The LandLord Advocate Jan 2012
If there’s one thing that New England weather has taught us is the importance of being prepared. Whether the threat be summer hurricanes or winter snow, those without a pre-defined plan, are usually the ones left scrambling. I unfortunately got a reminder of this lesson this past summer.
I was sitting in the airport in Las Vegas as Hurricane Irene was barreling toward CT. It was 12:00 AM local LV time – 3:00 AM here on the East Coast. I watched the news anxiously as the reports of airport closings rolled across the screen. My heart sank even deeper when an airline representative announced that all flights to New York had been cancelled – the airports were closing. Not having a backup plan, I called my wife frantically to see if she could help me find an alternate route in the event Hartford’s airport was next to be closed.
As we worked to come up with a plan, I was haunted with the image of my family, back here in CT, unprepared for what may come. Having grown up on the Gulf Coast of Texas, hurricanes, while not welcomed, were regular visitors to my hometown (parts of which were actually considered below sea level). I grew up learning the necessity, nuance, and critical importance of preparedness. Yet here I sat in NV, while my family was unprepared in CT – faced with a hurricane that was headed for our front door.
While my wife and I searched the web and called the airline, the airline rep came back on the intercom, apologizing profusely – seems New York’s airports had NOT already closed. Boarding would begin immediate for the next flight to New York. There was still a chance! I was racing Irene to Connecticut – however, I was not the one driving. Not a pleasant feeling.
Luckily, the story ended well – I am clearly here, my family still intact, and we sustained little damage from the storm. It’s the lesson learned from the aftermath that is really important. This experience turned out to be one of those moments in life that called for taking stock. The experience of racing home to prepare for what could have been a natural disaster on my front porch, sobered me to the idea that I was ill prepared to handle even the simplest and likely emergency situations that could occur. August 2011 will forever mark the start of our commitment to prepare ourselves in case of emergency.
I shared that story so that you can learn from my mistake. If you are prepared for whatever might befall you, congratulations. I applaud your effort and encourage you to stay that way. If you are not, now is the time to get there. It is a difficult and often daunting task, but one that brings peace of mind and calmness like I have never before experienced.
Below is a list of some things to consider should you be ready to tackle this necessary endeavor:
- You can never be too prepared. There is no such thing. So, you must decide how much preparation you will do and get it done. You can bet it won’t be all that you could do, but some preparedness is better than none.
- You must think outside your box and your comfort zone. Power outages and nor’easters are common here in CT. Preparing for those should be simple. But, are there things in your community for which you are ill prepared? Fire, for example. Do you have a fire response plan for our office and your staff? Is it something you practice on occasion so that everyone knows what to do? How well are you and your staff prepared for the irate resident whose temper gets the best of them and whose threats become more than verbal? Do you have an action plan on how you will respond to them?
- Have a contingency plan when things don’t work out like you expected. Just like you can never be too prepared, even when you are prepared, Murphy will rear his ugly little head and spoil you plan. Putting all of your eggs in one basket is a sure way to ensure you lose all of your eggs.
- Don’t rely on someone else to help you in an emergency. Remember, if the situation is big enough, emergency services may not be available for some time. Simple things can be done that will give you and your family a chance to make it through the emergency and give you the calm you need to weather the storm.
- If you do nothing else to prepare yourself, commit to getting yourself, your family and your staff certified in CPR. It sounds so simple, but most people are not. In fact, many people either expect to rely on emergency services, or think they can figure it out on the fly – after all, they see people doing CPR on television all the time. Don’t be one of those whose only option is to sit by and watch. Get CPR certified and then chose your next step.
Here’s to a happy, healthy and well-prepared for 2012.
Utilize your lease (oral or written) to help define tenant fines or charges.
We are often asked by clients whether a particular fine or charge against a tenant is permitted. Our response – before we even look to any statutes or case law – is “it depends on the lease.” The lease holds the answer, as it is the key document between a landlord and tenant, one that defines their contractual relationship.
As a contract, the lease provides a binding legal basis for enforcing the landlord’s and tenant’s respective rights and responsibilities. In addition, it is a vehicle that allows greater detail, specificity, and customization be applied to the particular situation at hand – much more than the state statutes would. Indeed, the Connecticut statutes governing landlord-tenant relationships set forth the minimum requirements for a landlord and tenant, and – importantly for this subject – permit the use of leases to further define the relationship.
For those who may be wondering, no it does not matter whether the lease is oral or written. Oral leases are just as enforceable as written leases in Connecticut. And like a written lease, an oral lease can also define whether a particular fine or charge is permitted, as long as the parties addressed the situation upon initiating their lease.
However, the lease is not always the final answer, as governing statutes or case law may prohibit certain action by the landlord. Contact your landlord attorney if you have questions regarding the imposing of fines or charges on your tenants.
Presenting your case to the judge like a teacher.
Recently, we have experienced a larger number of summary process (eviction) hearings and trials. One of our main roles in each of these cases is preparing the landlord to prove his position to the judge deciding the case. In this end, we recommend a teacher’s approach to presenting the facts, an approach that uses both words and documents to tell the story of why the tenant should be evicted.
There are three (3) components to this concept:
- First, landlord attorneys cannot prove a case at trial – they can present, explain, and argue it to the judge, but they cannot prove it. The landlord (or a representative, like a property manager) must be a witness, sworn under oath or affirmation, who testifies regarding the applicable facts of the case before the judge at trial.
- Second, while judges may generally understand the basic landlord-tenant relationship and have a good grasp of the applicable law, they often have no experience or knowledge of the landlord or tenant prior to the trial before them. The landlord who understands this reality and helps the judge understand the facts, the landlord’s role and actions, and the tenant’s responses (or failure to respond) – the way a teacher helps a student learn new material – will experience greater success at trial.
- Finally, just like students are taught never to just “take someone’s word for it” and are encouraged to find documentary support for their classroom or homework assignments, so judges also like to see documents that support the landlord’s position. Accordingly, the landlord who can present to the judge, in an organized fashion, the applicable documents (including, for example, a readable and correct ledger card) has a substantial advantage at trial over the tenant.
If your case is heading toward a hearing or trial, discuss with your landlord attorney your role as teacher to the judge, and prepare your case with the attorney accordingly.
Protecting yourself from mold claims.
Mold is a naturally-occurring situation that is continually causing problems for landlords. Without a preemptive attack, property owners can be exposing themselves to expensive court litigation should mold spores take hold within their units.
Obviously, the most effective way to prevent mold is by eliminating what it needs to survive and grow—water and humidity. Effectively removing available sources of both will go a long way to preventing mold growth.
The second essential defense is proper lease terminology. Adding a mold clause to your lease will force each resident to acknowledge their responsibility to proactively prevent and retard mold from accumulating in the unit and/or on the surfaces of the rental unit.
Contact your landlord attorney should you be unsure as to whether the mold clause in your lease effectively protects you from this financial pitfall.
Small steps that can lead to big results.
As discussed in our main article “How to be prepared for whatever 2012 may bring”, being prepared for emergencies is a critically important part of our lives. If we are to take responsibility for our own well-being and ensure we endure an emergency with the best possible outcome, preparedness is where it’s at. Now, be warned. Getting prepared can be hard.
Once you start getting prepared, there really is no end. Every corner you turn will lead you to another element or emergency which you can spend time and money addressing. It is exactly that fact that makes most people shy away from even getting a little prepared.
We all have precious little time with which to spare. Why use it up on something that will just continue to consume more and more of our time? Besides, someone else will surely help us. Well, it is exactly that mentality that can lead to negative outcomes over which we have no control at all.
So, here’s the plan. Start small. Address a single item of preparedness each month and before you know it, you will have a comprehensive plan – or set of plans – in place. If you’re unsure where to start, here’s a suggestion: January’s preparedness assignment – how to deal with an uncontrollable resident in your office who is making physical and verbal threats.
As the Coast Guard would say, Semper Paratus – Always Ready.
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.