Landlord looks for legal solution to tenant trouble

By Greg Frame Esq., Special to the BDN
Posted June 23, 2009, at 12:11 p.m.

Q. If a lease expires and the tenant continues to live in the same apartment without a lease, do all the terms and conditions of the expired lease still apply? My tenant paid for his last month’s rent on the first of the month, gave 30 days’ notice and told me to apply his deposit as his final month’s rent, which was not how the lease was written. In addition, the lease required him to leave the fuel tank full if he should move, and at this point, two weeks before his leaving, it is almost empty and I am pretty sure he is going to walk, sticking me with a hefty oil bill. I am frustrated and feeling anxious. I don’t have a security deposit, don’t expect to be paid for the oil and don’t know what I can do.

A. Your situation, unfortunately, is not uncommon. Legally, two things control landlord-tenant relationships: your lease and Maine’s landlord-tenant statutes. As it stands now, Maine law provides a lot of leeway for tenants and requires landlords to navigate specific process exactly. At this point, you may not be able to extricate yourself from this mess damage-free – but you can learn how to limit your risk in the future.

The first question you asked is whether the lease terms continue after the lease expires, since the tenant is still there. In general, a lease that terminates without other special language creates a tenancy at will, and the terms of the statute apply. But a review of your lease is necessary to give a certain reply. Depending upon what the lease says, it is possible that terms included in this specific lease will take precedence over the general law that applies.

In the particular situation you describe, an eviction probably isn’t going to be very helpful, as it will involve some cost, and probably not conclude until your tenant is already gone. If, however, the tenant-at-will is using the unit as an Ultimate Fight Club arena, den of iniquity, or in some other inappropriate and unsafe manner, you do have the right to bring a seven-day eviction based on nuisance, damage or inhabitability, which could afford some more immediate relief.

If you do decide to evict, remember you will need to follow the legal process to the letter. Mediation at FED hearings is now mandatory, so you should be prepared to offer or consider a range of settlement options, short of a full hearing. The good news is that many times a tenant will agree to terms that you can live with, and forgo a hearing in order to avoid an eviction on the tenant’s record.

But back to your current situation. Unfortunately, again, the security deposit “shell game” employed by the tenant is very common. In reality, most tenants do not pay their last month’s rent after they have given 30 days’ notice to vacate if there is a tenancy at will or they are in the terminal month of a lease. In the future, you can protect yourself somewhat by establishing a security deposit of two months’ rent, which is permitted by statute.

With respect to the oil in the tank, a shortfall at lease termination could be brought to Small Claims Court, which has a $4,500 limit. You would bring this as a breach of contract claim, as you indicate the lease has language about filling the oil tank upon vacating the unit. If you need to charge the exiting tenant for the actual last month’s rent, and-or damage beyond normal wear and tear, this would be the time to do it as well, since the security deposit already has been eaten up by the last month of tenancy.

In any case, consultation with an attorney who does landlord-tenant law can help you decipher your standing with regard to your current situation, depending upon how the lease reads. If you plan on renting again, you may want the attorney to suggest improvements to your lease. And it’s always a good idea to have a relationship with an attorney so that if things start to go south with a tenant, you can start taking appropriate legal action as soon as possible to minimize your losses.

This column is a service of the Lawyer Referral and Information Service of the Maine State Bar Association. Its contents are a general response to the question and do not constitute legal advice. Questions are welcome. Just go online to AAL@mainebar.org, describe your question and note you are a BDN reader. Written questions mailed to ” Ask a Lawyer,” Bangor Daily News, P.O. Box 1329, Bangor, Maine, 04402-1329, will be forwarded to the LRIS.

http://bangordailynews.com/2009/06/23/business/landlord-looks-for-legal-solution-to-tenant-trouble/ printed on September 19, 2014