Ask the attorney is a new feature we are starting with month with attorney Bradley S. Kraus over how to terminate a lease. If you have a question for him, please feel out the form below.
Ask Attorney Brad:
I have tenants on a month-to-month occupancy. They have been there two years.
Since the pandemic began, they have told me that they do not have to pay the rent or late fees and I cannot do anything about it. They have paid the rent late, up until February, which they will not pay.
Meanwhile, they have obtained cats and several chickens. They refuse to complete the pet agreement or pay the pet fee.
They signed a no-smoking addendum that covers the entire property, but continue to smoke outside the home (this will be difficult to prove). If I sit outside to take a picture I’ll be breaking the law for harassment.
They requested to have someone else move into the home with them, which I denied. They claim they have not done this, but there are now four cars there on a daily basis (they claim that all are theirs). Yet all four cars are gone each morning when I drive by on my way to the office.
I believe they have moved in their grown child, husband, and two children, but I can’t prove it.
I have served them with notice regarding unauthorized pets, smoking and unauthorized occupants; the only thing they admit to is the chickens.
Do I have enough to terminate a lease with cause, considering I can’t prove smoking or unauthorized occupants?
There are a lot of items worth addressing in your prompt. I’ll try to cover all of them.
First, while it’s true that during the emergency period as set forth in applicable law that late fees could not be charged, that emergency period may or may not currently apply to you. For example, if your tenants have turned in a declaration of financial hardship, it would. If they have not, you may be able to charge them late fees for their late payments in 2021.
With regard to the rest of the items you describe, these are all potential defaults of the rental agreement, and the language of your rental agreement will control that. If you have a solid rental agreement, which contains prohibitions against unauthorized pets without landlord consent, smoking, unauthorized occupants or . . . chickens, you may have rights. Having a seasoned attorney evaluate the same will be important to determine whether or not you have rights on that point.
As to your final question, whether or not you have enough evidence to explore whether you can terminate a lease depends on your proof.
Remember, if your termination notice is challenged, you have the burden of proving those defaults. That means bringing in witnesses to testify based upon personal knowledge about those items. For things like smoking and unauthorized occupants, it may prove challenging. If the tenants admitted to having unauthorized chickens, that admission may be used against them.
In short, you may know that the tenants are violating the rental agreement. But in court, it’s not about what you know . . . it’s what you can prove.
Brad Kraus is a partner at Warren Allen LLP. His primary practice area is landlord/tenant law, but he also assists clients with various litigation matters, probate matters, real estate disputes, and family-law matters. A native of New Ulm, Minnesota, he continues to root for Minnesota sports teams in his free time.