Articles in This Edition:

• Dead tenants: How to deal with the fact that they can't take everything with them.

• Who's in the zoo?  The perils of not knowing who's actually living in your rental units.

• "What's in it for me?"  How to come out a winner with tenants who request renewal concessions.

• Keeping your head low: How to avoid getting caught in the crossfire of tenant-to-tenant disputes.

Dead tenants:  How to deal with the
fact that they can't take everything with them.

“When death overtakes us; all that we have is left to others; all that we are we take with us.” – Unknown

Philosophers have long debated the value of life over death and the relative value of our lives compared to our possessions and personal property. However, the law applying to landlords and property owners tolerates no debate – you must deal with the issues of possession of the apartment and disposition of the dead tenant’s possessions and personal effects via either a summary process case or the “Death of tenant” statute at Connecticut General Statutes § 47a-11d.

The landlord’s approach – and whether it runs smoothly and efficiently, or haphazardly and costly – will largely depend on whether the landlord has prepared for the possibility of the tenant dying at the application and lease-up stages, plus from an ongoing property management and money collection perspectives. Does the prospective tenant application contain a “next-of-kin” section that captures the pertinent information plus the central players if a will is involved (for example, the names and contact information for the tenant’s executor and attorney)? How does the lease address a tenant’s death? What are the operational policies and procedures for dealing with someone seeking access to the unit to remove the deceased’s possessions and personal property? How are pending rent, damage, and storage amounts due pursued?

Unfortunately, it is not as simple as contacting the next-of-kin and giving them the key. One client tried this and learned the hard way that handing over a key is an invitation for the “executor” to move-in. That client called us months later to complain that the deceased possessions were still in the property and the “executor” had not paid any of the rental arrearage or rent since she moved-in, and had no plans to remove herself of the dead tenant’s possessions from the premises. It was a long, complicated, and expensive experience to resolve the issues the landlord created, which involved both the housing court and probate court.

What happens if the next-of-kin was a family member who placed personal interest over the instructions or wishes of the dead tenant and the rest of his/her family? If the other family members take the issue to the police department or court, the landlord could face arrest or a civil entry & detainer lawsuit after giving the next-of-kin access to the unit without appropriate legal authority. A criminal case is a nightmare. A civil case comes close, with the legally authorized family members able to claim double damages against the landlord – the value of the possessions taken times two. Often, the only testimony regarding the dead tenant’s possessions comes from the plaintiff family members, who may claim that the deceased tenant had a flat-screen TV, laptop, desktop computer, surround-sound audio components, jewelry, cash, and priceless family heirlooms in the apartment, which are no longer there and no one can find them or the next-of-kin.

There is good news – the deceased tenant’s estate must pay the landlord for any amount of unpaid rent, damages, and storage costs. Our landlord clients have found great success in pursuing such claims against the dead tenant’s estate, particularly where the dead tenant had liquid assets like a checking or savings account and investments. However, the statutes governing the administration of an estate have specific requirements and timeframe(s) for how and when to file a claim against the estate.

Landlords should evaluate their preparation and planning for a dead tenant by contacting their landlord general counsel for assistance in evaluating the landlord’s current operational processes (if any) and determining the necessary changes to meet the landlord’s business goals and objectives.  [TOP]

Who's in the zoo?  The perils of not knowing who's actually living in your rental units.

Do you know everyone who is living in your community?  I don’t mean, do you know them by name and recognize them at the supermarket.  I mean, if the fire department wanted to know how many people they needed to account for from the fire raging in apartment 31G, do you know who’s living there?

Until recently, most of you would answer “absolutely” and not think twice about it.  However, more and more conversations I am having with property owners and managers these days lead me to believe that the usual resounding “Yes” is now sometimes a flat out “No.”  In fact, a property manager recently told me that they had residents refusing to list the occupants of the apartment because it was an “invasion of the resident’s privacy” to disclose who was living with her.  That’s a story for another day.

Now, if residents aren’t telling you about the occupants who you may allow to live in their apartments, they probably aren’t telling you about the ones who moved in during the wee morning hours whose presence is putting you and your property at risk.  That’s right, risk.

Let’s take the simple one.  Your local housing code allows no more than 2 adults per bedroom in your units (by the way, these housing codes vary from town to town).  Unit 31G is a two-bedroom unit that, unbeknownst to you, has 9 adults living in it.  A housing code inspector learns of this situation and cites you - yes you - for violating the local housing code.  Now you must deal with this situation on the inspector’s schedule because failure to do so could subject you and your company to criminal charges and civil penalty.

Here’s a more complicated one.  Residents in 31G receive subsidized rent.  They list on their application and recertification paperwork two adults and one child living in the unit, when in fact there are 4 adults and 3 children living there.  You know about it but think that since you can’t do anything about it, you will let it slide.  Your subsidy administrator learns of the issue and abates your subsidy payments because you have breached your contract with them.  To make matters worse, you are later implicated in the residents’ fraudulent conduct to obtain federal benefits when the U.S. Attorney’s Office opens an investigation.

The apparent universal perception of everyone who complains to us about unauthorized occupants is that nothing can be done about it.  They claim that proving someone lives in an apartment without permission is impossible, and even if they could prove it, there’s nothing that can be done about it.  Well, that’s only true if you choose to do nothing about it.  Proving unauthorized occupancy of a unit is very possible, and, when handled properly, effective legal action can be taken that will address all the concerns created by such occupants at minimal cost to you. 

Failure to take action can get you in hot water.  Taking prompt, effective action to address the problem will not only get rid of the unauthorized occupants, but also eliminate risks that you may not even know exist.

"What's in it for me?"  How to come out a winner when tenants request renewal concessions.

If you haven’t seen the landlord on the “Today Show” teaching tenants how to negotiate their rents down, you’ve probably heard about it.  That’s right, the person who appeared on the “Today Show” training your residents how to get rent reductions, concessions, and the like out of you is, in fact, a landlord.  In addition, according to her, the strategies she is teaching apply not only to lease renewals, but could get tenants a rent reduction in the midst of their current lease.  So, let’s talk rent negotiations for the landlord. 

• How can I keep my renewal rates up without giving away the farm? 

• Do I have to negotiate on my renewal rates? 

• If I am offering concessions to new residents, do I have to offer the same to my renewing residents? 

• How do I handle the tenant who wants their rent lowered because our rents have gone down since he signed his lease two months ago?

These, and every variation of similar questions you can conceive, are buzzing across my desk on a daily basis.  And, with landlords teaching tenants on national television how to posture their demands for rent reductions and tenant advocacy groups supplementing that training with advice of their own, managers asking us these questions are justified in their concerns.  Many of the answers to these questions, while appearing to simply be business or operational concerns, have unintended legal consequences that should not be overlooked.

As you and your company develop the business strategy you will pursue to handle this difficult situation, make sure you engage your landlord attorney to discuss risks you may be facing with your business efforts.  Things like fair rent issues, contract laws, and fair housing laws are only a few of the possible tiger traps you could find yourself in if you aren’t careful.  While you may decide to pursue a strategy that poses risks to your company, don’t do so with blinders on.  Find out what your risks are in advance so you can plan for them and handle them directly.  In the meantime, remember that you signed a contract with your tenant.  They must abide by it just like you.  Now find out what your rights and risks are and develop a winning strategy for these difficult times.  [TOP]

Keeping your head low:  How to avoid getting caught in the crossfire of tenant-to-tenant disputes.

“Arguments are like fire-arms which a man may keep at home but should not carry about with him.”  – Samuel Butler

 

“Life is the art of drawing sufficient conclusions from insufficient premises.”  – Samuel Butler

Samuel Butler captures a common situation for landlords – being asked to referee disputes between tenants.  In an effort to retain the atmosphere that the landlord wants for the community, the landlord may seek to intervene and address the issues with the tenants involved.  This often works.  However, when it does not, there are three key things for the landlord to keep in mind.

First, it is not an issue unless and until a tenant is willing to describe the issue in writing and sign the report.  This simple rule will significantly reduce the time that most landlords currently spend on tenant-to-tenant disputes, because many tenants are not looking actually to resolve the issue if it requires them to do something – they just want someone else to deal with it, like the landlord.  (Obviously, if the tenant is reporting a property management issue or code complaint dealing with health and safety the landlord cannot refuse to address the matter simply because no tenant puts the complaint in writing.)  However, if they are willing to “put their name on it,” a good landlord attorney can assist the landlord with resolving the issue quickly and efficiently.

Second, it is not the landlord’s job to investigate, moderate, or otherwise resolve tenant-to-tenant disputes.  The landlord is not a police or fire department or government code official and should not imply or otherwise act with its tenants like the landlord is, and must be, the point person between the property/tenants and those government agencies.  Tenants must contact the appropriate government authority when there is a problem, whether it is noise, physical safety, or other public issues.  If the tenants refuse to do so, then the landlord must accept that fact and determine if the claimed behavior is affecting its community to the point that the landlord needs to act and, if so, act to protect its interests.  For example, if there were a claim of drug-related criminal activity on the premises, the landlord should involve the police department quickly and make the landlord’s resources available to the police, so the police can investigate and resolve the matter. 

Third, if tenants are unwilling to accept the normal aspects of multi-unit living, they should find an alternative place to live.  Sometimes, the landlord can resolve the situation merely by stating this aloud to the complaining tenant.

Landlords often lament their experiences with two tenants who absolutely refuse to resolve their differences (regardless of what the landlord did or would pay for, including mediation), the landlord could not determine who was at fault, and both tenants were “willing to testify” against the other.  We find the solution often lies in the landlord and its attorney reviewing the landlord’s applicable operational policies and procedures and incorporating the above concepts.  If the situation persists and is affecting the broader community, the landlord’s attorney can take the necessary litigation steps to resolve the situation by involving a terrific public resource for conflict resolution – the court.  This approach is even more powerful when the landlord’s lease contains a good legal fees and costs clause that will obligate the tenants to pay for such dispute resolution. [TOP]
 

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.