your lease, you must explain your intentions and provide reasons why in writing to your landlord within the first 5 days of occupancy.  This is covered in the above mentioned handbook. It's also highly recommended you consult with a legal expert in this scenario.  

If the building you will be living in was built prior to 1978 you must be provided with lead paint information by the landlord prior to moving in.  Here is a useful page on this topic provided by the Nebraska Health and Human Services.  The EPA also provides a good pamphlet on keeping you and your family safe from lead in your home.    

After you have toured the unit and before you move in, you should be provided with your rental agreement.  In Nebraska, your rental agreement, otherwise known as a lease, can either be written or verbal. I would highly recommend that you get something in writing for yours and your landlord's protection as it's easier to refer to and enforce.  Once you've gotten it, I can't stress this enough -- read it.  All of it.  

Your lease should list, at the minimum: 
  • your landlord’s name
  • address
  • phone number
  • the terms of your lease 
Terms often consist of, but are not limited to: 
  • the duration of your lease 
  • rent cost
  • date rent is due 
  • how/where it can be paid
  • what you can and can’t do in your living area 
  • pets
  • utility responsibilities 
  • names and contact information for the people living in the unit 
  • how long you can be gone without notifying the landlord
  • lead paint information  
Your security deposit may not exceed one month’s rent.  If there is a pet deposit, it can’t exceed 25% of your rent.  Your responsibility as a tenant is spelled out in NE Statute 76-1421.  Anything above and beyond this should be in your lease.  However, landlords aren't given carte blanche for what they can include.  Statute 76-1415 outlines what is prohibited in a lease is Nebraska. 

When you move in, and I can't stress this enough, use a checklist to document the condition of the unit and take photos of any damages you find.  Provide your landlord a copy of both and save them for your records.  If you should find there were problems that were not disclosed prior to move in day, or your landlord won’t let you move in, you may be able to nullify your lease.  To do so, you will need to notify your landlord within 5 days of taking possession.  If you should run into this sort of situation, it would be wise to speak with a legal expert.  If you are having problems at a later date in your occupancy, the following will be more useful for you. 

The law protects the tenant and states that the landlord must maintain the property and keep it in good repair.  Your landlord also can not spontaneously amend the lease.  All changes to a lease in force must be approved by the landlord and the tenant and the power to do so must be included in the original lease.  Also, the tenant must be given 30 days notice if the landlord opts to renew the lease with changes, such as a rent hike.

Once you have moved in, your landlord is obligated to give you at least one day’s notice prior to entering your unit.  They are also prohibited from entering at unreasonable times, and for any reason other than to inspect it, make repairs, or show it to future tenants or buyers.  The exception to that is in case of emergency.  As a tenant, you may allow your landlord access for whatever reason you’d like, but the law offers you these protections should you want or need them.  If your landlord has made unlawful entry, you have options, including terminating the rental agreement.  

Your landlord must also provide you with adequate heat, water, hot water, or other essential services per statute 76-1427.  Also, each unit must also have working smoke detectors. If they do not, you have the option to withhold rent until it is fixed, or deduct the money from your rent to hire your own professional to do the work.  You must notify your landlord that this is what you’re doing and why.  It is advised you use the 14/30 day letter method covered below.  Please consult a legal professional before withholding rent to make sure your actions are within the law.

Your landlord is also obligated to provide services such as trash removal, snow removal, and yard care unless otherwise stated in the lease.  However, if this is not done, the city often has a hotline to report such issues.  Consult your local government directory for the number.  In Omaha, the Mayor’s Hotline at 402-444-5555 can direct you to the correct authority.  If your landlord denies guaranteed services such as hot water, electricity, gas, or prevents entry into your unit, they might be in violation of NE Statute 76-1430 and you are allowed to terminate your lease, recover any prepaid rent, and security deposits. 

You also have the right to call your local code enforcement agency.  In Omaha, every visit by the inspector costs the landlord money, so if they don’t meet their obligations during their allowed window of time, they are fined.  Sometimes, the only way to get your landlord's attention is to hit them in the wallet.  When you report something to code enforcement they send out the notice for the repairs that are needed. You will get a copy, the landlord will get a copy, other affected tenants will get copies, and the bank holding the loan on the property will also be notified.  You can find the local building codes here.  I would recommend browsing through them if you have a landlord with questionable maintenance habits or properties as some of them might not be up to code.

If you have an issue with mold, the Douglas County Health Department will inspect for mold and write a letter to the property owner on your behalf.  But refer you back to Legal Aid Nebraska should you need to take legal action.  Hopefully, the letter from the Health Department is enough to motivate your landlord to fix the issue.  According to the Omaha municipal codes, the landlord has a set amount of time allowed to make the repairs, and all issues brought to their attention must be completed to their satisfaction before they will approve the job.

If you’re having problems getting your landlord to make repairs to the property or your unit, and they are not complying with statute 76-1419, where they are required to maintain a fit premises, you have a couple of options.  First of all, statute 76-1425 outlines the 14/30 day letter option.  (The Landlord Tenant Handbook has templates for such letters included.)  If you have a repair that you need made and have struggled with your landlord ignoring your requests, or feel that they may ignore the issue, you should write a letter stating your request and deliver it to your landlord.  Some recommend certified mail, but I have been advised that while hand delivering the letter is best, email is also an acceptable method to notify your landlord.  If your email has a read receipt option, use it.  This would be much like the notification of delivery you get with certified mail proving that it was seen.

If disrepair of the building or property results in injury or damage, you may be able to take your landlord to court to recover expenses or damages.  If you suspect you may be in that situation, consult an attorney.  The Heart Ministries in Omaha offer free legal advice as one of their services.  They may be able to help, or put you in contact with an attorney with Landlord Tenant law experience.  Legal Aid Nebraska also make a list of resources available on their website that are very useful.  I recommend taking a time to browse it before you need it to be familiar with what's out there.  You may find your rights have been violated and didn't even know it!

By this point, you've spoken up, set reasonable boundaries, and tried to ensure that your home safe  to occupy.  Well done!  Not many renters do because they're either not aware of their rights, or are afraid of repercussions as a result of their actions.  There's good news on that front though. 

Your landlord is not legally allowed to retaliate against you for calling the regulatory authorities.  They are also not allowed to retaliate if you unionize, or are exercising your first amendment rights to speak as a group (be careful of slander and libel though, these are still illegal).  If you are having problems, speak up to your neighbors!  You might be surprised at how many others are in the same boat.  Many terrible landlords use intimidation and subversive behavior to get their tenants to comply.  They assume others are ignorant of their rights or they are too afraid to fight.  If you feel that you have been retaliated or discriminated against, The Human Rights and Relations handles those claims.  If you are interested in researching the actual codes for Omaha's Human Rights and Regulations laws, they can be found here.   

I have not done much research into eviction at this point in time.  I am lucky to have not needed that information yet.  The handbook mentioned above has some very good information on the subject. Legal Aid of Nebraska also provides a document outlining your basic legal information concerning eviction as a good place to start.  

As of this edit, there are some laws in effect regarding the Covid-19 global pandemic.  The CDC has put a moratorium on evictions at this time.  You can find current information at Legal Aid of Nebraska outlining the current status.  If you need assistance with rent or utilities due to job loss, you have resources for assistance available to you.

That said, I would highly recommend taking photos of your home after you have vacated as a reference for how you left the space.  If you camera offers the feature to watermark each photo with the time and date, use it.  If you're truly worried about your landlord disputing the condition, print hard copies of the photos and mail them to yourself so you will have a date stamped, unopened envelope for proof.

If you have moved out and suspect your landlord may try to keep your deposit unlawfully here are some tips for how to prevent that.  The most often overlooked and perhaps most powerful tool in a renter's arsenal is this gem of a statute: 76-1485.  This outlines the requirements for how to request your deposit back.  

There are two reasons why a landlord can keep your entire or partial deposit; to cover the amount of unpaid rent, or to restore the unit to the condition it was in prior to occupancy.  (This is why taking photos when you move in is so critical.)  Normal wear and tear is expected and exempt from being claimed.  The burden is on the landlord, and any withholdings must be spelled out in an itemized list for the tenant to review within 14 days of them taking possession of the property.  In short, if you have advised your landlord of any items needing repairs that weren't completed, you shorted your landlord on rent, or trashed/damaged your space, you should receive your full deposit back at the end of your lease.  If your landlord is unable to return your deposit due to having either a bad forwarding address, or no forwarding address at all, they are not entitled to keep it.  The must turn it over to the State Treasurer under the Uniformed Disposition of Unclaimed Property Act.

If your landlord tries to keep your deposit, or claim damages that are not accurate, you may have to take them to small claims court.  There is a cost to file a case, but should you win your case, you can request that your legal fees be covered under the judgement.  Before you begin filling out the paperwork, make sure you have a current address for your landlord where he can be served.  If the summons is undeliverable, your case can be thrown out and you will forfeit your filing fees.  You will need to complete this form for the clerk of the county court.  My understanding is that the form must be either mailed to or submitted in person at the clerk's office.  

Once you have a case number assigned, you will be given a date to appear in court. You are not required or even encouraged to have a lawyer represent you.  Your landlord will be served with the paperwork informing them of your complaint, and the date and time they're also required to appear.  They do have the option to settle with you before they must appear.  Hopefully, just the threat of being taken to court resolves your issue.  If not, make sure you are prepared.  Bring documentation.  Dress appropriately.  Be respectful, and tell the truth.

At the end of it all, I can only advise you to know your rights, be a dutiful tenant as best you can, ask for help, and take no guff.  Talk to others, and if you’re all having problems, get a group of you together.  There is strength and protection in numbers.  Good luck!

PS - If I have missed a topic you would like to have covered, or have resources you've used that I've missed including, please leave a comment and I will do my best to research it and update the article. 

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