Landlord / Tenant
From KatrinaLegalRelief
The rights between a tenant and landlord depend in part on several factors -- whether the lease is for a fixed term (one with a specific ending date) or is from month to month; whether the housing is privately owned, public, or subsidized; whether the lease is for commercial or residential use; and whether the lease specifically addresses the matter.
Responding to questions after a disaster can be complicated by the fact that the lease may not be available. In addition, the landlord and tenant may have difficulty contacting each other and the nature of the disaster may create questions that are not easily answered. Destruction of rental property creates financial problems for both landlords and tenants that may not be adequately addressed by existing law. This section begins by describing general landlord-tenant law in Mississippi, followed by specific disaster-related questions. Rental assistance available to disaster victims is described in the FEMA and benefits sections of this manual.
General Law
Landlord’s duty to repair
In Mississippi, a landlord must repair both commercial and residential property under the following circumstances:
- By agreement. A landlord must make repairs if the rental agreement states that the landlord will make repairs.
- In common areas A landlord must make repairs in common areas, such as the grounds and buildings used by all tenants.
In addition, a landord must repair residential property
To comply with codes. A landlord is required to comply with all building and housing codes. Miss. Code Ann. § 89-8-23. It should be noted, however, that there is no statewide housing code, and not all unincorporated areas and small towns are covered by a code.
To maintain the unit. Landlords are required to maintain residential units in substantially the same condition as at the beginning of the lease, reasonable wear and tear excepted. Miss. Code Ann. § 89-8-23. A landlord must repair anything that was working at the beginning of the lease.
To make the unit habitable. Landlords have a duty to provide premises free of dangerous defects and to provide a habitable home. O’Cain v. Freeman, 603 So.2d 824 (Miss. 1992); Houston v. York, 755 So. 2d 495 (Miss. 2000).
Notice regarding repairs
When a landlord has a duty to repair as set out above, the tenant must give the landlord 30 days notice, in writing, stating the specific problem. Tenants should date the notice, keep a copy, and make a note on the copy of the day and manner of delivery of the notice. Miss. Code Ann. 89-8-13. If the landlord does not repair after 30 days, the tenant may (1) cancel the lease, (2) use the repair and deduct remedy in Miss. Code Ann. § 89-8-15; or (3) bring suit against the landlord to make the repairs. However, if the problem was caused by a tenant or his guest, or if notice was not properly given, a tenant may be in breach of the lease by canceling or using repair and deduct.
Lease termination
Month to month tenancies. A month to month tenancy (one without a set ending date) can be terminated by either the landlord or tenant by giving 30 days written notice. No reason is required for the termination. If the landlord accepts rent after the lease expires, the tenant becomes a month to month tenant, and a 30 day notice is required to terminate. Or, the landlord may refuse to accept rent at the end of a fixed term lease. If the tenant does not vacate, the landlord may file an action to remove the tenant as a holdover tenant.
Fixed-term leases. A lease with a set ending date cannot be terminated early by either landlord or tenant except in case of a breach such as non-payment by the tenant or failure to repair by the landlord. Miss. Code Ann. § 89-7-23. If a tenant wants to move before the lease ends and the landlord has not agreed to release the tenant or breached the lease, the tenant may be liable for rent for the remaining period of the lease or until the property is rerented.
Questions and Answers
Residential leases
Lease termination
Must a tenant continue to lease a home that has been destroyed?
No. A tenant will not be required to pay rent for a building that has been destroyed, unless the tenant agreed to do so in the lease or was responsible for the destruction. The lease is terminated. Miss. Code Ann. § 89-7-3.
Must a tenant continue to lease a home that has been damaged or partially destroyed?
The answer depends upon the extent of the damage. If the home is currently uninhabitable, but can be repaired, Mississippi law requires that the tenant give the landlord thirty days notice to repair the home. If repairs are not made within thirty days, the tenant may cancel the lease. If the landlord repairs the damage within thirty days, the tenant may not cancel the lease. If the property is so damaged that it cannot be used as a residence, the lease is terminated and the tenant has no duty to continue paying rent.
Must a tenant continue to lease a home in a disaster area if it was not destroyed or seriously damaged?
Mississippi law does not permit a tenant to terminate a fixed-term lease other than for the landlord’s breach or destruction of the premises. A tenant who wants to move following a disaster should try to negotiate with the landlord to be released from his or her obligation under the lease, and should get the release in writing.
If the lease is month-to-month, the tenant may terminate the lease by giving a written, thirty-day notice.
May a landlord evict a tenant so that another family who was displaced by disaster can live there?
A landlord may not terminate a fixed-term lease unless the tenant has breached the lease. However, if the tenancy is month-to-month, the landlord may terminate the tenancy by giving the tenant a thirty-day written notice to vacate.
May a landlord refuse to make repairs to rental property that is substantially damaged but not destroyed?
Technically, a landlord does not have the right to refuse to make repairs when the property has not been destroyed; a tenant may seek an injunction to require repairs. However, if a landlord lacks the resources to repair and continue renting a unit after a disaster, the tenant may practically be better off looking for another place to live. However, a landlord may not refuse to repair as a pretext for evicting a tenant, then repair and rerent the property.
Payment of rent
Must a tenant pay rent during the time a home is uninhabitable because of damages by natural disaster, if the tenant intends to continue the lease?
Mississippi law does not authorize a tenant to withhold rent during a period of repair. However, one tenant remedy for uninhabitability is an action for damages equal to the amount by which the value of the housing was reduced. Thus, even though the tenant technically should have paid rent during that period, the landlord’s right to rent may be offset by the tenant’s right to damages. Because the amount of damages and offset is usually determined by a court, a tenant should attempt to reach an understanding with a landlord regarding the extent of damage and rent abatement. If no agreement is reached, a tenant who refuses to pay rent runs the risk that the amount of damages and abatement determined by a court will be less than the full amount of rent.
Must a tenant pay rent during a period of mandatory evacuation?
Missisippi law does not directly address this issue. However, if government officials have determined that an area is so unsafe that it must be evacuated, the house is most likely uninhabitable. Once the evacuation order is lifted, if the property is habitable, the tenant’s rent obligation should be revived. However, no Mississippi law was found directly addressing this issue.
May a landlord evict a tenant for nonpayment of rent following a disaster?
There is no statutory provision requiring a landlord to stay an eviction for nonpayment of rent during an emergency. However, if the property is presently uninhabitable and in need of repair, the tenant’s right to offset rent by damages should bar eviction (see discussion of rent abatement, above). A tenant who is temporarily unable to pay rent on an intact, undamaged property should attempt to negotiate with his or her landlord, particularly until the tenant has sought available benefits.
Is there assistance available to a tenant who is unable to pay rent as a result of a disaster?
- Temporary rental assistance may be available through FEMA.
Tenant abandonment
What should a landlord do if a tenant evacuated and has not returned?
Most leases provide that when a tenant abandons the property, a landlord may retake possession of the property. Under emergency circumstances, where communication may be limited, it may be difficult to determine the point at which a tenant has abandoned the property. Tenants should make every effort to contact a landlord about plans for return, and landlords should take care not to act too hastily in seeking eviction. When it is reasonable to assume that a tenant’s failure to return is no longer because of inability to return to the disaster area, the landlord may seek eviction and possession after giving the proper notices for the required period of time. The Mississippi Code includes a procedure in the general (non-residential) landlord-tenant statutes for removal of a deserting tenant. Miss. Code Ann. § 89-7-49. However, it is not clear whether this section is preempted by the Residential Landlord and Tenant Act provisions for eviction.
Eviction
What procedure must a landlord follow to evict a tenant for nonpayment of rent?
A landlord must give the tenant a three day notice, in writing, to evict for nonpayment of rent. The notice must state that the tenant must pay rent or vacate possession. Miss. Code Ann. § 89-7-27. If the tenant does not pay in three days, the landlord may file an eviction action in justice court and obtain an order of eviction.
What can a tenant do to stop an eviction for nonpayment?
If the tenant brings the rent current before the court enters judgment, the landlord may not evict the tenant. The landlord may not refuse to accept full rent payment prior to the court order. Miss. Code Ann. § 89-7-45.
Are there any defenses to eviction for nonpayment?
If a tenant has properly requested repairs which were not made, the tenant may be entitled to a reasonable offset of rent for the failure to repair. In addition, if the tenant has made repairs after a proper request pursuant to Miss. Code Ann. § 89-8-15, the tenant is entitled to an offset in amount of rent due. However, the offset will not stop the eviction unless the amount owed by the landlord as damages for failure to repair is greater than the amount of rent owed by the tenant.
In addition, a landlord may not evict a tenant in retaliation for a tenant’s request for repairs, evict a tenant for a bad faith reason, or evict based on discrimination on the basis of race, sex, disability, national origin, or because the tenant has children.
What must a landlord do to evict for breaches other than nonpayment?
A landlord may evict a tenant for other breaches of the lease or for damages to the property or disturbances. The landlord must give the tenant a thirty day written notice of eviction which must (1) state specifically the tenant’s breach; and (2) state that the lease will terminate in 30 days if the tenant has not remedied the breach in some way. Miss. Code Ann. § 89-8-13(3). The landlord must give the tenant notice of his right to cure the breach, and if the tenant does cure the breach, the landlord may not seek eviction. However, no notice is required to terminate a tenancy if the tenant commits a substantial violation that materially affects health and safety. Miss. Code Ann. § 89-8-19(4).
A tenant has a defense to eviction if the primary reason for the eviction is the landlord’s retaliation against the tenant for exercise of rights under the Act, such as requesting repairs. In addition, a landlord is required to act in good faith in terminating a tenancy or refusing to renew a lease. Miss. Code Ann. § 89-8-9.
May a landlord evict without going through court?
Landlords occasionally attempt to evict tenants without going through the court eviction process, either by locking the tenant out or by putting the tenant’s belongings on the street. Self-help eviction is permitted in Mississippi ONLY if (1) the landlord has a written lease which explicitly states that the landlord reserves this right; and (2) the eviction can be accomplished without breach of the peace. Furthermore, the landlord must still give the proper written notice as set out above. Even if the right has been reserved, a landlord may not proceed with self-help eviction if the tenant objects -- to do so is a breach of the peace. If the landlord evicts by self-help without a provision in the lease, or without giving proper notice, the landlord has wrongfully evicted the tenant and may be liable for damages. Clark v. Service Auto Co., 108 So. 704 (Miss. 1926); Hotel Markham v. Patterson, 32 So.2d 255 (Miss. 1947).
What should a landlord do with an evicted tenant’s propery?
When a landlord evicts through a court proceeding, the landlord may not seize the tenant’s property to satisfy the rent. Mississippi law provides that a landlord has a lien on tenant property for payment of rent. However, similar Mississippi statutes have been struck down as unconstitutional, and the Mississippi Supreme court in dicta stated that the landlord’s lien statute fails to meet constitutional due process requirements. Bender v. North Meridian Mobile Home Park, 636 So.2d 385 (Miss.1994). The landlords’ only option without a security interest is to place an evicted tenant’s belongings outside the home. A landlord may not lock a tenant’s belongings in the premises as part of self-help eviction. The only way to lawfully use self-help is for the landlord to put the tenant’s belongings out prior to locking the tenant out. Bender v. North Meridian Mobile Home Park, 636 So.2d 385 (Miss.1994). However, this method of eviction can be used only if the requirements discussed in the previous section are met.
A tenant who is being evicted should attempt to negotiate with the landlord for protection of the tenant’s belongings. If a tenant is unable to return immediately, the landlord might agree to store the items at the tenant’s expense.
Is a landlord liable for damages to a tenant’s personal belongings as a result of a natural disaster?
No. A landlord is only liable to a tenant for damages caused by the landlord’s negligent behavior or fraudulent concealment of a known danger that would not be obvious to the tenant.
Are damages to a tenant’s property covered by the landlord’s insurance?
Generally, no. A landlord has no insurable interest in the tenant’s personal belongings. Insurance held by the landlord generally does not cover the tenant’s property. The only coverage is usually through rental insurance.
Security deposits
What must a tenant do to get a refund of a security deposit?
To obtain a return of a security deposit after a lease is terminated, a tenant must simply request the deposit from the landlord. The landlord has 45 days after the end of the tenancy and demand by the tenant to return the deposit. Miss. Code Ann. § 89-8-23.
When can a landlord keep a security deposit?
A landlord can keep a security deposit to remedy breaches by the tenant, including nonpayment of rent or damages, or for cleaning the apartment. The landlord must provide the tenant with a written notice itemizing the reasons for keeping the deposit within 45 days of termination of the tenancy and demand by the tenant. Miss. Code Ann. § 89-8-23.
What can a tenant do if the landlord improperly retains a security deposit?
If the landlord fails to return the deposit without a good reason or without complying with the statute, the tenant may file an action in justice court for return of the deposit. If the landlord acted in bad faith, the tenant may get $200.00 in damages in addition to the returned deposit. Miss. Code Ann. § 89-8-23.
Rent increases
Can a landlord increase rent during a state of emergency?
Generally, a landlord can increase rent for a month-to-month tenancy by giving the tenant thirty days notice of the proposed increase. In a fixed term lease, the rent cannot be increased until the lease is renewed, unless there is a provision in the lease providing for rent increases. However, a landlord’s ability to increase rental payments following a disaster is limited. When a state of emergency has been declared under the Mississippi Emergency Management Law, goods and services may not be sold for a price higher than “the prices ordinarily charged for comparable goods or services in the same market area at or immediately before the declaration of a state of emergency or local emergency." No MIssissippi decision was found discussing application of this statute to rents. In addition, a landlord may not increase rent in retaliation for a tenant’s exercise of rights related to repair. Miss. Code Ann. § 89-8-17.
Commercial leases
Commercial leases are governed by the general landlord-tenant statutes found in Chapter 7 of Title 89 of the Mississippi Code. The duties between commercial landlords and tenants differ from those in residential leases.
Duty to repair
As a general rule, a landlord of commercial property has no duty to repair damages to leased commercial premises, unless the lease expressly provided for repairs. However, a commercial landlord does have a duty to repair common areas, hidden defects of which the landlord had knowledge, and damages caused by the landlord’s negligence.
Termination
A commercial lease for a fixed term automatically ends on the termination date. No notice is necessary to terminate, unless the lease provides otherwise. Termination for breach during the lease term will be governed by the terms of the lease.
If the lease does not end on a specific date, it must be terminated by written notice. A year-to-year tenancy must be terminated by giving two months notice. A month-to-month or week-to-week tenancy is terminated by seven days written notice.
