Can tenant break lease because of illness?

Rent it Right

By Janet Portman
Inman News

Q: We rent a single-family house and have a two-year lease. A month into the lease, the owners told us they'll be selling the property, and sure enough, we've had droves of real estate agents and potential buyers traipsing through our home. My wife has a serious medical condition (she's in a wheelchair and uses a ventilator) and needs peace and quiet so she can rest, but with this commotion it's impossible. The landlord refuses to be reasonable. We want to leave, but do we have grounds to break our lease? --Steve F.

A: Most states have laws governing when, for what reason, and with how much notice a landlord may enter a tenant's home. Entry to show the property to prospective buyers is always on the list of permitted reasons. As disruptive as it is, if your landlord is following your state's access rules, there's not much you can do on that front. But if your landlord is violating state law -- by not giving adequate notice or insisting on inappropriate showing times -- you may have some recourse. Practically speaking, however, unless the landlord's violations are extreme and repeated, you won't be justified in breaking your lease (you'll have to sue in small claims court for invasion of privacy and ask for money damages).

But don't give up just yet. First, consider whether your wife's condition qualifies her as a disabled person under the Fair Housing Amendments Act. Does she have a physical or mental condition that substantially limits one or more major life activities? If so, the owners are legally bound to adjust their business practices so that she can live safely and comfortably in her rented home. This accommodation should mean at the minimum a willingness to work with you to minimize the disruptions caused by showing the property.

If the owners still won't budge, suppose you break your lease and move. The owners will probably retain your security deposit to cover unpaid future rent -- and may sue you for the rest of the rent, too. In your defense (and request for the return of your deposit), could you prove to a judge that the owners knew they'd be placing the property on the market when you all signed the lease? If so, and if you can also provide credible evidence that the owners knew of your need for peace and quiet, you may be able to convince a judge that the owners should have disclosed their plans, and this failure justifies your breaking the lease. You'll be relying on a garden-variety legal principle that when one side to a deal has information that it knows is critical to the other side's decision but fails to disclose it, the contract can be voided.

Q: The quiet street where our rental property is located is about to be widened, to make way for a four-lane roadway. This will take away the front yard and expose the residents to considerable traffic noise and pollution. We're upset, as are the neighbors. We all suspect that the large shopping center nearby is the driving force behind this project. Can we stop it?--Barry and Katie S.

A: It sounds like your city is about to exercise its power of "eminent domain." This power traditionally gave government the ability to seize private property (and pay for it) in order to build roads, hospitals, schools and other structures that benefited the public in general. But what about taking private land to benefit private interests? The United States Supreme Court addressed this question in the Kelo case (Kelo v. City of New London, 545 U.S. 469 (2005)), where it allowed New London to seize property that would be used by a private developer.

The public, however, was not happy with the Kelo decision. In the 2006 midterm elections, citizens in 12 states placed initiatives that would rein in eminent domain use. Many states now prohibit outright the use of eminent domain for economic development, and others permit it only to eliminate slums and blight.

If your state has trimmed the permissible use of eminent domain, you and your neighbors may have an argument that the city is using it improperly. You'll want to know who will benefit from that wide new road other than the shopping center owners. Are other developers circling, ready to begin commercial or residential building once access is improved? For more information on the states' reactions to Kelo, and suggestions on how to protest an eminent domain taking for private development, check out castlecoalition.org.

Q:We rent a home in a neighborhood that has a homeowners association. We have a problem with our next-door neighbors -- they don't like the fence our landlord put up, and have taken to dumping trash and yard cuttings on our side. Worse, they yell racial epithets at us. We've secured a restraining order, but it doesn't help. Our landlord has gotten nowhere with the homeowners association, which says it's a private dispute. The landlord is willing to let us out of our lease, but we don't want to move. Any suggestions on what we can do to stop this harassment?--Tim and Diana F.

A: It's time to talk again to that homeowners association. Traditionally, these associations left neighbor-to-neighbor disputes alone, figuring that if the dispute didn't involve common areas or external appearances, it was a matter for the neighbors to work out or refer to the police. But now, they ignore disputes like yours at their peril. That's because courts are increasingly recognizing that condominium and even homeowners associations are subject to the Fair Housing Act (the federal law that prohibits discrimination in housing sales or rentals). This means that they need to take steps to stop the kind of situation you describe (lawyers would call it a hostile housing environment based on race.)

Your association needs to take action to stop this obnoxious behavior in its midst. The association surely has a rule against illegal activity among its members, with consequences for its violation, including fines or suspension of privileges. Failure to address this situation will set the association up for a fair-housing lawsuit brought by you, which can be extremely expensive -- especially if the association's insurance policy does not cover such claims.