The LandLord Advocate July 2012
We have written often about the importance of addressing unauthorized or illegal occupants who may take up residence in your units [see our Jun. 2009, Feb. 2010, Aug. 2010, and Feb. 2011 editions for out past discussions on the subject]. This month, we’ll pinpoint yet another reason why having people living illegally in your units is a recipe for disaster – only this time, the outcome was even worse for the landlord.
I will confess up front, illegal units being occupied by authorized tenants is not the same as having unauthorized occupants in your legal units. However, once you finish reading this article, you will see that the consequences associated with each can be very similar – and very painful.
Recently, a Waterbury landlord pleaded guilty to Manslaughter in the Second Degree (along with other lesser charges) after being charged by the State Attorney’s office following a fire on his property. While there appeared to have been no evidence that the landlord was actually responsible for setting the fire, it unfortunately occurred in an illegal unit in his rental property (the structure had recently been converted by the landlord from a two-unit building into a four) – making him legally responsible.
The landlord’s downfall was in the fact that CT Fire Safety Code requires two separate exits in each apartment unit in a building containing three or more dwelling units. The State Attorney argued that the landlord was responsible for the death of one of the occupants because the landlord knew and consciously disregarded his obligations regarding the second exit in the illegal unit. The State further argued that the tenant would have likely survived had there been a second exit as required by law.
There are many lessons to be learned here, not the least of which is make sure you meet all code requirements when developing or redeveloping your multi-family housing. Additionally, you must get proper approvals and inspections when performing and upon completion of such work. These codes, approvals and inspections, while often costly and time consuming, serve as your protection when things go wrong on your property. This landlord faces 2 ½ years of an eight year sentence as a result of his efforts to shortcut the system.
More subtly, though, is the underlying message that this case delivers to the landlords and property owners in CT. The State Attorney is willing to seek criminal convictions against landlords who don’t play by the rules. But you play by the rules when it comes to work done on your units. Why should you care about enforcement from the State Attorney’s office?
Let me paint the picture only slightly differently:
- Same structure, except the landlord followed the code requirements and got all the proper approvals and inspections.
- Upon completion of the project, a new tenant moves in – one who receives a federal subsidy.
- During the lease term, the landlord learns that this authorized tenant is housing an unauthorized occupant who happens to be a convicted sex offender.
- The landlord knows this unauthorized person is living there illegally and that under federal law someone with sex-offender status is ineligible to live in a subsidized apartment.
- However, the landlord, knowing he faces a tough battle, chooses to ignore the unauthorized occupant – regardless of the fact that the remaining units in the building all have small children.
So while the landlord played by the rules during the reworking of his property, the subsequent choices he made regarding the unauthorized occupant could, if discovered, be heading him toward a conviction similar to the one obtained in the Waterbury case above. Final lesson learned – while challenging to prove, unauthorized occupant situations cannot be ignored. They can lead to many adverse consequences to you, the landlord.
There are effective strategies to assist you in handling these situations aggressively and effectively. Don’t expose yourself to the power of the State Attorney’s office and to the plight this real life Waterbury landlord now faces.
When to believe your tenant.
We have seen an uptick recently in the number of calls from our landlord clients regarding tenants who have abused the landlord’s trust or behaved in ways that the landlord could not imagine. In some of these instances, the landlord believed the tenant and acted (or did not act) in a way that in turn prejudiced the landlord’s rights. Translation – when the tenant did the opposite of what was promised, the landlord suffered accordingly.
Specific examples we have heard lately include:
- The tenant swears that he will pay the rent by next Thursday, so the landlord does not send the file to the landlord attorney for a notice to quit. When the tenant fails to pay, the landlord now faces the end of the month with neither the rent money nor a case heading toward court.
- The tenant guarantees that she will move-out by Sunday, so the landlord cancels the eviction for Monday. However, the tenant does not move-out, and the landlord must wait (again) for the marshal and mover’s schedules to accommodate an actual eviction, potentially losing a prospective tenant who would have otherwise taken possession of the freed-up unit in the meantime.
- The tenant acknowledges that he has not paid the rent and declares that he will move-out before court, so the landlord goes to court expecting the keys or a short-term final stay. Surprise! The tenant does not move-out, and demands a trial before the judge – a delay which could potentially cause the case to be set for a date several weeks down the road with similar problems for the landlord as described in the above two situations.
We sympathize with these landlords, because we see this happen every day, and it never “makes sense.” So, what can landlords learn from these all-too-familiar stories? Tenants will not always act in a logical or commonsense manner, particularly when they have previously shown a disregard for their lease or statutory obligations.
When initially facing these situations, we recommend that landlords ask themselves whether the tenant has proven to be untrustworthy in the past. If so, the landlords should not believe the tenant and should act to protect their own rights instead.
Contact your landlord attorney if you have any questions about a tenant’s request or position and whether (and how) to take steps to protect your rights while you wait to see whether the tenant actually does what he/she promised.
Common vision creates clarity.
Returning to the office from the National Apartment Association Conference in Boston, I found myself inundated with paperwork, phone messages, emails and the like – all this after only two days away from the office. Luckily, thanks to a speaker at one of the education sessions in Boston, I felt I now had the tools I needed to tackle not only this challenge, but all of the challenges I faced upon my return.
The speaker, also the founder and CEO of a $100 million company, shared the story of his company’s creation, attributing their overwhelming success to one, simple concept – Common Vision. Described as nothing more than a singular focus on the company’s purpose, the speaker made it very clear that every decision within his company, along with every product, every event, and every person, must contribute to the company’s Common Vision – else it be eliminated.
How much more simple can running a company be? My answer – it can’t.
So here’s this month’s challenge – define your Common Vision. If you and your company, your office, or, for that matter, even your family, can identify and commit to a Common Vision, all of your energy and attention will become focused on achieving that one Vision – guaranteeing a significant move toward success.
Don’t know where to start? Define a vision for yourself. It will serve as a great model when you sit down with your staff to create your shared, Common Vision. After that, success is unlimited!
Retaking apartment demands a solid legal foundation.
Recently, we’ve had landlords tell us about management and maintenance staff retaking possession of an apartment by simply changing the locks and disposing of the tenant’s personal possessions because the “tenants said that they were moving-out.” However, in many of these instances, the staff had not received the keys from these tenants upon their exit. Rather, the staff typically claims that they had not seen the tenants on the property for some time after the move-out statement, or that they had seen the tenants with a moving truck, and that the tenants had then failed to return to the unit for several days and/or left the apartment unsecured as they departed from the property.
As landlord attorneys, we recognize the practical logic to these stories, however the law does not. Under Connecticut law, a landlord can retake possession of an apartment only if one of the three conditions below is met:
- The tenants vacate and return all keys;
- The landlord brings a summary process case and obtains judgment for possession and an execution, and the marshal “satisfies” the execution via an eviction (which always requires the marshal’s involvement, but does not always require a moving company if the tenant left nothing behind, or only garbage); or
- The landlord uses the state law abandonment notice procedures.
Unfortunately, many of the landlords we spoke with recently did not have one of these legal foundations in place to retake possession. Sure enough, the tenants (or their attorney) later contacted the landlord and claimed the exact opposite (i.e. that they had not completed their move) and then demanded the return of their now disposed-of personal possessions. Facing claims under state law for actual and other damages, each of these landlords wrote a check to their respective former tenants to settle the cases.
We realize that most of our readers know this law – as did each of the landlords who told us these stories. We included this quick tip to reinforce your knowledge, and to recommend that you share it with your management and maintenance staff, as you may now have new hires or other people on your payroll who may have simply forgotten the rules as they spend the vast majority of their time handling their other main responsibilities.
Contact your landlord attorney if you have any questions about the valid legal foundations for retaking possession of an apartment, or for assistance in bringing a summary process case and/or using the abandonment notice statute.
Keep your perspective.
I recently learned (or maybe re-learned) an important life lesson that I feel may be worth sharing. The short story starts with the injuring of my elbow while climbing ropes. I was preparing for an obstacle race and I strained my elbow. Determined to compete, I pushed through the pain and ran the race.
Two days later, I returned triumphantly to the gym, fully addicted to the adrenalin of my first obstacle race and prepared for the next challenge. Thirty to sixty minutes into my workout the pain in my arm became so severe that I became nauseated and dizzy. Even the road bumps on my ride home sent pain shooting through my entire arm. Long story short, my determination had done some severe damage to my elbow and I now found myself sidelined for two weeks by trusted medical professionals.
This downtime did however afford me time to think about how I had ended up in such a lousy situation to begin with – I had lost my perspective. I became so focused on the immediate, short-term prize of competing in my first obstacle race, that I ignored the warning signs – nearly ruining my chances of ever competing in one one.
Losing perspective is not uncommon. We all do it in many aspects of our lives – we get so focused on one goal that we pursue it relentlessly, with little or no consideration of how it will impact us or those around us. Unfortunately, it’s not just personal choices that may cause us to lose perspective. Failing to stay focused professionally can also have adverse effects.
Maintaining the proper perspective allows you the flexibility of handling acute situations when they arise. So don’t get lost in short-term gains when it’s the long-term goal – full units with compliant tenants – that should maintain your focus.
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.