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Declaration of the rights of tenants

BY JESSICA VOSGERCHIAN AND SAM WAINWRIGHT
Magazine Staff Writers
Published October 27, 2009

Any student renter in Ann Arbor has heard horror stories about exploitative and negligent landlords. Students are too often at a disadvantage in lease agreements because they don’t know what rights housing laws afford them. It's time for that to change.

KNOWING WHEN NOT TO SIGN

It’s October, and you found that perfect sophomore year house, still within earshot of Markley. Your six roommates are psyched to sign the lease before someone else snags it, and your first instinct is to seal the deal as quickly as possible. But what you really need to do is take your time and read the lease closely — there are a variety of tricky clauses that can cause trouble with your landlord later on.

Ann Arbor’s “Rights and Duties of Tenants” handbook lists a number of unlawful clauses that landlords sometimes include in lease agreements to discourage tenants from taking legal action against them. For example, the law does not allow clauses that prohibit you from attaining a jury trial or stipulate that you must pay for the landlord’s legal fees. These clauses are unenforceable by law, and landlords know this — don’t be intimidated.

Gayle Rosen, an attorney at Student Legal Services who handles housing disputes, said that she does not see many unlawful clauses in the cases she handles. But if something in your lease seems suspicious, have a tenant lawyer at Student Legal Services examine it. In the case that the clause doesn’t hold up, you’ll be able to move into your new place with the knowledge that you would be entitled to your full legal rights if you ever needed to use them.

But there are plenty of subtler problems that can be spelled out in leases ahead of time. Landlords cannot waive the ability to sue for negligent upkeep, but they can transfer some of the responsibility for keeping the house up to code to tenants. For example, many leases require tenants to take the trash out or shovel snow from the walk. Think about the place you’re looking to rent — in a big house split into several apartments, these jobs might be bigger than you want to take on.

One trend that Rosen warns about is a security deposit waiver, which would have you sign over your security deposit to the people who move in the following year. The expectation is that the new tenant would then be responsible for paying you the value of your deposit. Landlords most often present this waiver when only some of the tenants in a house plan to move. It saves the landlord the time and cost of processing separate security deposits, but could mean a giant financial headache for you.

The simplest thing that students overlook when signing a lease is how the moving dates coincide with the University’s academic schedule. We all want to enjoy a good, long Welcome Week, but many leases technically start after the first football game. While most landlords will allow tenants to move in early, pay close attention to what you’re agreeing to. Many landlords charge a fee for early move-ins. Many also refuse to clean the residence if tenants move in early. If yours does both, you’re downright getting screwed.

Also, take a look at your move-out date. If yours is in the first half of August, you might be upset when your landlord expects full rent for that half month. Ask if the cost of August can be prorated to exclude the last few weeks. It might not work, but it’s worth a shot. Always remember that you have the ability to negotiate. You are a customer buying a product that your landlord is selling.

MOVING INTO A MESS

Excited to move into your new house, you find that the cute older house you toured last year has transformed into a pigsty. There is rat poop in the cupboards and mysterious carpet stains in every room. On top of that, the kitchen sink makes an ominous gurgling sound like it might not hold out much longer. If there are problems from the onset, you need to be prepared to deal with them later on.

Don’t let your landlord off the hook for not cleaning your place. You’re paying to live in a residence as if it’s your own, not to have the privilege of rifling through the former tenants’ old junk.

“You have the right to a clean, sanitary dwelling before you move in, even if your lease says it does not have to be clean,” reads the city’s “Rights and Duties of Tenants” handbook.

Some landlords push tenants to sign cleaning waivers absolving them of the obligation to clean between leases. Such waivers are only legal some of the time — such as when tenants waive cleaning for the chance to move in early. If you signed one, show it to a tenant lawyer to see how it checks out. If you didn’t sign one, you can demand that your landlord have the place cleaned regardless of when you moved in.

In the instance that your landlord fails to comply with your request, you may be able to receive compensation for cleaning the place yourself. First, Rosen recommends that you take time-stamped photos of the condition of the house when you first moved in. Then log how many hours you worked to get the house in satisfactory condition. Compiling evidence might be enough to compel your landlord to give you credit toward rent.

But unwashed floors might be the least of your problems. If you suspect that your house isn’t up to city housing codes, your landlord is required to show certification of compliance upon request. But even that might not be reliable — city inspectors often get backed up and sometimes issue temporary certificates without completing an inspection.

When dealing with prolonged housing issues, recording evidence should be your prerogative. Even before major problems present themselves, you should be conscious about absolving yourself of future guilt. Take the inventory checklist detailing the condition of the residence seriously — and turn it in within seven days of moving in. Photographing carpet stains is stronger than just writing “poor” on the checklist — and a video showing how the bathtub won’t drain is stronger still.

The most important thing you can do, Rosen said, is to get everything in writing. In the age of the Internet, that is a lot less formal than it seems.

“E-mail is so easy now and most landlords will respond by e-mail,” Rosen said. “If you call, it becomes your word against theirs.”

Make sure you e-mail your landlord with every complaint you have. Calling might reap more immediate results, but an e-mail accompanying every call you make could help you later on. Whether your landlord responds with a promise to complete the repair or fails to respond to repeated e-mails, you have written proof of negligence if the repair still isn’t done weeks later.

PROMPTING REPAIRS BY WITHHOLDING RENT

You have been badgering your landlord for weeks to replace the dishwasher that died. Washing dishes by hand is a major inconvenience, and not what you signed up for when you agreed to the cost of rent. You feel your landlord has cheated you by failing to provide an amenity that makes the house valuable to lease. It’s time to take bolder action than leaving angry messages — legally refuse to pay rent until the repairs are made.

“I find that when you start withholding rent, things start to move forward,” Student Legal Services attorney Gayle Rosen said.

So your landlord will take you seriously, you want to go about withholding rent as carefully as possible. Collect all the rent money from your roommates as usual, but instead of paying your landlord, open a checking account at your bank and deposit the full amount of rent. Then write your landlord a letter explaining why you’re withholding rent — you might want to include the bank statement from your new account so your landlord knows you’re not just trying to buy time.

Often, taking the initiative to withhold rent will prompt landlords to fix the problem in order to get their money as soon as possible. But in other situations, your landlord might want to contest your claim or you might want to fight to be compensated for the inconvenience.

“Depending on how long it lasted and how bad it was, we would want to talk about an abatement of rent,” Rosen said. “I’d want to argue that if you don’t have heat in the middle of winter, you deserve that full day’s rent.”

If you plan to take legal action, compile a list of instances when your landlord failed to complete necessary maintenance. Dated e-mails will demonstrate how your landlord’s negligence has been an ongoing problem. If seeking compensation for a short-lived but extreme occurrence — such as water damage from busted pipes or whole days without heat — photo evidence can be especially helpful. Take time-stamped photos of your damaged belongings or of the thermostat at an inhospitably low temperature.

In retaliation, your landlord may sue or begin eviction proceedings against you. Since withholding rent is legal, you won’t have to worry about being forced from your home, but you will have to appear in court. Student Legal Services will represent University students free of charge, but you will have to pay court fees.

SECURING YOUR SECURITY DEPOSIT

The end of your lease rolls around and you move out of your house. You think you’ve left the place in decent condition, but you’re worried your landlord might take a chunk out of your security deposit for something ludicrous — those years-old coffee stains in the living room, for example. You don’t have to accept the judgment your landlord makes, as long as you follow the rules.

The first thing to do is send your landlord your forwarding address in writing four days after you move out at the latest. This is crucial, because doing so obligates your landlord to provide an itemized bill listing damages and the cost of repairs.

You also don’t want to risk your security deposit notice getting lost in the mail for a few days — you only have seven days after your landlord sends your security deposit to dispute claims by mail.

But your landlord is also under deadline. If you haven’t received your security deposit within 30 days of moving out, your landlord is obligated to return the full amount and bill you later.

Let’s say you did provide your forwarding address, you get the itemized bill and oddly enough, you disagree with your landlord’s assessment of the damages: you don’t think it costs $200 to clean a piece of gum off the carpet or that those scuffs on the couch qualify as anything more than normal wear and tear.

You also want to consider the worth of the original item and the cost the landlord cited for repairing or replacing it. Even if you did break a rickety old table during a kegger, you don’t have to pay for a spanking new one — you only owe the value of the table that broke.

After you object to the damages claimed, your landlord then has the option to kindly return your security deposit in full, cordially negotiate a different amount or take you to court.

Your landlord has 45 days to initiate a lawsuit or return your deposit in full. If 45 days pass and you are neither a defendant nor reunited with your money, you have the right to counter-sue for double damages, or twice the amount of your security deposit. You can actually stand to make money on the whole inconvenience.

If your landlord does sue, make sure that you remembered to fill out that initial inventory checklist with obnoxious attention to detail, because this is when it becomes important. It is your primary document to dispute the claims, but to win a case in small claims court, you’re likely going to want stronger evidence.

Rosen, the Student Legal Services attorney, said that the magistrate for small claims court in Ann Arbor is generally fair with students. But to avoid being judged as just a student challenging a legitimate adult, photograph the condition of the residence and record your interactions with your landlord as much as possible.

“The more you have documented the problem, the less the judge has to make it just a credibility decision between you and the landlord,” Rosen said.

Exhaustively document the state of the house when you move in and when you move out. That way, an objective judge can determine the cost of damages or accept your claim that the wine stain was there before you moved in.

You’ll also want to consult Student Legal Services — you have been paying a legal fee as part of your tuition, so you might as well get some of your money’s worth.

A good way to prevent things from escalating to legal action, though, is requesting that your landlord inspect your apartment before you move out. After you and your roommates have dutifully cleaned and repaired the apartment, invite your landlord to look over the place and give you a thumbs up or at least an indication of any possible concerns. While not legally binding, this can be a good way to not only preempt possible claims but also let your landlord know you’re paying attention and would not be a good candidate for exploitation.


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