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What recourse does a landlord have when a tenant is using both the
apartment and garage for a commercial enterprise?
The first line of inquiry is to determine what the lease agreement states
with regard to commercial use. Is there an express prohibition against
operating a business in the rental agreement for both the apartment and the
garage? If the lease does not specify permissible uses or restricts conduct,
the tenant may use the apartment for any lawful purpose that is not materially
different from ordinary use or for that purpose for which the unit was
constructed.
The most recent version of the PPMA lease contains language that defines
permissive use. For the apartment, the lease states that use is limited to
“living, sleeping, cooking and dining purposes, and for no other purpose….”
For the garage, the tenant must agree that the parking space shall be used
“exclusively for the parking of motor vehicles….Absolutely NO automotive
cleaning, washing, maintenance or repair work of any kind and NO storage of
any kind shall be permitted in or about the parking space(s).”
If your rental agreement contains these or similar prohibitions, then you
must analyze whether or not you, or your manager, or even the prior owner
allowed this tenant to use the apartment and garage for commercial purposes.
If past permission was given, and/or management looked the other way, then the
tenant’s conduct may be permitted even if the lease prohibits it. This is
called “waiver” and “estoppel,” and tenants always employ these legal defenses
as a basis to thwart a landlord’s eviction attempt.
If the lease prohibits commercial use and there is no waiver or estoppel,
then the owner should immediately serve a “Three-Day Notice to Perform
Covenant or Quit.” This notice demands that the tenant cease commercial
operations within three days or surrender possession of the rental unit.
Failure to do either will allow the owner to file an eviction action with the
court. During this proceeding, the owner will have to prove that the tenant
breached the lease provision(s) prohibiting commercial use, and further failed
to correct the violation within the three-day period after receiving service
of the eviction notice.
If the lease is not clear about commercial use, or management may have
ignored past violations, the owner may consider whether or not the commercial
activity in either or both the apartment and garage violates local health &
safety or zoning laws. For example, a tenant who is running a retail
establishment out of the garage may be breaching a planning code or a
neighborhood restriction. If so, the owner may be able to serve a notice for
illegal use that could also result in an eviction action. Indeed, some
landlords have reported themselves to the City for their tenants’ unlawful
conduct in order to receive a citation, which in turn gives rise to just cause
for termination of the tenancy.
Finally, please note that home office use is usually considered reasonable
and therefore permissible. Most practitioners advise landlords that
prohibiting a home office would not be enforceable. However, when a tenant
begins seeing clientele or members of the public, the enterprise may become
commercial and subject to prohibition. In addition, residential tenants have
the absolute right to operate a small daycare business (six or fewer children)
despite a lease provision to the contrary.
In sum, the most important document is the lease, which should confine
permissive use to residential purposes, thus ruling out the possibility that
your tenant might assert a legal right to conduct business out of the unit.
Act promptly when you discover a violation so as to avoid the waiver/estoppel
defenses. Finally, as with any legal action, please consult with a qualified
attorney before making a move.
DW
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