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Are you sure your lease is legally enforceable?

Lead Article:

Are you sure your lease is legally enforceable?

A housing mediator recently told me that he gets multiple calls a week from prospective residential tenants who have refused to sign a landlord’s lease that states the landlord may forcibly evict the tenant at the end of the lease term by entering the apartment, removing the tenant’s belongings, and changing the locks on the day after the lease expires without a court order.

The prospective tenant objected to the lease language, but the landlord refused to reword it. Meanwhile, the unit remained vacant while the potential tenant brought in the help of the housing mediator to investigate whether the lease provision could actually be enforced. So, who came out ahead?

The tenant – as the lease language it is not enforceable. The Connecticut General Statutes state that a lease “shall not provide that the tenant agrees to permit the landlord to dispossess him without resort to court order” – in other words, a landlord cannot forcibly evict a tenant without a court order even if the lease term has ended. The landlord who does so is exposed to criminal arrest and substantial civil damages, including the tenants’ statutory right to pursue double their damages from the landlord and possibly their attorney’s fees. This increases the likelihood of the tenant suing, because of the potential for increased recovery and lack of need to pay for an attorney. Indeed, tenant’s attorneys are often willing to take such a case on a deferred payment (meaning, waiting for the victory and court order to the landlord to pay the legal fees) or contingency fee basis (meaning, taking a percentage of the tenant’s damages recovered).

Moreover, the landlord that includes such a lease provision undermines the perception that it is running a business, not playing a game to see who can get away with what. As any landlord who has dealt with the police and/or brought a summary process (eviction) or damages case (such as for unpaid rent) to court against a tenant will tell you, the more that you look and act like a business, the more that the law will respect the landlord’s rights as much as the tenant’s rights.

Here is another commonly unknown aspect of Connecticut state law – for lease terms of more than one (1) month, tenants must pay the rent by the first of the month, unless the lease says otherwise. Notably, this statute does not require the landlord to make a monthly rent demand on the tenant and, therefore, no rent statements or invoices are needed.

Unfortunately, for many landlords, their leases do not refer to this statue or they say more than “Rent is due on or before the first of the month.” Any additional lease language calls the rent due date into question, which is critical because another state statute gives the tenant a nine (9) day grace period to pay the rent before the landlord can start a summary process (eviction) case. For example, if the lease says that rent must be paid by the first and the tenant will be in default if the rent is not paid before the 10th of the month, was the due date really the first or the 10th? Remember, the rule is that the court will interpret the lease in favor of the non-drafting party (usually the tenant). Thus, this language carries a high risk that the court will find the rent due on the 10th and that the landlord could not take action before the 20th (after the nine (9) day grace period expired), so that a case founded on a notice to quit served on the tenant before the 20th will be dismissed.

Many landlords send their tenants rent statements or invoices every month as a standard business practice. Of course, like any business activity, this practice can fall prey to typographical errors (the rent amount due is misstated or does not include past due rent) or production errors (for whatever reason, the rent statements are not sent). Under governing law, the court can hold these errors against the landlord – and not enforce the lease in full – by viewing the landlord-tenant relationship in its entirety and ruling that the landlord’s business practices change or affect the enforcement of the lease. This is called “course of business dealing” and has been the death of many summary process (eviction) cases for landlords, as the court forgives a tenant’s failure to pay the rent timely because of an incorrect or missing rent statement.

Connecticut state law does not allow many provisions in leases, while it also obligates tenants to certain responsibilities and behavior even absent a lease. Contact your landlord attorney to ensure that your lease does not contain prohibited provisions, does not undermine the statutory obligations imposed on tenants to the landlord’s benefit, and otherwise does not negatively affect the excellent rights given to landlords by Connecticut state statutes.

Avoiding tenant disputes and The War of the Roses.

Mr. Jones arrives for his 3:00 appointment with you. When he scheduled the appointment, he told you he was having a dispute with another resident about which he needed to speak with you. Now, in your office, he reveals to you that the other resident is his spouse. He explains that Mrs. Jones was arrested for assaulting him in the home and that, as a result, he’s got an order from the court that she cannot return to the apartment. He even shows you a copy of the order. Now, Mr. Jones wants you to change the locks on the unit and make sure his wife does not get a key. He is afraid for his safety and he wants you to help him stay secure. Before you pick up the phone to call maintenance, read on.

Tenant disputes, as we have previously discussed in our June 2009 edition, are an area on which you should tread lightly. Absent tenant conduct that violates your lease or the rules, you have no recourse and your involvement in the dispute can only increase the possibility that you are exposed to some risk or liability. If the dispute is brought to you by one of the tenants, or a third party, you must first assess what your rights and obligations to the community are and act accordingly. You will likely take some sort of legal action, so make sure you find out everything you can about the circumstances of the dispute. The situation gets much more complicated when the tenant-to-tenant dispute is between people who live in the same unit. Roommate disputes and spousal disputes are particularly difficult since someone in the unit is possibly a victim and someone in the unit won’t have a place to stay.

In our example above, you may conclude that Mrs. Jones violated the lease. In fact, Mrs. Jones has likely violated some state statutes as well that could result in her speedy eviction from your community. Taking action against her is well within your rights. But, your assessment of the situation has only begun. After reviewing the lease, you find Mr. and Mrs. Jones are both “tenants” under the lease and each of them signed it. Therefore, their rights and responsibilities, just as their obligations, are joint and several. That means each of them has individual rights and responsibility under the lease and together, as co-tenants, they have those same rights and responsibility. You must keep that in mind as you approach the situation.

Mr. Jones next tells you he wants new locks on his doors. That is no problem. Treat this as any request for new locks. Change the locks and charge the Joneses what you would normally charge for such a request. But, despite Mr. Jones request, Mrs. Jones gets a key. You can’t lock Mrs. Jones out of her unit just because Mr. Jones asked you to. And, you can’t do it just because he has a court order that Mrs. Jones cannot return to the apartment. The court must enforce its order that she remain out of the unit, not you. If Mrs. Jones wants a key, Mrs. Jones gets a key. Otherwise, you are locking Mrs. Jones out of her apartment illegally and you will be held responsible.

Now, fast forward a bit. You want Mr. Jones to stay in his unit. He has been a model tenant, and you tell him so in your discussion. He suggests that if you take Mrs. Jones off the lease, he will gladly stay and pay the rent. But, as long as his wife has a right to return to the apartment under the lease, he is unable to stay out of his ongoing fears of her abusive conduct. (See, February 09 and April 09 editions for a discussion on early termination). While you can’t remove Mrs. Jones without her consent, there are other ways you can address Mrs. Jones ongoing tenancy that could put Mr. Jones in the situation you both desire. Each are largely dependent on the facts surrounding the dispute, and you are well advised to take every piece of information you have gathered and discuss your legal strategy with your landlord attorney. This situation isn’t easy to navigate and will require an accurate assessment of both Mrs. Jones violations of the lease and the laws if it is to succeed.

One final thought. Although tenant disputes, whether between neighbors or cohabitants, are a place you should tread lightly, that does not mean your hands are tied. Much to the contrary, your lease and the laws provide you an extensive array of options with which to address the tenants who are involved in these disputes. Our suggestion to tread lightly is directed at any action you might take short of referring them to your attorney. Everyone’s natural inclination is to intercede and attempt some reconciliation efforts before taking more aggressive legal action. Resist that inclination and take the aggressive legal action. If a tenant is willing to confront a neighbor without restraint and respect, everyone else in the community, including management, are potential victims of future disputes. Such conduct need not be tolerated in your community.

How to doubly protect yourself against injury claims.

A tenant or its business customer (commercial) or guest (residential) is injured in a common area for which the landlord is responsible. This is usually a stressful experience for the tenant and injured person. However, it need not be for the landlord as this situation presents an opportunity for the landlord to generate some goodwill with the tenant by carrying a high level of medical payments (commonly known as “med pay”) coverage under the landlord’s general liability insurance policy. In addition, this often-overlooked component of the landlord’s insurance program can provide the landlord and its business with the associated benefits of reduced distraction, time, and stress in dealing with an upset tenant and injured party.
Med pay is basically like health insurance – thus, unlike the liability coverage under the insurance policy, it does not require the landlord to admit fault (or even be at fault), just that the injury occur on the insured premises. After the landlord reports the incident to its insurance carrier, the carrier then interacts directly with the injured person quickly to address and pay for any medical bills up to the limit of insurance, usually without any deductible charge to the landlord.
So, what’s the catch? There really is not one, though insurance companies are not selling this coverage to be nice. Rather, they have learned that med pay coverage is a highly effective method of reducing the total cost to it (and, by extension, the landlord) when someone is injured on the landlord’s property. For example, in the routine “slip and fall” situation, the injured person often is willing to allow the matter to pass as long as the landlord (or its insurance company) pays all the medical bills. Why? Many people realize that accidents happen, do not have health insurance (and are scared about medical bills overwhelming their personal finances), are philosophically opposed to lawsuits, and/or just want to put the matter behind them. Landlords and their insurance companies meet this group’s needs through med pay coverage.
Most property insurance policies have med pay coverage, but the limit of insurance – or payment maximum – is usually small, such as $1,000 per incident Given medical care costs these days, this amount easily will be exceeded by a few doctor office visits, radiology services, and/or physical therapy visits. If the injured person’s medical bills exceed the med pay limit, the landlord can expect the injured person to sue (commonly called a “personal injury lawsuit”), which may cause the landlord to pay its insurance policy deductible and will cost the landlord (and its staff) time, energy, and focus while dealing with the insurance claim and lawsuit processes. These costs usually will exceed – by a large amount – the increased cost of higher med pay coverage.
Here is the great news – landlords can buy an increased limit on med pay coverage for a small annual premium increase, which will likely be negligible compared to the landlord’s deductible and related costs and expenses to face a personal injury lawsuit. Call your insurance agent now to discuss whether and how to increase your med pay coverage, and contact your landlord attorney if you have any questions or concerns about the scope of your insurance coverage(s)

Are you easily swayed? Tools to help combat “The Irresistible Pull of Irrational Behavior”.

Your tenant left you a message asking for another week to come up with the rent for this month. It is the same tenant who called last week with the same request; who has done so for the last two months; who has never paid the rent on time; and who, if you give them another week to come up with the rent for this month, will still be three months behind on the rent. Why is it, then that you are once again considering giving them the extra week?

Ever find yourself in this position? I have. Not with tenants paying rent, but with other situations where my gut, my brain, every fiber of my being is telling me to take one path, yet I am drawn down a too familiar path that ends with a result I already predict will be disappointing. Despite the rationale, I keep repeating the same course of conduct while expecting a different result. Sound familiar??

Since the holidays I have had the opportunity to reflect more on these types of scenarios, not because I’ve found a new path, but rather because I received a gift – literally. For Christmas, I received the bestselling book, Sway: The Irresistible Pull of Irrational Behavior. Because I was between reads, I cracked it open after the wrapping paper dust settled. Boy, am I glad I did. The gift I received this Christmas was perspective. In Sway, brothers Ori Brafman and Rom Brafman write my story. Well, I’m not actually in the book, but the explanation they give as to why I am continually drawn down that familiar path of disappointment is.

But how does this all relate to you and to landlording? Allow me to explain in my abridged, simplified form….

There are a number of interrelated concepts the Brafmans explore in Sway that, when considered together in the context of a specific situation, seem to describe why we find ourselves making or repeating decisions we end up calling mistakes. The first concept is loss aversion. This is our desire and efforts to avoid possible losses. It is compounded by our commitment to an idea or a process, which, once we’ve signed on, becomes very hard to break. When these are coupled with the idea of value attribution, we are really in a jam. Value attribution is our first impression. When we meet someone or see something, we make a split second judgment as to its value to our situation. This initial value sways our future ability to change its value, as does our diagnosis bias. Even in the face of evidence that contradicts our initial value, our initial impression of the person or situation, our diagnosis bias prevents us from breaking the spell we have put ourselves under.

So, the tenant I mentioned at the beginning stands there before you, again. This time, as in the previous six, they have no money to offer. They describe their situation this week, which is just another version of last week’s saga. It’s only a matter of time, they tell you, before they will have the money they have been promising you for the last three months. You catalogue this story in your mind as Version C, with a twist, since you’ve heard them all. You know they are not coming up with the money by next week. They haven’t a dozen times so far. In fact, you say, out loud, “What makes this week any different than the last twelve?” Yet, you continue with, “I really don’t want you coming in here next week with yet another reason why you don’t have the rent.” Yet, you know they will. And then, as if someone else is speaking from your mouth, you say, “This is the last chance I can give you.”

You’ve just been swayed! And, not by the tenant, but, by your own mind. According to the Brafmans, you’ve been swayed by underlying psychological forces within yourself. You are averse to losing the money the tenant owes you, and so you give them another chance to come up with it. You are committed to the process of giving your delinquent tenants an opportunity to make good on their lease obligations. Your first impression of the tenant was positive or they never would have become tenants in the first place and so you have projected value onto them and their tenancy. And, your diagnosis upon approving their application to become tenants was that they are creditworthy (and whatever other criteria you apply) and so they must be, despite the mounting evidence to the contrary.

Sway recounts endless examples of how these forces gain their momentum in our minds and cause all of us to make decisions that we ultimately deem irrational. I don’t pretend I am not still swayed, but at least, for now, I can find the answer as to why. It was a great present that I received, but an even more powerful gift. Being aware of these psychological forces at play will undoubtedly reduce “The Irresistible Pull of Irrational Behavior.”

Quick Tip:

Explain your legal position ONCE and just ONCE.

It is a normal human impulse to want to explain yourself to others. However, as landlords quickly learn in the court system, their legal positions regarding tenants are often best expressed only once to the tenant and by their landlord attorney so the communication is self-explanatory and self-executing.

Here is the key point that is often misunderstood: After having taken their legal position and communicated it to the tenant, commercial and residential landlords do not need to explain it further to the tenant, even if the tenant (or other third parties) request more information.

A landlord’s legal position can result from the lease, a default or pretermination notice, a notice to quit, or some other legal document. Here is a recent example from a residential landlord client’s perspective.

Our client owns and operates a large elderly-disabled multi-unit complex. It had instructed us to send a no-trespass notice to a tenant’s adult child who repeatedly visited the tenant and caused serious disturbances at the property. Other tenants had reported events where they felt physically threatened by the adult child. Shortly thereafter, the property management staff experienced a similar event so shocking that they called the police to address the adult child’s threatening conduct toward them.

The no-trespass notice stated explicitly that the landlord would prosecute to the full extent possible if the adult child violated it over the next three (3) years). Problem solved. After the marshal served it on the adult child (with a copy to the tenant), the adult child did not revisit the property, and the other tenants and management staff reported a significant increase in the quality of their living and working environments, respectively.

Recently, the tenant asked the landlord to reconsider its no-trespass notice, which the landlord refused to do, as the underlying issues were still present. The landlord asked us, “What do we need to do now legally” in response to the tenant’s request? The answer, which surprised them, was nothing. The landlord had taken its legal position by issuing the no-trespass notice, and its decision not to move from that position required no further action or explanation.

Remember, the key for landlords is to take the necessary legal steps to establish their position and, when possible, in a way that requires no other action or explanation. Contact your landlord attorney if you are facing a problem or issue and are looking to establish your position effectively and efficiently.

Quick Tip:

Why is it always a matter of time?

We’ve all made decisions and choices that we later questioned our reasoning. As I wrote in the accompanying article SWAY, sometimes they are explained by the sway of irrationality. Other times it’s just a matter of time. Not that it’s an eventuality, but it is literally a matter of time.

Often, we don’t have the luxury of perfect information and endless time to evaluate it. We feel the pressure of time to make a decision, to beat a deadline, to arrive promptly, and we make questionable choices. I realized this recently on my drive to a meeting. I scheduled plenty of time to arrive promptly but got a late start. Since I had a lengthy drive ahead of me, I chose to make up the time in the car by traveling faster than I normally would. I felt the pressure of the appointment “time” and chose to increase my own personal risk just to be on time. Instead, a call to my destination would have revealed that the person I was meeting was also running late and was, at that very same time, rushing to make the same meeting on time.

I’ve slowed down since then, making many more things less a matter of time. I’ve also learned to avoid the pressure time creates. Both have helped me make better decisions, and, for that matter, get a great deal more done in the same amount of time.


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.