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Rent it Right

by Janet Portman, Inman News

Q: I’ve just found out that one of my tenants was convicted of assault, in Arrestconnection with street-gang activity.

I think he’s getting a jail sentence, then he’ll be out.

I want to know if I can terminate his lease for illegal behavior. The offense took place downtown, not on my property. –Mary G.

A: There’s no question that you’d be able to evict if the offense had occurred on your rental property. Under the laws of every state, when a tenant uses the premises for an illegal act, the landlord can terminate. Even here, however, there are some gray areas. If the tenant were selling drugs from the living room or using the kitchen as a meth lab, that would clearly give a landlord grounds to terminate.

But suppose the tenant makes a drug-related phone call from his residence, or writes a bad check at the kitchen table — are these acts enough to support an eviction? You’d probably find many judges who would say yes, reasoning that the shelter of the rented home was an essential ingredient in the illegal act, even though the property itself was not physically used or damaged, and other tenants were not put in danger.

After the phone call comes the drug hand-off at the front door or in the garage, they’d reason, and there and then you’d find the property seriously involved in the crime. Better to rid rental property of law-breaking tenants who use the property even marginally in their pursuits.

But what about tenants whose dirty deeds occur off-premises? Here the link between the tenant’s illegal act and harm to the property and other tenants is much less clear. Savvy criminals, in fact, will keep home and “work” carefully segregated, and behave as model tenants and neighbors to avoid attracting attention.

But some argue that landlords should be entitled to evict these criminals, too. Even if tenants are trying to keep their home lives clean, the criminal world often invades the domestic one, with disastrous consequences.

State laws on termination for illegal acts on the premises don’t generally address off-premises illegal behavior. Interestingly, a bill pending in Arizona, state Senate Bill 1277, would specifically allow for termination if the tenant is convicted of specified crimes that occurred off-site.

The listed offenses include serious things like murder, prostitution, and drug manufacture and sales, but the list isn’t exhaustive — other offenses could count. When a state like Arizona, which is generally landlord-friendly, sees the need to pass specific legislation permitting termination for off-site crimes, one might conclude that trying to do so without such legislation might be legally risky.

Before deciding to terminate your tenant’s lease, you’d be well advised to read your state’s statute on terminations for illegal acts. Chances are, you won’t find the clear guidance you’d like.

If your tenant challenges the basis for your termination in court, you’ll need to be prepared to prove that the property was involved, if only marginally, in the tenant’s acts. Even if it wasn’t, you have the leeway to terminate anyway. It could be an uphill fight.

It would be a mistake to leave this question without addressing one collateral issue: Does your tenant have a family? Consider the impact of termination on the tenant, especially if the tenant has children. While the tenant is incarcerated, the presence of his family will probably not pose a danger to you or other tenants.

Booting them now may start a downward spiral toward homelessness that they, especially the children, do not deserve.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of “Every Landlord’s Legal Guide” and “Every Tenant’s Legal Guide.” She can be reached at [email protected] Copyright 2010 Janet Portman

See Janet Portmans feature, Tenants Take Beefs to the Tweets.

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