Q: If I suspect drug use, specifically marijuana, by one of my apartment residents, can I or my caretaker enter the apartment without notifying the resident to determine if we smell anything or to see if there is any drug paraphernalia out in the open? We would not be going through the person’s drawers or looking into cupboards. Other residents are complaining of the smell, but the alleged pot-smoking tenant has denied using it in the past. He is on a month-to-month lease right now. He also happens to be a very nice guy, but he does sometimes play his music too loud. Other than his occasional loud music and the suspected pot smoking, there are no other problems with him. What are your thoughts?
A: Minnesota law states that a landlord may enter the premises rented by a residential tenant for a reasonable business purpose and after making a good-faith effort to give the tenant reasonable notice of the intent to enter. The law indicates that a business purpose includes a reasonable belief that your tenant is violating the lease within the unit. Since smoking marijuana is illegal in Minnesota, and any illegal activity is a violation of the lease, you or your caretaker have a business purpose to enter.
If a landlord enters without advance notice and the tenant is not in the premises, then the landlord must disclose the entry by placing a written notice in a conspicuous place. Most landlords provide the disclosure when the tenant is absent, whether or not advance notice has been given.
When suspecting drug use, notice may not be feasible, as the tenant would likely just clean everything up and mask the smell of the marijuana if he knew you were coming. The best practice is to provide a blanket notice to the building saying that drug use has been reported and that you intend to make inspections as business necessity requires. Then, you can make an inspection when you feel it’s the best time, and provide the disclosure if the tenant is not in the unit.
The law protects the tenant from unreasonable landlord entries, but you have the right to enter the property as necessary for business purposes. Certainly this situation would qualify, and specific individual advance notice would frustrate the business purpose. So, if you follow the best-practice procedure, you will be in compliance with the statute.
Q: I am a landlord in the Twin Cities area, and I’d like to know the current law regarding late fees. I believe there used to be a five-day grace period for tenants when it came to paying late fees on their rent. Also, I think the amount had to be a reasonable dollar amount that correlated with the landlord’s costs. Lately, my reading has led me to believe the five-day grace period has been eliminated. However, it looks like the late fee still must be a reasonable dollar amount, no more than 8 percent of the rental amount.
A: In the past, there wasn’t any statute that specifically covered late fees; late fees were considered “liquidated damages,” as part of contracts. Liquidated damages have to be a reasonable forecast of the actual damages a party will suffer if the other party doesn’t comply with the contract, and have to appear reasonable after the breach as well. Finally, liquidated damages may not be used as a penalty in order to enforce the performance by a party to a contract. For example, if the rent was $500 and there was a late fee of $100 per day, that late fee may not reflect the actual damages suffered by the landlord if a tenant pays one day late, and may be considered a penalty used to force the tenant to pay on time.
In 2010, the Legislature passed a law requiring that a late fee must be agreed upon in writing by the landlord and the tenant. The late fee may not be more 8 percent of the overdue rent payment, and may not start running until the date that the rent is actually due under the contract. If there is a grace period in the lease, then that grace period would apply, unless of course the clause in the lease which outlines the grace period says otherwise. Typically, the late fee is indicated in the lease, which both parties have agreed upon and signed. It’s important to remember the late fee can never exceed 8 percent of the amount in arrears.
Kelly Klein is a Minneapolis attorney. Participation in this column does not create an attorney/client relationship with Klein. Do not rely on advice in this column for legal opinions. Consult an attorney regarding your particular issues. E-mail renting questions to firstname.lastname@example.org, or write to Kelly Klein c/o Star Tribune, 425 Portland Av. S., Minneapolis, MN 55488. Information provided by readers is not confidential.