Unruly Tenants / Absentee Owners
Q: We have some unruly tenants in a couple of our condominium units and the absentee owners don't seem to be too concerned when we send them letters. What can we do to these tenants to get them to live by the rules and respect the property and rights of other residents? Can we enforce the lease when the unit owner fails to do so?
A: This is a question we hear frequently and it does demonstrate a difficult legal problem. The problem, of course, is that in most cases the Association has no legal relationship with the tenant. The tenant has a lease with the unit owner. Many condominium documents or the rules of the Association provide that leases must contain certain provisions which will give the Association some authority over the tenants if there are breaches of the rules. Many Associations have developed a lease addendum which is provided to all unit owners to use in the event that they decide to lease their units. A rule should be passed by the board requiring, under penalty of fine, the use of the addendum if a unit owner is going to enter into a lease. Further, to put more teeth into the rule, an amendment to the documents should be considered, which would provide that the association will be able to recover attorney's fees and court costs from any unit owner who fails to use the addendum and the association is forced to initiate a nuisance suit or other litigation due to the improper conduct of the unit owner's tenant.
So what should be in a lease addendum? First, a requirement that the tenant follow the Association's governing documents, which should actually be attached to the lease addendum. It should further state that a failure to abide by such rules will constitute a breach of the lease.
Second, it should state that if there is a conflict between the lease addendum or the governing documents and the main lease, the addendum and the governing documents prevail over the lease. This could come up in the context of pets - the unit owner may not address pets or the lease may allow a pet. If the condominium rules do not allow pets or a pet of the type or size owned by the tenant, then the board can require removal of the pet. This provision at least gives the board the better position in a difficult situation.
Third, the addendum should require that the tenant follow all rules regarding vehicle parking and registration, including guests. This is critical when there is the potential for towing of unauthorized vehicles. If the tenant doesn't play by the rules and his car is towed, at least you have a written agreement that he would notify the management company or board of his vehicle(s) and obtain stickers.
Fourth, the addendum should specify that common areas privileges are passed by the unit owner to the tenant and the unit owner gives them up for the period of the lease. This could apply to such amenities as recreational facilities or parking spaces.
Finally, the addendum should give the association the authority to enforce the lease. Often absentee landlords ignore the requests of the board to deal with unruly or uncooperative tenants. The addendum should state that if the tenant violates either the lease or the governing documents, the Association has the authority to act in the stead of the landlord to enforce the terms of the lease, including eviction in the proper case. The addendum should provide that the Association is intended to be a "third party beneficiary" of the lease - this may give the association more sway with the judge if a case must be taken before the court. Further, the addendum should provide that the tenant is required to pay the Association's legal fees if the Association is required to resort to court action to enforce the lease or the Association's governing documents.
If you can implement some of these suggestions it should go a long way towards giving the board the power they need to deal effectively with tenant problems.