Breach of Quiet Enjoyment
Breach of quiet enjoyment
Breach of quiet enjoyment is one of the most abused provisions of most of residential leases. Landlords, particularly the unsophisticated ones, believe that they can enter your dwelling unit any time they feel like it because they are owners of the property. This type of owner thanks “It’s my property and I can do whatever I want with it.” They cannot.
There are many ways that a landlord can commit breach of quiet enjoyment. Landlords have the responsibility of furnishing utilities to the unit and when the utilities are interrupted the landlord is violating quiet enjoyment (among others.) If the landlord attempts to transfer responsibility of furnishing utilities to you without your consent and during the middle of the lease they are violating quiet enjoyment. One of the major ways that landlords commit breach of quiet enjoyment is through improper entry into your rental unit during the lease term. Landlords cannot disturb your privacy in your apartment. To do so is a breach of quiet enjoyment. They have to give you advance notice before entering your rental unit. We will give you the notice requirements by state shortly. They cannot let someone into your rental unit, a maintenance worker for example, without remaining in the rental unit to supervise the worker and protect your belongings. Another way that your privacy could be invaded is through the landlord gossiping about your finances, late payments, intent to break the lease and move or unfounded comments about you or your fellow residents or children.
Landlords can be prone to gossip and when they do, they are committing a breach of quiet enjoyment by violating your privacy. Another way that landlords violate tenant privacy is to show up at your place of work to discuss tenant issues with you or give information to your boss regarding late payments or other rental problems since that could influence your ability to hold a job.
Landlord ability to enter into your rental unit must be contained in your lease and must also comply with your state’s requirements both as to 1) notice they must give you before entering the rental unit, and 2) reasons why they can enter the unit. Also, the lease must contain information giving the landlord the right to a working key to your rental unit in order for them to possess a key at all. Unless language is in the lease giving them a right to a key, the landlord cannot prevent you from changing the locks to make sure that no one enters your rental unit without your knowledge. If you change the locks, however, you would be responsible for providing entry to maintenance people when work needs to be done.
Most residential leases that I have seen do contain landlord right of entry into the rental unit but they are usually limited only to the following:
1) periodic inspections to make sure that the property is not being abused.
2) Periodic maintenance such as changing filters in the HVAC or responding to maintenance requests
3) Showing the property to prospective tenants during the last 30 days of the lease.(Either the original lease or the last 30 days of the tenant at will period.)
4) Showing the property to prospective purchasers during the lease term. If your landlord puts property on the market while you are a tenant, check your lease to see whether they can come into the property at will to market it. Many leases do not provide for this. If the lease does not, you do not have to allow them entry at all. If the lease does contain rights of entry for marketing purposes check to see who has those rights. Usually it is the property management company. But if the owner lists the property with a different real estate firm, the real estate firm cannot show the property at all unless you agree (because they don’t have the rights to show it, the property management firm does). If the lease does give the real estate firm the right to show the property, they still have to comply with the notice period that is applicable in your state, usually 24 or 48 hours.
5) Emergency entry in the event of serious problems can be done with no notice and overrides the 24 or 48 hour notice. But the landlord has the obligation of showing that an emergency existed that required no notice.
The following states have a 24 hour notification period before the landlord can enter your unit: Alaska California Iowa Maine Montana Nebraska Nevada New Mexico Ohio Oklahoma Oregon South Carolina, Utah Virginia. Washington State (if showing to prospective tenants or buyers)
Following states have a 48 hour notification. Before the landlord can enter your unit: Alabama Arizona Delaware Hawaii Kentucky Vermont Washington
The following states simply require reasonable notice: Connecticut Indiana Kansas Minnesota New Hampshire New Jersey North Dakota
The following states have no statute specifying time before a landlord may enter: Arkansas Colorado district of Columbia Georgia Idaho Illinois Louisiana Maryland Massachusetts Michigan Mississippi Missouri New York North Carolina Pennsylvania South Dakota Tennessee Texas West Virginia Wyoming
The state of Florida is unique in only having a 12 hour notification.
If your landlord has been coming into your unit for reasons that are not contained in your state statutes or not authorized in your lease, has been coming in with no notice or inadequate notice, they are violating your right to quiet enjoyment of property. You’ll find where to get access to your state landlord tenant statutes elsewhere in the book.
Landlords are able to do this because they have a key that fits the locks, one that they gave you. Unless it is prohibited in the lease, you have the right to re-key the locks (alternately, you can replace them). At the end of the lease period you can give the new keys to the landlord. Or you could remove your new locks and replace their locks at the end of your lease. And, unless it is embedded in the state statute or your lease, you do not have to give your landlord a copy of the new key you had made.
Landlords are in shock when I explain this to them because many of them, being owners and being conscious of maintaining the value of their property, believe that they can do whatever they want to the property during the lease period. And they routinely come by and “fuss over” the unit both inside and outside during the lease period. This is totally improper. If they have been doing this, you can allege that they have been breaching the warranty of quiet enjoyment that is your right under the lease.
To see how this relates to your situation, do an online look up of your state landlord tenant statutes with the information provided in that chapter. You can either read them online or print them out. Most landlord tenant statutes are relatively short (50 – 75 pages) and can be read in an hour or two. The intent of the language is fairly plain in most cases. If you run across some legal jargon that you do not understand, just key that word into an online legal dictionary and you’ll be able to get the intent of the word. Take down the reasons why landlords may enter your rental unit and make sure there have not been any changes in the notice period since this book was written. Also check to see what your state statutes say about your landlord’s right to a working key to your property (and your ability or inability to change the lock).
Next look at your lease and see what it says about the landlord’s right to enter your property and their right to a working key. Your landlord tenant statutes should match your lease. Oftentimes they don’t. Elsewhere in the book we go through the types of landlords that you might be up against, from the occasional inadvertent landlords all the way through to the professional landlord.
Professional landlords employ people to make sure their leases are fully compliant with all statutes. Even with these landlords however the lease may contain many illegal or unenforceable provisions because the landlord is taking the chance that their tenants will not litigate every provision.
The less professional landlords may have gotten their lease off the Internet, an office supply store, or simply written one up themselves. These are the ones that are most likely to have a discrepancy between what the state statutes says and the lease says. And these landlords are the ones most likely to have not even read the statutes and know what their proper behavior is. There are numerous situations that could apply:
- State statutes might prohibit actions that the landlord is taking
- State statutes might allow actions that the landlord is not taking because they are unaware that they have the ability to take those actions.
- The lease might be silent about things that should be covered in the lease to protect both landlord and tenant
- The lease language might attempt to grant the landlord some rights but be improperly drawn
- The landlord might be ignoring provisions of the lease and making up rules as he goes along
- The lease might contain all sorts of illegal language and grant the landlord rights that are too one-sided to ever be upheld if challenged
- The state statutes may have changed but the lease has not changed along with them. As a result the lease says that it is possible to do things that are now prohibited by state statute
- Many more possibilities exist. The state statutes set the general rules for what is permissible. The lease is supposed to be compliant with state statutes as well as set forth the landlord’s duties to the tenant and the tenant’s duties to the landlord. The landlord is supposed to be operating in accordance with both the spirit and the letter of the lease. Anyone of these three (statutes, lease, landlord) can be in conflict with the other two.
When you compare what the statutes say and what the lease says and what the landlord is doing (versus what they should be doing to be in compliance with the lease and statutes), you are going to come up with a fairly large list of infractions. Make a list of those and prioritize them as to which our most serious and also which are the easiest to document.
Once you have done that decide on your next step. While you may have additional options depending on the facts and circumstances of your situation, to possibilities come to mind:
1) Sue the landlord and ask for monetary damages. Possible grounds for your lawsuit would be illegal trespass, interference with tenants right to undisturbed use of the property (quiet enjoyment) infliction of emotional distress, possibly sexual-harassment
2) Break the lease and move out. The rationale used by people that use this tactic is that the landlord has made the rental unit uninhabitable on the basis of too-frequent visits and therefore is constructively evicting the tenant.
Landlords and property managers commit a breach of quiet enjoyment all the time. It forms one of the bases for a lawsuit for wrongful eviction.