Sec. 42-809 - Landlord Remedies

 

A. The landlord shall have the following remedies when the tenant fails to pay rent.

1. If the tenant is not in material compliance with the obligation to pay rent, the landlord may deliver to the tenant a written notice of the landlord's intention to terminate the rental agreement. The landlord shall serve the written notice in compliance with state law. If the tenant does not materially comply with the written notice within five (5) days of receipt, the landlord may file an eviction action to terminate the rental agreement.

 

2. Nothing in this subsection shall affect a landlord's obligation to provide notice of termination of tenancy in subsidized housing as required under federal law or regulations.

 

3. A landlord may also maintain an action for rent and/or damages without terminating the rental agreement.

 

B. The landlord shall have the following remedies when the tenant is not in material compliance with the rental agreement or the obligations in section 42-807.

 

1. If the landlord alleges that the tenant is not in material compliance with a rental agreement or the obligations in section 42-807, the landlord may deliver written notice to the tenant specifying the acts and omissions constituting the alleged breach. The landlord shall serve the written notice in compliance with state law. The written notice may provide that the rental agreement will terminate upon a date no less than 10 days after the date of the written notice. The tenant shall have the amount of time specified in the written notice to remedy any alleged breach by the tenant prior to the date of termination. If the breach is not remedied, the landlord may file an eviction to terminate the rental agreement, as provided in the written notice. The landlord may recover damages and obtain injunctive relief for any material noncompliance by the tenant with the rental agreement or the obligations in section 42-807. If the landlord does not file an eviction action within 30 days after the notification of termination or the end of the next rental period, whichever is longer, then the landlord’s written notice shall be deemed withdrawn and the rental agreement shall remain in full force and effect.

 

2. The landlord has the right to determine abandonment of the dwelling unit and dispose of property. The landlord may determine that the tenant has abandoned the property in the following circumstances:

 

a. The tenant has provided actual written notice to the landlord indicating the tenant’s intention not to return to the dwelling unit.

 

b. All persons entitled under a rental agreement have been absent from the dwelling unit for a period of 32 days, or for one rental period when the rental agreement is for less than a month, and such persons have removed their personal property from the premises and rent for that period is unpaid. However, if any person entitled to occupancy provides the landlord with written notice indicating that a tenant intends to occupy the dwelling unit and make full payments of all amounts due to the landlord, then the landlord may not determine that the tenant has abandoned the property.

 

c. If the tenant abandons the dwelling unit, the landlord shall make a good faith effort to rent it at a fair rental value. This shall include the acceptance of reasonable subleases. If the landlord succeeds in renting the dwelling unit at a fair rental value, the tenant shall only be liable for the amount by which the rent due from the date of abandonment to the termination of the initial rental agreement exceeds the fair rental value subsequently received by the landlord from the date of abandonment to the termination of the initial rental agreement. If the landlord makes a good faith effort to rent the dwelling unit at a fair rental and is unsuccessful, the tenant shall be liable for the rent due for the period of the rental agreement. The tenant shall also be liable for reasonable advertising and redecoration costs incurred by the landlord in re-renting the dwelling unit.

 

d. Unless otherwise agreed, if, upon termination of a tenancy including, but not limited to, a termination after expiration of a lease or by surrender or abandonment of the premises, a tenant has left personal property on the premises, and the landlord reasonably believes that the tenant has abandoned such personal property, the landlord may dispose of the property according to the following procedures.

 

i. If the landlord in good faith reasonably determines that the tenant has left personal property that is valueless or of such little value that the cost of storing and conducting a sale would probably exceed the amount that would be realized from such a sale, the landlord shall retain the property either in the dwelling unit or remove and store the abandoned property from the dwelling unit and may dispose of the property after seven (7) days. The landlord shall not be required to provide written notice to the tenant of its intent to dispose of property pursuant to this subsection.

 

ii. If the landlord in good faith reasonably determines that the tenant has left personal property that has value, the landlord shall notify the tenant in writing of their demand that the tenant remove the property within dates set forth in the written notice, but no less than 7 days after delivery of the written notice. The landlord may deliver this written notice by posting it in a prominent location inside the dwelling unit or on the front door of the dwelling unit or by electronic means if the parties had previously communicated electronically.

 

iii. If the tenant does not remove the property within the time specified, the landlord may sell the property at a public sale or at a commercially reasonable private sale. The landlord may retain the proceeds of the sale to recover any rent owed by the tenant to the landlord. If the proceeds, less reasonable costs incurred by such sale or storage, exceed any rent owed to the landlord, the landlord shall retain the proceeds for one (1) year. If the tenant does not claim the proceeds within one (1) year, the proceeds shall be the property of the landlord. e. At any time that the landlord is storing property pursuant to Sec. 42-809, the landlord shall exercise reasonable care of the property, but shall not be responsible to the tenant for any loss except for damage caused by the landlord’s deliberate or negligent act or omission. The landlord may elect to store the property in or about the previously vacated premises. The landlord shall be entitled to the cost of storage for the period of time that the property has remained in their safekeeping. In such case the storage shall not exceed commercially reasonable storage rates. If the tenant’s property is removed to a commercial storage company, the storage cost shall include the actual charge for such storage and removal from the premises to the place of storage.

 

f. If the tenant timely responds in writing of their intention to remove the personal property from the premises and does not do so within the time period in the landlord’s written notice or a mutually agreeable date (whichever is later), it shall be conclusively presumed that they have abandoned such property.

 

C. The landlord right to rent and process renewals of the tenancy.

 

1. Termination of Tenancy

 

a. If the landlord accepts rent, including holding payment, knowing that it alleges a lease violation, including a default in the payment of rent by the tenant, the landlord waives the right to terminate the rental agreement for that breach.

 

b. If the rental agreement is terminated, the landlord may claim for possession or for rent and a separate claim for damages for breach of the rental agreement.

 

2. Nonrenewal of Tenancy

a. No tenant shall be required to renew a rental agreement more than 60 days prior to the termination date of the rental agreement. If the landlord violates this subsection, the tenant shall recover one (1) month’s rent or actual damages, whichever is greater.

 

b. The landlord shall notify the tenant in writing at least 60 days prior to the stated termination date of the rental agreement of the landlord’s intent to terminate a month-to-month tenancy or not renew an existing rental agreement. If the landlord fails to give required written notice, the tenant may remain in the dwelling unit for up to 120 days after the date on which such required written notice is given to the tenant, regardless of the date specified in the existing rental agreement. During such occupancy, the terms and conditions of the tenancy shall be the same as the terms and conditions during the last month of tenancy