Articles Posted in Real Estate

By Lane V. Erickson, attorney

The relationship between landlord and tenant is unique in the legal field and, as a result, is somewhat complicated. Both parties have certain statutory obligations to each other, defined by state law, and the written lease agreement which aims to reduce the complexity and confusion in residential landlord-tenant arrangements. Among these is the landlord’s obligation to protect his tenant from certain situations and/or to at least reduce the potential problems that may arise as the tenant continues to occupy the rental unit.

To provide a safe rental unit that satisfies all of the implied warranties of habitability, landlords should provide every tenant with basic security features to protect tenants and their personal property. This includes, at the very least, a front door with a functional lock, key locks for any other outgoing doors on the unit, security for all windows and appropriate lighting fixtures inside and outside of the unit. Landlords are also required to equip each unit with a working smoke detector (at a minimum, one for each floor in the unit).

By Lane V. Erickson, Attorney

When a person believes their fair housing rights have been violated they can contact the Department of Housing and Urban Development (HUD) who is the administrative agency responsible for investigating and enforcing the FHA. Such a tenant can contact the HUD by letter, fax, e-mail, or phone or by filing a Complaint on the form provided by HUD on its web site. A Complaint must be filed within one year after an alleged violation of the FHA to be valid.

When a Complaint is timely filed, HUD personnel interview the tenant, the landlord and any other persons who have relevant information, as well as generally investigate the allegations and determine whether a violation of the FHA has occurred. Additionally, when a Complaint is filed the landlord has an opportunity to provide a written Answer as well as any other persons or information that is relevant to the investigation.

By Lane V. Erickson, Attorney

The issue of guarantees and/or co-signers on a lease agreement is related to the issue of who the parties to the lease agreement are. The person who owns the property and is renting the property is the landlord. The person who is renting the property is the tenant. Even though these are the basic parties to a lease agreement there are instances where there might be other parties involved as well. These additional parties include persons who guaranty and/or co-sign the lease agreement but who are not actually tenants renting the property. This happens often when you have a young tenant, such as a college student, who may be renting from a landlord for the first time.

A “‘[g]uaranty’ is an undertaking or promise on the part of a guarantor which is collateral to a primary or principal obligation and binds the guarantor to performance in the event of nonperformance of the principal obligor.” Industrial Inv. Corp. v. Rocca, 100 Idaho 228, 596 P.2d 100, appeal after remand, 102 Idaho 920, 643 P.2d 1090 (1979).

By Lane V. Erickson, Attorney

The federal Fair Housing Act (FHA) provides protections to those with disabilities. A person qualifies under the FHA disability protections when: (1) they have a physical or mental disability that substantially limits one or more major life activities; (2) have a record of such a disability; or (3) are regarded as having such a disability. When a tenant qualifies for a disability under any of these three the landlord is prohibited from:

• Refusing to let the tenant make reasonable modifications to the dwelling or common use areas, at the tenant’s expense, if necessary for the disabled tenant to use the housing. (Where reasonable, the landlord may permit changes only if the tenant agrees to restore the property to its original condition when the tenant moves.

By Lane V. Erickson, Attorney

An area of lease drafting that should be considered when preparing a residential rental agreement involves the default and remedy clauses. These are simply the paragraphs in a rental agreement that identify when a default occurs by either the landlord or the tenant and what the remedies will be for the non-defaulting party.

Many times a default and remedy clause is contained in the same paragraph although this is not required and is not always the case. In other rental agreements, there is no specific remedy clause by itself. Rather, the remedies available to the landlord or tenant are often described within the paragraph that identifies and describes other terms or conditions of the rental agreement.

By Joseph Ballstaedt

Joint owners of real estate can run into serious challenges if they have different goals for the property. For example, suppose a son and daughter inherit their parents’ home, and one wants to live in it while the other wants to sell it. Or suppose two friends invest in a rental property together, but sometime down the road one of them decides being a landlord just isn’t for him and wants to sell the property against the other’s wishes. Or maybe two brothers have owned the family farm for decades, but now one wants to scrap farming and begin developing residential subdivisions. In such circumstances, a partition of the jointly owned property may be necessary.

A partition is a legal term used to describe the act of dividing up a single piece of real estate between the various owners. When parties seek a partition, the judge’s goal is to divide the property based on the parties’ proportionate interests, which the court cannot properly do at times based on the circumstances. For example, it may be easy to divide up undeveloped land, but a judge probably cannot equitably divide between multiple owners a single residence that sits on a property. If a partition isn’t proper, the court can have the property sold and then divide the proceeds between the parties. This route is generally much easier than dividing portions of real estate.

By Joseph G. Ballstaedt

The answer to this question may seem to be a no-brainer. You can’t flood another person’s land, right? Well, it depends. Under Idaho law, it is generally considered trespass to enter another’s land without permission, whether the entry is walking on the land, throwing objects on the land, or allowing water to flood into the land. See Mueller v. Hill, 158 Idaho 208, 213, 345 P.3d 998, 1003. With respect to irrigating specifically, landowners can make re asonable use of their water for irrigation, but they must manage and control their water to prevent damage to their neighbors’ land. See Loosli v. Heseman, 66 Idaho 469, 478, 162 P.2d 393, 397 (1945).

However, in Idaho, a person can obtain a prescriptive easement—or a right to use another’s land—by making open, notorious, continuous, and uninterrupted use of that land for twenty years (the prescriptive period was amended from five to twenty years in 2006). See Backman v. Lawrence, 147 Idaho 390, 396, 210 P.3d 75, 81 (2009). What this means is that a landowner who has been discharging irrigation waste water onto a neighbor’s property for twenty years (or had been doing it for five years in 2006) may have a right to continuing doing so, and such use may not be trespass. See Merrill v. Penrod, 109 Idaho 46, 51, 704 P.2d 950, 955 (Ct. App. 1985).

By Lane V. Erickson, Attorney

By and large, most tenants are pretty good, but one bad tenant can give a landlord nightmares and cause him to question whether he should ever rent again. Sooner or later a landlord will be faced with the task of evicting such a tenant. However, even when a bad tenant exists, there are specific steps that a landlord must follow to legally evict a tenant from a rental property. When a landlord fails to follow this process and simply locks the tenant out, the landlord could be liable to the tenant.

A lease is a contract. As a result, the rights and obligations of both the landlord and the tenant are controlled by the terms of the contract. Our society and the laws that current exist determine that it is important that people have a place to live and that a person should have some protection from being immediately removed from their home. As a result, current law requires that even when a tenant has breached the lease agreement or is doing something illegal such as producing or selling illegal drugs, the tenant still has certain protections from being instantly kicked out of the leased property. In fact, unless a landlord has provided the required demands and notices, eviction of a tenant cannot occur.

By Lane V. Erickson, Attorney

There are really only two types of evictions that exist in Idaho. The first type of eviction is called a “for cause” eviction and the second is called “without cause.” An eviction “for cause” simply means a landlord is evicting a tenant because the tenant has breached some term of the rental agreement. Any breach of the rental agreement can result in a “for cause” eviction. The most common breach of the rental agreement by a tenant is the failure to pay rent.

The law concerning an eviction “without cause” is narrower with only three real circumstances being involved. The first deals with the terms of the rental agreement itself. A rental agreement is a contract and the parties to the contract are free to negotiate the terms of the contract so long as those terms don’t contravene existing law. There is no prohibition against the parties to a rental agreement providing a “without cause” term in the rental agreement. In other words, the parties to a rental agreement are free to agree that either party can at any time, with proper notice, terminate the rental agreement without cause. This is a common term in many rental agreements that are associated with the right to renew. This is an especially common term in many commercial rental arrangements. However, a without cause term does not have to be related to a renewal of the rental agreement. For instance, if the parties agree that the rental agreement can be terminated by either or both of the parties without cause with a 20-day written notice, that term would be enforceable.

By Lane V. Erickson, Attorney

The first step in the judicial process of an eviction is to serve the required written notices as prescribed by the applicable law. Idaho’s landlord and tenant laws contain several notice requirements for various situations. The law is designed to allow the defaulting party to be made aware of a problem and provides an opportunity to the defaulting party to fix the problem before the non-defaulting party has a right to seek assistance from a court. Tenants are given this right to notice in several instances and the failure of the landlord to provide adequate notice is frequently raised by tenants.

Perhaps the most important notice tenants have a right to receive is the eviction notice. Whether it is a 3-day notice for a typical rental or a 20-day notice for mobile home park space rental, the landlord’s actions in providing proper notice is critical to his right to proceed with an eviction.