Landlord and Tenant Rights in North Dakota
North Dakota Apartment Association
The Landlord/Tenant Rights Booklet has been prepared by the North Dakota Apartment Association. A rough draft was provided to numerous organizations, departments, and interested groups for their comments and input. Some did not respond.
While this booklet does reference state laws relating to landlord/tenant issues and concerns, it should be used only as a general guideline for informational purposes.
Any questions of a specific or technical nature should be directed to an individual or organization with expertise in that particular field.
NDAA does not assume responsibility for any action take by an individual as a result of interpreting the contents of this booklet.
Costs for this project were borne by North Dakota Apartment Association, the North Dakota Office of Intergovernmental Assistance, and the North Dakota Housing Finance Agency.
Authority to reproduce may be granted by contacting the North Dakota Apartment Association at 701-221-2751 or P.O Box 2317, Bismarck, ND 58502-2317.
The contents of this booklet may not be changed or altered without the consent and permission of the North Dakota Apartment Association.
Introduction
The purpose of this booklet is to provide landlords and tenants with
information about
their responsibilities and legal rights in North Dakota.
This publication will include a general overview of North Dakota Landlord/Tenant Laws and other information on renting. This booklet is not intended to be a substitute for professional legal advice. Because factual circumstances vary in each case, detailed legal research or opinions may be necessary to resolve any problems.
It is important to remember as you read this booklet that many of the law’s provisions may be changed by agreement between landlord and tenant. This is why it is always good to practice to have a written lease and to be familiar with its provisions before signing it.
Inspections of unit before leasing
Prospective tenants should visit the rental unit before they give the
landlord any money.
They should be allowed to inspect the rental unit (appliances,
plumbing, light fixtures,
carpeting, locks, linoleum, windows, etc.).
According to N.D.C.C. (ND Century Code) 47-16-07.2, a landlord shall
provide the tenant
with a statement (check-in sheet) describing the condition of the
facilities in and about
the premises to be rented at the time of entering into a lease
agreement. The statement
shall be agreed to and signed by both the landlord and the tenant. The
statement shall
provide proof as to the conditions are correctly stated on the check-in
sheet. An accurate
statement at the time the tenant movies in, will lessen the chance of
misunderstanding and
the future agreements.
Security Deposits
Landlords have the right to require tenants to make a security deposit
(damage deposit).
This money is paid by the tenant and held by the landlord. The scurity
deposit cannot
exceed the amount of one month’s rent and will be used to guarantee
against unpaid
rent, damage or cleaning costs. Moreover if the tenant owns a pet, the
landlord may
require a "pet deposit" not to exceed $1,500 to cover any pet related
property
damage. This amount also includes the regular deposit.
The landlord is obligated to deposit the money in a federally insured interest-bearing savings or passbook account. The landlord may apply the security deposit money and accrued interest upon termination of the lease toward any damages suffered through the negligence of the tenant or his/her guest, any unpaid rent, or the costs of cleaning and repairs which were the tenant’s responsibility. The pet deposit money should only be utilized to correct problems created or caused by the pet living on the premises. If the deposit is $100, but the tenant causes $300 damages, the landlord can sue for the difference. The deposit may not be used by the tenant to pay rent without the landlord’s consent.
Landlords can also require prospective tenants to pay an application
fee (whish may be
non0refundable). The fee is customarily used to cover the cost of
checking the
tenant’s references (past landlords, employment, credit bureau, etc.).
Tenants should
ask fi such fees are refundable and can request a receipt for payment.
These fees should
not be mistake for security deposits.
Leases
When a landlord agrees to rent a house, apartment, room or other living
quarters to a
tenant for a specific monthly rent, the two have entered into a legally
binding rental
agreement. The agreement can be verbal or written. It is an agreement
to rent, and that
means there are certain terms and rights defined by law.
It is strongly recommended and important to keep a file that includes copies of all leas agreements, notices, letters, and other correspondence between tenant and landlord. These records will be necessary should a dispute arise later.
The word lease refers to the agreement between a landlord and
tenant, whether it is
verbal or written. There are two basic types of leases - "periodic
leases" and
"term leases."
Periodic Lease
If the lease has no specific ending date, it is a periodic lease.
Generally these
leases are month-to-month. A periodic lease is automatically renewed
each time the tenant
pays rent to the landlord.
Term Lease
If the lease states how long the tenancy will last (I.E., six
months or a year), it is
a term lease. These leases are usually written. The tenant is generally
liable for rent
the entire term of the lease.
A lease is a legally binding contract which cannot be broken without the other person’s consent. The best arrangement between a landlord and tenant is a written lease. A written lease outlines the conditions under which a person(s) may live in a rental unit, and can be referred to if a dispute arises. When entering into a lease agreement all verbal promises (repairs, number of parking spots, etc.) should be put in writing.
Landlords and tenants can negotiate the terms of the lease provided both parties agree to the changes. If the written lease form is changed, both the landlord and tenant should mark their initials next to any changes, additions, or deletions made on the lease forms.
Before you sign a lease, you should carefully read and understand the terms, especially any requirements for terminating the lease. If you have any questions, ask for an explanation. Most landlords are glad to help clarify points to avoid future misunderstandings. In addition, both parties should receive a copy of the lease and any other signed forms.
Unconscionability
A court may refuse to enforce part or all of a lease. If the court
finds the terms in the
lease so unfair and one-sided, it may not enforce them. This does not
happen very often
because the lease term must be very offensive and against public
policy. The tenant must
demonstrate he/she had no real choice but to accept the offending
provision. Landlords
should take care not to go overboard in drafting lease provisions in
their favor.
Rent
Tenants must pay the rent on time, whether they have a verbal or
written lease. Due
dates and amounts are determined by the provisions of the lease.
Failure to pay rent on
time is considered a breach of the lease and legal cause for eviction.
Late Fees
The rent must be paid on the date it is due. If the tenant misses
the due date,
landlords will often require the tenant to pay a late fee. But in order
for a landlord to
charge a late fee, it must be a provision of the lease (verbal or
written) or it is not
legal. In addition, the lease must state how much the late fee will be
and on what date it
will be effective.
Rent Increases
Periodic Lease – if you have a month-to-month
periodic lease, the
landlord may raise rent by any amount by providing a notice, in
writing, at least 30 days
before the end of the month.
If the landlord changes the terms of a periodic lease, and gives the
required 30-day
notice of change, the tenant has the option to terminate the lease at
the end of the month
by giving a 25-day termination notice. It is important to
remember that a 25-day
termination notice can only be give after the landlord has first given
a notice of intent
to change any term of the lease. If the tenant does nto give the 25-day
termination notice
to vacate, the changes specified in the landlord’s 30-day notice become
a part of the
lease agreement.
Term Lease – Generally a term lease has a fixed rent for the entire
lease term
and cannon be changed during the lease term unless the landlord and
tenant agree to do so.
However, the landlord can increase the tenant’s rent by any amount at
the end of the
lease period. Usually, any notice requirements will be outlined in the
lease, if not the
rules of a periodic lease apply.
Automatic Lease Renewals – Landlords may not enforce an automatic renewal clause in residential lease without giving the tenant at leas a 30-day written notice before the end of the current lease period that the lease will automatically renew. Notice may be delivered personally or by first class mail. If such notice is not given by the landlord, the lease will convert to a month-to-month tenancy.
The landlord gives notice of an upcoming automatic renewal and does
NOT ask for a rent
increase after the expiration of the lease, and rent is offered and
accepted, the lease is
presumed to be renewed at the same rent and for the same period of time
as the original
lease.
Roommates
If more than one person rents a house or apartment, each person is
responsible for
paying the while rent. If disagreements surface between persons sharing
an apartment and
one person moves out, the remaining tenants are responsible for paying
the entire monthly
rent amount. However, the remaining tenants can sue the vacating tenant
if he/she left
without paying he/her share of the rent, or failed to give proper
notice.
The security deposit paid will normally stay with the rental unit until all tenants on the lease have vacated. If a tenant vacates early, arrangements should be made between the tenants for recovering the person’s share of the deposit.
Responsibility for paying the rent in a roommate situations may be
altered by the terms
of the lease.
Discrimination
Both Federal and State law prohibit discrimination based on race,
color, national
origin, religion, sex, family status or handicap in the sale, rental,
or advertising of
dwellings; in the provision of brokerage services; or in the
availability of residential
real estate-related transactions. In addition, it is a violation of
state law to
discriminate on the basis of marital status or status with respect to
public assistance.
It is against Federal and Stat law to:
In addition to the above prohibitions, a landlord with respect to the persons of disabilities may no:
It is also discriminatory practice:
If the tenant has a physical or mental disability that limits on or more major life activities, has record of such a disability, or is regarded as having a disability, the landlord may not:
The Fair Housing Act generally exempts owner occupied buildings with no more than four units, single family homes sold or rented without the use of a broker or housing operated by organizations and private clubs that limit occupancy to member. However, before assuming the exemption, the landlord may want to contact an attorney, the Fair Housing Council, or HUD.
If the tenant believes his/her rights have been violated, he/she may
get an attorney
who can go directly to court with the case, or they may write or
telephone the North
Dakota Fair Hosing Council or HUD or the Department of Labor within one
year of the
discrimination’s occurrence. If the complaint is filed with the
Department of Labor,
the Department will notify all the parties, conduct an investigation
into the alleged
discrimination, and may grant temporary relief. The Department will
then issue an
investigative report and if necessary conduct an Administrative hearing
on the issue of
discrimination. If discrimination has occurred, the Department of Labor
may impose
penalties.
Utilities
The responsibility of paying for the utility services such as
electricity, natural or LP
gas, oil, water, wastewater and garbage is generally specified in the
lease or rental
agreement. If this responsibility is not addressed in the lease or
rental agreement, there
should be a separate agreement or understanding (preferably in writing)
addressing this
issue. The party (landlord or tenant) agreeing to pay for part or all
of the utility
services should be advise the municipal service or utility company who
will be receiving
the services and who will be paying for those services.
Landlord Obligations
The obligations of the landlord may be altered somewhat by a
contractual agreement
(generally a written lease) between the landlord and the tenant.
However, the landlord
must:
A. Comply with the requirements of building and housing codes relating to the health and safety.
B. Arrange for or make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition.
C. Keep all common areas in a clean and safe condition.
D. Maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, air-conditioning systems and other facilities and appliances, including elevators, supplied or required to be supplied by landlord.
E. Provide and maintain appropriate receptacles and conveniences for the removal of ashes, garbage, rubbish, and other waste incidental to the occupancy of the dwelling unit and arrange for their removal.
F. Provide running water and reasonable amounts of hot water and heat.
G. Provide smoke detectors in each unit.
Tenant Obligations
The obligation of the tenant may be altered somewhat by a contractual
agreement (generally
written lease) between the landlord and the tenant. However, the tenant
must:
A. Comply with all duties imposed upon the tenants by building and housing codes relating to the health and safety.
B. Keep the occupied unit clean and safe as the condition of the premises permit.
C. Regularly remove all ashes, garbage, rubbish and other waste from the dwelling unit and dispose of them in a clean and safe manner.
D. Keep all plumbing fixtures as clean as their condition permits.
E. Use in a reasonable manner all electrical, plumbing, sanitary, heating, ventilation, air-conditioning systems and other facilities and appliances including elevators on the premises.
F. Not deliberately or negligently destroy, deface, damage, impair or remove any part of the premises or knowingly permit any person to do so.
G. Conduct him/herself and require other persons on the premises with the tenant’s consent to conduct themselves in a manner that will not disturb the tenant’s neighbors’ peaceful enjoyment of the premises.
Repairs
Tenants should promptly notify the landlord when repairs become
necessary.
If the landlord does not respond to verbal notice of need of repairs, the tenant should send a written notice to the landlord of necessary repairs by certified mail, return receipt requested. The tenant should keep a copy of this notice. The tenant must give the landlord reasonable notice and a reasonable amount of time in which to make repairs. What is "reasonable" depends on the needed repair. If the repairs are still not made, the tenant has three options under the law
A. Repair the defect and deduct the expense from the rent (N.D.C.C. 47-16-13). It is always a good idea for the tenant to notify the landlord in writing that he/she intends to do this. Some landlords have given tenants a 30-day notice (if the tenant is on a month-to-month lease), or attempted to sue for loss rent.
B. Sue the landlord in Small Claims Court for the cost of the repairs and other expenses incurred as a result of the failure to make repairs.
C. The tenant may elect, after notice (preferably written), to vacate the premises which would terminate the lease. Vacating the premises should be considered a measure of last resort, and only if there is a serious repair problem or code violation. The tenant should notify the housing or health inspector to confirm that a serious problem or code violation exists.
Landlord Right of Entry
A landlord may enter a
dwelling unit:
A. At any time in case of emergency or if the landlord reasonably believes the tenat has abandoned the premises, or the tenant is in a substantial violation of the provisions of the lease or rental agreement.
B. During reasonable hours, and in a reasonable manner for the purpose of inspecting the premises, making necessary or general repairs, decorations, alterations, improvements, or agreed services.
C. During reasonable hours in a reasonable manner for the purpose of showing the rental unit to an actual or potential purchaser, insurers, mortgagees, real estate agents, potential tenants, workers or contractors.
Unless it is impractical to do so, the
landlord must attempt
to get the tenants consent for an agreed time of entry.
The landlord may not abuse the right to access or us it to harass or
intimidate the
tenant.
NOTE: Consent may be presumed from the tenant’s failure to object to access after reasonable notice is given. The tenant may not unreasonably deny access to the dwelling unit.
Terminating the Lease
Periodic Lease – If there is no provision in the
month-to-month periodic
lease stating how much advance notice must be given to end the lease
(written or verbal),
either party may terminate the lease by giving at least thirty (30)
days written notice at
any time.
The rent is due and payable to and including the date of termination. However, many written periodic leases may require tenants to give notice on the first of the month, or a longer notice (60 days). Failure to give proper 30 day or agreed notice could result in the loss of security deposit and liability for rent for that period.
Term Lease – A term lease terminates automatically at the end of the lease period without the need of any notice from either landlord or tenant. Procedures for ending a written term lease are generally outlined in the lease. Typically, it will require a written notice prior to the lease expiring. Generally the notice has to be received by the first of the month. Tenants are well-advised to carefully read the termination and renewal provisions of their lease.
If a tenant moves out before the lease expire, he/she is still responsible for paying the rent for the remaining term of the lease. Another tenant may be found to fulfill the balance of the lease. A landlord’s consent may be necessary if the lease agreement is transferred to a new tenant.
The lese may require a fee for the landlord to re-rent the unit. If a fee is required it should be outlined in the lease agreement. The landlord may be entitled to recover actual costs to re-renting fee and the actual costs of re-renting.
Even though the tenant remains liable for the rent until the expiration of the lease or a new tenant is found, landlords have a legal obligation to try to find a new tenant and may only collect rent from a single tenant. Thus, if the new tenant moves in and pays rent for a period for which the departing tenant has already paid, the landlord must refund portion of the pre-paid rent to the departing tenant.
Abandoned Property
Tenant’s property with a total estimated value of $1,500 or less, which
has been left
for a least 30 days in the vacated premises, becomes the property of
the landlord to
dispose of or sell, without notice, in whatever manner the landlord
chooses. The landlord
can keep the money from the sale. Expenses for storing or moving the
property which exceed
proceeds from the sale can be deducted from the security deposit.
If the landlord removes abandoned property from the premises after a judgement of eviction has been obtained and served, the landlord may retain possession of the property until the charges for the reasonable amount of any storage and moving expenses have been paid.
Security Deposit Refund
At the end of the lease, a landlord must return a tenant’s security
deposit (plus
interest if the unit was occupied nine months or longer), or give the
tenant a written
explanation as to why the deposit (or any part of the deposit) will not
be returned. The
landlord must mail or deliver the deposit within 30 days after the day
the tenant vacated
and the lease expired. As a practical matter, actual receipt of the
security deposit may
be delayed by several days if the tenant fails to provide the landlord
with accurate
forwarding address information. The landlord may deduct, from the
security deposit,
amounts to cover damage from tenants or their guests, unpaid rent,
and/or costs of
cleaning or other repairs, with the exception of reasonable wear and
tear. The landlord
must provide an itemized list of any deductions.
If the landlord sells a rental property, the new owner has the same rights and obligations. The security deposits and interest must be transferred to the new owner or the seller remains liable. The new owner is bound by the provisions of N.D.C.C. 47-16-07.1.4 even though he/she did not receive the original security deposit.
If a tenant does not receive the security deposit back, or is not satisfied with the landlord’s explanation, the tenant can take the matter to Small Claims Court. This is a relatively easy, inexpensive procedure, that is explained elsewhere in this publication. There, it is up to the landlord to justify the amounts withheld. The court can award damages to the tenant up to three times the amount withheld without reasonable justification from the tenant’s security deposit. This is called "treble damages." Treble damages need to be requested when completing court papers.
Eviction
According to state law, landlords can evict tenants for non-payments of
rent, or in cases
where the tenant refuses to leave after "Notice to Vacate" has been
properly
served and the tenant’s last day has passed. A tenant can also be
evicted if the
tenant or any person on the premises with the tenant’s consent acts in
a manner that
unreasonably disturbs other tenants peaceful enjoyment of the premises.
A tenant may also be evicted for violating a material term of the lease. In addition to unreasonable peace disturbances, three situations of potentially violate the material terms of a lease; drug use, distribution, or other illegal activity conducted on the property; unreported pets; or too many occupants in violation of the lease. These material violations must be proven by the landlord in a court of law.
In order to evict, a landlord must:
A. Serve the resident with a "Notice of Intention to Evict" (often called a Notice to Quit) ordering the resident to vacate the premises within three days. The sheriff or a process server may post the Notice of Intention to Evict conspicuously at the rented premises, if the tenant cannot be found. The Notice of Intention to Evict does not require the resident to vacate. It is the first step required by law by an owner to proceed with the eviction and proof that the Notice was properly served must be presented to the court.
B. If the resident has not vacated after the three-day period, a "Summons and Complaint" (begins leagal action) may be served on the resident. The "Summons and Complaint" will give notice to the resident as to the date and time he/she will need to appear in District Court. A court hearing must take place within three to 15 days after service of the Summons and Complaint on the tenant. If the tenant cannot be found in the county by proof of sheriff or process server, and the attempt to serve the summons has been made at least once between the hours of 6 p.m. and 10 p.m., and an affidavit has been filed stating that the tenant cannot be found or the belief that the tenant is not in this state and copy of the summons has been mailed to the last known address of the tenant, service of the summons may be made by the sheriff or process server by posting (summons) on the door of the unit. At the hearing, both landlord and tenant will be asked to give their respective sides of the story.
C. The judge will then deliver his/her decision. If the judge decided the tenant has no legal reason for refusing to leave, the judge will order the tenant to vacate. If the tenant fails to vacate, after being court ordered to do so, the judge will order the sheriff to force the tenant out. The tenant’s property will be placed in storage. To get the property back, the tenant must pay the sheriff’s fee, moving, and storage costs. If the tenant shows the court that vacating immediately is a substantial hardship on the tenant or the tenant’s family, and the eviction is not based on disturbance of the peace, the court may allow reasonable time for the tenant to vacate, not to exceed five days. The judge can also find that the landlord has no legal reason to evict the tenant.
It should be understood that ONLY the sheriff and his/her staff can legally remove a tenant’s belongings from a rental unit during the process of eviction. The landlord cannot do this on his/her own.
Contrary to popular belief, tenants may be evicted during the winter months.
Lockouts and Property Confiscation
It is illegal for a landlord to physically lock a tenant out of his/her
unit. If a
landlord locks a tenant out or confiscates a tenant’s belongings, the
tenant should
notify the sheriff’s department, a private attorney, or legal
assistance. It is also
illegal for a landlord to cut off the utilities in an attempt to get
the tenant to move.
Tenants should call the building inspector if this happens.
Small Claims Court
Small Claims Court provides landlords and tenants an easy, inexpensive
and informal way to
resolve disputes. It is not necessary to hire an attorney, as an
individual can present
his/her own case.
Claim that involve a lease of real property may be commenced in either the county where the person to be sued resides or in the county where the real property is located. Check with the district court clerk in your county courthouse if you are not sure where to file. Small Claims Court hear only money damage cases in the amount of $5000 or less.
North Dakota Apartment Association
PO Box 2317
Bismarck, ND 58502-2317
(701) 221 – 2751
For further information, contact:
North Dakota Apartment Association
Bismarck 701-221-2751
ND Office of Intergovernmental Assistance
Bismarck 701-328-2094
ND Housing Finance Agency
Bismarck 701-328-8080
1-800-292-8621
ND Department of Labor
Bismarck 701-328-2660
1-800-582-8032
Renters Hotline
Fargo 701-232-7368
ND Toll Free 1-800-726-7960
Community Action Program
Bismarck 701-258-2240
Fargo 701-232-2452
Jamestown 701-252-1821
Minot 701-839-7221
Grand Forks 701-746-5431
Dickinson 701-227-0131
Williston 701-572-8191
ND Legal Services
New Town 701-627-4709
Legal Assistance of North Dakota
Fargo 701-232-4495
Devils Lake 701-662-6560
1-800-932-8980
Fair Housing Information Clearance Center
1-800-343-3442
For questions or complaints relating to the Federal Fair Housing Act contact:
ND Fair Housing Council
Bismarck 701-221-2530
Fair Housing and Enforcement Center
633 17th St. 13th Floor
Denver, CO 80202-3607
Telephone 303-672-5437
Fair Housing Complaint Line
1-800-669-9777