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Renters’ Rights and Responsibilities
May I terminate my lease because of the disaster?
Maybe. “If the dwelling unit or premises are damaged or destroyed by fire or other casualty to an extent that enjoyment of the dwelling unit is substantially impaired, unless the impairment is caused by the deliberate or negligent act or omission of the tenant, a member of his family, his animal or pet or other person or animal on the premises with his permission, the tenant may: (1) immediately vacate the premises and notify the landlord in writing within one (1) week thereafter of his intention to terminate the rental agreement, in which case the rental agreement terminates as of the date of vacating; or (2) if continued occupancy is possible, vacate any part of dwelling unit rendered unusable by the fire or casualty, in which case the tenant’s liability for rent is reduced in proportion to the diminution in the fair rental value of the dwelling unit.” 41 O.S. § 122. If possible contact an attorney.
If the premises are completely unusable because of the disaster, do I have to permanently move out even though I want to stay?
If the premises are unusable you will want to search for alternate housing. In many cases following a major disaster, public officials will declare the area unsafe. Public officials may likewise be called to investigate at the premises after a disaster and may deem it unsafe for habitability. If that occurs, you will have to move until the unsafe conditions are remedied. Generally, depending on the severity of the disaster will dictate whether you may stay in the premises. It is advised to begin looking for alternative housing as soon as possible.
Work with your landlord as much as possible during this process. Read your lease to see if there are any provisions in the event of a disaster.
Your landlord can use the eviction procedures to evict you. If you have a verbal rental agreement, meaning there is no agreement in writing, then your landlord can terminate your lease even if you are still paying rent and not causing trouble. Your landlord is required to give you thirty (30) days’ notice in writing that he or she is terminating your lease. If you have a written lease, then the landlord is required to follow the procedures in your lease to terminate. In addition, the public officials may deem the property unsafe and demolish the property.
If the dwelling is partially unusable because of the disaster and I do not want to permanently move out, can my rent be partially abated?
Yes. If the dwelling is partially unusable because of a disaster, and you vacate the unusable part of your dwelling, and it is also lawful for you to stay in the dwelling, then your rent should be reduced to its current fair rental value. Reducing the amount you pay your landlord can have other legal consequences, including your landlord claiming that you are not paying the amount of rent you owe and trying to legally evict you. Do not pay your landlord less in rent unless you have an agreement in writing with your landlord setting forth the new rent amount, or without first speaking with an attorney.
May I withhold payment of rent because of the disaster or because the landlord has failed to repair the dwelling in a timely manner after the disaster?
According to 41 O.S. § 118, your landlord must:
A. Keep your home up to the local housing code standards materially affecting health and safety. If your city has no local housing code standards, your landlord must do all the following:
- Make all repairs and do whatever is necessary, after receiving written or actual notice, to put and keep your home in a fit and habitable condition.
- Keep all common areas of the home in a clean and safe condition, including ensuring that stairways, approaches, and entry ways are safe to use and can support people.
- Maintain in good and safe working order and condition all electrical, plumbing, sanitation, heating, ventilation, air conditioning, and other facilities and appliances, including elevators, supplied, or required to be supplied by him or her.
- Provide and maintain appropriate receptacles and conveniences for the removal of ashes, garbage, rubbish, and other waste incidental to the occupancy of the dwelling unit and arrange for their removal from the appropriate receptacle.
- Supply running water and reasonable amounts of hot water and reasonable heat except where the building includes the dwelling unit is not required by law to be equipped for that purpose, or the dwelling unit is so constructed that heat or hot water is generated by an installation within the exclusive control of the tenant and supplied by a direct public utility connection.
If you are without hot or cold running water, electricity, gas, or other essential service (and those services are available after the disaster) you must give your landlord written notice of the problem. If the landlord either deliberately or negligently fails to provide water/hot water, electricity, heat, or other essential service(s), you may be able to pay for repairing the service and deduct this expense from future rent. Or you can find another place to stay until the landlord fixes it. If you do this, you do not have to pay rent for the days you are not living at home. However, you must give notice to your landlord of your intent to find substitute housing while your problems remain unfixed. If your landlord tries to evict you for not paying your rent, you may have a defense to the eviction because your landlord did not fix the problem. However, withholding rent is assuredly the fastest way to find yourself on the eviction docket. Any withholding of rent to remedy a problem on the premises should be in writing before doing so. You should call a lawyer for advice about this. Do not reduce your rent payments without first speaking with an attorney.
Do I have to keep paying rent to my landlord while I am not living at my house/apartment?
“If the dwelling unit or premises are damaged or destroyed by fire or other casualty to an extent that enjoyment of the dwelling unit is substantially impaired, unless the impairment is caused by the deliberate or negligent act or omission of the tenant, a member of his family, his animal or pet or other person or animal on the premises with his permission, the tenant may: (1) immediately vacate the premises and notify the landlord in writing within one (1) week thereafter of his intention to terminate the rental agreement, in which case the rental agreement terminates as of the date of vacating; or (2) if continued occupancy is possible, vacate any part of dwelling unit rendered unusable by the fire or casualty, in which case the tenant’s liability for rent is reduced in proportion to the diminution in the fair rental value of the dwelling unit” 41 O.S. § 122. You must follow all provisions of the statute including notice to the landlord. If you do this, you will not owe any rent from the day you move out.
Make sure to save a copy of any notice you send to your landlord. Read the terms of your lease to see if it discusses rent abatement. If the lease says nothing about it, then talk to your landlord about rent abatement. Make sure to get any agreement reached in writing.
If you are without hot or cold running water, electricity, gas, or other essential service, you can find another place to stay until the landlord fixes it. If you do this, you do not have to pay rent for the days you are not living in the home. Reducing the amount you pay your landlord can have other legal consequences, including your landlord claiming that you are not paying the amount of rent you owe and trying to legally evict you. Do not pay your landlord less in rent unless you have an agreement in writing with your landlord setting forth the new rent amount, or without first speaking with an attorney.
What can happen and what should I do if I cannot pay the rent on my dwelling because of job or salary interruptions following the disaster?
You should look at your lease to see if it addresses this. Most importantly, talk to your landlord or property manager about your circumstances to see if you can get a different payment arrangement. Communication is key. If you get approval for a new payment arrangement, get that in writing.
Your landlord can evict you for not paying rent. If you receive a 5-day notice of nonpayment of rent from your landlord, also known as a “5-day Notice to Quit”, you have 5 days to pay the amount due. It will usually say that unless you pay the rent in full within 5 days, your lease will terminate. Your landlord may send you a 5-day notice in the mail, hand it to you in person, or leave it on your door. You need to pay the entire amount of back due rent within these five days or the landlord is entitled to begin proceedings to evict you. The landlord cannot put you out himself, even if you did not pay the amount due within 5 days. He needs to get a court order to evict you.
If you pay within the 5 days, then the landlord must accept it and you can stay in your dwelling. However, if you offer to pay only part of the amount due, the landlord does not have to accept it. If you cannot pay your rent in full within the 5 days, or if you try to pay the back rent after the 5 days, the landlord does not have to accept it. The landlord instead can sue you in court to have you evicted. If the landlord files an action in court to have you evicted, a hearing will be scheduled. You have the right to attend the hearing and tell your side to the court. If the court determines that your landlord gave you a proper 5-day notice and that you did not pay the amount due within the 5 days, the court can issue an order to evict you. The court can also order you to pay the back rent due, plus other damages and court costs. If the court orders your eviction, the landlord can now have the sheriff force you to move out. You will not get your deposit money back because of the past due rent as well. See “If you have been sued (received papers from the court)” below for more information on what to do if you have been sued.
How can I pay rent?
Your lease should specify where to pay rent but ask your landlord if it does not.
How do I contact my landlord?
During disasters, phone networks may not be working. If you know where your landlord lives, you should try contacting your landlord there, but you may need to rely on your landlord’s other tenants, friends, or family for help locating your landlord. Your lease should also provide information where you can contact your landlord via mail.
Can my landlord rent my home/apartment to someone else while I am gone?
If you are gone without notifying your landlord for one full rental period or 30 days, whichever is less, you have technically abandoned your dwelling. If a tenant abandons the dwelling, the landlord can take possession and can try to rent out the dwelling to someone else. If the landlord rents the dwelling before your lease expires, your lease will expire the date the new tenant moves in.
If you have not paid rent and your landlord has given you notice, your landlord can start an eviction proceeding against you. If you are evicted, the landlord can then rent out the dwelling to another tenant.
My landlord told me to move out the next day because he wants the dwelling for his daughter who lost her home in the disaster. He told me if I did not move out, he would change the locks. Do I have to move out?
No. If the eviction process is not completed and there is not a court judgment against you allowing the landlord to take possession of the property, your landlord cannot lock you out of your unit. The landlord must have a sheriff, a constable, or a person from the court come to evict you, but only after obtaining a Court Order to do so. If the landlord comes and tries to lock you out, call the police.
If you have been locked out without an eviction order, you should first contact an attorney. You can give your landlord a written notice about the lockout and demand that your landlord let you back in the home. Be sure to keep a copy of the notice. After you send or give notice to your landlord, you can sue your landlord to get back into your home, or you can simply state in the notice that the rental agreement is ended. Whichever you do, you can also sue for money damages equal to what 2 months’ rent plus your attorney’s fees, security deposit, and prepaid rent. Again, you should talk to an attorney about this.
If your landlord has taken or locked up your personal property and you are still living in the home, then call the police and report that your property has been taken.
What should I do if I am served with an eviction lawsuit?
Your landlord can start the eviction process to remove you from the property and sue you for damages that you may have caused. If you have been sued, you will be served with the Petition and Affidavit for Forceible Entry and Detainer. The papers you receive will have the name of the court at the top and state your name as the defendant. If you receive these eviction documents, you need to contact an attorney.
What will service of the Petition and Affidavit look like?
A sheriff or process server may serve you in person or, if you are not home, the papers can be left with anyone who is fifteen years or older at your usual residence. You can also receive the Petition and Affidavit by certified mail or restricted delivery (which must be postmarked for at least three days before the hearing date). The Summons should provide you information as to the Court, the hearing date and time, the alleged amount of rent due, if any, and or any other monetary claims for damages.
You must show up to Court.
The most important thing is to show up to Court at the time and date your hearing is set. Bring any relevant paperwork with you, along with any witnesses you may want to testify.
In eviction matters, no formal answer is required to be filed. However, if the Defendant tenant wishes to file a counterclaim against the landlord, the tenant must file a verified answer with the Court Clerk no later than seventy-two hours before the hearing date and time. The Court Clerk’s office may have sample forms for this.
If you do not appear at the hearing, the landlord may get the eviction approved and any money s/he is asking for. This is called a default judgment. If default is granted against you, you will receive a copy of the judgment in the mail. Logistically you may not receive the copy of the judgment until after you have been ordered to get out.
If you were unable to attend the hearing, call the Court Clerk immediately to find out the action taken during the hearing. You can likely look up the case on OSCN or ODCR, depending on the County, to view the Court’s Order.
If you are evicted, you need to move.
If the court orders that you are evicted, you need to move out right away. If you don’t, a sheriff or officer has the authority to forcibly remove you and your property. This can even happen the day of the court order; therefore, it is important to move out immediately.
Move your property out right away.
If you have been evicted by the court and need to move, get your property out of the unit right away. Even if you do not have another place to live, put your things in storage or move them to a friend’s house. If you leave property there, it is often difficult to get your property back, even though your landlord should not immediately throw it out on the curb or throw it away. The landlord must give you a written notice that any property of value not picked up within the time specified in the notice will be deemed abandoned and become the property of the landlord. Any property left with the landlord for a period of thirty (30) days or more shall be determined to be abandoned. You could be charged fees if the landlord must store the property. These fees often add up to hundreds of dollars, so it is important to move everything out when you leave. See 41 O.S. § 130.
If you do not pick up your property and pay the fees before the deadline, your landlord can sell it at a public sale or possibly dispose of the property as he sees fit. Further, the landlord may place a lien on non-exempt property belonging to the tenant which has a reasonable relationship as practicable to the amount of the debt owed for the property charges owed by the tenant, and for the cost of enforcing the lien, with the right of possession of the property until the debt obligation is paid to the landlord. See 41 O.S. § 133.
Reasons why the landlord might not be able to evict you even if you didn’t pay your rent.
- Your landlord stopped your electricity, gas, water, or other necessary service.
- Your unit was in such poor repair that the judge believes it should not be lived in.
- If your landlord is trying to evict you because he claims you have not paid your rent, but you have receipts for your rent payments. Take those receipts to show the judge at the hearing. Your landlord may not be able to continue with the eviction if he accepted even part of the rent that is due before you go to court.
- Your landlord failed to give you the proper written five-day notice for nonpayment of rent, and/or 15–30-day notice for violating terms of the lease, and/or a proper 30-day notice to terminate a month-to-month rental agreement.
There will be a second hearing to decide if you must pay the landlord money damages.
Usually, after the eviction is granted, the Court will offer to set a second hearing date to determine any damages that the tenant may owe the landlord. If you fail to show up, the Court may determine damages at the first hearing. You must attend this hearing because if you do not, the court may enter a default order requiring you to pay the money damages your landlord is asking for.
May I recover damages against my landlord for injuries or property damage I suffered because of the disaster?
No. This is why it is important to have renters’ insurance. If you do have renters’ insurance, you should file a claim with them regarding your property damage. Be sure to know what your insurance policy does and does not cover. Often, damages caused by floods are not covered and you may need to buy an additional policy to cover flood damage.
FEMA has an Individual and Household Plan that may assist renters that have property damage. To learn more about this plan, visit www.fema.gov/recovery-directorate/assistanceindividuals-and-households-fact-sheet.
Can I recover damages against my landlord if they didn’t know about the possibility of flooding?
No, you are responsible for getting insurance to cover any loss or damage to your personal belongings.
Homeownership Issues
Do I have to pay my mortgage if my home is damaged in a disaster?
If you have a mortgage and your home is damaged, you still must pay your mortgage. If your home is damaged and you cannot live there, you still have a mortgage. It is important that you contact your mortgage lender right away to discuss the damage with them. They may give you a grace period in which your payments will be suspended for a period.
Most mortgage companies require you to carry homeowners’ insurance. In the event you have homeowner’s insurance you should contact the insurance carrier immediately.
Mortgage help from FEMA may be available if you are facing foreclosure proceedings.
FEMA offers a Disaster Housing Program that helps homeowners who have been forced out of their homes by disasters. Disaster Home Repair Assistance is a part of this program. It provides grants for minor disaster-related repairs. Contact the FEMA Disaster Helpline at 1-800-621-FEMA.
“If you have a mortgage insured by the FHA (Federal Housing Agency), HUD (Housing and Urban Development), or VA (Veterans Affairs) you may have additional protections, like a forbearance on the mortgage payments or a period of suspended payments. The FHA has extended its foreclosure moratorium and offers extended payment plans on FHA mortgages. Call 1-888-297-8685 for further information.”
The U.S. Small Business Administration offers low interest loans of up to $200,000 to individual’s whose homes were destroyed or damaged by disasters. If you are given a loan, be careful in using your home as security because if you cannot repay the loan, you could lose your home. This should be your last resort. You should have a lawyer look over the loan documents as well.
What should a repair contract contain?
A good repair contract should contain a thorough discussion of the scope of the work, what labor and materials will be needed, and an itemization of the cost to complete the work. The contract should identify if any subcontractors will be hired and if so, that lien releases will be obtained from all subcontractors prior to final payment. The contract should contain the beginning and ending dates of the project and what happens if the project is not completed timely. The contract should contain a payment schedule. The contract should require that the contractor and all subcontractors be licensed, have liability insurance, and will pull the appropriate permits. The contract should contain information on how to make modifications or how either party can terminate without penalty.
What rights does a homeowner have if the contractor does not complete the job?
This is governed by basic contract law. First, the court will look to the contract. If the court finds that the contracted performance was not completed, the court will consider available remedies. One remedy is specific performance where the contractor would be required to complete the job. This is a disfavored remedy. The most likely remedy would be ordering the contractor to pay damages to the homeowner. The court will look to put the homeowner in the same position that they would be in if the work was completed. The contractor will be given value for the work completed (if any) and will be required to return any unearned payments. If the delay in completion caused harm to the homeowner, the contractor may be required to reimburse the homeowner for these damages. Notably, however, the homeowner has a duty to mitigate their damages and prevent additional damage.
What rights does a homeowner have if the repair work is not completed properly?
This is governed by contract law. In this situation, the homeowner should be put in the position that they would be in if the contract had been properly performed. They would generally be entitled to the difference between what they received and what they should have received. The damages are generally the cost of correcting the defects or completing the omissions.
What if the general contractor does not pay the subcontractors?
The subcontractors could file a mechanic’s lien against the property. It is important that the contract identify any subcontractors that will be hired and provide that lien releases will be obtained from all subcontractors prior to final payment.
Why would disaster survivors need a lawyer?
There are myriad consumer issues a survivor could encounter following a disaster that could require the services of an attorney. Those listed here are the consumer issues LASO sees most frequently following a disaster event, but is not a complete list of the issues that could arise.
Survivors often need to hire contractors to assist them with repairs to their homes following a disaster event. Disasters can be traumatizing to survivors, and they are often preyed upon by unscrupulous contractors, or persons pretending to be contractors, who come to their home after the event. For example, after the 2013 EF-5 tornado in Moore, OK, there were individuals who went to Moore and told families that if the family gave them their entire insurance check up front instead of following a more standard draw down plan, the contractor would put that family at the top of the list for repairs and have them back in their home faster. Some families who were devastated and just wanted to get back to normal did so, and the contractor either never started or never finished their repairs, leaving them with no insurance money and no home.
In cases such as these, a survivor may need an attorney to assist them in an action against the contractor. These cases should be reported and referred to the Oklahoma Attorney General’s office for investigation.
This area is one in which an ounce of prevention is the best medicine. Over the years, survivors have brought their contractor related issues to LASO, and LASO attorneys have reviewed many contracts to make sure the contract protected the survivor before it was signed. Please be sure to reach out the your local LASO.
After the 2019 floods, LASO attorneys saw issues develop between survivors and providers of moving and storage services and RV sales. Again, attorneys may be needed to assist in reviewing contracts and assisting clients in enforcing performance or negotiating refund, if needed.
Rent-to-own Contracts and Contracts for Deed
Rent-to-own contracts, also known as contracts for deed are disfavored and can lead to unfortunate circumstances for both the buyer and the seller. You should contact an attorney before entering any contract for the purchase of property, including rent-to-own contracts or contracts for deed.
Despite the seemingly great benefits a rent-to-own contract may provide, they often present unforeseen and unintended circumstances. While rent-to-own contracts have become very common in Oklahoma, they are not suggested without the assistance of an attorney.
In the event you have entered into a rent-to-own or a contract for deed, the agreement needs to be recorded in the county where the property is located once executed.
When disasters strike, often the seller and buyer disagree on who should pay for the damages. The first place to look is the contract itself to see who should cover the damages. You should contact an attorney as quickly as possible following a disaster to help assist you with these issues.
