Landlord-Tenant Disputes
It is not uncommon for landlords and tenants to disagree over a variety of rental issues such as rents, security deposits, habitability, landlord access, repairs, tenant privacy, and lease violations. Many times disputes are a result of a tenant misunderstanding important rental policies. How a landlord handles a dispute can have a significant impact on business operations and consequently bottom line numbers.
Most disputes, when addressed in a timely manner and with the landlord and tenant willing to work through the issues, can be resolved without litigation. The willingness of each party to negotiate in good faith can lead to a satisfactory settlement of issues.
To the degree possible, the best way to handle a dispute is to avoid the necessity for a dispute. To minimize the chance of disputes, a landlord must understand his legal duties and obligations by statute. To help the tenant understand his corresponding legal duties and obligations by the lease agreement, a landlord should provide specific detail in the lease agreement for terms and conditions, rules and regulations, and remedies for lease defaults. Tenant orientation, landlord regular communication of important rental policies and practices, and landlord enforcement of lease terms and conditions guide the tenant in understanding his responsibilities and rental standards during his tenancy.
Although many disputes can be avoided, there are some disputes that require quick action such as a tenant’s material default of lease terms. Material violations of lease terms and conditions that pose a direct threat to others or damage to property are priority matters that must be dealt with immediately through appropriate remedies.
While disputes are stressful, disruptive, and costly in terms of time, energy, and money, a landlord cannot afford to avoid disputes simply by ignoring them. Doing nothing to resolve a conflict is rarely an effective business policy and usually leads to more costly legal action. However, being too quick to take legal action can also be a less than effective approach to resolving a dispute. Before deciding to resolve a dispute in the courtroom, a landlord should consider all available options. There are alternative methods of resolving a dispute without having to consult a lawyer or go to court. A landlord will need to select the option that allows him to control and resolve the issue appropriately and in a professional manner.
In considering possible options to resolve a problem, a primary determination is whether the issue can be solved in a manner that is acceptable to both landlord and tenant yet in line with good business practices.
The first step in any problem solving process is to understand the issue. It makes sense for the landlord to begin by talking with the tenant to determine the nature and extent of the issue. By keeping an open mind and actively listening to the tenant, a landlord may find the tenant has a valid point. The information gained from the tenant may provide insight to the landlord that can strengthen his rental policies, clarify certain practices and help avoid potential future disputes. In discussion with the tenant a landlord can determine if negotiation and settlement is possible. It may simply be that either landlord or tenant misremembered or misunderstood certain facts, which could be easily verified with documentation from the tenant’s file.
In determining the underlying issues and extent of the problem, a landlord should be aware that his own behaviors can directly affect the situation and the solution. Keeping personal emotion in check is important in the initial assessment of the problem. By removing emotion from the situation, a landlord can determine the facts of the matter and make an informed decision that is in the best interest of his business. Emotional responses lead to discussions of what is “right” and the “principle of the matter” which may only delay resolution of the issue or fast forward to legal action.
In reaching a satisfactory compromise, both parties want to feel they’ve won, or at least not lost very much. While money is usually the chief motivator to resolve problems, not everyone puts a premium on the dollar. It is a better approach to ask a tenant what it would take to solve the problem. If a landlord can determine the tenant’s motivation, i.e., what the tenant wants to see happen, a landlord may be able to reach agreement and settlement on the issue. If a settlement is reached, it is important to document all details including signed written acknowledgment of the offer and acceptance by each party.
Negotiation of problem issues should be a primary consideration before threatening a tenant with legal action. There is little room left to maneuver a settlement when the first communication to the tenant is a threat. Legal action may be necessary and appropriate in certain circumstances to protect the business interest and safety and security of others.
Mediation can be an important next step if negotiation efforts are unsuccessful in settlement of issues but both landlord and tenant are willing to keep trying for a satisfactory resolution. Using a mediator, an independent, neutral third party trained to help facilitate communication, can help landlord and tenant to work out their own solution to the issue. A mediator does not have authority to bind either landlord or tenant to an agreement. Either party is free to proceed with legal action if no compromise can be reached. Studies have shown however that those who agree to mediate their differences are more likely to be satisfied with the resolution that those who proceeded directly to court.
Many business contracts include language specifying that any disputes under the contract are to be settled by binding arbitration. A landlord may have incorporated such language in a customized lease agreement. Arbitration is another non-judicial method of resolving disputes. An arbitrator is a neutral third party who reviews the case evidence and makes a final decision. Unlike mediation, the arbitrator has the authority to bind the parties to an enforceable decision. If the arbitration decision involves a money award and the losing party does not pay as required, the money award can be converted to a court judgment.
Alternatively, landlord or tenant may file a lawsuit against each other. Most lawsuits involving a relatively small amount of money are handled through the state’s small claims courts. Small claims courts have a maximum limit on the amount of money that can be awarded, with the majority of states limiting the amount to less than $15,000 but some states have much lower limits. A few states have a higher maximum limit, but information such as this should be verified with the appropriate court of jurisdiction before bringing a lawsuit. Small claims court procedures are relatively simple and most landlords can easily represent themselves in court. However, it is usually advisable to be represented by an attorney if the tenant has engaged the services of an attorney.
Keeping written documentation of tenant records, tenant correspondence, and tenant warnings and notices is particularly important in handling tenant conflicts. Landlords should document everything including the time, date, the problem/issue, and other relevant information regarding the disputes raised by a tenant and actions taken to date for resolution. A landlord will want a complete, detailed record of events and actions from the first notification of a problem or conflict through the final resolution of the issue. Good detailed records will help to defend against possible tenant claims of discrimination, landlord negligence, or other potential liability issues.
There is another consideration that could arise in landlord tenant disputes. If the tenant has exercised a legal right such as a complaint to a government agency, building or housing agency regarding code violations for health or safety, or has organized or become a member of a tenants’ union organization, any action taken by the landlord against the tenant is or is presumed to be retaliatory, which is a violation of state law. Retaliatory landlord action may take the form of raising the rent, reducing services to the tenant, or threatening to bring legal action for eviction. Some states have an automatic presumption timeframe, ranging from 90 days to one year from the time of the tenant’s legal activity, during which a landlord’s action would be considered retaliatory.
However it may be that if the landlord can prove his action is due to the tenant being in arrears for rent or that code violations are the tenant’s fault due to lack of reasonable care of the property, presumptive retaliation may not be applicable. To help avoid charges of retaliation landlord must accurately document the interactions with the tenant (e.g., repairs, complaints, or inspections), the type of action taken, and the date and time received/resolved.