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The LandLord Advocate April 2011

Lead Article:

Recent Appellate case reinforces the use of plain language in Landlord-Tenant statutes.

In 2006, the Landlord Law Firm and the Housing Authority of the City of New Haven (“HANH”) won a landmark case in the Connecticut Appellate Court that ended, finally, decades of insidious undermining by the trial courts, tenants, and their advocates of a landlord-tenant statute governing evictions (see Housing Authority of City of New Haven v. Martin, 95 Conn. App. 802 (2006)). It was a victory for applying the plain language of the statute and affirming the idea (revolutionary as this may sound these days) that a legislature can pass, and a governor can sign, laws that mean exactly what they say.

The Connecticut Appellate Court reaffirmed this principle in a recent opinion, which reminds the trial courts that landlords can rely on – and the trial courts must apply – the landlord-tenant statutes as written by the legislature and signed by the governor (see St. Paul’s Flax Hill Co-Operative v. Johnson, 124 Conn. App. 728 (2010)).

In Johnson, the tenant’s adult son occupied the apartment without a right under the lease to do so and without the landlord’s permission (as required by the lease), so the landlord moved to evict the mother and son for unauthorized occupancy. The court had to determine whether an unauthorized occupant was entitled to a Connecticut General Statutes § 47a-15 notice, and therefore had a right to remedy the situation.

Before Martin, tenants, their attorneys and advocates, and the trial courts argued and held that a tenant could “cure” any breach of the lease or governing statutes pursuant to General Statutes § 47a-15, and – if they did so – the landlord could not evict the tenant.

Here is some factual background to the Martin case. Dawn Martin and her minor son, Andre Martin, lived in a HANH low-income public housing apartment. In May 2004, Andre Martin, along with friends, engaged in a running gunfight through the HANH community. One of the bullets from the gunfight passed through another resident’s apartment window, missing her child’s head by inches. The New Haven Police Department arrested Andre Martin for this criminal conduct, and HANH pursued the eviction of both Martins under the lease and statutory provisions governing the behavior of household members.

In court, defendant’s attorney argued that every tenant has a right to “cure” anything and everything that happens in violation of the lease or landlord-tenant statutes, and therefore remain in the apartment. Indeed, on appeal, defendant’s attorney argued that Andre Martin could have shot and injured or killed the child, and it would have still been “curable.” The trial court agreed, holding in part that “the plaintiff in a summary process action may recover possession only when the requisite notice has been provided and . . . the defendant has . . . failed to avail himself or herself of the opportunity to cure . . . .” Worse, the trial court held that the landlord must prove the tenants had not availed themselves of the opportunity to cure, which would force landlords to prove a negative – an almost impossible task.

Martin therefore revolved around the wording and meaning of General Statutes § 47a-15, which requires a Connecticut landlord to serve a tenant with a notice indicating the lease and/or statutory violations before serving a notice to quit. In relevant part, the statute says:

Prior to the commencement of a summary process action . . . the landlord shall deliver a notice to the tenant specifying the acts or omissions constituting the breach [of lease or statutes] and that the rental agreement shall terminate upon a date not less than fifteen days after receipt of the notice. . . . [I]f the breach is remediable by repairs or payment of damages [by the tenant to the landlord] and the tenant adequately remedies the breach within such fifteen-day period, the rental agreement shall not terminate . . . .

On appeal, the appellate court reversed the trial court and held that the plain language of the statute means that a tenant cannot remedy all breaches. Looking at the italicized language above, the appellate court stated that “[t]he statutory language clearly and unambiguously anticipates a situation in which a violation cannot be [remedied] by the tenant.” There are breaches that a tenant cannot remedy – in short, those that are not amenable to repair or payment of damages. Indeed, it is hard to believe that a running gunfight is remediable in either of those ways, particularly if one of the bullets had hit a person. Moreover, the appellate court held that, if the tenant claims adequate and timely remedy, the tenant (not the landlord) must plead and prove that in court as an affirmative defense.

In hindsight, the Martin ruling seems obvious, particularly for anyone reading the statute, but it was revolutionary at the time. In Johnson, the trial and appellate courts reaffirmed this “plain language of the statute” principle with General Statutes § 47a-15. The courts looked at the statute’s plain language, which uses the word “tenant” as the person entitled to such notice and limited statutory right to remedy. They then reviewed General Statutes § 47a-1, which defines “tenant” as “the lessee, sublessee or person entitled under a rental agreement to occupy a dwelling unit or premises to the exclusion of others or as is otherwise defined by law.” Accordingly, the courts ruled for the landlord, holding that an unauthorized occupant is not a tenant, so the unauthorized occupant is entitled to neither the notice nor the limited statutory right to remedy.

The good news is that Johnson furthers the principles that Martin established. The bad news is that the landlord’s attorney in Johnson made a bit of a mess of things. Read the accompanying article on selecting a landlord attorney to help you take advantage of the terrific statutes that Martin and Johnson address. Doing so will help you avoid the time and expense of extended litigation and appeal when such laws are not followed directly by the landlord’s attorney.

A little knowledge DOES go a long, long way.

The Connecticut Apartment Association recently conducted a survey of its members to determine how they could better serve the multi-family housing industry. The response was tremendous and tremendously lopsided. The consensus and perhaps the unanimous response from the membership was that education was their primary desire. If you are a member of the CTAA, thanks for your feedback. I am certain the organization has heard your voice and will act accordingly. If you are not a member, I suspect education is something you may lack as well.

In the ever-changing environment of multi-family housing, it is sometimes hard to take a breath without running afoul of some set of new regulations or restrictions that didn’t exist during your previous inhale. And, with a customer base that changes almost as often, knowing the trends and the dynamics of your industry are critical components to your future success.

There are many avenues you can take to get yourself educated:

  • You can join organizations like the CTAA or the Institute for Real Estate Management (IREM) which frequently provide industry specific seminars and educational opportunities that the public can attend.
  • There are national companies who provide education on many diverse subject areas with classroom instruction in local venues.
  • You could do online research both to educate yourself as well as to find online instruction to fill any holes that may exist in your knowledge.
  • There are many organizations that will do private training for you and your company.

The point here is that there are many ways to get you and your company the knowledge and information you need to make sure you are up to speed. The other point is that you must do it.

We frequently get calls from potentials clients who haven’t even considered educating themselves in the last five years and are potentially placing themselves way behind the power curve. Their leases are not current, their policies are outdated and they often start their discussion with, “I had a friend tell me…” Dialogs like this lead me to the most important point I can make. Whatever avenue you chose for becoming educated, verify your source. Research the seminar provider and the speakers involved. Make sure you are certain that whomever is providing you an education is both educated and aligned with your interests.

So often, I hear about landlords and management companies getting their training from tenant advocacy groups. And, while these groups may indeed provide some useful information, they are often biased against the landlord’s interests and, not surprisingly, cannot or will not provide useful strategies for dealing with difficult tenant situations. You will be much better served by a landlord advocate who is watching your back, rather than that of your tenant.

Finally, the most important reason you must stay educated is because your customers are. With all of the abundant information floating around the internet, you can be certain your prospects and residents have done their homework. If you don’t do yours, you could be at an extreme disadvantage in the future.

If you make a living in the multi-family housing industry or simply dabble in it with a few rental units, your success will hinge on staying educated and staying ahead.

Use the correct criteria when building your support team.

Landlords seeking effective, efficient, and lower expense legal work to deal with problem tenants must have strong attorney selection and communication processes established within their organizations. We have addressed effective communication strategies in our December 2009 Not-So-Quick Tip, and how to evaluate your attorney’s performance in our January 2010 article. Let’s now turn to selecting your landlord attorney.

First, ask a well-established landlord organization for its list of landlord attorney members, and for references to similar sized landlords within the organization to learn who they use as an attorney. Most attorneys who focus their practice on landlord-related legal matters belong to such organizations, because their clients are members and are addressing the subjects and issues critical to their industry in and through such organizations. In previous articles, we have talked about the Connecticut Apartment Association (“CTAA”), the Institute or Real Estate Management – Connecticut Chapter (“IREM-CT”), and the Connecticut Chapter of the National Association of Housing and Redevelopment Officials (“CONN-NAHRO”) as strong and valuable landlord organizations that can be a resource for landlords seeking counsel.

Second, evaluate the attorney you are currently using for your problem tenant matters. Housing mediators deal with attorneys representing landlords every day in Connecticut’s housing courts, and we get a chance to watch them interact and react to those attorneys. Here are some indicators that housing mediators have identified that reveal an attorney who really does not know how to represent a landlord, which we have turned into a series of questions that you can ask your attorney, with our answers in brackets:

  • Can I collect first and last month’s rent and a one-month security deposit at lease inception? [No.]
  • Can I always collect up to two (2) months of rent as a security deposit? [No.]
  • Can I evict any tenant for lapse of time? [No.]
  • If I win at trial, can I evict the tenant right away? [No.]
  • Do the landlord’s statutory responsibilities still apply if the tenant does not pay rent? [Yes.]
  • Can a tenant have a valid defense to a nonpayment of rent case – and not be evicted – when the tenant admits not having paid the rent on time? [Yes.]
  • Is there anything the tenant can do to stop the eviction after we get a court-signed execution? [Yes.]
  • Is there anything that I (as the landlord) can do that will eliminate my ability to evict the tenant after getting the court-signed execution? [Yes.]

If you hear anything other than our bracketed answers, be careful – the attorney may not know the field well enough, or may be simply trying to get you off the phone or out of the meeting. This could negatively manifest itself later in the lawyer taking positions or approaches that may not facilitate your goals and objectives.

Third, if you are considering a new attorney, give the attorney one matter and track it closely:

  • Meet with the attorney to talk about the case and your goal(s) – see if the attorney listens and uses your goals and objectives as the cornerstone of the attorney’s approach to the case.
  • Read every email update, pleading, and court notice that the attorney sends you to keep you informed about the status of the case – see if the attorney has an office structured to handle landlord legal matters, or see if the attorney requires you to track the status yourself by constantly asking for updates.
  • Attend court with the attorney, and watch how the attorney interacts with court staff, tenant, mediator, and judge – see if the attorney handles things with precision and credibility.

Then, decide whether you want to give that attorney any further legal matters.

Landlords must carefully select their attorneys, just as they select other trusted professionals, advisors, and vendors. Choose carefully, use this article as a guide to helping you find an excellent landlord attorney, and call us if you have any questions or need further guidance.

The importance of setting a goal.

For those of you who regularly read the Landlord Advocate, you may recall that I often write about things I learned upon my return from training. Well, I just again returned and I have some morsels that I want to share. Interestingly, these ideas come not directly from the training, but from some very thoughtful and provocative discussions that took place after class was over. The idea is really simple, but its application can be a challenge. We’ve heard it in many different iterations, formats, and forums, but its power deserves another mention:

Setting a goal keeps you focused.

Actually, it does a great deal more than that.

  • First, it gives you and your organization a common purpose. Everyone knows what the endgame is so they will recognize when it’s been attained.
  • Second, it provides a foundation against which a plan can be developed. A plan without a purpose is like a soap opera that never ends.
  • Finally, setting a goal gives you and your company a measuring device against which your plans and actions can be evaluated. If something doesn’t serve the goal, it may not be worth keeping.

So, why’s it so important to have everyone know where you’re headed? While some people appreciate the slow amble across the countryside with no particular place to go, many of us need a purpose, a reason to continue. Setting a goal gives everyone the knowledge of what’s expected, along with an indicator of when they’ve arrived. Everyone appreciates a sense of accomplishment and having a clearly communicated goal that gives them something to strive for and set the foundation for success.

That same foundation also serves as the basis for your action plan. With the goal in place, developing and implementing a plan becomes much easier. Without the goal, the plan has no focus and no purpose and will often wander through the same routine and plot, just like a daytime soap opera. The goal gives the plan meaning and significantly improves the effectiveness and clarity of the plan.

Then, with the goal set and the plan in place, you now have a basis for evaluating your efforts. A simple rule of thumb is that unless an action or decision gets you closer to the goal, ditch it. That’s much harder than it sounds. Whether or not something gets you closer to your goal is not always a straight line in a single direction. The impact of your actions and decisions will often have a ripple effect throughout your organization. So long as that ripple ultimately arrives at the shoreline where your goal awaits, dive in. If not, make sure that the ripples at least work favorably toward your agreed-upon purpose or they may adversely impact your journey.

The part of my post-classroom discussions that stood out the most was how to set the goal – also a very simple concept that is often difficult to apply. In order to set your goal, you have to know what you want. Those may sound synonymous, but they are not exactly the same:

  • Your goal is the end result of a task or a plan that hopefully everyone in your organization is working toward.
  • What you want is the product of achieving your goal.

For example, your goal may be taking a certain number of applications for apartments next month, while what you want, the product of achieving that goal, may be a 98{b3839be935df112798d4ec5997aa1a27aa9a9725854b075bcbd0000f0c7f06fc} occupancy rate.

Figuring out what you want and setting goals to get you there will keep you focused and help you achieve any success you pursue.

One final thought. Once you have identified what you want and set your goal, pursue with the passion and tenacity it takes to ensure your success. You’ve got a well-laid plan. Now, invest the necessary effort to see it through.

Quick Tip:

Things to keep in mind with week-to-week tenants.

Many residential landlords use a week-to-week tenancy model in certain regions of Connecticut, while others use it as their exclusive lease arrangement. A weekly tenancy can seem more informal than a monthly or yearly tenancy – they are usually created by oral leases with, by definition, more frequent rent collection, which makes it seem like a weekly hotel or motel stay than an apartment lease. However, the law treats a week-to-week tenancy just like any other tenancy.

For example, a weekly tenant has a statutory grace period covering rent payments, after which – if the rent remains unpaid – the landlord must use the summary process (eviction) statutes to regain possession of the unit. Here are some more details about each of these statutory requirements.

First, state law gives a week-to-week tenant a four (4) day grace period to pay the rent, which starts the day after the rent due date. Therefore, landlords must establish a rent due date with each weekly tenant.

Although this may sound obvious and seem easy to implement, Clerk’s Offices handling housing cases report that this is the primary obstacle for a landlord attempting to evict a weekly tenant. For example, clerks state that the landlord is often unable to answer the question “What is the rent due date?”

Even worse is when there is a rent due date, but the landlord has historically not required that the tenant comply with that, or any other, deadline. In this situation, the landlord’s operational policies and procedures have created a different (or variable) rent due date, which makes uncertain the otherwise straightforward process of issuing a notice to quit after the rent is “late.”

Second, the landlord cannot unilaterally lockout the tenant (commonly referred to as “self-help”) or use the police to remove a weekly tenant who does not pay the rent. Rather, the landlord must wait until after the grace period expires before serving the week-to-week tenant with a notice to quit. Landlords that serve the notice to quit early will face a clerk unwilling to accept the complaint or a judge who simply dismisses the case upon seeing the early service. Either way, the landlord has just added several more weeks or months to the eviction process.

Contact your landlord attorney for advice on establishing the necessary policies and procedures so you can take advantage of state law governing week-to-week tenants.
Remember, state law in Connecticut is excellent for landlords, but only if the landlord involved prepares for and applies its principles in practice.

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.