VOLUME 3 - ISSUE 4 LEGAL UPDATE
- Daycare and Babysitting Services in the Residential Property
- When a Tenant Dies
- Having a Tenant Sign a Pet Addendum When There is No Current Pet
- Arf!! Is that a Service Animal Barking?
DAYCARE AND BABYSITTING SERVICES IN THE RESIDENTIAL PROPERTY
by Harry Anthony Heist, Attorney at Law
Most landlords prohibit a tenant from conducting business in the residential unit. In most cases the lease clearly states or should state that the premises are to be used only for residential purposes, and that commercial activity is prohibited. It is usually clear when commercial activity begins to occur in a residential unit, as customers will be showing up, traffic in and out of the unit will increase, and the tenant may be so bold as to advertise his or her services or products using the address of the residential unit. What about babysitting? Is this a commercial activity? While many people love children, it is doubtful that an individual will voluntarily take on the responsibility of watching another person’s child or children on a regular basis for no compensation.
Babysitting and Daycare Services
In both apartment communities and single family homes, babysitting and daycare services are being conducted for compensation. It starts out with one child, and then the babysitter begins to realize that more money can be made by watching more children, and soon you have a unit full of children with their parents or guardians dropping the child off and picking the child up. Money is exchanged, and often this is “under the table” or cash. Seems harmless enough right? Wrong. What is occurring here is a commercial activity on a residential property. This is a lease violation and may or may not be a violation of law.
Legal Daycare Services in a residential home
Many counties and municipalities actually allow small scale day care services to operate legally and with a permit in a completely residential area. In response to the need for affordable child care or child watching, these activities are in many cases permitted with some limits, but often without many regulations. Do you want to allow a tenant to conduct a babysitting or daycare service in the rental home? ABSOLUTELY NOT.
Massive liability to both the caregiver and the owner of the premises can be created in the care of children. Now you may wonder why a daycare center would ever operate at all. Simple. Insurance. A legitimate daycare or babysitting service will have liability insurance to cover just about anything that could occur that may cause the injury or death of the child. Not only will the business be carrying insurance, but the property owner, if separate from the business owner, will also be carrying insurance, and the insurance company will be put on notice as to what type of business is being conducted on the premises. Everything is disclosed, proper permits and licensing are in place, and the insurance is tailored to the activity which is being conducted on the premises.
The “No Insurance” Problem
In many cases of babysitting or small scale daycare services, these activities are occurring in the residential unit with no license, no permission from the landlord and NO INSURANCE. The property owner may have the normal liability insurance coverage, but you can rest assured that this insurance does NOT cover a business being conducted on the premises, and in the event there is a claim, the insurance company will fight all the way to prove that they did not cover commercial activity on the residential premises.
What “bad” things can happen?
We have seen cases in which children have nearly drowned in the pool of the babysitter’s home, been molested by a boyfriend of the babysitting tenant, overdosed on medicines the child found in the babysitter’s medicine cabinet, and most recently a situation in which a child climbed on a table near a window and fell three stories to the ground below. As you can see, the potential dangers are limitless. Is the landlord liable? Possibly, especially if the landlord had knowledge that the babysitting was occurring on the premises.
Did the landlord have knowledge that babysitting was occurring?
Whether or not the landlord had knowledge that babysitting was occurring on the premises can be a crucial factor in whether the landlord can be held liable for the injury or death suffered by a child, or whether the insurance carrier will in fact cover a potential claim. Some of our clients actually have knowledge that babysitting is occurring on the premises, because they have personally observed it, and some have even encouraged it! Recently while giving an in-house legal class, we observed a number of notices on the community bulletin board in the clubhouse where tenants were advertising their services for babysitting on the premises. This knowledge by the landlord and the failure to act swiftly to stop the activity can result in serious liability to the landlord.
You discover babysitting, now what?
If a landlord is made aware that babysitting and or daycare type activities are occurring on the premises, the tenant needs to be immediately served with a Seven Day Notice of Noncompliance With Opportunity to Cure, which your attorney will assist in drawing up for you. Follow-up is crucial, and it needs to be determined if the activity has stopped or is still occurring. There is nothing wrong with observing the premises and asking a parent if in fact the tenant is babysitting their child. If you observe children and parents coming and going on a regular basis, it can be safely assumed that babysitting and or daycare is occurring. This assumption will not be enough for termination and eviction, so we recommend that you document the unit carefully, and if necessary, take video surveillance of the entrance to the premises. If you feel that the authorities need to be notified that an illegal daycare or babysitting service is occurring, reporting and follow-up is crucial.
Fair Housing Considerations
You must have a written policy regarding babysitting and a strong clause in your lease prohibiting such activity, but you do not want to be accused of familial status discrimination. We recommend that you post a sign in the common area clearly stating that no commercial activity is permitted on the premises, and that this includes running a daycare or babysitting service. Monitor the community bulletin board regularly, as this is where advertisements for babysitting frequently occur. A tenant could say that you are preventing their child from having friends come over to play, or that you are trying to only have tenants who have no children. You will need to counter such accusations by clear proof that the tenant was actively engaged in babysitting on the premises, and better yet, be able to prove that the tenant was receiving compensation for doing so.
You suspect your tenant is engaged in babysitting or running a daycare service?
Call your attorney as soon as possible
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WHEN A TENANT DIES
by Cathy L. Lucrezi, Attorney at Law
A tenant’s death does not mean the tenancy is at an end. Instead, the “occupant” of the premises and the entity liable under the lease is the “estate” of the tenant.
What is an “Estate”?
The “Estate of John Doe” is everything owned – all assets and all liabilities – by the tenant John Doe. The estate is created when someone files a “probate” case. Although that is usually done by a family member, it can be done by anyone with an interest in the estate. That includes you, because you have an “interest” in collecting rent and regaining possession of the rental premises. You can deal with the “Estate of John Doe” by dealing with the estate’s personal representative.
What is a personal representative?
The personal representative is the person, bank or trust company appointed by the Court to be in charge of the administration of the estate. The generic term "personal representative" has replaced such terms as "executor, executrix, administrator and administratrix". The personal representative is appointed by the Circuit Court and always has a court order to prove it. You can give keys to the unit to the personal representative. You can serve notices to the personal representative. Anything you could do with John Doe, you can do with the personal representative of the Estate of John Doe.The following are NOT substitutes for a personal representative of the Estate:
1.The spouse or ex-spouse.
2.The “only” child of the deceased tenant.
3. A person with a Power of Attorney signed by the deceased tenant
4. A person with a copy of the death certificate or will.
5. The folks from the rent-a-piece-of-furniture place
Is a Probate always filed
Occasionally, a deceased tenant has no apparent family or friends. No probate case is filed, and so there is no personal representative with whom you can transact business. In that situation, you can consult an attorney who specializes in wills and estates for his or her assistance. The attorney can assist in opening a probate case so that you can serve a notice to the estate and then sue the estate for eviction.
The request to enter into the unit
A family member or friend may ask for access to John Doe’s unit to look for a will, or to get clothes for the funeral. Technically, only the personal representative can have access. However, it is a growing custom to permit limited access to the unit for these two purposes. If that access is allowed by management, a representative of management should be present at the unit to assure that the decedent’s personal property is not unnecessarily disturbed or removed.
Take care of the pitfalls. If you improperly dispose of John Doe’s personal property, or if you assist someone other than the personal representative of the Estate to dispose of the personal property, John Doe’s long-lost illegitimate child may someday show up to claim his inheritance.
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HAVING A TENANT SIGN A PET ADDENDUM WHEN THERE IS NO CURRENT PET
by David R. Weisse, Attorney at Law
The Pet Addendum
When a tenant moves in with one or more pets, we strongly recommend that the landlord use a pet addendum, an agreement that can provide for the collection of pet fees and/or pet deposits, and also lays out the full regulations concerning pet conduct. We also strongly recommend that the landlord “interview” the pet before authorizing it, to make sure the pet is friendly enough, not excessively loud, and does not violate any breed or weight restrictions in place.
No current pets, but a Pet addendum is signed?
Some landlords have all tenants at move-in sign a pet addendum, even if the tenant does not have a pet a move-in. This is a practice we strongly discourage. Typically, when a tenant at move-in does not have a pet, the pet addendum will indicate zero pet fee and/or zero pet deposit. Although there may be a reference on the addendum to “no pet at this time”, the tenant may be able to successfully argue that the agreement was an implied authorization to obtain a pet at a later date, and at no charge(!). This use of the pet addendum at move-in may also hamstring your ability to screen out an undesirable pet, particularly if some dollar amount is referenced in the pet fee or pet deposit section. The Lease
The landlord’s standard lease should simply indicate that no pets are allowed without prior written authorization. If you then become aware of a tenant obtaining a pet after move-in, you can give a 7-day notice of noncompliance with opportunity to cure for an unauthorized pet on the premises. You can explain to that tenant the only way you will authorize the pet will be conditioned upon a pet agreement being signed, along with collection of charges you normally would assess for a pet. Otherwise, you will continue to view the pet as unauthorized, and will terminate the tenancy, if necessary.
The common pet discovery mistake
A common mistake made by landlords when discovering an unauthorized pet is to cite unpaid pet fees or pet deposits on a 7-day cure notice, particularly if the landlord is not even willing to authorize the pet because of breed, weight or disturbance issues. If you actually collect some pet fee or deposit, you are authorizing the pet. Even if the unauthorized pet is one the landlord would be willing to authorize, the tenant has typically not yet agreed in writing to pay the pet fee and/or pet deposit. The tenant has failed to comply with the lease by not getting prior written authorization for the pet, and that is what the cure notice should cite.
The Pet Interview
One last point about pet interviews: frequently, we have clients tell us they believe a tenant has an unauthorized breed, or that a pet appears to be over the allowed weight limit. It is usually much more difficult to deal with this problem after the pet has been authorized, as opposed to simply denying authorization of the pet initially.
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ARF! IS THAT A SERVICE ANIMAL BARKING?
by Cathy L. Lucrezi, Attorney at Law
Some disabled individuals require a service animal to help them with daily life activities. Although everyone knows a “seeing-eye” dog is a service animal, most people don’t realize that other animals (for instance, cats, birds, monkeys…) can also be service animals.
Is the animal a “Service Animal?
A service animal does not have to be “certified” or have identification papers (other than what local animal control laws require). There is no legal requirement that a service animal have documentation showing it is specifically trained for assistance to handicapped people. In fact, fair housing laws recognize that “companion” animals can be service animals. This is most commonly seen in situations where the tenant’s handicap involves mental illness.
Fair housing laws require that a landlord make a reasonable accommodation for a handicapped person who needs a service animal. That means that a landlord must waive its “no pet” policy, waive the size and weight limits for animals, and waive the pet fee or pet deposit.
Conduct of Animal
The handicapped individual is nonetheless responsible for the animal’s conduct. The animal cannot be unsupervised in common areas, and its waste must be properly removed.
Determining the legitimacy of the request
So, how do you know when the request for permission to have a service animal is legitimate, and when it is a ruse for having an otherwise prohibited pet? As with so many other fair housing issues, it pays to have a policy in place before the question gets asked. [To see a terrific sample service animal policy, go to www.metrokc.gov
A landlord can ask the tenant to put his request in writing (unless the handicap impairs the ability to write). A landlord can require that the tenant provide written verification that he is handicapped and that he needs the service animal. That verification can come from any healthcare provider. It does not have to be a doctor. The landlord should respond to the request in writing. [You can obtain form letters from our office.]
Service animals enable many handicapped individuals to live independently and ease the effects of a disability. By helping your handicapped tenants cope with daily activities, they ultimately enhance your community. Welcome the Arfs, Meows, and Coo-coo ca choose.
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