Landlord harassment

Landlord harassment is the willing creation, by a landlord or his agents, of conditions that are uncomfortable for one or more tenants in order to induce willing abandonment of a rental contract. Such a strategy is often sought because it avoids costly legal expenses and potential problems with eviction. This kind of activity is common in regions where rent control laws exist, but which do not allow the direct extension of rent-controlled prices from one tenancy to the subsequent tenancy, thus allowing landlords to set higher prices. Landlord harassment carries specific legal penalties in some jurisdictions, but enforcement can be very difficult or even impossible in many circumstances. However, when a crime is committed in the process and motives similar to those described above are subsequently proven in court, then those motives may be considered an aggravating factor in many jurisdictions, thus subjecting the offender(s) to a stiffer sentence.

Types

Various methods may be employed in cases of landlord harassment, such as, but not limited to the following:

Protections

At common law tenants were entitled to the "quiet enjoyment" of leased premises.[1] American common law has also adopted the "warranty of habitability" which ensures that residential premises remain in repair.[1]

In the United Kingdom and the Commonwealth, the Human Rights Act may provide a basis to establish what is fair and reasonable between tenant and landlord. The right to private and family life, and the right to enjoy one's possessions, are enshrined in this law. The right to an effective remedy and the right to express oneself freely should give the tenant the confidence to seek timely and reasonable resolution should they be suffering or under duress. Although human rights legislation is generally only enforceable against public bodies, it provides a framework of reasonability.

Depending on the specific circumstances, United Kingdom legislation such as the Public Order Act 1986 and the Fraud Act 2006 may provide specific remedies. Both common law and public order legislation makes it an offence for persons to behave wrongfully in a dwelling e.g. breach of the peace. Fraud legislation makes it an offence for a person to make a wrongful or forced gain (monetary or other) personally or for the body they represent.

Many local jurisdictions have very specific landlord-tenant legislation that sets out the duties of the landlord, a breach of which may be considered "harassment". For example, in California, Civil Code Section 1954, limits the landlord's right of entry,[2] and in New Mexico, there is an extensive "Owner-Resident Relations Act"[3]

Reasonable entry by the landlord

The conduct of business inside or at a dwelling must depend upon the reasonableness and willingness of the parties. If a landlord desires to inspect the dwelling at reasonable intervals and at reasonable times, it is advisable to have this in a contract proper--- Regardless, the purpose of the inspection must be clear, and the conduct of the inspection must be properly regulated. The purpose of any inspection is surely to ensure the integrity and good maintenance of the property, and the adherence to the agreement that exists between landlord and tenant. Entry into a dwelling does not give the landlord the right to gather information on, or to investigate, or interfere with, the privacy of the tenant. If the tenant is not comfortable dealing with the landlord or agent, then the tenant may wish to appoint a representative or friend. In either case, a simple and sensible record should be made.

The time taken to carry out the task should be reasonable. The tenant may not wish to conduct business inside a dwelling, and can reasonably ask the landlord to meet or transact business at an alternate place or address.

For example, the landlord (or agent) may attend at the premises to carry out an inspection which will normally take only a matter of minutes. The parties may then agree to exchange a simple written statement of facts, and then meet at a neutral place to discuss the matter or remedy.

Frequency of landlord visits

In carrying out repairs, replacements and other work, the landlord should make reasonable efforts to limit the frequency of entries to those actually necessary to accomplish the work.[4] For the sake of retention of one’s tenants and the avoidance of strife during tenancy, the keys to exercise of the right to entry are as follows. 1. Enter as infrequently as possible. 2. Always give ample notice and, if possible, allow rescheduling of the entry at least once to accommodate the tenant. 3. Always enter with a clearly defined objective in mind, and notify the tenant of it unless there is a strong reason not to do so.[5]

Landlord entering the unit

Legally, even a rented home is the tenant's castle, and the landlord does not have an unlimited right of access. Once an individual has rented an apartment, they have legal possession of it for the duration of their tenancy. The landlord must give the tenant reasonable notice, before he can enter the tenant's private home.

Originally, in an agricultural society, the law expected the landlord to rent the property to a tenant and then leave the tenant alone. It gave the landlord no right of access, but also no responsibility for repairs. The modern urban tenancy, especially in a multi-unit building with many building-wide systems, has forced that law to change. The landlord now has an obligation to make repairs and gets a right of access for that purpose. But that does not supersede the tenant's rights to privacy and to "quiet enjoyment" of the premises.

One of the most common landlord-tenant disputes involves access for making repairs. State Sanitary Codes require tenants to allow the landlord "reasonable access" at reasonable times to repair code violations. What is "reasonable", however, is the subject of frequent disputes. A tenant may insist on giving the landlord access only by appointment, but they must be reasonable about scheduling appointments. To give an extreme example, since the landlord usually must schedule tradespeople during the normal working day, it is not reasonable for the tenant to insist that the plumber can only come in on Sunday evening. Plumbers, carpenters, painters, and other tradesmen sometimes operate on unpredictable or busy schedules, so if they fail to keep appointments, tenants are encouraged to document the missed appointment in writing to the landlord, in a letter or e-mail, and keep a copy. Because some landlords may use lack of access as an excuse, tenants are also encouraged to keep scheduled appointments and maintain a good written record of their efforts to allow the landlord access to their property to make the desired repairs. In addition, because of documented cases of tradesmen stealing property, making long-distance phone calls, or committing other abuses while making repairs, tenants are also urged to make sure that the landlord or a representative be with repairmen at all times when they are in the tenant's property during the tenant's absence.

Housing courts can often be helpful in mediating disputes over access. The tenant's credibility in court will be improved if he or she has consistently cooperated reasonably with the landlord's need for access, and has documented their cooperation with careful record-keeping. If necessary, with a particularly difficult landlord, the tenant may benefit from asking a witness to observe interactions, and later testify about the landlord's conduct.

Many leases give the landlord certain entry rights. For example, under Massachusetts General Laws, ch.186, §15B, a rental agreement may only provide for the following rights to access:

The landlord may also enter the premises in accordance with a court order or if the tenant appears to have abandoned the premises. If a lease allows the landlord to enter for any other reason, that provision is illegal and void. In addition, the landlord's right to inspect the premises or to show them to a prospective purchaser does not mean that he or she can do it twice every day; the tenant can limit inspections to reasonable frequency. Unless the lease provides that the tenant must give the landlord a key to their property, the landlord has no right to one. The fact that a lease allows the landlord a right to enter for certain purposes also does not mean that the landlord may enter a private residence at any time without an appointment.

The right of the landlord to enter if the tenant appears to have abandoned the premises sometimes causes a problem when tenants are moving out. The tenant may have moved out most of their furniture and intend to return to pick up the last few things and clean up the apartment before turning in the keys. If the landlord believes the tenant has vacated the premises, however, he or she may come in ahead of the tenant, remove the remaining property, and attempt to charge the tenant for the "mess" they left. To avoid this situation, tenants are encouraged to be clear with landlords about plans to vacate, and to do so in writing. In one documented case, a tenant came back from his vacation and found someone else living in his apartment, with his furniture stored in the cellar. He wasn't behind on his rent, but he had been away for a while, and the landlord concluded that he had abandoned the apartment. To preclude any perception of abandonment, a tenant who is going out of town may benefit from informing his or her landlord of the trip, preferably in writing. If the tenant is away for an extended time, does not pay the rent, and does not respond to inquiries from the landlord, a court may find the landlord justified in concluding that the tenant has abandoned the property.

Retaliation

A landlord cannot try to evict a tenant, raise the rent, or change the terms of tenancy because the tenant has complained in writing to the landlord, or to any government agency, regarding conditions. The landlord also cannot retaliate in this fashion because a tenant has organized or joined a tenant union, or engaged in certain other protected activities. Within six months after a tenant has engaged in any of these protected activities, any act by the landlord of raising the rent, attempting eviction (except for non-payment), or making any change in any of the terms of tenancy is presumed to be a retaliation. This means that in any court proceeding, the burden will be on the landlord to prove that he or she is not retaliating against the tenant. In order to defeat a retaliation claim, a landlord must convince the court that he or she took the action for reasons independent of the tenant's protected action, and that he or she would have done the same thing at the same time even if the tenant hadn't engaged in the protected activity. If the landlord waits until six months after protected actions, retaliation may still be found, but the burden of proof is on the tenant.

If a landlord is found to be retaliating, he or she will not be able to evict the tenant, who may also be awarded damages from the landlord of one to three months' rent plus attorney's fees. The landlord also cannot willfully deprive the tenant of heat, hot water, gas, electricity, lights, water, or refrigeration service. Nor can the landlord lock out the tenant or remove him/her from their apartment without going through the proper court procedure. The tenant can ask the court to issue a restraining order, file a criminal complaint against the landlord, or sue him/her for money damages and attorney's fees. Because of these options for recourse, it may be to the tenant's advantage to complain about code violations in writing before the landlord issues a notice of an eviction or a rent increase. If a tenant attempts to claim retaliation, but did not complain about violations until after he or she received notice from the landlord, the tenant will be found to have no valid claim. The court will not find that the landlord was retaliating against the tenant for an action he or she had not yet taken.

Consumer protection law

Consumer protection laws also provide some protection against landlord harassment in some states. One such statute is Chapter 93A of the Massachusetts General Laws, commonly called the "Consumer Protection Law". Like the Federal Trade Commission Act on which it is based, and similar "baby FTC" laws in other states, it prohibits the use of any unfair and deceptive acts and practices in the conduct of any trade or business. Housing rental is generally considered to be a trade or business, and the Massachusetts Attorney General has issued regulations which define unfair and deceptive acts or practices in the rental housing field. Practices defined as unfair include failure by the landlord to disclose, to a tenant or prospective tenant, any fact of the disclosure of which may have influenced the latter not to enter into the transaction. Also defined as an unfair practice is any violation of any law meant to protect consumers, and any act which is oppressive or otherwise unconscionable in any respect. While the Consumer Protection Law provides some protections for tenants. If a landlord is the owner-occupant of a two-family or three-family house and owns no other rental property, he or she is not considered to be engaged in a trade or business, and is not subject to this law.[6]

See also

References

  1. 1 2 Kroll, David G. (1992). "The Landlord/Tenant Warranty of Habitability and the Covenant of Quiet Enjoyment". Colorado Lawyer. 21 (June): 1159.
  2. ↑ "Landlord and Tenant" (PDF). California Department of Real Estate.
  3. ↑ "Obligations of Landlords and Tenants for Safety, Maintenance and Repairs". Law Help New Mexico, New Mexico Legal Aid.
  4. ↑ http://www.ltb.gov.on.ca/en/Law/STDPROD_078964.html
  5. ↑ http://www.landlord.com/landlord_right_of_entry_by_state.htm#ARIZONA:_
  6. ↑ Massachusetts General Laws, Chapter 93a
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