Home selling tax tips for accidental landlords

Due to the precipitous decline in the housing market over the past few years, many homeowners who would otherwise sell their homes are renting them out. This may be because prices are too low, or because they have to move before they can sell due to a job change.

Such accidental landlords should understand that if they rent out their homes too long before they sell them, they could lose the biggest tax break available for most people: the home sale exclusion.

Homeowners who qualify for the home sale exclusion don't have to pay any income tax on up to $250,000 of the gain from the sale if they're single, or up to $500,000 if they're married and file a joint return. Of course, this exclusion is useful only for homeowners who have equity in their homes, not the millions who are "under water" and will receive no profit if they sell their homes.

To qualify for the exclusion, a homeowner must satisfy the ownership and use tests. This means that during the 5-year period ending on the date of the sale, the homeowner must have:

• owned the home for at least 2 years (the ownership test), and
• lived in the home as a primary residence for at least 2 years (the use test).

However, the homeowner need not be living in the house at the time it is sold. The two years of ownership and use may occur anytime during the five years before the date of the sale.

This means that a homeowner can move out of the house for up to three years and still qualify for the exclusion. Moreover, a homeowner can rent out a home and count that time as ownership time.

This rule has a very practical application: A homeowner may rent out a home for up to three years prior to the sale and still qualify for the exclusion. However, the exclusion works a bit different for homeowners who have rented out their homes.

They cannot exclude from their income the part of their gain equal to the depreciation they claimed (or could have claimed) while renting the home. Moreover, if the home is rental property at the time of the sale, the sale must be reported to the Internal Revenue Service on Form 4797:  Sales of Business Property.

Example: Connie purchases a house on Feb. 1, 2007, and lives in it for two full years. She then moves to another state to take a new job. Rather than sell the house in a down market, she elects to rent it out.

If she sells the house by Feb. 1, 2012, she'll qualify for the $250,000 home sale exclusion because she owned and used the house as her principal home for two years during the five-year period before the sale. If she waits even one more day to sell, she will get no exclusion at all.

Thus, accidental landlords who have equity in their homes need to sell them before the three-year rental period expires, or they'll lose the home sale exclusion. If they can't or don't want to sell, they would have to move back into the home to preserve the exclusion.

Homeowners who don't qualify for the exclusion will have to pay a 15 percent capital gains tax on their gain from the sale (assuming the home was owned for at least one year).

Inman News

Get tenants to clean up before clearing out

Enforce the move-out rules

Q: What are the tenant's responsibilities for cleaning after moving out? Is it acceptable for them to leave trash and unwanted household goods behind? As a landlord, what legal rights do I have to enforce the proper cleaning of my property?

A: This is a very important question and a concern of all landlords. This is also one area where, with some advance notice and preparation, you can have a positive impact on your experience as a landlord.

No, it is not acceptable for your tenant to leave the rental unit full of trash and unwanted household items, and that is the simple answer to your question. But it is my opinion and experience that you can take steps to make this a more likely scenario than you might think.

I know there are some unethical landlords who actually want their tenants to leave the rental unit in less-than-perfect condition. They don't mind because they can then charge the tenant excessive fees for basic cleaning and simple repairs.

Some sneaky landlords will even upgrade the rental unit and improperly charge the tenant for work. I have heard of landlords who brag that they "never have returned a security deposit." This is wrong, and luckily those landlords are very few in number, but they make a bad name for all landlords.

So now that I have disparaged those few bad landlords, let me compliment you again for wanting to know how you can actually make minimal or even no deductions from the tenant's security deposit.

It starts at the time the tenant first visits your rental property as a prospect, and is reinforced at the time of move-in, by explaining your policies and procedures for handling the disposition of the security deposit. You also need to let them know your expectations about cleaning and repairs upon move-out.

It is the law of most states that your tenants need to return the rental unit in the same or better condition than when they moved in, except for normal wear and tear. Also, the cleanliness of the rental unit is not usually subject to wear-and-tear allowances so that means that if the tenant brought in any dirt during the tenancy then they must remove it before they vacate.

I think it is also very important to let your tenants know you are in the business of providing them with a clean and well-maintained rental unit at the time they move in. Of course, it is their responsibility, not yours, to keep the rental unit clean during the tenancy. But you retain responsibility for proper maintenance and repairs.

You should encourage them to contact you via phone or e-mail immediately, as you want to be made aware if there are any problems or concerns while they live there. Tell them that you will be glad to promptly investigate any items needing repair or replacement. You may be able to fix a problem when it is small and less expensive to address.

But you are also communicating to your new tenant that you want the rental unit to be in great condition during their tenancy and upon move-out. This lets your tenant know that you care about the condition of your property and could even be beneficial to discourage prospective tenants who know they aren't likely to keep the unit in good order.

Inman News™

Owners Forced to Become Landlords + Tips for a New Landlord

A growing number of homeowners are finding out what it means to be a landlord after failing to sell their homes in one of the worst housing slumps in history.

With home prices down nationwide, many don't want to take a huge loss when they decide to move. They want to wait to see whether they can rebuild their equity. So they rent.

"People just really don't want to be landlords, and they really have no choice," said Dennis Dickstein, a Realtor at Real Estate One in Farmington Hills, Mich., who estimates that 20 percent of his deals are leases.

Mark and Rhonda LaVelle decided to buy a bigger home while the market was down. The couple had a 1,100-square-foot house in Royal Oak, Mich., to sell but decided to move when they found a 2,300-square-foot home about 2 miles away. They started renting their house in January after it had been on the market nine months.

"After paying two mortgages and the house wasn't moving, we were at a point where we would have to sell it at a substantial loss or get someone else in who could pay the mortgage," said Mark LaVelle, 38, a freelance cameraman.

He and Rhonda LaVelle, 37, a television-news producer, turned the leasing over to his real estate agent.

"It's been a great experience. We're getting the full mortgage payment from the tenants," Mark LaVelle said. "My wife just wanted to wash her hands of the whole thing. She looks at it like a liability. I look at it as an investment."

But it's not always moving up that sparks a home rental.

Sometimes it's a life change, such as marriage, college graduation, divorce or death in the family.

Many homeowners who decide to lease their homes use their real estate agents to handle the transaction, including background and credit checks.

The service generally will cost a landlord one month's rent, while property management could cost 10 percent-20 percent of the monthly rent. But with rent often set just high enough to cover the mortgage payment, some landlords do it themselves.

Dan Elsea, president of brokerage services for Real Estate One in Southfield, Mich., advises landlords not to be too turned off by potential tenants with bad credit.

"The people coming to them have gotten rid of their biggest expense, their mortgage, when they arrive at the door. They arrive with a reasonably clean income statement if they have a job," he said. "You should look at the credit report, but don't scrutinize it too closely. References are just as important."

Other real estate agents agree.

James Silver, an agent with Keller Williams in Troy, Mich., said there are many good tenants to choose from.

"As long as you get everything ... a credit report, the last few pay stubs, references. As long as you have everything in front of you, you're fine," Silver said.

And the beauty of the rental market is that prices there have not fallen by 40 percent, as many parts of the sales market have. The reason is there are a lot of renters to feed demand.

"So many people have lost their homes ... they are looking for a place to live," said Linda Hiller Novak, a Realtor with Max Broock Realtors in Birmingham, Mich.

There are horror stories, of course, for untested landlords. Some learn quickly that the old saying, "Possession is nine-tenths of the law," is true.

Steve Cole, an agent with Coldwell Banker Weir Manuel in Birmingham, said he knows a homeowner in Birmingham who rented his house to tenants who not only didn't pay rent, they trashed the home before the landlord could evict them.

"When times are tough, people look to scam," Cole said.

Tom Youngblood Jr., a 38-year-old human resources director, is renting his St. Clair Shores, Mich., home to a responsible tenant after having to evict the first one.

He was lucky. First off, a court clerk helped him figure out how legally to evict the tenant. He had to give the tenant seven days' notice to pay or face eviction. Then he filed eviction paperwork with the court.

Last December, a judge ordered the tenant to pay or be out in 10 days. She chose to leave and did not damage the home, he said. If the tenant had not moved out within 10 days, a court officer would have done it for her.

It can take from 27 to 57 days to evict a tenant, according to the Michigan State University College of Law's Rental Housing Clinic.

Youngblood's home is now being rented by Danette Trice, 30, an engineer design specialist at AT&T in Mt. Clemens. She had been living in Eastpointe, Mich., with her son, Ephraim Gibson Jr., 4.

Ephraim has bronchitis, and the two had to move because the air-conditioning wasn't working at their house. Her real estate agent helped her get a $100-a-month reduction in rent and made air-conditioning a requirement in the lease.

"I didn't have to do this or that to move in," Trice said. "There was new cabinetry in the kitchen, the appliances were nice and the tile was nice."

Dickstein helped Cyndee Pote, who works in advertising and marketing for Real Estate One's corporate offices, lease her home earlier this summer after Pote, her husband and three children moved to a 2,400-square-foot home in Bloomfield Hills.

Pote and her husband, Jason Pote, had their 980-square-foot house on the market for a year with no offers. Houses in the neighborhood were going for $50,000, and she had paid $94,000. Once it was put up for rent, the showings increased, and they had it rented within a week.

The young man who rented it lived just 10 houses down the street and was losing that rental because the owner let it go into foreclosure. Dickstein did a background check, a credit check and contacted the renter's employer before letting him rent the home.

"The rental market was strong. We were able to cover our mortgage and then some," Cyndee Pote said.

———

TIPS FOR A NEW LANDLORD:

Call a private investigator. For less than $50, you will find out whether the prospective tenant is a deadbeat right there and then instead of finding out after he or she owes you three months' rent and you have to evict. —Tom Youngblood Jr., landlord

Don't be scared by bad credit. Renters who lost their homes come to the landlord having gotten rid of their biggest expense — their mortgage. If they have a job, they are pretty good tenants. References are as important as the credit report. —Dan Elsea, Real Estate One

Use a standard lease contract, have a lawyer review it to avoid surprises. —Mike Balduf, landlord

Have the tenant provide a copy of his or her credit report, references and proof of employment. Contact the employer to ensure the potential tenant is working there. —Katie Hill, Realtor with Real Estate One in Troy, Mich.

Find out whether your city or township requires you to have a permit to rent out the house and pay the fee. Do everything by the book. —Mark LaVelle, landlord

Request wire transfers and automatic deposits for monthly rental payments to avoid being scammed by people who don't want to pay. Fraudulent checks and cashier's checks are easy to create on a personal computer. —Steve Cole, Realtor with Coldwell Banker Weir Manuel in Birmingham, Mich.

HOW TO KEEP IT LEGAL:Here are some tips from Brian Gilmore, director of Michigan State University College of Law's Rental Housing Clinic in East Lansing. Although the clinic primarily assists tenants, it also answers legal questions from landlords.

Key things to put in the lease include the duties of each party. For example, it would include the dates that the lease is active, the rental amount, deposit and how repairs and maintenance would be handled.

By law, the security deposit cannot exceed 1 1/2 month's rent. If the monthly rent is $600, the most that could be collected for the security deposit is $900.

The tenant has a right to put the rent in escrow instead of paying the landlord if the property is not up to code. Until fixes are made, the rent can be withheld to force the landlord to comply with codes.

Some communities charge rental permit fees. If those are not paid, that can invalidate the lease.

The landlord can evict a tenant for damaging the property. The landlord has to deal with normal wear and tear, but serious damage is a valid legal reason to evict.

(c) 2010, Detroit Free Press.