Q: I have a tenant who has had two roommates for a long period of time. They moved out, and my tenant got two new roommates. After some time, she left me a voice-mail informing me she, too, was moving out, and another renter would be replacing her. She delivered all three of the new renters' applications to me. These new tenants have now moved into the property without my approval. My tenant was late paying rent, and moved out before her lease was up. She still owes $395 in past-due rent and late fees. Now we have three or more unapproved people occupying the property. The neighbors have complained that there is a lot of traffic going in and out of the home, and have expressed concern that there may be drug activity. My question is, can I get the police over there, or take some other form of action? Do I have to file an eviction action to get the tenants out, or can I just call the police and have them removed as squatters?
A: When the two roommates moved in with your original tenant, that would have been the time to have a discussion with your tenant about how you wanted to proceed. Since the new roommates have moved in, and your tenant is gone, you are stuck with three new tenants and very few good choices. You have the option to simply give notice, asking that the current tenants move. If you do so, make sure you look at the lease to determine the length of the required notice period. If there is a notice period in your lease, make sure you follow it. You may also have the right to pursue an eviction, on the basis that there are unapproved tenants. Success will depend on whether there is a clause in the lease that prohibits unnamed tenants from occupying the property. If there is no such clause, then you will not likely succeed. Even if there is such a clause, you may not succeed if the court finds that you have waived this clause through past conduct, such as allowing other unnamed tenants to occupy the property. You do not say whether you accepted rent from them, but if you did, you may have waived your right to pursue eviction. Both of these issues would have to be resolved in a trial. You do not have the right to simply call the police and have the new tenants removed as squatters, as they have permission from the old tenants, and may be able to argue that you have knowledge of their residence.
If you suspect drugs, then you should call the police. If they turn up criminal activity, then you have the right to pursue an expedited eviction. The housing court in the county where you live will have the information you need to pursue such an action. Also, some cities keep track of the number of police calls to a property, and whether there is criminal activity, as a basis to determine whether the landlord's rental license should be renewed. So, make sure you maintain an open line of communication with the police. If you do not want to call the police, or if they uncover no criminal activity, then you might not be able to evict the tenants.
As for the damage deposit, you should handle it in accordance with Minnesota law, which requires that you return any remaining portion, along with a letter summarizing any amounts withheld as necessary to compensate you for damage beyond ordinary wear and tear, or unpaid rent or late charges. That letter and the remainder of the deposit must be mailed within 21 days of the termination of the tenancy and the date you receive a forwarding address from the old tenants. Since they moved out without informing you, you may have an argument that the tenancy has not terminated. However, if you want to continue to rent to the new tenants, you should contact them immediately and request that they sign a lease and pay a security deposit. If you do not want to rent to them, then you need to send the previous tenants a letter outlining how you are handling the security deposit after the current tenancy is terminated. If you are retaining the deposit to cover the unpaid rent, you have that right.
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 email@example.com, or write to Kelly Klein c/o Star Tribune, 425 Portland Av. S., Minneapolis, MN 55488. Information provided by readers is not confidential.