The LandLord Advocate Feb 2012

As a landlord, Connecticut law requires that you address those issues regarding your property about which you have knowledge and power to do something. Most importantly, if you are aware of a dangerous condition on the property, you must resolve it using reasonable care to create a reasonably safe condition. This is obvious when you can directly see and address the situation – for example, a pothole or leaky pipe in a common area creating a potential slip and fall risk.

This is less obvious – but no less important – when you are dealing with a problem tenant situation. In these matters, the law does not allow you to acknowledge it, try to fix it, and give up if your efforts do not work. Instead, you have to use all the power you have until you literally cannot do anything more.
Below is an example making legal headlines now:
As the landlord, you learn that a tenant is bitten badly by another tenant’s pit bull and suffers injuries to her hand and leg, including scarring. You recall sending a notice to the dog-owning tenant ordering him to remove the dog, pursuant to the lease clause that prohibits tenants from having dogs without your specific permission – permission which you know you never gave. However, you know that the tenant had not removed the dog from his apartment.
You take solace in knowing that Connecticut has a “dog bite statute” under which the dog-owning tenant is strictly liable for the injuries to the other tenant, unless the injured tenant was trespassing or tormenting the dog. Are you worried about being sued by the injured tenant?
Prior to 2010, the answer was a flat “no” for Connecticut landlords. You neither owned nor kept the dog, so how could you control its behavior or prevent its attack? Luckily, the Connecticut courts recognized that you could not, and removed landlords from liability to the injured tenant.
However, in 2010, the Connecticut Appellate Court concluded that the injured tenant COULD sue the landlord where the landlord:

• Had a lease prohibiting dogs on the premises, unless the dog-owning tenant had received the landlord’s specific permission;
• Knew that the tenant had a dog on the premises without having the landlord’s specific permission;
• Knew that it was a dangerous and aggressive dog;
• Had ordered the tenant to remove the dog from the apartment; and
• Failed to follow-up on that order to the tenant.

Essentially, the Appellate Court concluded that this situation mirrored a premises liability case like a slip and fall situation, where the landlord controls the property and knows of a dangerous condition but does not correct it. At first blush, this seems like a highly offensive ruling that ignores who actually owned and controlled the dog. We agree, and note that the landlord is seeking a ruling from the Connecticut Supreme Court to overturn the Appellate Court’s decision. A decision is expected this year, and we will let you know how the Supreme Court rules.
In the meantime, we recommend that you recognize that the ruling does not make all landlords responsible for ALL dog bites by ANY tenant’s dog. The key provisions of the Appellate Court ruling identified that the landlord knew about the pit bull, tried to get the dog removed by sending a lease violation notice to the tenant, but did nothing further after the tenant refused to comply with that notice.

What else could the landlord have done? In short, the landlord should have brought a summary process (eviction) action against the tenant to obtain the removal of either the problem (the pit bull) or the tenant (WITH the pit bull) if the tenant refused to do so. In this case, the Appellate Court is simply demanding that landlords use the legal powers afforded to them by Connecticut statutes, including the summary process statutes, to eliminate dangerous conditions on the property.

We believe that Connecticut courts will protect landlords who either do not know about a dangerous condition, or – if they do know about it – seek the full redress allowed under the summary process statutes to evict the tenant who refuses to eliminate the problem.

But what if the court refuses to evict the tenant or remove the dog? First, we believe strongly that these situations often result from lawyers who are ill-equipped to handle landlord legal matters, and not from rogue judges. Second, even if the judge makes a bad ruling, the landlord has done everything possible and no longer has the power to do anything further, at least until the lease expires (at which point they can choose to not renew the lease).

Contact your landlord attorney if you have problem tenants who are creating dangerous conditions on your property, to ensure you protect yourself from a claim that you did not make reasonable efforts to resolve the problem and provide a reasonably safe property.

Quick Tip:

Effective documentation means victory for the landlord.

All landlords can describe situations where they just knew a problem tenant situation was brewing, as the hours and days of effort to address the matter accumulated. Yet, when they look back at the tenant file, they see little (if any) documentation of their efforts to address the problem – a situation that may very well hamper their ability to obtain a positive resolution.

We realize that documentation takes time and energy, which can be in short supply for property managers tasked with handling all the issues that can arise in a multi-unit complex. Nonetheless, effective documentation means victory when a landlord is faced with the need to take legal action against a problem tenant.
Maintaining the correct documentation need not be vexing and time-consuming. Below are some examples of effective documentation that you can easily put into practice:

• First, procedurally, every communication sent should contain the date it was sent, how it was sent, and the writer’s name typed underneath his or her actual signature.
• Second, a copy of each signed communication should be saved to the tenant file.
• Lastly, each communication should substantively address the problem and the landlord’s position in a way that a third party with no background or information about the situation (like a judge) could understand exactly what was happening and what the landlord was doing about it.

Contact your landlord attorney if you have questions about what documentation is necessary to address a problem tenant matter, and how to ensure that documentation effectively protects your legal rights.

Quick Tip:

Skip the “last” in “first, last and security”.

A common approach many landlords take when collecting security deposits from new tenants is to collect what they affectionately refer to as “first, last, and security.” Let me suggest a better alternative – “first and security”.

Since, every dollar in excess of the first month’s rent will, by law, be considered security, simply collect your first month’s rent and the amount of security you seek – skip any reference to a “last month’s rent”.
Legally, you are allowed to a security deposit equivalent to two months worth of rent (except in certain, specific instances), so collect two months. The key is being careful how you ask for it. If the housing market will not support your request for two month’s security, your effort to coyly convince your incoming tenant to provide that two months security under the disguise of “last month’s rent” may ultimately backfire. While you may have accomplished your goal in collecting that extra month upfront, you stand the chance that your tenant will choose to not pay the last month’s rent, believing they have already done so. Then, if there is damage in your apartment when they leave, you are left with only a month’s security to cover those damages. Additionally, if during his lease, your tenant becomes a problem payer, you might see a few additional wrinkles in your effort to evict – had you otherwise just collected the first month’s rent and a security deposit.
Point is, if you want security, collect a proper security deposit – but be sure to call it that. It will help you when you least expect it.

Quick Tip:

Utilize rent collection policies to increase cash flow and management authority.

Rent collection policies are very powerful – particularly when created at the regional level specific to the state in which the landlord is operating. These policies usually identify for the property manager:

• The notice(s) to be sent to the nonpaying tenants,
• The deadline(s) for those notices,
• When to initiate a referral to the property’s landlord attorney, and
• How to handle the legal case and the tenant’s response to it.

On the one hand, a rent collection policy creates hard deadlines and rules, which are designed to create property-level and regional-level clarity and consistency to evaluate and manage the property’s rent cash flow and accounts receivable processes. It also provides an unchanging structure for tenants, who – if they want to remain as tenants – will modify their behavior to fit within its guidelines, thus enhancing the property manager’s authority.

On the other hand, it does not limit the property manager’s discretion to develop and implement creative and practical solutions to address nonpaying tenants within the confines of those deadlines and rules. So, if the property has some unique characteristics, the property manager has the ability to bring other additional steps into the process to generate timely rent payments from tenants.

Contact your landlord attorney to assist you in creating a rent collection policy, or – if you have one – to evaluate its effectiveness and ways in which the law can assist you in increasing your rent cash flow and reducing your monthly accounts receivable.

Quick Tip:

Know your landscape.

What? An attorney writing about landscaping? Not so fast. The landscape to which I refer is that of your relationship with your residents.

Over the past few months, a number of our clients have promoted new managers and/or hired new personnel. This “changing of the guard” has as usual, prompted questions from these new employees regarding their rights and obligations to their residents. And, as in the past, we invariably refer them to their lease as a perfect starting point.
One of the most common questions we are asked relates to the laws regarding the landlord-tenant relationship. And while the laws may exist, they are limited in scope and leave much (if not most) of the landlord-tenant relationship to the individual parties. This then leaves you, as the landlord, free to define that relationship with an effective, comprehensive lease.
So, why is this important to know? Because the more educated you are regarding what your lease does and/or does not address, the better equipped you will be when residents come asking, when you approach your attorney for assistance, or more importantly, when you are expected to enforce that lease because someone has violated its terms.
Your lease is a critical component in your relationship with your tenants. At its most basic, without a lease you cannot collect rent. You see, without a lease in place, any payments received are not legally considered “rent” and your legal rights are at risk of being severely compromised.
Know everything you can about the most important document in your profession. It will prove beneficial in many immeasurable ways.

DISCLAIMER:

The reading of this newsletter does not form an attorney-client relationship. The contents of this newsletter are for informational purposes only and do not constitute legal advice. Nothing in this newsletter is intended to imply or predict the outcome of any legal matter that you may be considering or be involved in. The Landlord Law Firm makes no warranties of any kind regarding the information contained in this newsletter.