Tennessee Fair Housing Council

Has your housing been affected by the recent flooding in Tennessee?

Here are some questions and answers that may help you. Some of this material is borrowed from the "Disaster Assistance Manual" from the Tennessee Bar Association Young Lawyers Division.

If you live in one of the URLTA counties listed above, see the bottom of this page to download a form you can use to notify your landlord that you intend to vacate your unit and terminate your lease.

If you had renter’s insurance at the time of the disaster, contact your insurance company. If your situation is desperate, make sure you describe your situation to the insurance company. If the company agrees that there is coverage, you can ask for an advance payment to cover a part of your loss. See the “Common Questions Related to Insurance” section on page 12 of this document for information about preparing for an adjuster’s visit and handling insurance claims.

If you do not have renter’s insurance, see if your landlord had insurance to cover your belongings. However, this is not likely. If your losses are not covered by any insurance policy, you may be able to get Individual and Family Grant (IFG) money from FEMA for replacement of necessary items of personal property. You may apply for IFG funds by telephone at (800) 462-9029. For TDD assistance call (800) 462-7585. You can also visit FEMA's web site to start the application process.

Tennessee law does not allow a landlord to lock you out, turn off utilities or use any other “self help” means to get you to leave. The landlord must file an eviction action (called a detainer warrant) in court. You only have to move out after the judge in your case enters a final judgment. If you are in a county where the Uniform Residential Landlord and Tenant Act is effective, the landlord must give you written notice before filing a detainer warrant. Furthermore, if the landlord locks you out or terminates utilities to get you out, then the landlord can be subject to an action for damages. If the landlord does lock you out, you can call the police to re-gain entry. You should also consult an attorney.

When injury results from the disaster itself and not from defects in the demised premises (which the landlord may be obligated to repair), the landlord has no liability for such injuries. As such, there is no implied promise by the landlord that no harm will come to the tenant from a natural disaster.

You must pay your mortgage even if your house is damaged and you cannot live in it. However, check with your lender, as many companies offer a grace period of several months to delay payments (although interest may continue to accrue). In the event you are able to reach an agreement, it is important to request that the lender verify the agreement in writing.

In addition, if you have an FHA-insured mortgage, there is a 90-day hold on foreclosures and forbearance on foreclosures of Federal Housing Administration (FHA)-insured home mortgages.

If you have received a written foreclosure notice as a result of a disaster-related financial hardship, you may be eligible for FEMA payments to help you with your mortgage. If you have income and you want to keep your house, you may be able to file for bankruptcy protection. For instance, you may file a Chapter 13 bankruptcy. In a Chapter 13 bankruptcy, the homeowner proposes a plan of how he or she will pay regular mortgage payments and all other living expenses, and also pay an amount every month toward the mortgage arrears. If you think you want to file for bankruptcy protection, you should consult with an attorney. A list of lawyer referral services can be found on page 80 of this document.

If you live in a condominium or pay maintenance to any type of homeowners’ association, you still need to pay your maintenance fees even if your homeowners’ association is not fixing the common areas or you do not like the way they are handling repairs. You should attend homeowners’ association meetings to voice your concerns and talk with other homeowners and members of the board about your complaints. A group of residents may decide to seek legal advice. If you simply stop making your maintenance fees, however, you may be subject to foreclosure and other financial penalties.

If you have homeowner’s insurance, you most likely will be eligible for funds to help with living expenses while you cannot live in your house. You need to contact your insurance company. If you do not have homeowner’s insurance then you may be eligible for assistance under FEMA’s Individual and Family Grant (IFG) program to pay for necessary repairs to essential parts of your home. You may apply for IFG funds by telephone at (800) 462-9029. For TDD assistance, call (800) 462-7585. You can also visit FEMA's web site to start the application process.

Hazard insurance (i.e., homeowners policies or other fire and extended coverage policies) from the private sector generally does not cover flood damage. It may cover water damage inside the home but damage from floods or surface water is usually specifically excluded. Windstorm insurance is normally limited to greater-than-normal wind conditions.

The federal government provides coverage for flooding under the National Flood Insurance Program (NFIP). Policies can be purchased from any state licensed agent. Individuals can search for an agent in their area by city, state or zip code on FEMA’s web site at: http://www.floodsmart.gov/floodsmart/pages/agentsearch/searchform.jsp.

Even if policies extend coverage to the type of disaster damage that occurred, they may limit coverage to losses directly resulting from the disaster. Courts generally have found coverage if the covered risk was the efficient cause, if not the only cause, of the loss and even if the other concurrent causes are otherwise expressly excluded from coverage (see 1 Tenn. Juris. § 70).

If an affirmative misrepresentation was made by the seller concerning the possibility of flooding, an action for fraud may be maintained, assuming all other elements of fraud are present. It is important to note that an action based solely on the residential disclosure statement required under Tennessee law must be brought within one (1) year from the date the purchaser received the disclosure statement or the date of closing, whichever occurs first (see Tenn. Code Ann. § 66-5-208).

Normally, auto insurance will cover damage under the comprehensive policy coverage, although the particular language and exclusions of the policy will control. Even if an exclusion from comprehensive coverage exists for damage caused by natural disasters, coverage may exist under a collision policy if the natural disaster and event causing the damage could be construed as a collision (see 1 Tenn. Juris. § 70).

The general rule is that a person is not liable for injuries or damages cause by a disaster or an “Act of God” where there is no fault or negligence. Thus, there can only be liability where there is concurrent negligence and that negligence was the proximate cause of the damage.

When personal property is carried away (e.g., by a flood) and comes to rest on the land of another, it still remains the property of the original owner and the original owner may enter and retrieve it. If the landowner refuses to let the original owner enter or appropriates the property for the landowner’s use, the original owner of the personal property will have an action against the landowner.

On the other hand, the landowner, as an involuntary bailee, has the right to possession of the property against all others, save the true owner. The landowner has no obligation to preserve the property and may move the property in a reasonable manner if necessary to use the land.