Q. How long does a landlord need to keep old leases and correspondence/documents after a tenant has terminated his lease and moved out?
A. A landlord has no general obligation to maintain records after a termination of a tenancy. However, keeping tenancy-related documents for at least four years will preserve them for most relevant claims.
Whether the documents should be retained or destroyed is a question of risk. Saving documents allows them to be referenced for recordkeeping purposes and may provide exculpatory evidence against a tenant’s claim. On the other hand, archived documents could also be vulnerable to production in discovery, which could be expensive and burdensome.
Even if a landlord adopts a policy of routine destruction, a landlord should not destroy documents or other evidence that may be relevant to a known claim. Similarly, selectively retaining some correspondence while deleting others may raise suspicions, even if the contents of the destroyed documents are innocuous. Document destruction policy should be uniformly and consistently applied.
How long a landlord should keep records and documents pertaining to a specific claim depends on the nature of the claim. Tenant claims may take the form of “constructive” eviction, “wrongful” eviction, a breach of the rental contract, harassment, or some other violation of a local rent or eviction ordinance. Actions concerning so-called “personal injuries” or negligence are limited to two years after the fact, and actions premised on breach of the rental contract are limited to four years after the fact.
For tenants who believe they vacated pursuant to a wrongful owner move-in, San Francisco permits tenants to file an action up to five years after the fact. In that case, landlords should retain their documentation for a year longer.
If a tenant vacates on their own, without any argument, negotiation, or notice pending, the odds of any residual claims by the tenant against the landlord are generally fairly small. However, if a tenant moves out under a cloud of protest, such as after a series of noise or nuisance complaints, or a lease dispute, or after a rent board hearing or other overt legal action, it would be wise to be on-guard for follow-up claims. Landlords can further protect themselves by obtaining a release of claims from their tenants. Consult with an attorney for advice on how to negotiate a release of claims.
This Q&A was originally featured in the SFAA Magazine January 2019 Issue.
© 2019 by Fried & Williams LLP. All Rights Reserved. The information contained in this article is general in nature. For advice on any particular matter, please consult with our attorneys because the facts of your situation may be unique and the law changes from time to time.