Entering Rental Units… Can I enter my rental unit ?

Entering Rental Units

Some landlords mistakenly assume that they can enter their rental units whenever they wish – after all, it is their property. Many who realize that their state requires advance notice of entry do not fully understand the potential risks associated with entering under various specific scenarios. Even entering for an “in case of emergency” situation is not without risk.

Improperly entering can result in damage to landlord-tenant relations. In the worst case, the landlord can be subject to lawsuits over damaged or missing tenant property, even criminal prosecution.

The Law

The reasons for which a landlord may enter are listed in statutes of the majority of states. Those states that do list acceptable reasons for entry usually include one, several, or all of the following reasons:

• To deal with an emergency
• To make repairs, alterations, or improvements
• To inspect the premises
• To show the premises to prospective tenants or buyers
• To check the premises during the tenants extended absence

Currently, the statutes of about one-quarter of states do not explicitly cover the issue of entry. For those states whose statutes do not even mention the issue of entry, landlords should still use discretion when making entry, as conflicts regarding entry can still arise in those states under various legal principles including invasion of privacy and criminal trespass.

Most states’ landlord-tenant laws include provisions regarding advance notice prior to access, with notice periods most often being 24 to 48 hours. However, some states require “reasonable” notice, whatever that means. Even when a specific period is defined by statute, the manner of notice may not be defined nor does the statute usually mention whether or not any response need be received from the tenant.

The Lease

No matter what state law says about entry, your lease agreement should cover the issue in detail. The lease should specify the advance notice period as equal to or greater than state law and provide a specific notice period if your state’s law says “reasonable” or doesn’t cover the issue. In either of these two cases, “reasonable” should be at least 24 hours for non-emergency situations, as most judges would likely consider that sufficient notice.

It is also advisable that the lease cover the schedule of regular safety and maintenance inspections; the method(s) by which notice will be given (i.e., phone, email, or written notice); whether or not a response by the tenant is required; what the landlord will do if the tenant fails to respond; what must be done if the tenant specifically denies the entry; and what type of events will be considered an emergency. Be sure that the lease clauses do not in any way contradict state law.

Advance Preparation

Landlords should always provide some level of orientation with new tenants prior to lease signing wherein lease clauses are reviewed and general information is provided to the new tenants. Discussion of landlord entry issues, including both statute and lease provisions, should be one of the matters discussed during this orientation.

Minimizing Risks

To minimize the risk of accusation of damage to or theft of tenant property, it is best that the tenant or someone else over the age of 18, either another household member or other tenant representative, be present when the accessing the premises. Entering when no one is home should be reserved for situations when there is absolutely no alternative. Even then, permission to do so should be obtained if possible, preferably in writing or as otherwise verifiable. At a minimum, the landlord should consider being accompanied by another person who could testify regarding the entry.

The privacy of tenants should be respected. Visits should be kept to a minimum and landlords should be willing to negotiate a mutually agreeable schedule for access. As for many management issues, communication is often key to minimizing conflict.

Emergencies

Most states specifically exempt emergency access from the need for notice. However, one must use care in defining “emergency,” particularly when the scenario might not be a clear-cut emergency. While entering to put out a fire is almost certainly acceptable, entering to do a cosmetic repair would likely not be. Other situations may be grayer. In general, the landlord is usually safe when entering to protect and preserve his property. There is probably no way to make showing the premises to a prospective buyer into an emergency in the eyes of a judge.

Additional Information

For additional discussions regarding the above issues, related topics, and many other subjects of importance to landlords see our “Managing Income Property” eCourse

This entry was posted on May, 2010 and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.