It is 3 a.m., and your on-call maintenance tech or maybe you receive the dreaded phone call or knock on the door. The “tenant” has misplaced his keys and is obviously intoxicated. You are quite familiar with this tenant, having seen him at the pool, you have seen him drop off rent in the office, he plays volleyball on Sundays, uses the exercise room and has even made maintenance requests. You simply grab the keys and allow him access. The problem is that he is not an actual tenant, but has been an unauthorized occupant for quite some time. He has now decided, once you grant him access, to take his roommate’s valuables, leave, never to return again.
It is quite obvious what the problem is in this case. You failed to see if this person was indeed the tenant on the lease, and the ramifications could be severe. Each year we see this scenario unfold, and landlords are faced with paying fairly large sums of money to the actual tenant who was not home when you allowed the unauthorized person access. You may argue that it was not your fault that the unauthorized person took his roommate’s personal property, as after all they have been living together for quite some time, but the problem remains. You allowed an unauthorized occupant, not on the lease, access to the rental premises.
Creating a Policy
Your first step should be to create a written policy for your company regarding lock outs. All employees who engage in allowing a locked out tenant access should be required to read this policy and sign a statement that they have read it and agree to abide by the policy. No exceptions should ever be made to the policy. Your next step will be to provide the lock out access rules or procedures to the tenant and make this part of the lease, the Community Rules and Regulations, or a separate addendum to which the tenant has clearly agreed.
Lock out access procedure
In the event a tenant is locked out, they need to follow certain procedures for you to even act upon this lock out. They should be required to provide you with 2 forms of government issued identification. This identification should then be brought to the office and compared with the copies of the identification you have in the tenant’s file. Names should match up completely, and a visual examination of the picture ID you have in the file should match up with not only the ID the tenant is showing you, but the tenant himself. Once this match is established to the satisfaction of you or the bleary eyed maintenance tech who was just awakened, the identification provided by the locked out tenant should be copied, notes made on the copy, and the copy of the ID placed in the file. If the tenant cannot provide you with the required ID, the tenant should not be given access. If the tenant cannot provide you the required identification, there is no doubt that the tenant will not be satisfied, and an altercation or argument could ensue. Keep your lock out policy handy in the event the tenant is not able to satisfy your requirement, express regret, and tell him he must hire a locksmith.
But, we know this tenant!
Most of the legal problems we deal with occur when the landlord or an employee makes an exception to the rule. Every time an exception is made, the chances of a problem increase dramatically. If an exception is made once, it may be expected that an exception is made the next time. If you make an exception for one resident but not another, you run the risk of being accused of discrimination. People often look alike, especially when related to one another. Most recently, we dealt with a situation where the brother of a tenant gained access due to looking similar to the actual tenant. Had the maintenance tech carefully looked at the identification and made the comparison, the difference would have been evident, but this was not done and the landlord paid the price.
The inherent problems with lock out access
a. The person giving access will need to have both access to the keys to the unit and the tenant’s file. Due to privacy issues, it is recommended that there is limited access to the tenant’s file.
b. Some companies fail to keep a copy of the tenant’s identification in the file. There is absolutely nothing illegal about keeping a copy of the tenant”˜s identification in the tenant’s file. This is not a fair housing violation. We strongly urge you to keep a copy of the picture identification in the tenant’s file.
c. Many landlords do not have a written policy for the employee who will be engaged in granting access. This is simple. Write one up now.
d. Many landlords have not provided the policy or rules to the tenant regarding lock outs. Create your rules, and distribute them to all tenants.
Charging the tenant for giving access
After reading this article, you may have decided to take the route of telling the tenant that he must call a locksmith, but some of you may have decided that you will assist in lock outs and should be compensated if you grant access. We agree. The extra work involved and the increased liability on the landlord justifies a reasonable charge to the tenant. Some of our clients require this to be paid before the access is granted; others charge it as additional rent which must be paid with the normal rent at the next payment period. If you are going to charge the tenant for anything, it must be clearly agreed to by all parties involved. Landlords often create charges upon a whim and expect that they can force the tenant to pay the charge. Clearly state the charge in your lease or whatever is incorporated in your lease, such as the community rules and regulations.