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The LandLord Advocate March 2014

Lead Article:

Don’t let your tenants muscle you with retaliation claims.

Just because your tenant complains to you about the condition of their apartment, reports you to the health department, or contacts the code enforcement officer claiming code violations, does not mean they are immune to legal action when they don’t comply with the lease.

You may have heard horror stories where a tenant made a claim to the health department and then stopped paying the rent. The landlord took legal action against the tenant for failing to pay the rent only to be told that they could not continue with the eviction because they were retaliating against the tenant for filing a report with the health department. Whoever told the landlord they could not proceed was ill-informed and sharing lousy advice.

There is a statute that protects tenants from a landlord’s retaliation. Under certain circumstances, the tenant is protected from the landlord taking legal action. Those circumstances, however, are very narrowly defined and in no way give the tenant license to ignore all of their obligations under the lease. In fact, the retaliatory eviction protections under the state statutes are so narrow they would prevent only a scant few landlords from continuing their legal action against the tenant. That’s because a tenant’s responsibilities to the landlord under their lease contract remain in full force and effect even after a complaint to the health department or any other organization under the statutes.

We get calls all the time where a landlord is having a serious issue with a savvy tenant and the landlord has been “advised” that they cannot initiate or continue their eviction for nonpayment of rent or lease violations because the tenant complained about code violations and so the eviction is retaliatory. This could not be much further from the truth. The statutes that provide tenants protection from retaliation are followed by a very clear statute that spells out the exception to this rule. If you believed you could not proceed with an eviction after someone files a formal complaint against you, you may be surprised by these circumstances where you can still start an eviction case that is not, by statute, retaliation:

  • Tenant is using the dwelling unit for an illegal purpose
  • Tenant is using the dwelling unit for a purpose which is in violation of the rental agreement
  • Tenant failed to pay the rent
  • The landlord seeks to regain possession of the unit for its own personal abode
  • The condition complained of was caused by the tenant, a person in the tenant’s household, or a person on the premises with the tenant’s consent
  • The landlord served the proper notice to terminate the lease before the tenant’s complaint

As may be obvious, most of these situations are the exact reasons why you would initiate a summary process action against your tenant in the first place. Your tenant can claim that you acted in retaliation as loud as they want. However, if they use the premises illegally, violate the lease, or fail to pay the rent, their claims will fall on deaf ears. You may proceed as if they never filed the complaint against you.

On a practical note, because they have claimed you are retaliating, you must now show, through appropriate evidence that you are not. You will need to provide proof concerning the tenant’s conduct, your attempts to correct it, and the ongoing problem you are trying to remove from your community to show the basis for evicting the tenant – something you must do anyway. Don’t believe anyone who tells you that a tenant receives a free pass to do as they please if they report you to the health department. If the tenant believes they got a free pass and they act accordingly, your rights to get them out of your unit remain in full force and effect. Use them.

Quick Tip:

Stopping bed bugs at the door.

Preventive maintenance is a common concept for doctors and dentists to advise their patients on minimizing health and dental issues and expenses in the future. We all know it works, although it may require some planning, a commitment to action, and diligence.

Landlords and property managers also know the power of preventative maintenance regarding the structure and systems of their commercial and residential properties, such as with the HVAC (heating, ventilation, and air conditioning) systems. As we discussed when we first published this Quick Tip about the “furniture inspection,” it is also a powerful tool to address bed bugs or, more accurately, keep them out of the commercial or apartment complex in the first place.

The move-in inspection is a common industry practice, during which the landlord and new tenant review the unit for damage or other issues and complete an inspection report detailing the unit’s status. This provides an unequivocal baseline from which the landlord can address future tenant damage to the unit, and – with a move-out inspection – address any security deposit accounting or lawsuit to collect damages (the move-in and move-out inspection forms are outstanding evidentiary exhibits for landlords at any trial).

Translating this into the bed bug arena, landlords can expand the move-in inspection to include an inspection of the tenant’s furniture before the tenant moves anything into the building. Indeed, it would be even better if the landlord conducted the furniture inspection off the premises of the commercial or apartment complex, to avoid the issues raised in our newsletter about handling bed bug infested furniture.

Landlords can engage an expert to handle furniture inspections, or do it themselves. A New Haven Register article once described how one apartment complex has engaged its extermination vendor to conduct such furniture inspections. Other clients have had their extermination vendor train their leasing and property management staff to locate the telltale signs of bed bugs during the furniture inspection.

Bed bugs were the subject of a well-attended and lively session several years ago at the National Apartment Association Education Conference & Exposition, in particular how they can spread at an almost exponential rate once in a building. Landlords can use the furniture inspection to help prevent such a nightmare scenario.

Contact your landlord attorney to address your tenant application, tenant screening, lease language, and operational policies and procedures needed to facilitate preventative maintenance with your tenants, including furniture inspections. Indeed, as touched upon in our May 2009 newsletter, this conversation can be a critical component in the landlord’s development of the legal and operational strategies for handling bed bug issues with a PEST Plan.

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.