INCLINE JUSTICE COURT
Stay of Eviction Proceedings
The Court has implemented an Administrative Order adopting the Governor's Order staying certain Eviction Proceedings. This Administrative Order is in effect until further notice and can be viewed here.
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FAIR RENTAL HOUSING ACT GOVERNING RESIDENTIAL RENTAL ARRANGEMENTS ENTERED INTO BY LANDLORDS AND TENANTS
Originally prepared by William R. Beemer and Richard C. Minor,
Former Justices of the Peace, Reno Township.
Revised by James V. Mancuso,
Former Justice of the Peace, Incline Village Township (2000)
Further Revised by E. Alan Tiras,
Justice of the Peace, Incline Village Township (2012)
Effective July 1, 1977, residential rental arrangements entered into by landlords and tenants are governed by the Fair Rental Housing Act, as subsequently amended.
The law provides certain specific rights, obligations and remedies of the landlord and tenant.
This information is designed to assist both landlords and tenants; it has been condensed from the law as to those particular sections related to the rights, obligations and remedies of both, more particularly to dispense justice with expediency in the matter of disputes. There will be certain exceptions that necessitate the services of a lawyer. The following represent the common essentials of the law as related to landlord and tenant relationships, and are for reference and guidance only. See NRS Chapters 118 and 118A for a full review of the law on landlord and tenant rights, and NRS Chapter 40 regarding eviction procedures.
The majority of rental agreements and arrangements used are included in the law's coverage, but the law will not cover all rental situations. Excluded are:
- Public or private institutions that offer housing incidentally to medical, geriatric, education, counseling, religious or similar primary service(s) .
- Parties under a contract for sale of the dwelling .
- Members of fraternal or social organizations who occupy a structure for the organizations' benefit.
- Occupancy of a hotel or motel for less than 30 days.
- Employee housing furnished by the employer/landlord upon the premises, as a condition of employment.
- Rental agreements covering premises used primarily for agricultural purposes.
- Occupancy by the owner of, or lease for, a cooperative apartment.
- Rentals of single family dwellings by an owner who rents less than 5 such dwellings and personally manages them.
It is strongly recommended that rental arrangements for residential purposes extending for one month or longer should be in writing and signed by the landlord and tenant.
- Any written agreement for the use and occupancy of a dwelling unit or premises shall be signed by the landlord or his agent and the tenant or his agent.
- Any written rental agreement shall contain but is not limited to provisions relating to the following subjects:
- Duration of the agreement.
- Amount of rent and the manner and time of its payment.
- Occupancy by children or pets.
- Services included with the dwelling rental.
- Fees which are required and the purposes for which they are required.
- Deposits which are required and the conditions for their refund.
- Charges which may be required for late or partial payment of rent or for return of any dishonored check.
- Inspection rights of the landlord.
- A listing of persons or numbers of persons who are to occupy the dwelling.
- Respective responsibilities of the landlord and the tenant as to the payment of utility charges.
- A signed record of the inventory and condition of the premises under the exclusive custody and control of the tenant.
- The absence of a written agreement raises a disputable presumption that:
- There are no restrictions on occupancy by children or pets.
- Maintenance and waste removal services are provided without charge to the tenant.
- No charges for partial or late payments of rent or for dishonored checks are paid by the tenant.
- Other than normal wear, the premises will be returned in the same condition as when the tenancy began.
- It is unlawful for a landlord or any person authorized to enter into a rental agreement on his behalf to use any written agreement which does not conform to the above provisions. Any provision in an agreement which contravenes the above is void.
- Rent is payable without demand or notice at the time and place agreed upon by the parties.
- Unless the rental agreement establishes a definite term, the tenancy is from week to week in the case of a tenant who pays weekly rent and in all other cases the tenancy is from month to month.
- In the absence of an agreement, either written or oral:
- Rent is payable at the beginning of the tenancy; and
- Rent for the use and occupancy of a dwelling is the fair rental value for the use and occupancy.
- A rental agreement cannot provide that the tenant:
- Agrees to waive rights covered by the Fair Rental Housing Act.
- Authorizes any person to confess judgment or any claim arising out of the rental agreement.
- Agrees to pay the landlord's attorney's fees (understand that attorney's fees may be awarded to the prevailing party in the event of a court action).
- Agrees to limit any liability of the landlord.
- Agrees to give the landlord notice of termination for a shorter period than the landlord is required to give.
Notice of particular facts which give rise to, or terminate, remedies available under the law is important. A person is deemed to have notice of a fact if he personally knows the fact, had reason to know of the fact or received notice or notification of the fact. Where written notice is required, it can generally be said that such notice must be delivered in the manner most reasonably calculated to reach the other party to the rental agreement.
The landlord may collect a security deposit, fee or charge to cover a tenant's default in rent or to repair damages to the rental unit. The amount of the security deposit must not exceed two months' rent.
Cleaning fees may also be collected. A non-refundable cleaning fee may be charged if the fee is clearly designated in the rental agreement, or it may be refundable upon certain conditions.
When the tenancy ends, the landlord must provide the tenant with a detailed, itemized accounting of both the security and cleaning deposits. Any balance must be returned to the tenant within 30 days of the termination of the tenancy. If written notice is not given to the tenant within thirty days of the tenancy termination, explaining the disposition of the security deposit, the landlord may forfeit the right to retain any portion of the deposit. Landlord should mail this summary to tenant's known or last known address, retain a copy, and obtain a receipt for mailing from the postmaster.
At the beginning of the rental period, the landlord must deliver the dwelling and premises to the tenant in a habitable condition. The landlord must provide the tenant with adequate, healthy, safe and sanitary housing. The dwelling is not habitable if it substantially lacks:
- A hot and cold water supply
- Electrical equipment
- Weather protection
- Rubbish removal
- Clean premises
- Facilities and appliances
- Structural repair
The landlord is obligated to notify the tenant in writing of the names and addresses of the persons authorized to manage the premises, to receive notices and demands, and the principal or corporate owner. The notice must give a current telephone number to be used in case of emergency. This notice may be delivered to the tenant or posted in each elevator, or two other visible places. If the dwelling unit is sold, the tenants must be notified of the new owner's name and address. The old landlord must notify the tenant if the deposits were transferred or he must return them to the tenant.
There must be a written inventory taken of the premises and damage to the unit noted. The tenant is entitled to a signed copy of the inventory which states he is responsible for the premises as therein described.
The landlord may increase rent, but he is to give the tenant 45 days written notice and said notice must be given 45 days from the next rental due date.
The tenant is entitled to written notice of all rules and regulations governing the tenant's use of the premises. They should clearly inform the tenant of what must, or must not be done in order to comply. A rule or regulation adopted after the tenant enters into a rental agreement is enforceable only if the tenant consents in writing or is given 30 days written notice.
SUMMARY EVICTION GROUNDS
The landlord's right to evict a tenant summarily arises under the following circumstances in a Residential lease:
- The specified end of the agreed rental period has passed.
- The landlord has given proper notice to the tenant to vacate, for any reason, at the end of the rental period for which rent was accepted. Such notice will be strictly construed and may not violate the rental agreement or the landlord's basic obligations. After the expiration of the time period following notice, the landlord may begin legal proceedings. Proper notice/time periods are:
- 7 days for week-to-week tenant
- 30 days for all other periodic tenancies.
- Notice to vacate must coincide with the termination of the period for which rent is accepted, unless the lease provides that notice may be given on any date and is effective so many days thereafter.
- The tenant has failed to perform his basic obligations and 5 days have passed since notice to perform or quit.
- The tenant remains in possession after 3 day's notice to quit for the tenant's waste, nuisance or assignment or subletting contrary to the rental agreement.
- The tenant continues in possession after 5 day's notice of failure to perform a condition of the lease. If the failure to perform may be cured, the tenant has 3 days after notice in which to properly perform.
- The tenant defaults in rent and 5 days have passed since notice to pay or quit has been issued and served. (Note: The Summary procedure may never be used to evict a tenant after the foreclosure of the premises.)
For Example: The landlord may apply for a summary eviction order after the month-to-month (or shorter) tenant has been notified to surrender the premises or pay the rent. The court notice will advise the tenant of his right to contest this procedure by filing an affidavit, within 5 days, with the court, reciting that he is not in default of such rent. If such an affidavit is filed, the Court will hold a hearing to determine the truthfulness and sufficiency of the affidavits and the required notice. It should be noted that penalties attach for filing less than truthful documents with the court. Based on that determination, the Court may issue, or refuse to issue, a summary eviction order. The summary order may provide for either locking the present tenant out or for an order to thesheriff or constable to remove the tenant after 24 hours of the receipt of the order, if the tenant refuses to quit the premises.
It should be noted that the landlord should not take any steps without court approval to remove a tenant or interfere with the tenant's right to possession. He should not, absent a court order, resort to remedies such as locking a tenant out for failure to pay rent, or cutting off utilities.
If the Court refuses to grant either party summary relief, the aggrieved party must then proceed in a formal civil action with a complaint and summons. See Summary Eviction Procedure, infra, for further information. In a Commercial lease, the Summary Eviction Procedure may be used in one circumstance only - Non-Payment of Rent.
A tenant's rights under rental agreements may depend on a duty to comply with some basic obligations. When a landlord rents a safe and sanitary dwelling, the tenant is required to keep that part occupied by the tenant as clean and 'safe as the condition of the premises permit. The tenant must dispose of garbage, rubbish and other waste in a safe and clean manner. Plumbing fixtures must be kept as clean as possible. All electric, heating, air conditioning, and other facilities and appliances provided by the landlord must be used in a reasonable manner. Tenants cannot destroy, deface or damage any part of the premises, and must conduct themselves in a manner that will not disturb their neighbor's peaceful enjoyment of the premises. Many tenant rights arise before the tenant takes possession of the dwelling or signs a lease. In most cases a tenant is entitled to a written rental agreement.
When a tenant is required to sign a rental agreement that contains oppressive or unfair provisions, the tenant does not have to comply. The courts can refuse to enforce the rental agreement, or limit its application or prevent deception and unfairness. A landlord rental agreement submitted to the tenant cannot contain provisions prohibited by the Fair Rental Housing Act, and the tenant has a right to recover any damages suffered through their inclusion.
Under most rental agreements the tenant is required to give a deposit for security and cleaning of the premises. The tenant can require the landlord to give the tenant a signed written receipt for the security or other payments. Any payment by the tenant is conditioned upon the delivery of the requested receipt from the landlord. The landlord can only keep the security deposit to pay the tenant's default in rent and to repair damages caused by the tenant. If the landlord retains, in bad faith, any of the security, the tenant has a right to recover the deposit and damages through a court action.
Condition of the Premises:
The tenant's obligation to pay rent is dependent on the landlord's duty to deliver and maintain the dwelling in a, habitable condition, the landlord's compliance with the rental agreement. When a tenant has entered into an oral or written agreement to rent a dwelling, the tenant has a right to demand that the landlord deliver possession of the premises as bargained for, and that the dwelling be adequate, sanitary, safe and healthy. If the landlord fails to comply, the tenant can terminate the rental agreement after 5 days written notice to the landlord. The landlord must return all prepaid rent, security and any payment or fee charged to secure the rental agreement.
The tenant can elect to demand performance of the rental agreement, and initiate a civil court action to obtain possession against the landlord and any other tenant wrongfully in possession. The landlord is given 5 days to evict other tenants or to remedy the condition keeping the new tenant from taking possession. The tenant may, in the alternative, elect to sue for breach of contract and recover any damages suffered.
After the tenant takes possession of the rented dwelling, there is a right to expect that the landlord will comply with the rental agreement and maintain the dwelling in a healthy and safe manner. If the landlord by his acts; or, failure to act, does not comply the tenant can terminate the rental agreement. The tenant must give the landlord written notice and describe the specific reason for termination. When the problem can be corrected by repairs or the payment of damages to the tenant, the landlord is given 14 days to use his best efforts to remedy the problem. If the landlord is able to do this the rental agreement will not terminate. After 14 days, the tenant can immediately terminate the rental agreement, and the landlord must return all prepaid rent, unused fees and security. The tenant should have the premises inspected by the proper governmental agency to verify that the conditions are a threat to health and safety.
If the tenant does not want to terminate the rental agreement, and if the landlord is required by the rental agreement to supply heat, running water, hot water, electricity, gas or other essential service and he willfully or negligently fails to do so, causing the premises to become unfit for habitation, the tenant shall give written notice to the landlord specifying the breach and if the landlord does not adequately remedy the breach, or use his best efforts to remedy the breach within 48 hours, except a Saturday, Sunday or legal holiday, after it is received by the landlord, the tenant may, in addition to any other remedy:
- Procure reasonable amounts of such essential services during the period of the landlord's noncompliance and deduct their actual and reasonable cost from the rent;
- Recover actual damages, including damages based upon the lack of use of the premises or the diminution of the fair rental value of the dwelling unit; or
- Procure comparable substitute housing during the period of the landlord's noncompliance, and the rent for the original premises fully abates during this period. The tenant may recover the actual and reasonable cost of comparable substitute housing in excess of the amount of rent which is abated.
Rights of the tenant do not rise until the tenant has given written notice to the landlord unless the landlord admits in Court he knew of the problem, or a governmental agency notified the landlord in writing of the problem. If the condition was caused by the deliberate or negligent act or omission of the tenant, a member of his household or other person on the premises with his consent, the tenant has no rights as set forth above.
The Fair Rental Housing Act forbids landlord retaliation for any of the protected tenant activities whether that retaliation takes the form of rent increases, as a decrease in services or by bringing or threatening to bring an action for possession.
- Except as provided in subsection 3, the landlord in retaliation may not terminate a tenancy, refuse to renew a tenancy, increase rent or decrease essential services required by the rental agreement or this chapter, or bring or threaten to bring an action for possession where:
- The tenant has complained in good faith to a governmental agency charged with responsibility for enforcement of a building, housing or health code of a violation applicable to the premises affecting health or safety.
- The tenant has complained in good faith to the landlord of a violation under this act.
- The tenant has organized or become a member of a tenant's union or similar organization.
- A citation has been issued resulting from a complaint described in paragraph (a).
- The tenant has instituted or defended against a judicial or administrative proceeding or arbitration in which he raised an issue of compliance with the requirements of this chapter respecting the habitability of dwelling units.
- The tenant has failed or refused to give written consent to a rule or regulation adopted by the landlord after the tenant enters into the rental agreement which requires the landlord to wait until the appropriate time has elapsed before the rule or regulation is enforceable against the tenant.
- If the landlord violates subsection I, the tenant is entitled to remedies provided and has a defense in any retaliatory action by the landlord for possession.
- A landlord who acts under the circumstances described in subsection I does not violate the subsection if:
- The violation of the applicable building, housing or health code of which the tenant complained was caused primarily by lack of reasonable care by the tenant, a member of his household or other person on the premises with his consent;
- The tenancy is terminated with cause;
- A citation has been issued and compliance with the applicable building, housing or health code requires alteration, remodeling or demolition and cannot be accomplished unless the tenant's dwelling unit is vacant; or
- The increase in rent applies in a uniform manner to all tenants.
The maintenance of an action under this subsection does not prevent the tenant from seeking damages or injunctive relief for the landlord's failure to comply with the rental agreement or maintain the dwelling unit in a habitable condition as required by law.
If the landlord unlawfully retaliates, the Fair Rental Housing Act gives the tenant a defense in any action against the landlord for possession. In addition, the landlord's retaliatory conduct gives rise to a claim for relief by the tenant, and the tenant may terminate the rental agreement and recover damages.
In any action by the tenant against the landlord for retaliatory conduct or in any action for possession brought against a tenant, the Fair Rental Housing Act presumes the landlord's conduct to have been in retaliation if any of the protected activities above occurred within six months preceding the retaliatory act.
Rental agreements usually require the tenant to give advanced notice of the intent to terminate the agreement. The notice should be given 7 days prior to leaving if on week to week rental, or 30 days if on month to month tenancy. The tenant may give 30 days written notice of termination, regardless of the notice period contained in the lease if:
- Every lease of a dwelling executed after July 1, 1977, by spouses either of whom is 60 years of age or older at the time of execution, shall, upon the death of either, terminate 30 days after written notice to the landlord of the surviving spouse's intention to terminate, notwithstanding any contrary provisions in the lease, but a notice of intention to terminate pursuant to this section may not be submitted later than 6 months after the date of such death.
- The provisions of this section apply only to spouses whose combined income does not exceed $10,000.00 for the calendar year preceding the death.
- As used in this section, "income" means all income, from whatever source derived, including but not limited to salaries, wages, bonuses, commissions, income from self-employment, alimony, cash, public assistance and relief, the gross amount of any pensions or annuities including railroad retirement benefits, benefits received under the Federal Social Security Act, unemployment compensation benefits received under the law, realized capital gains, rentals, the gross amount of loss of time insurance benefits, life insurance benefits and proceeds, and gifts of cash or property. The word "income" does not include surplus food or other relief in kind supplied by any governmental agency or property tax assistance received by any claimant under the law or gifts of cash or property from one spouse to another.
- This section does not give the landlord the right to terminate a lease solely because of the death of one of the tenants.
SUMMARY EVICTION PROCEDURE
Once a tenant is in default for (1) failure to pay rent, or (2) breach of other conditions of the lease, or (3) refusing to vacate after a lease is expired or after having been given 30 day notice to terminate a month-to-month tenancy, the Landlord may come to the Court to obtain the appropriate form to begin summary eviction proceedings.
The notice issued by the Court must be:
- Personally delivered by a law officer or a private party with a witness, or a private party who obtains written acknowledgment of service by the tenant.
- If it cannot be personally delivered then it must be mailed to the tenant at his home or business and a copy left with a person of suitable age at either place (Retain a Receipt of Mailing from Postmaster) or
- If such place of residence or business cannot be ascertained, or a person of suitable age cannot be found, then by fixing a copy in a conspicuous place on the leased property and also delivering a copy to a person there residing, if such person can be found, and also sending a copy through the mail addressed to the tenant at the place where the leased property is situated. (Retain a Receipt of Mailing from Postmaster)
The proceeding for summary eviction is initiated by a legal notice issued by the Court. The landlord sets forth a statement on which his action is based. The tenant is given 7 days after service of this notice to file a written affidavit in which he may deny the landlord's statements and may state facts that create a defense or counterclaim against the landlord. The tenant should be aware that any false allegation in his affidavit will subject him to penalties. The tenant must be careful to state clearly and truthfully the reason why the landlord's claim should be denied.
After any filing of the tenant's affidavit, the Court will hold a hearing to determine the truthfulness and sufficiency of the affidavits and notices. Both the tenant and the landlord will have been given notice of the hearing on the original notice.
At the hearing, if the Court determines that the tenant does not have a defense to the landlord's claim for possession or rent due, the Court will issue the summary eviction order. This order may permit the landlord to lock the tenant out of his premises or have the constable remove the tenant within 24 hours after receipt of the order.
If the Court determines that there is a legal defense, it will refuse to grant the order and any future proceeding will be conducted by service of summons, complaint by the landlord and possibly trial. (A formal eviction procedure).
Summary evictions are informal, off-the-record hearings with clear-cut issues. Formal evictions result when the issues are unclear and a full trial is necessary to resolve the matter, or in most commercial lease settings.
The Summary Procedure may never be used when evicting a person after a foreclosure proceeding on the premises.
INCLINE VILLAGE JUSTICE COURT POLICY ON SUMMARY EVICTION
It is the policy of this Court that a hearing on Summary Eviction will be held only if a Tenant files an affidavit within 7 Court days of being served with an official notice on a form issued by the Court to the Landlord. In the absence of such an affidavit being filed, the Tenant is subject to immediate eviction after the said 7 day period without further hearing or notice. The affidavit must state a legal defense to the eviction to be considered.
If the tenant abandons personal property on the premises, the landlord must safely store it for thirty (30) days. If not picked up within thirty (30) days, the landlord must then give at least fourteen (14) days notice to the tenant that he will dispose of the property if not reclaimed. Written notice should be given at tenant's present address, or if unknown, to his last known mailing address. If still not reclaimed, the landlord may dispose of the property. He should keep records of his efforts to locate the tenant.
The landlord may not hold the property as ransom for unpaid rent or damages, etc. However, he may charge reasonable storage, moving, and inventory costs only. See NRS 118A.460.
Abandonment of the Unit by Tenant:
The landlord may legally presume that the tenant has abandoned the unit if he is absent from the unit for a period of time equal to one-half of the time for payment of periodic rental, unless the rent is current, or the tenant has notified the landlord in writing of an intended absence. (In other words, two weeks abandonment if rent is paid monthly.) If these conditions are met, landlord need not even file an eviction - he may reenter the premises, and dispose of any property as per the above procedure.
The Landlord can be liabile to the tenant for monetary damages if he undertakes certain illegal actions, such as cutting off utilities, refusing to return the tenant's goods, etc. The Landlord who is contemplating self-help should consult an attorney to make sure he/she is within the law.
Upon the proper posting of a bond, a summary eviction is appealable. The rent must continue to be paid in full if the tenant desires to retain possession of the premises during the pendency of the appeal. Without the posting of the bond, an eviction will proceed despite the appeal.
1999 LEGISLATIVE CHANGES
- Once a summary eviction notice is filed, the landlord may not refuse to accept rent based on the fact the tenant has not paid attorney's fees or collection costs (other than a reasonable late fee, bounced check fee or security deposit).
- It is a valid defense to a summary eviction action that the landlord is in violation of federal or state fair housing laws.