Chapter 13 Landlord's Right of Entry and Tenants' Privacy

• Library: Every Landlord's Legal Guide (Nolo) (2020 Ed.)

CHAPTER 13 Landlord's Right of Entry and Tenants' Privacy

General Rules of Entry

Allowable Reasons for Entry

Notice Requirements

The Best Approach

Entry in Case of Emergency

Entry With the Permission of the Tenant

Entry to Make Repairs or Inspect the Property

Entry to Make Repairs

How to Give Tenants Notice of Entry

Entry to Inspect for Needed Repairs

Entry During Tenant's Extended Absence

Entry to Show Property to Prospective Tenants or Buyers

Showing Property to Prospective New Tenants

Showing Property to Prospective Buyers

Putting For Sale or For Rent Signs on the Property

Getting the Tenant's Cooperation

Entry After the Tenant Has Moved Out

Entry by Others

Health, Safety, or Building Inspections

Police and Law Enforcement

Your Right to Let Others In

Other Types of Invasions of Privacy

Giving Information About the Tenant to Strangers

Posting Information About Tenants Online

Calling or Visiting Tenants at Work

Undue Restrictions on Guests

Spying on a Tenant

"Self-Help" Evictions

What to Do When Tenants Unreasonably Deny Entry

Tenants' Remedies If a Landlord Acts Illegally

FORMS IN THIS CHAPTER

Chapter 13 includes instructions for and a sample of the following form:

• Notice of Intent to Enter Dwelling Unit

The Nolo website includes a downloadable copy of this form. See Appendix B for the link to the forms in this book.

Next to disputes over rent or security deposits, one of the most common—and emotion-filled—misunderstandings between landlords and tenants involves conflicts between your right to enter the rental property and a tenant's right to be left alone at home. Fortunately, many of these problems can be avoided if you adopt fair—and, of course, legal—entry policies, and clearly explain these policies to the tenant from the first day of your relationship. (If you employ a manager or management company, make sure they also follow your guidelines.)

This chapter recommends a practical approach that should keep you out of legal hot water.

RELATED TOPIC

Related topics covered in this book include:

• Recommended lease and rental agreement clause for landlord's access to rental property: Chapter 2
• How to make sure your manager doesn't violate tenants' right of privacy: Chapter 6
• How to highlight access procedures in a move-in letter to new tenants: Chapter 7
• Tenants' right of privacy and landlord's policy on guests: Chapter 8
• Procedures for respecting tenants' right of privacy while handling tenant complaints about safety and maintenance problems and conducting an annual safety inspection: Chapter 9
• How to protect the confidentiality of tenants' credit reports and notify tenants of any security breaches: Chapter 9
• Tenants' right of privacy if drug dealing or terrorist activity is suspected: Chapter 12
• How to handle disputes with tenants through negotiation, mediation, and other means: Chapter 16
• State Laws on Landlord's Access to Rental Property: Appendix A.

General Rules of Entry

In most states, the tenant's duty to pay rent is conditioned on your proper repair and maintenance of the premises. This means that you have a legal responsibility to keep fairly close tabs on the condition of the property. For this reason, and because it makes good sense to allow landlords reasonable access to their property, nearly every state has, by judicial decision or statute, recognized landlords' rights to enter rented premises in certain circumstances, such as to deal with an emergency and when the tenant gives permission.

For details on state rules, including allowable reasons for entry and notice requirements, see "State Laws on Landlord's Access to Rental Property" in Appendix A.

How to Respect Tenants' Privacy Rights
Step 1: Know and comply with your state's law on landlord's access to rental property.
Step 2: Include a lease or rental agreement clause that complies with the law and gives you reasonable rights of entry.
Step 3: To avoid any uncertainty, highlight your policies on entry in a move-in letter to new tenants and other periodic communications.
Step 4: Notify tenants whenever you plan to enter their rental unit.
Step 5: Provide as much notice as possible before you enter, or, at a minimum, the amount of time required by state law.
Step 6: Keep written records of your requests to enter rental units.
Step 7: Protect yourself from a tenant's claim that you or your employee or independent contractor is a thief—for example, try to arrange repairs only when the tenant is home.
Step 8: Meet—and possibly mediate—with any tenants who object to your access policies to come up with a mutual agreement regarding your entry.
Step 9: Never force entry, short of a true emergency.
Step 10: Consider terminating the tenancy of any tenant who unreasonably restricts your right to enter the rental unit.

Allowable Reasons for Entry

About half the states have access laws specifying the circumstances under which landlords may legally enter rented premises. Most access laws allow landlords to enter rental units to make repairs, inspect the property, and show the property to prospective tenants or buyers.

Notice Requirements

State access laws typically specify the amount of notice required for landlord entry—usually 24 hours or two days (unless it is impracticable to do so—for example, in cases of emergency). A few states simply require the landlord to provide "reasonable" notice, often presumed to be 24 hours.

Must Notice Be in Writing?

State access laws do not uniformly require that notice be in writing, but it's a good idea to give written notice. If the tenant later claims that you didn't follow legal procedures regarding right to entry, your copy of a written notice that you mailed, left in the tenant's mailbox, or posted on the door is proof that you gave notice. It's also wise to document all oral or email requests for entry—but written notice is preferable (as explained in "Using Emails for Notices or Other Communications to Tenants" in Chapter 7). A sample letter requesting entry and a formal Notice of Intent to Enter Dwelling Unit form are included below.

Time of Day You May Enter

Most state access laws either don't address the hours when a landlord may enter or simply allow entry at "reasonable" times, without setting specific hours and days. Weekdays between 9 a.m. and 6 p.m., and Saturday mornings between 10 a.m. and 1 p.m., would likely be considered reasonable hours by a court.

The Best Approach

If your state does not set specific rules regarding landlords' entry, this doesn't mean you can—or should—enter a tenant's home at any time for any reason. Once you rent residential property, you must respect it as your tenant's home. We recommend you provide as much notice as possible (in writing), try to arrange a mutually convenient time, and only enter for legitimate business reasons, such as to make necessary repairs. If it's not an emergency, try to give at least 24 hours' notice, especially when entering a rental unit when the tenant is likely to be home. In some circumstances, less notice (say, ten or 15 hours) might be fine—for example, if you find out Thursday evening that an electrician is available Friday morning to put extra outlets in the tenant's apartment. Except for an emergency, less than four hours' notice is not ordinarily considered reasonable. Common sense suggests that you be considerate of your tenants' privacy and do your best to accommodate their schedules. You'll go a long way toward keeping tenants and avoiding disputes and legal problems by doing so.

Entry in Case of Emergency

In all states, you can enter a rental unit without giving notice to respond to a true emergency—such as a fire or gas leak—that threatens life or property if not corrected immediately.

Here are some examples of emergency situations when it would be legal to enter without giving the tenant notice:

• Smoke is pouring out the tenant's window. You call the fire department and use your master key—or even break in if necessary—to try to deal with the fire.
• You see water coming out of the bottom of a tenant's back door. It's okay to enter and find the water leak.
• Your on-site manager hears screams coming from the apartment next door. He knocks on the apartment door, but no one answers. After calling the police, he uses his pass key to enter and see what's wrong.

On the other hand, your urge to repair a problem that's important but doesn't threaten life or property—say, a stopped-up drain that isn't causing damage—isn't a true emergency.

If you do have to enter a tenant's apartment in an emergency, be sure to leave a note or call the tenant explaining the circumstances and the date and time you entered. Here's an example:

Sample Note to Tenant Regarding Entry in Case of Emergency

September 2, 20xx

Dear Tammy,

Due to your oven being left on, I had to enter your apartment this afternoon around 3 o'clock. Apparently, you left your apartment while bread was still in the oven, and didn't return in time to take it out. Joe, your upstairs neighbor, called me and reported smoke and a strong burning smell coming from your kitchen window, which is below his. entered your apartment and turned the oven off and removed the bread. Please be more careful next time.

Sincerely,

/s/
Herb Layton

To facilitate your right of entry in an emergency, make sure your lease or rental agreement forbids tenants from rekeying, adding additional locks, or installing a security system without your permission. (See Clause 12 of the form agreements in Chapter 2.) If you grant permission to change or add locks, make sure your tenant gives you duplicate keys. If you allow the tenant to install a security system, make sure you get...