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Rent it Right by Janet Portman, Inman News

landlord helpQ: I have come up with a way to motivate people to pay their rent on time, and I’m wondering if it’s legal. In addition to my late fee, I’d like to say that tenants may not use the laundry facilities or the pool unless they have paid on time. With the summer coming up, this is sure to be an effective motivator. What do you think? –Joe S. A: Undoubtedly you‘re right — faced with the prospect of having to spend their weekends at the Laundromat rather than at the pool party, your tenants might make an extra effort to get the rent in on time. But, your solution, while effective, may not be legal.
Landlords in all but 12 states are prohibited from changing tenants’ door locks, shutting off utilities, removing tenants’ property, or otherwise engaging in what’s known as “self-help evictions.” The idea is to force the landlord to use legal eviction procedures rather than resorting to lockouts, theft, and other tactics that can quickly escalate into dangerous and potentially violent encounters.

Sharp readers may see the crack in this argument, however: Self-help eviction bans are intended to prevent landlords from bypassing normal eviction procedures. You, on the other hand, don’t want your tardy tenants to leave; your intent is to get them to pay and stay.

And besides, you aren’t contemplating anything as drastic as a lock change, utility shutoff, or removal of possessions. You‘re simply denying access to shared, inessential facilities.

So the question is this: If you live in a state that forbids self-help evictions, would cutting off access to the pool and laundry area be among the acts forbidden by your statute? The only way to know is to look at the law itself. A quick check of two major states yields some surprising results.

In California, a tenant-friendly state, the self-help eviction statute begins like this: “A landlord shall not with intent to terminate the occupancy under any lease or other tenancy” (California Civil Code Section 789.3(a).) That’s a pretty clear statement that the listed acts are forbidden only when undertaken with the intent to get the tenant to leave.

Arguably, your actions don’t fall within the statute because you don’t intend to terminate your tenant’s lease.

In Texas, a not-so-tenant-friendly state where landlords may even change locks on tenants who are late on the rent in some situations, the statute doesn’t even discuss the landlord’s intent.

Instead, the statute simply forbids the landlord from doing certain things to “premises leased to a tenant” (Texas Property Code Section 92.0081). In Texas, the issue for your policy would be whether the pool and laundry are part of these “premises leased to a tenant.”

They certainly aren’t part of the tenant’s exclusive space, but a judge might conclude that they are part of the rental because the tenant is paying to use them.

Finally, in both California and Texas, a big question is whether the statutes’ list of no-nos is exhaustive or merely illustrative. In other words, suppose the landlord takes actions that aren’t specifically mentioned in the statute, like cutting off access to parking.

Would these other steps fall within the ban on self-help evictions? Interestingly, neither statute includes the handy legal phrase, “including but not limited to,” which signals that the list isn’t intended to cover every possible prohibited act.

If the phrase were there, we’d know that the list is not exhaustive, and that your policy might fall within the statute’s reach.

Without this cue, we’re forced back on an age-old rule of legal construction called ejusdem generis (in Latin, of course). This isn’t as hard to understand as it is to say or spell.

Under this rule, if a list of specific items ends with a general phrase, the general phrase is interpreted to include only items of the same type as the specific terms that preceded it.

For example, if a recipe says, “Use strawberries, blueberries, raspberries, or other summer fruit,” the additional summer fruit would need to be a berry, such as a blackberry, and not a stone fruit like a peach — though any decent cookbook editor would eliminate the chance of confusion by changing “fruit” to “berry.”

Applying this rule to the question at hand may help your cause. The list of prohibited acts in a typical self-help eviction statute consists of acts that are directed at the tenant’s rented space or his possessions.

You, on the other hand, are proposing to deny access to a shared common space, which doesn’t involve the tenant’s personal property or ability to use his exclusive rental.

In other words, your plan just might work.
 Copyright 2010 Janet Portman
Copyright 2010 Janet Portman
See Janet Portman’s feature, Rules for Showing Leased Properties.
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  • Abdul

    The problem as it is presented comes from not just stating that a tenant that has not paid their rent on time may not use the laundry or pool facilities, but how do you plan to enforce this. If you say that the rent is due on the first of the month as it is for most tenants however not all tenants , then on the second of the month do you say that your rent is late therefore you can’t go into the pool? Or is the rent late when the late fee comes due usually 10 days or 15 days what ever the case may be. then what happens when this tenant goes to the laundry room? Do you have coin operated machines or a more modern sophisticated system that uses a tenant card for safety. So if the tenant tries to go into this common area are they met with security who forcefully removes them from the area? A remedy has to be one that is doable if it causes more problems say the tenant is forced out of the pool and they suffer an injury in the process, then you are looking at a huge law suite so be carefully with these remedies and make sure that they help the situation rather than escalate it into something much worse.

  • Greg Howell

    Just offer a Discount to pay by the 1st then have a late fee if not payed by the 3rd
    I have seen this work with following all rules like keeping lawn mowed ect

  • Peter Jorde

    Janet, as a California Manager I also run into rent control a lot and have been instructed by our attorneys that restricting services to tenants in a rent controlled community is the surest way to invite a lawsuit for Reduction in Service which could lead to a permanent rent reduction. Do you have any thoughts on this wrinkle to the topic at hand?

  • LisaJames

    This is not only illegal but childish! I am sure if my renters & I had a issue with late payments, its best to sit & discuss options. Not play games.

  • Sounds good, however, we would not have a way to inforce it. Talking to the tenants sometimes work. We try to get them to write down when they will pay. We did have a drawing for $75.00 off the next month rent for those who paid by the first. Had to give that up, that didn’t even motivate them. Hope to hear more ideas. Unfortunitly, not telling the truth seems to be the going thing. A man’s word is no longer a concern.

  • Dennis Johnson

    Giving positive incentives has worked very well for me. If the tenant pays before the first of the month they can deduct a $50 early payment credit from their current months rent.
    Instead of penalizing tenants give them incentives. How about having in the lease that if they make their monthly payment prior to a specific date they will be allowed use of the swimming pool and laundry room for the month.

  • [email protected]

    So, you deny them access to the facilities that they will pay you the full rent to have access to? That means you have a time machine which they can borrow at no cost to allow them to go back in time and enjoy the facilities that they paid for but were denied access to. Where did you buy your DeLorean (with hyperthruster overdrive), or TARDIS, or Hot Tub-Time Machine? I want one too.

    Obviously, this is illegal and can result in claims, lawsuits and losses of great gobs of money.

    In the interests of helping people who pay rent, but do so late, please offer them an easy lawsuit by denying them service. It will distribute money to those in need by taking it out of the mouth of your obviously rich landowner / client. lol

  • Lisa Everingham

    Sounds like it would be really hard to keep late payers out of pool or laundry room. Would have to hire a guard to check off who can come in and who can not. That would cost more money!

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