The LandLord Advocate Oct 2012

It is easy for landlords to get lost in the world of federal Fair Housing Act compliance, and many landlords get discouraged and perceive that the law contains no limitations and completely favors tenants, regardless of what the tenant may or may not do. During our Fair Housing training seminars, we emphasize that there are indeed limits, and they obligate the tenant to meet certain requirements and take certain steps.

A recent case from the Supreme Court of South Dakota emphasizes a critical limit on providing reasonable accommodations to tenants – the tenant must first make a request for a reasonable accommodation. Absent a request, there is no obligation for the landlord to provide a reasonable accommodation.

In Meadowland Apartments v. Schumacher, the landlord obtained an eviction judgment against a disabled tenant having an unauthorized pet dog in subsidized housing. In 2010, tenant Heidi Schumacher obtained the dog and left in landlord Meadowland’s rent drop box a doctor’s note saying that she would benefit from a pet companion. In turn, Meadowland asked for the dog’s vaccination records and proof of city license.

Schumacher did not respond to these landlord requests, and instead left the dog with friends so that it would no longer live with her. Later, Schumacher signed a pet policy agreement with Meadowland confirming that she did not have a dog. Thereafter, Schumacher did not request permission from Meadowland to have a dog.

Nonetheless, Schumacher did bring the dog back to live with her after signing the pet policy agreement, but did not tell Meadowland about it. On two separate occasions, after receiving repeated complaints about the dog from other tenants, Meadowland attempted to facilitate the reasonable accommodation process by seeking information from Schumacher about the dog. However, Schumacher refused to cooperate with Meadowland and repeatedly denied having the dog.

Meadowland definitively learned about the dog at an apartment inspection, during which the property manager smelled pet urine and feces to an overwhelming extent, saw carpet and wall damage, and heard the dog barking continuously from a kennel in the unit. Shortly thereafter, the landlord pursued and obtained the eviction judgment.

On appeal by Schumacher, the Supreme Court of South Dakota affirmed the eviction judgment and reminded tenants that they must actually request a reasonable accommodation, and the landlord must refuse it, before the tenant can successfully claim that the landlord violated the federal fair housing statute. Indeed, the Supreme Court quoted a federal appeals court for the requirement that “a landlord is only obligated to provide a reasonable accommodation [to a tenant] if a request for the accommodation has been made.”

In this case, the Supreme Court emphasized Schumacher’s failure to request permission from Meadowland to bring the dog back into her apartment, Meadowlands’ efforts on two occasions to facilitate the reasonable accommodation process upon receiving complaints about the tenant having a dog, and Schumacher’s refusal to cooperate and continued outright denial of having a dog. In those circumstances, the Supreme Court found that Schumacher had not requested a reasonable accommodation and, accordingly, Meadowland had not denied one, so Schumacher’s fair housing claim failed and Meadowbrook could evict her.

Contact your landlord attorney if you have questions about fair housing law compliance or a problem with a tenant that may implicate the fair housing laws, keeping in mind that federal law applies across the country and that some states, including Connecticut, have their own version of fair housing laws that may also apply.

Quick Tip:

Landlords targeted to close city budget gaps.

In an effort to offset a $4 million gap in their city’s budget, New Britain’s Common Council recently enacted an unpopular decision that further targets and penalizes landlords and rental property owners by implementing a $150 licensing fee on each rental property owned within the city.

While it is not our place to question the decisions made by New Britain’s governing council (or their overall governing aptitude for that matter), further burdening property owners within their town in an effort to help close budget gaps, seems quite unacceptable.

Apparently the more than 200 opponents who appeared at the council meeting to voice their opposition agreed. Unfortunately, they were unable to influence the outcome of the vote, and the plan for implementing licensing fees of $150 per rental unit was easily passed.

Although this decision only affects landlords and rental property owners in New Britain, it is an important event for everyone to consider. Who knows what fiscally undisciplined town may be next to consider such a move. Protect yourself and your investment by getting involved in local discussions and decisions that may negatively impact you and your property.

Quick Tip:

Statute vs. lease language – which applies?

You are facing a problem tenant situation, and know that the governing statutes allow you to take certain steps immediately. And luckily for you, you took the advice we gave in our August edition and know what your lease says on the topic. However, you found that the lease speaks to the subject in different terms than the statutes. Which dictates in this situation? Can you rely just on the statutes or must you abide by the lease terms and conditions? Well, it depends on what your lease says….

There are potentially many variables involved in getting to the answer. For example, it may depend on who drafted the lease and whether the lease language advantages the landlord or the tenant. It could be based on whether the lease language is in addition to (or an attempt to replace) the statutory language, and if it speaks to (or fails to address) the existence of a governing statute. In addition, it will be necessary to determine whether the statute creates rules or rights that can (or cannot) be waived.

The good news? Landlords and property managers are usually in a position to control the language of their lease, and can proactively work to eliminate any terms and conditions that may be in conflict with state statutes. Or should such conflicts be wanted and intentional, align “answers” to any issues or questions that they feel may arise regarding its terms.

For example, in the case of a residential landlord wanting to gain access to the leased premises for an inspection, the landlord faces a statute directly on point, and can either rely just on that statute or add lease language that addresses some of the common issues regarding the application of that statute (like tenant consent to entry when the tenant is not present). The commercial landlord on the other hand, faces no such statutory requirements, but may add them to the lease to enhance the marketability of the premises to potential tenants.

Contact your landlord attorney with any questions you may have regarding the law governing landlord-tenant relationships, and whether you can add, subtract, or change lease language to make identifying and addressing problem tenant situations more clear, efficient, and effective.

Quick Tip:

Meet Lori Arsenault – Paralegal Extraordinaire.

In our continuing effort to familiarize readers with the Landlord Law Firm staff, this month we would like to introduce you to Lori Arsenault – dubbed our most personable and intelligent “Paralegal Extraordinaire”.

Growing up in Springfield, MA, Lori graduated Magna Cum Laude from Western New England College in Springfield, MA with a Bachelor of Science Degree with a concentration in Marketing. Through various forks in the road, Lori redirected her career to the legal profession and luckily for us, found herself in Connecticut and at the Landlord Law Firm, where she’s been an integral part of our team for the past seven years.

Recently celebrating her 20-year wedding anniversary with her husband Jim, Lori’s true passions (aside from generating Notice to Quits) are:

• Her daughter Shaina – a talented ballet soloist (cast to dance the role of Sugar Plum Fairy in the upcoming 2012 New England Ballet production of The Nutcracker) and
• Following warm, ocean breezes to exotic tropical locations.

As a member of the Ballet’s Board of Directors (and a mother of one of their dancers) Lori also keeps herself busy sewing costumes, gathering toe shoes, and ferrying other dancers to and from practice.

If you haven’t had the pleasure of working with Lori in our office, please take a moment to introduce yourself. She is a gem and will certainly put a smile on your face.

Quick Tip:

The benefits of seeking out “the law”.

When was the last time you voluntarily sought out and interacted with “the law”? Despite your past beliefs, the occasion doesn’t have to be dictated by a negative event. Now is the time to get out of the office for an in-person visit to your local police department. Meet the patrol sergeant for your property and the lieutenant to whom the sergeant reports. While you have met (or at least encountered) some of the patrol officers who handle your property, you may not know these supervisory officers.

Developing a long-term relationship with the police department is a worthy objective. However, it should be noted that such a relationship is often difficult to establish – much less maintain – when it is continually centered on emergency events at your property or your site’s immediate needs. So why not take a quick field trip or short diversion from your normal routine and visit your local police department to introduce yourself to these individuals? Don’t wait for something to go wrong at your property to prompt the meeting.

Still unsure about your approach? Contact your attorney for guidance on how best to interact with your local police department – particularly if showing-up unannounced is something that makes you uncomfortable.

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.