You are steamed. This tenant was trouble from the beginning–an amateur lawyer. He quibbled about everything you did. He “knows the law,” and so wasn’t going to let you get away with any of those sleazy landlord tactics. You know why you rented to him, the place had been vacant for three months and you’d had no applicants, not even bad ones. Then this jerk showed up. Good job, good rental history, looked like a good tenant. His landlord references even came back okay. They were probably afraid to say anything about his attitude toward landlords for fear of incurring his wrath and the lawsuit.
First crack off the bat he was complaining about some lock that worked hard. It was a little tricky, but lots of old locks are. Turns out that he broke it one day, forcing it to work. But he never said a word to you about it. Next thing you heard was the complaint from the building department.
The law is clear that there have to be working locks on all exterior doors. This one didn’t work anymore, because he broke it when he forced it.
No problem, you just sent a locksmith over to replace the lock–and planned your revenge.
The next week you sent a letter telling him you were raising the rent $200 a month. That ought to get him to move. You never heard anything more about it. The next rent payment came without the rent increase on it. Of course it wasn’t time yet, you had to give 30-days notice.
But the month after that rent didn’t include the increase. You called him to ask about it and he said, “I’m not paying it, it’s retaliation, and that’s against the law.” Fortunately you called your attorney to ask if he was right before you filed an eviction. He concurred that the tenant was right.
Thirty-one states have statutes prohibiting retaliation; and even some of those that don’t have such laws recognize retaliation as a defense against eviction, terminating tenancy, increasing the rent, reduction of services, and/or increasing the obligations of the tenant. In most states where there is a statute, you can’t do any of those things for six months after the violation of the tenant, but check your state’s Landlord Tenant Law to find out — it could be longer–or shorter.
A whole slew of activities by tenants are protected against retaliation by landlords. One state law includes “complaints or reports to a governmental authority concerning the failure of the landlord to substantially comply with any code, statute, ordinance, or regulation government the maintenance or operation of the premises, if such condition may endanger or impair the health or safety of the tenant.”
Other state laws include complaints by a tenant about health, building or housing code, the delivery of mail, discrimination; organizing a tenant union; testifying against the landlord in a judicial, administrative or legislative proceeding; if the tenant successfully defended an action for possession, meaning if the landlord tried to evict and failed; or “assertions of enforcement by the tenants of his rights and remedies.”
All is not lost. You can still get rid of the tenant for four reasons: if the tenant doesn’t pay the rent; if the tenant doesn’t follow the terms of the rental agreement; if the tenant made the complaint in bad faith; or if you will have to have the unit vacant in order to do the necessary repairs (the ones the tenant complained about) on the property.
Here’s how to ensure that you are still able to manage property in the face of a possible retaliation claim.
Non-payment of rent: every time the rent is late, send every notice for nonpayment of rent at your first legal opportunity.
Failure to follow the terms of the rental agreement: Warn the tenant in writing of any violation of the terms of the rental agreement. In most states it is a notice to stop the violation with 10 or 14 days, or move in 30. Of utmost importance is that you document every violation by the tenant with as much paper as you can muster. Oral complaints by tenants need an incident report. Written complaints need both an incident report and the note from the offended tenant. Keep copies of any letters, notes or notices you send to the tenant in question–whether they are about violations or not.
Rest assured that when the tenant has sufficiently violated the rental agreement and you move to terminate the tenancy, he or she will claim you are retaliating. You will be called upon to prove that you have sufficient cause to terminate the tenancy and that your action does not qualify as retaliation, but has a legitimate business basis.
Complaint made in bad faith: If you can show that the tenant’s complaint was frivolous or groundless, you can immediately give them a no-cause notice to move—it was made in bad faith. Ask your attorney for instructions on this one.
In light of the recent circumlocutions about the definitions of words numerous politicians, it behooves us to understand completely what “bad faith” is. Bad faith is intentional deception, dishonesty, or failure to meet an obligation or duty. Bad faith means lying, cheating and stealing. Bad faith means violating basic standards of honesty in dealing with others. Bad faith means a tenant has misled the landlord, the courts or some other official, or has done something wrong regarding the matter under consideration.
One state law defines “bad faith claims” as those “made solely for the purpose of harassment, or in complete absence of a justifiable issue of either law or fact.”
Suppose in the example of the lock at the beginning, that you had had a new lock installed in the apartment immediately before the tenant moved in. The work was done by a licensed locksmith and the lock worked perfectly at move-in. But the tenant, with the idea of causing trouble, deliberately broke the lock. After you sent the locksmith to repair the lock, you could get a statement from him or her that the lock was damaged intentionally. That would mean the tenant had acted in bad faith when he complained about a non-working lock to the city building department.
As a result you could immediately send a notice terminating his tenancy. If he contested the termination as retaliation, you could get the testimony of the locksmith that the lock had been intentionally damaged. The tenant’s action would qualify as “intentional deception, dishonesty, or failure to meet an obligation or duty.” Your tenant claimed that the lock was defective, when indeed it was not until after he had jimmied it. But as mentioned above, check with an attorney before you even think about claiming bad faith by a tenant to see that you have covered all possible defenses by the tenant.
Have to vacate unit for repairs: This one probably provides the most poetic justice for the tenant. Things were so “bad” that he or she complained to the city, but you can’t fix it with someone living there. The tenant has to move. Then you can just hope that some other landlord calls you for a reference.
This is the law in most states. Once again, make sure that it is the law in yours.
Don’t try to be clever, thinking you can get away with retaliation by doing an end run around the law. Over the years state legislatures have had the opportunity to learn from the cleverest end run arounds and have covered just about every possible loophole. As mentioned before, you are prohibited from evicting, terminating the tenancy of, increasing rent for, reducing services of, or increasing the obligations of the tenant. We have already looked at when you can terminate the tenancy or evict. So what about the other prohibitions? In some rare cases you can increase the rent, but doing either of the other two will get you in trouble almost for certain.
Increasing the rent—the only reason you could increase the rent would be if you needed to for a legitimate business reason. So if you increase the rent during the “retaliation” period, you had better be prepared to prove that the timing and amount of the rent increase was necessary. However, had you sent the rent increase notice before the tenant’s action that inspired the retaliation, you are in the clear. If the tenant were to complain to a government agency immediately after the rent increase notice, his actions could be construed as having been made in bad faith. The tenant’s complaint could be interpreted as retaliation for the rent increase.
Reducing services—never, ever, ever do it. This is known as “constructive eviction,” and is illegal. These things might include anything from giving the tenant’s prime parking spot to someone else to turning off the water to the apartment. Do anything to reduce the services to the tenant and you will have little or no defense against the charge that you are retaliating against your tenant.
Increasing the obligations of the tenant—never, ever, ever do this either. Some landlords might decide that since the tenant is so “disloyal” that he is going to have to start paying for his own electricity. Do anything to increase the tenant’s obligations and, just like reducing services, you will have little or no defense against a charge of retaliation.
Penalties for retaliatory conduct by the landlord range, depending on where the property is, from having to pay the tenant two months’ rent or twice actual damages all the way to criminal prosecution of the landlord and/or property manager.
How do you avoid the retaliation question entirely? If you are up against a situation where a retaliation complaint is possible, you did something wrong. If it wasn’t poor tenant selection, it was failure to exercise good public relations with your tenants.
Nipping Repair Complaints in the Bud
One landlord I know had a problem with a tenant calling the city to complain about things not getting fixed in the tenant’s apartment. This landlord takes pride in his property, and is quick to repair any problems the units might have. Enough was enough. Now, every month when they take the rent to the manager, they are handed a Maintenance Request Form, which consists of:
• a heading
• a line for the date
• a few lines where the tenant can write the problem
• a box at the bottom to check where it says “No maintenance required at this time.”
• a place for the tenant to sign or initial
If a unit has a repair problem, the landlord takes care of it that month. He says he hasn’t had any more problems with tenants calling the city.
An additional advantage of this tactic is that it would probably void any retaliation defense a tenant might come up with if you chose to terminate the tenancy after he or she had signed this document. While you can never accurately predict how a tenant-friendly judge will rule. A tenant complaining to the city about a repair problem after he or she had signed something saying there were no repair problems would go a long way toward showing bad faith. And, as explained earlier, bad faith negates the claim of retaliation.
Good tenant selection
Nothing avoids tenant problems like never getting problem tenants in the first place. Ninety-percent of tenant problems are avoided with careful, business-like tenant selection. Lots of information about tenant selection is available in past articles.
Operate ethically
Never even give the appearance of unethical behavior. Nothing irritates customers of any business much more than getting the feeling that they are dealing with a less-than-honest person. Always tell tenants everything they need to know about your business and how you operate. And most important, always do what you say you are going to do.
Deal with repair complaints promptly
When you get a repair request, tell the tenant when you will have someone there to look at it and when you expect to have it taken care of. Always keep tenants updated on the progress of any repairs or any other circumstance involving their homes.
If you get a tenant with a bent toward trying to make his or her landlords’ lives miserable, plan your revenge carefully. Obviously, these are people whom you don’t want to do business with. But make sure in getting them out of your property you follow the law to the letter.
