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Jack R.
Jack R., Lawyer
Category: Consumer Protection Law
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Experience:  Court Mediator, foreclosure attorney
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I am a landlord and in the process of evicting a tenant because

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I am a landlord and in the process of evicting a tenant because they are late with rent but more importantly, they have been stealing gas from the gas company for over a year now and the gas company will not turn the gas on for them. Gas is the only source of heat. My pipes were going to freeze so I gave them an eviction notice on Oct 7th when they were two months late with rent and I found out about the gas situation and that their water was about to be shut off also. I gave them a warning on Sept 27, 2013 and asked for the Sept rent and told them Oct rent was due the 1st and I wanted both months rent. They told me they would have both to me by Oct 5th but did not so I gave them the eviction notice on the 7th. They gave me one months rent on the 8th but not both but that did not solve the gas problem. Itold them to be out by Oct 27th. When the temps started to fall this week I went to go drain the lines in their unit and found a leak so I called the water company and told them to turn it off completely. They said they would. My tenants have been asking for extra breakers all summer and I did not know why. Now that I know about the gas problem I can see they were intending to use space heaters to heat with. My home owners insurance policy does not allow them at all and if the home burns due to a space heater I am SOL for getting any money from a claim. I told my tenants no space heaters in the lease and then again in the eviction notice and why. I do not trust them at all and I feared they would use them anyway so I hit the main breaker and turned the electric off as well as the water and the gas company has the gas off so they have no utilities on right now to my knowledge. They do have one outlet in their unit that is loose and needs looked at that may be a fire hazard if it is used and I told them not to use it but I feared they would use it just because I do not want them to. The hot water tank is also electric and without any water it will burn up and be destroyed and I do not know how to turn it off so I hit the main breaker to save the tank as well. I had given them a written notice the day before and let them know I was going to shut the water and electric off if it got cold so it was not a surprise to them but I do not think they thought I would do it. They called me and left a threatening message on my answering machine that afternoon and told me what I did was illegal and they were going to call the magistrate and have me arrested. Can they do that? The houses are only 10 feet apart and if a fire happens there is going to be a massive explosion as the house is a duplex and there is two gas furnaces, two gas stoves, a gas hot water tank in one side and the houses on both sides of this one have gas in them....it could start a chain reaction down the whole street. Will a judge be angry for me or praise me for stopping a horrible fire hazard? I did not go into their AEP account, I only hit the breaker and I am leagally allowed to turn off the water for a leak. Where do I stand in the eyes of the law right now? My tenants have broken many other issues of the lease, animals, marijuana, and more so I do not think I should have an issue getting them out but in the mean time, can they have me arrested or have a court order to have them turned back on? and if I refuse can I be found in contempt and go to jail?
Submitted: 1 year ago.
Category: Consumer Protection Law
Expert:  Jack R. replied 1 year ago.
Thank you for choosing Just Answer. My name is XXXXX XXXXX I will assist you today.

I am sorry to hear of your situation.

Until such time as you obtain a court order you as the Landlord have no right to shut off utilities, or flip the main breakers. You now have a substantial problem. You cannot be arrested, however you now have significant financial liability with respect to the tenants. They can demand their costs to move out. They can also demand the rent differential for renting a similar apartment elsewhere for the duration of the lease period, and they can recover the cost of looking for a new apartment. The Court could award other damages as well.

In the eyes of the Court you have committed a constructive eviction, and only a court can order an eviction (return possession to you) and only a legal authority such as a constable or sheriff is allowed to evict or remove the tenant from the premises. The landlord is not allowed to do so. Your motive is immaterial and will not be looked upon favorably by the court. By describing your motive you are effectively confessing to the wrongful eviction.

You need to turn on everything you turned off immediately to try and mitigate the situation. If you can restore the unit to its "habitable;e" status you may get off with minimal financial impact. Once the tenants move you may have substantial issues if the press the matter in a court room.

I hate to be the bearer of bad news, but you might be able to salvage the situation by undoing what you have done.

Please accept my answer with a rating of 3 or better so I may get credit for my response. If you have follow up questions please ask. Please note that paying the deposit does not cause funds to be disbursed until you rate my response (3 or greater).

Customer: replied 1 year ago.

Can I go and file an eviction notice with the court tomorrow and have it not be a wrongful eviction? (reverse it) I called the magistrate court and asked them if I could give the tenant an eviction notice without going to court and evict them without going to court and they told me yes. They told me I did not have to go to court to evict a person if they were willing to leave on their own. Was this person wrong and mislead me? I have a clause in my lease that landlord has the right to come into a unit without notice in an emergent situation (IE: water leak, gas leak, smell smoke, etc) and address the problem. There was a water leak so I did have the right to shut off the water so it could be fixed. As far as the electric.....such a sad situation.....are you saying that many peoples homes and lives can be destroyed due to a bunch of marajuna smoking junkies who have played the gas companies and stole from them? they are the criminals.....why do they not go to jail>?...so what is the next step and what are the consequences? There is an issue of electric that is not moderately not safe. I had an electrician scheduled to come. it was ok if you did not use the outlet and I had a plate over the outlet so it could not use it and they removed the plate. Do I have any fight in that arena to shut if off? I feel I had the right to shut the water off due to the leak? am I right? it had to be shut off to fix it. The water company had no problem shutting it off and did not tell me it was illegal. Are they wrong? Should they have told me or was it illegal to shut it off to fix it?

Expert:  Jack R. replied 1 year ago.

With respect to eviction, a tenant can voluntarily leave; you cannot force them out. In other words the the typical eviction notice states if you leave on your own no legal action will be taken. You can ask the tenants to leave, I believe this was the message they were trying to convey. Here is a link to a brochure on the eviction process in WV

 

http://www.wvlegalservices.org/tenant.pdf

 

You have the right to shut off the water to fix it, but not just shut off the water because there is a leak which will not be repaired in a timely manner. No one wants wasted water. A repair for a water leak should be done within a day or 2 that is justifiable. Intentionally delaying the repair is called a constructive eviction, the failure to repair. If you called to have repairs made immediately upon discovering the leak then you do not have a problem with the water being off even if the repairs take a long time e.g. running an entire water line.

 

If the water company shuts off the water because you failed to have a repair made then you have a problem. It is your responsibility to make sure that water is available to the tenants. Without water a unit is referred to as uninhabitable. Short periods without water are OK lengthy period due to the landlord not taking action is unacceptable.

 

With respect to the electrical heat you can specify that space heaters are not allowed, and you can file for eviction if the tenants violate that rule. The issue is not that the tenants should be evicted it is how you went about it. You needed to obtain a court order to force them out. You cannot illegally force them out of the property and then claim as justification they violated the lease.

 

With respect to the electrical outlet that is the landlord's responsibility to fix in a timely manner. Again a reasonable repair time is expected in a couple days, not weeks. If one outlet is bad or is questionable that yo cannot shut off the main breaker. You should t shut off the breaker for that outlet.

 

At this point you are on the hook to immediately fix the water and electrical and restore utility service. If not you tenants can make file a costly law suit against you. Initiate the appropriate eviction process. You need to be concerned that you stick to violations of lease terms, and failure to pay rent. Other actions could subject you to "retaliation claims" for complaining abut a wrongful eviction.

Customer: replied 1 year ago.


One last question.....I set up contractors and tell the tenant they are coming next week or in a couple of days and they stop the contractors from coming and then use that as a reason to not pay rent. They are players.....can I fight with this to protect myself? Also, they are doing damages to the property to keep from paying rent and are refusing to move their furniture so I can do some of the repairs (costly furniture that I would not even think of moving). I asked them to move it and they will not so I can not fix a loose wall paper. Can I fight with that?

Expert:  Jack R. replied 1 year ago.

Normally you have to give tenants adequate notice for when the contractors arrive. adequate notice is 24 hours or more. As long as you have given them that much notice you are entitled to enter. HOWEVER, you may not use violence or force to cause entry into the apartment. They cannot use that as a reason to not pay rent, and if they do not pay rent you should begin the eviction process immediately.

 

With respect to moving the furniture, if they will not move it and you are afraid to move it then the loose wallpaper stays. They cannot use that as a reason for not paying rent.

 

You need to take notes of all these items, and take photos including pictures of the contractors turned away. In "one party states" you can make an audio recording of what the tenants are saying to prevent access.

 

Customer: replied 1 year ago.


If I restore everything and my pipes do freeze and burst before she can be evicted can I sue her for her part in not having the gas turned on, especially since she has known since last April when the gas was turned off due to non payment and how do I go about it? or does she have the right to sue me for wrongful eviction if the pipes do freeze and burst? and if the house does burn down due to space heaters and I loose the $100,000 equity I have in the house can I sue her for that?....you can't get blood from a turnip....

Expert:  Jack R. replied 1 year ago.

 

if your tenants negligence is responsible for damage to your property you can sue for damages. You should write a letter to the tenant explaining that if the heat is not on pipes could burst and they will be liable for the damages.

 

You might also consider other preventative measure such as insulating the pipes just in case. While you can sue a tenant if they have no money your out of luck.

 

Customer: replied 1 year ago.


I still feel somehow foggy about all this......you said a tenant can countersue me? for what and what would be the max amount they could ask for? it seems almost crazy that a tenant who is manipulating a landlord and causing all the trouble on purpose could have any reason to sue me? what do you mean she could sue me?

Expert:  Jack R. replied 1 year ago.
If you wrongfully evict in other words force a tenant out without a court order the tenant can recover:

1) Moving costs
2) rent differential.
3) expenses to find new housing

By the way, while you can't shut off utilities etc. WV law provides you do not have to fix anything if the tenant owes you money.


Please accept my answer with a rating of 3 or better so I may get credit for my response. If you have follow up questions please ask. Please note that paying the deposit does not cause funds to be disbursed until you rate my response (3 or greater).

Customer: replied 1 year ago.


Thank you so much !!! You have cleared up everything !!! They are in arrearages of $550.00 and if I file for an eviction before the 27th they can not sue me? am I right? Are you saying also that since they are not paying rent that I can fight that I have not fixed something because they did not pay rent?....even though I have fixed the pertinent things and the only things undone are the wallpaper and the electrical outlet due to them not moving their stuff....the water was just found on Friday....two days ago.....am I getting it right? is there anything I am misunderstanding? now there seems to be some justice in all of this....

Expert:  Jack R. replied 1 year ago.

If you get the utilities restored, file for eviction, wait for the court order granting your eviction, and the bailiff or sheriff throws them out they cannot sue you. Since they owe you rent you are not obligated to make repairs and they cannot sue you for not making the repairs.

 

The last page of the link I gave above has a summary of the process.

 

 

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Jack R.
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Court Mediator, foreclosure attorney