How to Rescue Your Right to Enforce Overlooked Lease Violations

It’s hard to enforce all the lease provisions residents must comply with, such as bans on pets and home businesses. At some point, you may overlook a resident’s violation of a lease provision for several months. But if you ignore the violation for too long, you may lose your right to insist that the resident comply with the provision. In legal terms, ignoring the violation for too long may constitute a “waiver.”

A waiver is a legal doctrine that is troublesome for owners. It can obstruct a proper eviction or the ability to enforce valid lease provisions. Waiver can occur when an owner or manager knows that a resident is breaching the lease, yet conducts the normal course of a landlord-tenant relationship. For example, the owner may still accept rent and otherwise do nothing to object to the violation of the lease. In these situations, a court may infer that the owner has waived, or forgiven, the breach. For example, the acceptance of rent either by the owner or manager with full knowledge of the lease violation is generally considered to be a waiver of the breach, and, consequently, the owner cannot thereafter seek to evict the resident by reason of this violation.

The problem with waiver is that it may be permanent. For instance, if the lease contains a no-pets clause, but the owner makes exceptions randomly for temporary stays, the ability to terminate the tenancy when a resident brings in a dog as a permanent companion is seriously hindered.

You may think that a standard lease clause known as a “non-waiver” clause will prevent this from happening. In the past, owners with leases that contain an “anti-waiver clause” could bend the rules once in a while and avoid making waiver permanent. However, courts have held that an anti-waiver clause can also be waived if lease enforcement is relaxed.

Although there’s no surefire method to reestablish your right to enforce a lease provision, you may be able to get the resident to start complying with the provision by sending him a letter saying that you now intend to strictly enforce the provision, says Atlanta attorney Robin Hein. We’ll give you a Model Letter: Tell Resident You’re Enforcing Overlooked Lease Violation, which you can adapt and use at your tax credit site.

Decide Whether to Get Tough

Before you send a resident a letter saying that you intend to strictly enforce a previously overlooked lease violation, make sure you’re serious about it, warns Hein. Be prepared to take steps against the resident—possibly even eviction—if he doesn’t stop violating the lease after getting your warning letter, he says. If you do nothing, you’ll again run the risk of waiving your right of enforcement against the resident, he adds.

Also, if you decide to get tough on lease violations that you ignored in the past, don’t do so selectively. Send a letter saying that you’re reestablishing your right to enforce the lease provisions in question to every resident who’s violating one of them. Otherwise, you could run into fair housing trouble if a resident protected by fair housing law claims that you’re enforcing the lease provision against her and not against other residents, warns Hein. And keep in mind that if you violate fair housing law, your state housing agency must report you to the IRS for noncompliance.

What Letter Should Say

If you’ve let a resident get away with a lease violation for an extended period of time and want to start enforcing the lease provision, send the resident a letter telling him that you now plan to strictly enforce the lease provision. By sending the resident this letter, you’re giving the resident notice of your intention to begin enforcing the lease provision. And if the resident continues to violate the provision and you go to court to enforce it, the court will be less likely to find that you’ve given up your right to enforce the provision, says Hein.

Your letter, like our Model Letter, should tell the resident that:

• He has been violating the lease (state the specific lease provision the resident has been violating);
• He must comply with the lease provision from now on, and the letter is written notification of this;
• You reserve the right to take all proper legal action if the resident continues to violate the lease provision; and
• He should call your office if he has any questions.

Insider Source

Robin Hein, Esq.: Fowler, Hein, Cheatwood, and Williams, PA; 2970 Clairmont Rd., Park Central, Ste. 220, Atlanta, GA 30329; www.apartmentlaw.com.