Can My Landlord Show My Apartment During ‘Shelter in Place’?
Tenant law varies from state to state, but ultimately your lease terms spell out your rights when it comes to a landlord's request to enter your home.
Stay-at-home orders in response to natural disasters or pandemic outbreaks can strain relationships between renters and landlords, particularly near the end of a lease. A showing under these conditions may feel uncomfortable for tenants, who may not want strangers entering their home. We contacted three attorneys who either practice landlord-tenant law or work in real estate for their opinions on what rights belong to each party when it becomes a dispute, and whether or not it’s the right thing to do.
Are Apartment Showings During a Stay-At-Home Order Legal?
The short answer to this question is that when landlords follow proper procedure, they likely can enforce a showing. All three attorneys we contacted agreed that landlords conducting business during these crisis periods fall under the scope of “essential” business.
“Our best source of guidance to essential businesses is CISA‘s guidelines on critical infrastructure workers,” says Brian Pendergraft, of The Pendergraft Firm, in Greenbelt, Maryland. CISA stands for the Cybersecurity and Infrastructure Security Agency, which is part of the Department of Homeland Security. A guideline refers to “workers responsible for leasing of residential properties to provide individuals and families with ready access to available housing,” he notes. “This leads me to believe that this activity is essential. After all, people need a place to live.”
Not Business as Usual
During a lockdown, landlords are motivated to do whatever is needed to close a deal. With most people sequestered in their homes and, potentially, the added pressure of an eviction moratorium, landlords may want to do everything possible for any serious lead. In most cases, the law does not prohibit this activity if they follow protocol.
“Usually some kind of notice has to be given to current tenants,” says Rajeh Saadeh, who practices landlord-tenant law in Somerville, New Jersey. The law generally protects tenants from unannounced intrusions by the landlord. The key to the situation, according to Saadeh, is both parties being “reasonable” in their positions. However, that term may mean something different to different people and in different circumstances.
Reasonableness may look different in the aftermath of a hurricane, an earthquake, a wildfire or during a pandemic. “In all leases in this state, reasonableness governs when it comes to the law, notwithstanding what is black and white in the contract,” says Saadeh. “You still have to be reasonable in extraordinary circumstances.”
During a pandemic, for example, a smoker and/or elderly tenant may be treated differently than someone in their mid-to-late 20s who is healthy. “Tenants have to be mindful, too, if they are not operating under the lease and/or reasonably, they may be setting themselves up for exposure liability-wise,” Saadeh says. A tenant in that case could end up being responsible for several months of lost rent income.
Conversely, landlords must also weigh the risks of their actions. Infecting a vulnerable tenant during a pandemic when other options for viewing the property may exist could leave them open to damages, says Saadeh, because the action was “willful.”
A Term to Watch For
Overall, read your lease carefully if you want to know your rights as a tenant. Most landlords have years of experience and cover themselves for many situations as far as the law allows. One clause that you should pay particular attention to, if it’s in your lease, is a “Force Majeure.”
According to Saadeh, these clauses most often appear in commercial contracts, but they can pop up in residential leases, too. This clause becomes an out for both parties in the event of an extraordinary event or circumstance, freeing both parties from the terms of the lease. This clause, however, is subject to executive orders from a governor or president that may override and prohibit people from being pushed out for a period of time. The only exception, according to Saadeh, lies in the case of a landlord petitioning on the grounds of hardship.
Doing What’s Right
“There’s more than just the law at play,” says Flavia Berys, an attorney, landlord and real estate broker in San Diego. “Legalities aside, and regardless of whether the lease allows showings during a pandemic, I believe there’s a moral obligation to not intrude into a tenant’s space more than is absolutely essential during a stay-at-home period. Showings are not absolutely essential.”
She maintains that workarounds exist. “For example, the current tenants can film a video walk-through on their phones, or you can wait until the current tenant moves out before showing the home,” she suggests. “A sketch of the floor plan can help as well.”
The key from a landlord’s perspective is not to rush into a rash decision. “As a landlord, why open yourself up to the possibility that someone you bring into the premises infects your tenant’s family?” asks Berys. “Not worth it.”