LEGAL CORNER
By
STEPHEN C. DURINGER, ESQ.
THE DURINGER LAW GROUP, PLC

Q: It seems like I’m always clearing out a clogged drain, or fixing some other nit of a problem that was more than likely caused by my tenant. Trouble is, I don’t live near the rentals, and calling a plumber out for such minor repairs is way too expensive. Is there a way to pass this responsibility on to the resident?

A: Yes, the responsibility for minor maintenance and repair items can be negotiated as part of the rental agreement. You can’t require your tenant to waive his right to live in a habitable unit, but you can require the resident to take responsibility for minor repairs and maintenance that may be required during the course of the tenancy.

A provision requiring the resident to maintain the drainage lines, the toilets and the garbage disposal will require the resident to either perform the repairs and maintenance, or hire a professional to do it for him. Stoppages in the main line caused by root or other causes will typically be an obligation reserved to the owner, while clogged drains, toilets and garbage disposals may be delegated to the resident to repair.

Q: I just had a very odd visitor. I have a single vacancy in one of my buildings, been running an ad for a couple of weeks, have a listing on West Side Rentals and Craig’s List, you know, the normal drill. I’ve been pretty gun shy, been burned by a couple of bad tenants, so I’m being a bit more careful now.

Anyway, this guy came by the rental office yesterday. He just moved to the United States last month. He has a tax ID number, but no social security number. He completed an application, said his “wife” will be living with him, but that she isn’t here yet. She apparently has neither a social security number nor a tax ID, but she should be in the country next month. Nice enough fellow, but I’m not sure if I want them in my building. How do I handle this?

A: Proper tenant screening is key to a successfully-run building. Consistent rental policies, applied to all prospective applicants will guide you. Your rental screening process should verify the identities of all proposed occupants.

A U.S. government issued picture identification card such as a driver’s license or a California ID card is typical, but a passport may be used as well to verify identity. Verification of the applicant’s ability to pay the rent is critical. Verifiable work history and proof of the ability to work legally in the U.S. are typically required.

The absence of a United States social security number will make it difficult or impossible to verify the prospect’s financial strength or his ability to pay. Depending on his country of origin, international databases are available to perform basic credit checks, but not nearly as complete or reliable as those here in the U.S. Since the “wife” is not in the country, and you have no application from her, and she apparently has no social or tax ID number, it will be virtually impossible to screen her.

The bottom line is, you must accept an application from all who wish to apply. Upon receipt of the application, you must then apply your rental standards to properly screen the applicant. If your standards require a social security or other tax identification number in order to run credit and eviction checks, then this applicant will not meet your criteria. Further if your rental standards require verifiable work and tenancy history, then again this applicant will not qualify.

Q: What happens when a tenant’s rent check gets lost in the mail? Common sense tells me that the tenant has to replace it, right? I can’t be held responsible for lost mail can I?

A: The answer is not as simple as you may think. Generally, the tenant bears the risk of loss if he elects to mail the rent and it fails to arrive. As a general rule payment by check is not effective unless and until the check clears the financial institution.

A lost check not received by the landlord, is generally not deemed paid unless and until the landlord cashes the check. But, there are circumstances where the landlord will bear the risk of loss, however. A landlord who dictates specific payment procedures may cause the risk of loss to be shifted to him.

For example, a landlord who refuses to provide a physical address for rent delivery, instead only providing a post office box, thereby preventing personal delivery of the rent may effectively shift the risk of loss to himself unknowingly.

Likewise, a landlord who requires all rent to be deposited into a drop box rather than delivered to a specific address may bear the risk of loss if that drop box gets broken into. The issue gets even more complicated if the resident pays by third party money order.

Replacement of a money order can sometimes take two to three months. The simple solution to the dilemma is to use a rental agreement that clearly requires that the resident “deliver” his rent to the landlord at a specific address on or before the due date.

An agreement purporting to require the resident to “mail” the rent by the due date may be found to require the resident to “mail” the rent, thereby shifting the risk of loss to the landlord. Of course, allowing your resident to pay by mail is the most common and the most convenient, however, ensure that you do not create a requirement that the resident pay by mail.

The foregoing is presented in a general nature to address general legal issues. Specific inquiries regarding a particular situation should be directed to your attorney. The Duringer Law Group, PLC is one of the largest and most experienced landlord tenant law firms specializing in evictions and in the collection of debt, representing landlords exclusively. The firm may be reached at 714.279.1100 or 800.826.6994 or 877.387.4643. Visit our website at www.DuringerLaw.com for more information.