Rental question please

[wysiwyg]

Soc, we are in IN.  Apartment complex we are now residing at has started demolition and rebuilding of condos.  The manager nor the owner has ever sent out written notice of demolition, all is hearsay, or viewable.  Currently we are 6 months into our lease, owners are no longer signing 1 year leases, short term only.  Due to construction, we have been subjected to interuptions of water (crished main) electricty (blown transformer) and blocked entrances, and parking annoyances.  From my balcony I see nothing but caterpillars, not the cute fuzzy little creatures either.  We feel that all the above has been a disruption to the quality of life we have known here for the past 12 years.

We are planning on moving this summer, breaking the lease.  The lease has a typical abandonment clause telling us that we are liable for any deficiency in rent.

Three years ago, the manager gave to us a "Lease Termination Addnedum" stating that "In consideration of the Lessor agreeing to release the Lessee from the aforesaid Lease prior to its expitration date, the Lessee agrees to the following:  it goes on to say that we would owe any outstanding rent which may be due and owing at the time of the intent to vacate, give them 30 days notice of intent to vacate, $0 in additional lease termination fees, and $0 which is the total value of the rental concession granted upon siging the lease, and the addendum supersedes the Abandonment clause contained in the Lease.

The prior manager also noted, dated adn signed on this "This addendum follows the lease and is good for the entirety of tenancy."

Question:  Do you see any issue with us breaking the lease with 30 days notice to the landlord with no penalties?

[socrateaser]

>Question:  Do you see any issue with us breaking the lease
>with 30 days notice to the landlord with no penalties?

The "tenancy" is the duration of the lease. As soon as you signed a new lease, you began a new tenancy, so this old addendum is no longer in force, unless you can get the management to agree that it refers to the existing lease.

Your only legal option for breaking the lease is to notify the management that you consider the property uninhabitable due to conditions cause by mangement not reasonably foreseeable in advance, and that if they cannot return the property to the same condition as reasonable was bargained for under the lease when signed, that you will have no alternative but to regard their action as a constructive eviction and vacate the premises.

If this is your plan, then you should have been complaining about the situation in writing since its inception, and recording evidence (e.g., video, audio, testimony from other tenants, etc.), showing the property's continual deteriorating state.

Otherwise, I think you will lose a collection action if you are sued under your existing lease.

[wysiwyg]

"unless you can get the management to agree that it refers to the existing lease."

The way I read the written notation is that the addendum follows the lease -as in follows all signed leases while living in the same complex.

I completely understand what you are saying, and thank you for your input!

1.  Can it be argued that the interpretation of the notation was such that the addendum followed any/all leases while residing at current apartment - therefore establishing tenancy year to year?

Thanks again!

[socrateaser]

>1.  Can it be argued that the interpretation of the notation
>was such that the addendum followed any/all leases while
>residing at current apartment - therefore establishing tenancy
>year to year?

A lease is a possessory "estate" in real property. That is, you receive the right of possession, but not title or interest in the underlying land value. Under common law principles dating back to the Roman Empire, a lease which has a fixed duration, and is not renewable via a periodic payment, at the end of the existing period (i.e., month to month), terminates at the end of the lease and the estate reverts back to the landowner.

The tenant holds what is known as a tenancy at sufferance (holdover tenancy), and the landowner can begin eviction proceedings.

What I'm getting at here is that you are dealing with an area of law with rules fixed in antiquity, in which courts are extremely reluctant to imply additional rights to a tenant over a landowner, unless there is an express agreement or a statutory change to the common law.

So, while you can argue your interpretation of this addendum, it is still an "addendum," which is an attachment to a contract. So, when the contract terminates, the addendum terminates with it, absent some express agreement to the contrary.

In short, you're gonna lose your argument, without an express agreement from the apartment management. So, you could send a letter to management asking if they agree that the addendum remains in force, and if they say yes in writing, you have a case.

Otherwise, get out your checkbook, or get evidence for a constructive eviction defense, because those are your only choices.

[wysiwyg]

I've complained to the management via phone before, please understand that the manager there now is a vindictive person who is feared will seek revenge on complaintents - I know this becasue 2 of my family memebers worked for her and saw it first hand, additionally they have both witnessed her "drug" problem, smoking and purchasing.  I am afraid of what she will do if I were to complain too harshly or in writing.  I did this once due to a maintenance worker making sexual remarks regarding my underage daughter, and regarding my female parts, he was subsequently fired and escorted off the property.  This is documented.

Tell me more about the constructive eviction option -

1.  would the following be reason enough:

Quiet enjoyment disruptions due to construction 50 yards away from my balcony, starting at 7 AM to 6 PM daily (not good for hubby who does not have traditional working hours), disruption in water, electricity due to carelessness of construciton crew, blocked entrances, not allowing me access to my apartment, poor parking due to torn up parking lots, and multiple police visits to the complex as many as three a day due to fights outside on property.


Additionally, I had read someplace (but now can not find it) that when major reconstruction, demolition etc is to take place ont he property, owners are to supply the tennants in writing their intent.  This has not been done.

2.  Is there such a something or another?

Hope I followed the guidelines - sorry this is early AM and I am still on my coffee......

[socrateaser]

>I've complained to the management via phone before, please
>understand that the manager there now is a vindictive person
>who is feared will seek revenge on complaintents - I know this
>becasue 2 of my family memebers worked for her and saw it
>first hand, additionally they have both witnessed her "drug"
>problem, smoking and purchasing.  I am afraid of what she will
>do if I were to complain too harshly or in writing.  I did
>this once due to a maintenance worker making sexual remarks
>regarding my underage daughter, and regarding my female parts,
>he was subsequently fired and escorted off the property.  This
>is documented.
>
>Tell me more about the constructive eviction option -
>
>1.  would the following be reason enough:
>
>Quiet enjoyment disruptions due to construction 50 yards away
>from my balcony, starting at 7 AM to 6 PM daily (not good for
>hubby who does not have traditional working hours), disruption
>in water, electricity due to carelessness of construciton
>crew, blocked entrances, not allowing me access to my
>apartment, poor parking due to torn up parking lots, and
>multiple police visits to the complex as many as three a day
>due to fights outside on property.

Re construction, if you did not have actual, constructive or inquiry notice, of the landowner's plans prior to signing the most recent lease, then you could make the argument that your expectations of quiet enjoyment of the property were not reasonably met and that you would have moved rather than sign the lease. Actual notice means you were expressly notified of the construction plans by the landowner. Constructive notice means that there was public record of the construction filed with the county, like a building permit, or the like. Inquiry notice means that they were already building or it was common knowledge in the complex that construction was underway.

Naturally, it's all about what you and they can prove to a judge, so frequently inquiry notice is a tough issue for the judge to give any weight. But, those are the issues involved.

Disruption in services would need to be routine (like maybe every week multiple times).

Parking means that your parking which you paid for either expressly or impliedly in the cost of the in the rent, was rendered unavailable. But, you can only get money back for the inconvenience of the parking and not break the lease unless the inconvenience is so profound that it makes living in the apartment unreasonable (e.g., you're handicapped and your parking space is gone).

>Additionally, I had read someplace (but now can not find it)
>that when major reconstruction, demolition etc is to take
>place ont he property, owners are to supply the tennants in
>writing their intent.  This has not been done.
>
>2.  Is there such a something or another?

The landowner has a duty to disclose any plans that might influence your decision to renew the lease. If you think that the landowner cannot prove that this occurred, and that you can convince a judge that you would not have renewed had you had notice, then if you move out based on this premise and notify the landowner of your intend, such that they either stop construction or provide you with a discount/abatement of rent to reasonably cover the cost of your inconvenience, or you will move and they don't, then you can move.

Remember, it's not the truth -- it's what can each part prove to a judge. You need a document trail and evidence that you acted in good faith, but the landowner did not. If you have it, then you can win, otherwise you will lose.

[wysiwyg]

Wonderful tahnk you, I hope you had a wonderful vacation, and come back rested!