tenant's rights versus the city's rights?

November 13, 2007 4:21 PM

My mother recently inherited my grandmother's house, which has a small studio apartment attached to the house. The city forbids renting out parts of a house piecemeal, but an exception was granted for my grandmother.

A tenant moved in two weeks before my grandmother died. I believe the city's exception expired with my grandmother's death. I am now worried about my mother being sued by the city for illegally renting the apartment; I'm also worried about being sued by the tenant if we cancel the lease. Does anyone have any experience with this sort of thing? It's Delaware, if that matters. I am waiting for a call back from a lawyer.

posted by Ollie to law & government (10 comments total)

FWIW, I should also say that we would prefer to have no tenant, as the insurance is so very very much higher.
posted by Ollie at 4:23 PM on November 13, 2007

I would bet that the house has a zoning designation that no longer applies, which would make your house an "existing non-conforming" structure, at least in my area. You're basically going to have to go talk with your local government agency (most likely the building department) about what they consider the apartment to be (in their technical language), and whether it's still able to be rented out. My jurisdiction would call this an "accessory dwelling unit", as long as it meets certain conditions, and as far as I know, acceptable building uses don't cease with the property owner, but with the redevelopment of the property. But that's my area.

Conjectures without any basis in fact: I have a hard time imagining your city having much of a problem with it legally since the lease was apparently a totally legal thing when it was started. Your mom probably won't be "sued" by the city; they'll just tell her she's not able to lease it and charge a fine. I don't think you'd have a legal problem if you let the lease with the current tenant expire and then decline to renew, giving the tenants plenty of warning beforehand.

Some things that will help clarify the issue though:
1. Is the apartment fully self-sustaining? Like, does it have its own kitchen, bathroom (with a shower or tub) and a separate entry from the main house?
2. Is the apartment physically attached to the main house?

If the answer to both the questions is "yes", you've basically got a separate dwelling unit on the same lot and *shouldn't* have much of a problem. If the answer to 1 is yes and 2 is no, it's a little less clear-cut, but not much different from a regular apartment. If they're both "no", then you're basically renting out a room, which sounds illegal from your description.
posted by LionIndex at 4:43 PM on November 13, 2007

Long story short: The lease agreement with your tenants was legal when it was made, and the City can't make it illegal now. That would be an ex post facto law, as far as I can tell, even if special dispensation was made just for your grandmother.
posted by LionIndex at 4:46 PM on November 13, 2007

The answer to both questions is yes. The problem is somewhat complicated by the fact that we really don't want to continue the lease, as we're hoping to sell. And the lease isn't up until next October, so we may be stuck with the tenant. Thanks for your advice.
posted by Ollie at 5:52 PM on November 13, 2007

That would be an ex post facto law...

No it wouldn't. A government can say "Stop doing X" and throw you in jail/fine you if you keep doing X, even if you've been legally Xing for decades. Ex post facto is when they throw you in jail/fine you for Xing in the past, even if you stop as soon as the law is changed. Here, they could make Ollie's mom stop renting the apartment immediately, but not punish her for the unit having been rented out in the past.

Talk to the tenant and see if s/he can move out. If not, ask the city (probably the planning and zoning commission) if they will grant some variance for the duration of the lease. If the city won't budge, I guess you have to get rid of the tenant gently. Help him/her find a place, cut a break on the rent, or return the deposit early so it can be applied to the next place (assuming your unit hasn't been trashed).
posted by the christopher hundreds at 6:16 PM on November 13, 2007

Delaware tenant/landlord law seems to say that you can terminate any lease with 60 days notice (5106 c) here). Most places also seem to have provisions for exchange of properties.
posted by that girl at 6:24 PM on November 13, 2007

Actually, on rereading, it may not actually say that, but instead that you can kick them out when their lease runs out?
posted by that girl at 6:26 PM on November 13, 2007

No it wouldn't. A government can say "Stop doing X" and throw you in jail/fine you if you keep doing X, even if you've been legally Xing for decades. Ex post facto is when they throw you in jail/fine you for Xing in the past, even if you stop as soon as the law is changed. Here, they could make Ollie's mom stop renting the apartment immediately, but not punish her for the unit having been rented out in the past.

My point was that if the apartment is under, say, a one-year lease, that agreement was entered into prior to that action becoming illegal (assuming it did so at the death of the grandmother). So, it's not like they're continuing to do something, they're still acting under a legal contract. Once the lease expires, however...
posted by LionIndex at 6:39 PM on November 13, 2007

For a further example, if your house was built years ago and the city changes its zoning laws regarding setbacks or height limits such that your house is now in violation, the city can't force you to tear the violating portions of your house down. Or if you run a certain kind of business in an area, and that type of business is then made illegal (like adult bookstores within certain distances from schools, for example), as long as you don't close the business yourself, the government can't force you to close it (at least not until your business license or whatever comes up again).
posted by LionIndex at 6:46 PM on November 13, 2007

Although if you entered into a contract to eat babies, and eating babies was outlawed, would the contract not then be null and void for impossibility, as performing the task designated in the contract is now illegal? But that is all fiddle-faddle and off topic.

What the OP needs to do is check the state's tenancy laws. Those apply, and probably have very clear rules for how to end a tenancy. They are meant to protect both the tenant and the landlord. So follow them carefully.
posted by greekphilosophy at 6:01 AM on November 14, 2007