Wednesday, November 27, 2013
Another one week hiatus from posting
Due to the combination of Thanksgiving and Channukah this year, my life is a little too hectic to do a blog post this week. Look for me to be back with a new post next week, however!
Wednesday, November 20, 2013
Avoiding Tenant "Self-Help" Part 2 - Notice Termination
As always before reading my post, please review my disclaimer by clicking on the link above, or by following this link. As always, any principles discussed apply only to the Commonwealth of Virginia.
Introduction
Last week, I began a multi-part series on alternatives for tenants whose landlords are in violation of their lease and the law, so that tenants can avoid the mistake of engaging in self-help. Last week's post covered one option available to tenants - filing a Tenant's Assertion. Today, I'm going to discuss another option, something I call notice termination. Notice termination is something a tenant can do that, unless the tenant chooses differently, can be done entirely outside of court, and whose primary purpose is to simply terminate the lease, allowing the tenant to leave the property without having to pay any more rent. It carries some risk, however, so read on to learn more.
VRLTA vs. Common Law/Chapter 13 Lease
As is always the case when dealing with a landlord/tenant issue in Virginia, the first question to ask is how the process differs between leases that are governed by the Virginia Residential Landlord and Tenant Act and those that aren't. Like tenant's assertions, the right for a non-VRLTA tenant to take this course of action only dates back to 2011. However, since 2011, the rights are now substantially similar except that a VRLTA tenant has a statutory right to receive back most of his security deposit in the case of a notice termination that a non-VRLTA tenant does not have, and it's possible that a non-VRLTA lease could waive the tenant's right to use this provision (as with last week, I only say possible because there is no case law on that possibility at this point).
Pre-Conditions to a Notice Termination
The law for notice terminations for non-VRLTA leases is laid out in Va. Code Section 55-225.13 and for VRLTA leases in Va. Code Section 55-248.21. Both sections contain the same preconditions:
Process if Breach is Remediable
The process for a remediable breach is:
The process for a non-remediable breach is:
There are some ancillary issues come with using this provision of law. Specifically, what about your security deposit, and what about any damage you suffered as a result of having to terminate your lease early (maybe your new place is more expensive to rent, maybe you incurred unexpected expenses, etc.). This is where the option I mentioned in the beginning comes in where it is up to you if this process occurs entirely outside of court or not. If you want to, you can just let those things go. Otherwise, you can file suit for unreturned security deposits. Moreover, for the damages you suffered, both the VRLTA provisions and the non-VRLTA provisions allow you to file suit for damages, along with injunctive relief. Now, I've never been able to come up with a situation where injunctive relief would be sought (after all, this only comes up after you've terminated the lease, so you can't use it to force the landlord to fix a problem), but I'm open to thoughts others may have. For damages, though, these provisions specifically allow you to pursue them. Best of all, though, they also specifically allow you to recover attorneys' fees in the process. This is a very rare situation where even non-VRLTA tenants can recover attorneys' fees.
Risks
Notice termination is not without risk. Questions of whether or not a lease has been violated in a "material" way, or whether or not a breach of the law "materially affects" health and safety are legal questions. A non-legal mind can easily get these questions wrong (and even an attorney can be wrong depending on the judge you end up in front of). If you take the notice termination approach, it is entirely possible that you will be sued by the landlord for unpaid rent, possibly covering the entire remainder of your lease term. If a judge determines that your use of the notice termination was improper, or you did not follow the proper procedures with it, you could be held liable for those amounts - which can be devastating when you are likely also already paying rent in your new home. As a result, this approach should only be taken by someone who is very confident that their situation qualifies.
Notice Termination vs. Tenant's Assertion
So, why would you choose this approach over a Tenant's Assertion, or vice versa? I'll outline some reasons here.
Advantages of Notice Termination over Tenant's Assertion
In the great panoply of tools available to tenants that do not require self-help, notice termination is another valuable way to protect your rights as a tenant. If you are in a situation where notice termination may be warranted, please do not hesitate to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up a consultation with me. Our initial consultations are free for up to half an hour!
Introduction
Last week, I began a multi-part series on alternatives for tenants whose landlords are in violation of their lease and the law, so that tenants can avoid the mistake of engaging in self-help. Last week's post covered one option available to tenants - filing a Tenant's Assertion. Today, I'm going to discuss another option, something I call notice termination. Notice termination is something a tenant can do that, unless the tenant chooses differently, can be done entirely outside of court, and whose primary purpose is to simply terminate the lease, allowing the tenant to leave the property without having to pay any more rent. It carries some risk, however, so read on to learn more.
VRLTA vs. Common Law/Chapter 13 Lease
As is always the case when dealing with a landlord/tenant issue in Virginia, the first question to ask is how the process differs between leases that are governed by the Virginia Residential Landlord and Tenant Act and those that aren't. Like tenant's assertions, the right for a non-VRLTA tenant to take this course of action only dates back to 2011. However, since 2011, the rights are now substantially similar except that a VRLTA tenant has a statutory right to receive back most of his security deposit in the case of a notice termination that a non-VRLTA tenant does not have, and it's possible that a non-VRLTA lease could waive the tenant's right to use this provision (as with last week, I only say possible because there is no case law on that possibility at this point).
Pre-Conditions to a Notice Termination
The law for notice terminations for non-VRLTA leases is laid out in Va. Code Section 55-225.13 and for VRLTA leases in Va. Code Section 55-248.21. Both sections contain the same preconditions:
- The lease must be a residential lease of a "dwelling unit" (in other words, house, townhouse, condo or apartment).
- The landlord must be engaging in acts, or failing to engage in acts, that put the landlord in violation of your lease, the law, or both.
- The act or omission by the landlord must be a "material breach" of the lease, or if it is a breach of the law that breach must "materially affect" the health or safety of the occupants of the property (in other words, the fact that your landlord won't give you a rent receipt as required by Virginia Code Section 55-225.15 probably won't qualify, but the fact that your landlord hasn't fixed a roof leak which could lead to mold should qualify).
Process if Breach is Remediable
The process for a remediable breach is:
- Ask, has the landlord done this before? If yes, go to step 2, if no, go to step 4.
- Ask, did I follow the procedure below the previous time? If yes, go to step 3, if no, go to step 4.
- Ask, does it appear that the landlord's violation this time was intentional? If yes, stop here and go to the process for a non-remediable breach, as that process is the same. If no, go to step 4.
- Send a written notice to the landlord (generally certified mail will suffice) outlining the condition and the landlord's violation, and stating that if the condition is not remedied within 21 days, then upon 30 days after the landlord receives the notice the lease will terminate (this is colloquially known as a 21/30 day notice).
- While your letter is outstanding, continue to pay your rent in full and on time.
- If, within 21 days, the property has been fixed and the breach remedied, the process ends here. Your lease continues.
- If, within 21 days, the property has not been fixed and the breach remedied, make preparations to ensure that you will be out of the property on the 30th day.
- On the 30th day, no further notice is required. Leave the property, return the keys to the landlord, and stop paying rent.
The process for a non-remediable breach is:
- Send a written notice to the landlord (generally certified mail will suffice) outlining the condition and the landlord's violation and stating that the lease will terminate upon 30 days after the landlord receives the notice.
- While your letter is outstanding, continue to pay your rent in full and on time.
- Make arrangements to ensure that you will be out of the property on the 30th day.
- On the 30th day, no further notice is required. Leave the property, return the keys to the landlord, and stop paying rent.
There are some ancillary issues come with using this provision of law. Specifically, what about your security deposit, and what about any damage you suffered as a result of having to terminate your lease early (maybe your new place is more expensive to rent, maybe you incurred unexpected expenses, etc.). This is where the option I mentioned in the beginning comes in where it is up to you if this process occurs entirely outside of court or not. If you want to, you can just let those things go. Otherwise, you can file suit for unreturned security deposits. Moreover, for the damages you suffered, both the VRLTA provisions and the non-VRLTA provisions allow you to file suit for damages, along with injunctive relief. Now, I've never been able to come up with a situation where injunctive relief would be sought (after all, this only comes up after you've terminated the lease, so you can't use it to force the landlord to fix a problem), but I'm open to thoughts others may have. For damages, though, these provisions specifically allow you to pursue them. Best of all, though, they also specifically allow you to recover attorneys' fees in the process. This is a very rare situation where even non-VRLTA tenants can recover attorneys' fees.
Risks
Notice termination is not without risk. Questions of whether or not a lease has been violated in a "material" way, or whether or not a breach of the law "materially affects" health and safety are legal questions. A non-legal mind can easily get these questions wrong (and even an attorney can be wrong depending on the judge you end up in front of). If you take the notice termination approach, it is entirely possible that you will be sued by the landlord for unpaid rent, possibly covering the entire remainder of your lease term. If a judge determines that your use of the notice termination was improper, or you did not follow the proper procedures with it, you could be held liable for those amounts - which can be devastating when you are likely also already paying rent in your new home. As a result, this approach should only be taken by someone who is very confident that their situation qualifies.
Notice Termination vs. Tenant's Assertion
So, why would you choose this approach over a Tenant's Assertion, or vice versa? I'll outline some reasons here.
Advantages of Notice Termination over Tenant's Assertion
- Can be done almost entirely, or entirely, out of court and with minimal legal fees
- Occurs on a faster timeline than a Tenant's Assertion
- Unlike Tenant's Assertion, Notice Termination will still be effective even if the amount of time landlord has taken to fix the problem is not "unreasonable"
- Allows the tenant to recover his attorneys' fees in a suit for damages the tenant has suffered
- Tenant does not necessarily have to terminate lease, and thus can likely remain on property if victorious
- Landlord's violation of law does not have to "materially" affect health and safety
- Allows for ongoing court review of landlord's conduct
- Allows for possible abatement of rent while still living on property
- Worst case scenario if you lose is that money you have already paid into escrow will go to landlord, so you will not face risk of lawsuit from landlord
In the great panoply of tools available to tenants that do not require self-help, notice termination is another valuable way to protect your rights as a tenant. If you are in a situation where notice termination may be warranted, please do not hesitate to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up a consultation with me. Our initial consultations are free for up to half an hour!
Wednesday, November 13, 2013
Avoiding Tenant "Self-Help" Part 1 - Tenant's Assertions
As always, before reading my post, please review my disclaimer by clicking on the link above, or by following this link. As always, any principles discussed apply only to the Commonwealth of Virginia.
Update: The Landlord/Tenant portion of the Code of Virginia was renumbered in 2019. Tenant's assertions are now governed by Va. Code Sec. 55.1-1244 but the rules remain largely the same.
Introduction
Most of my regular readers will remember my post from several months ago talking about how it is improper when in a landlord/tenant dispute to engage in self-help. Self-help, again, is what happens when, without a signed agreement with the other party, and without court approval, you take action altering the terms of your lease (a non-exhaustive list of examples as a tenant is withholding rent or fixing damage yourself, while for landlords can be changing the locks, cutting off power, etc.). If you engage in self-help, even if you are legally in the right, the consequences can be very severe - heavy imposition of damages, injunctions, attorneys' fee awards, etc. As a result, it is important you avoid self-help.
Since posting my "don't do self-help" post in July, however, I've gotten numerous questions about what the alternatives are. Since the alternative is generally clear for landlords (legal eviction proceedings), nearly all the questions I get, and nearly all the examples of improper self-help I see, involve tenants. While I do present these alternatives in my July post about self-help, my presentation is short, and probably not very helpful. As a result, starting this week, I've decided to start a multi-part series discussing each of the options available to a tenant whose landlord is in active violation of the lease. Today's post will discuss a legal proceeding known as a "Tenant's Assertion."
VRLTA vs. Common Law/Chapter 13 Lease
Regular readers will again remember that it makes a substantial difference in many areas of landlord/tenant law whether your lease is covered by the Virginia Residential Landlord and Tenant Act, or if it is a Common Law/Chapter 13 lease. While it is still true in this area of landlord/tenant law, this is not nearly to the extent that it used to be. Prior to 2011, the only remedy a non-VRLTA tenant had to a breach of the lease by the landlord was an after-the-fact lawsuit for damages. The law changed in 2011, however, and now, while not identical, the rights of tenants regarding a tenant's assertion are largely similar. In fact, the only difference that seems relevant to me is that a non-VRLTA lease could theoretically waive the tenant's right to pursue an assertion (I say only theoretically because I am aware of no court case to this point directly dealing with that issue) while such a provision would be barred in a VRLTA lease by Va. Code Section 55-248.9(A)(1).
What Is A Tenant's Assertion?
So, before getting started, you might be wondering what a tenant's assertion actually is. This is an action where the tenant "asserts" that the landlord is in active violation of the lease or the law, and that a remedy is necessary in order for the tenant to properly enjoy his rights to possession of the property. A tenant's assertion is primarily for people who either want a problem fixed without having to move out of the property, or want their lease actively terminated by the court, instead of engaging in the notice termination (which I will discuss in part 2) and then potentially being sued by the landlord. The major disadvantage is that a tenant's assertion, under either VRLTA or common law leases, usually cannot win attorneys' fees, while other actions sometimes can. I generally recommend a tenant's assertion to tenant clients who like their home except for the issue causing their complaint, cannot find a new place to rent, or just cannot stand the thought of the uncertainty that comes with a notice termination.
Pre-Conditions to a Tenant's Assertion
The law for tenant's assertions is laid out for non-VRLTA tenants in Va. Code Section 55-225.12 and for VRLTA tenants in Va. Code Section 55-248.27. You will notice the two sections are very similar but have some differences. Both sections include the following required pre-conditions to a tenant's assertion:
While Assertion is Pending
While your tenant's assertion is pending, you must continue to pay your rent in full. Instead of paying it to your landlord, however, you must pay it to the court. If you don't pay your full amount of rent to the court within 5 days of its due date your assertion will be dismissed, the money you've paid to the court will be released to the landlord, and you start over again. If you do, however, your money is held in escrow. This is the true advantage of a tenant's assertion over an after-the-fact lawsuit. If you win damages, your escrow gives you a source from which you can collect immediately, instead of having to engage in post-judgment collections.
Trial
Somewhere around 5 weeks after filing your assertion, assuming it is contested, you will have a trial. It's important to note that both the VRLTA and non-VRLTA assertion statutes allow as a complete defense a landlord to say "the condition's been fixed." This means, if the landlord fixes the problem while the assertion is pending, your assertion will lose, even if it was proper at the start! The remedy to this is to try to convince the judge to let you amend your case to a warrant in debt for damages, then still seek any monetary damages you may have suffered (you may even be able to still pull that money out of escrow).
If, however, the condition does remain as of the date of trial, you must prove the following things in order to win your assertion:
It is very rare for a trial to end a tenant's assertion unless the landlord prevails. Instead, some form of continuing of the escrow account usually occurs. If this is the case, no escrow money can be distributed without a hearing, so there may be occasional hearings going forward to decide what to do with escrow money, or if a party is not following the terms of the order. Perhaps the most serious issue, however, is that if the condition is not remedied within six months of the date the escrow account was established, the court is then required to return to the tenant all money then in the escrow account (unless the landlord can prove he has made a reasonable effort to finish the repairs). When that happens, though, the escrow is not terminated, but a new six month period begins.
The assertion really does not end until the condition is repaired and/or the lease has ended, and all money in escrow has been distributed.
Conclusion
When a landlord is in violation of his lease obligations, a tenant's assertion is a very robust and flexible means for a tenant to assert his or her rights without risking a lawsuit from the landlord, and without necessarily having to terminate the tenancy. If you are in a landlord/tenant dispute that already involves, or may require, a tenant's assertion, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to discuss representation. Our initial consultations are free for up to half an hour!
Update: The Landlord/Tenant portion of the Code of Virginia was renumbered in 2019. Tenant's assertions are now governed by Va. Code Sec. 55.1-1244 but the rules remain largely the same.
Introduction
Most of my regular readers will remember my post from several months ago talking about how it is improper when in a landlord/tenant dispute to engage in self-help. Self-help, again, is what happens when, without a signed agreement with the other party, and without court approval, you take action altering the terms of your lease (a non-exhaustive list of examples as a tenant is withholding rent or fixing damage yourself, while for landlords can be changing the locks, cutting off power, etc.). If you engage in self-help, even if you are legally in the right, the consequences can be very severe - heavy imposition of damages, injunctions, attorneys' fee awards, etc. As a result, it is important you avoid self-help.
Since posting my "don't do self-help" post in July, however, I've gotten numerous questions about what the alternatives are. Since the alternative is generally clear for landlords (legal eviction proceedings), nearly all the questions I get, and nearly all the examples of improper self-help I see, involve tenants. While I do present these alternatives in my July post about self-help, my presentation is short, and probably not very helpful. As a result, starting this week, I've decided to start a multi-part series discussing each of the options available to a tenant whose landlord is in active violation of the lease. Today's post will discuss a legal proceeding known as a "Tenant's Assertion."
VRLTA vs. Common Law/Chapter 13 Lease
Regular readers will again remember that it makes a substantial difference in many areas of landlord/tenant law whether your lease is covered by the Virginia Residential Landlord and Tenant Act, or if it is a Common Law/Chapter 13 lease. While it is still true in this area of landlord/tenant law, this is not nearly to the extent that it used to be. Prior to 2011, the only remedy a non-VRLTA tenant had to a breach of the lease by the landlord was an after-the-fact lawsuit for damages. The law changed in 2011, however, and now, while not identical, the rights of tenants regarding a tenant's assertion are largely similar. In fact, the only difference that seems relevant to me is that a non-VRLTA lease could theoretically waive the tenant's right to pursue an assertion (I say only theoretically because I am aware of no court case to this point directly dealing with that issue) while such a provision would be barred in a VRLTA lease by Va. Code Section 55-248.9(A)(1).
What Is A Tenant's Assertion?
So, before getting started, you might be wondering what a tenant's assertion actually is. This is an action where the tenant "asserts" that the landlord is in active violation of the lease or the law, and that a remedy is necessary in order for the tenant to properly enjoy his rights to possession of the property. A tenant's assertion is primarily for people who either want a problem fixed without having to move out of the property, or want their lease actively terminated by the court, instead of engaging in the notice termination (which I will discuss in part 2) and then potentially being sued by the landlord. The major disadvantage is that a tenant's assertion, under either VRLTA or common law leases, usually cannot win attorneys' fees, while other actions sometimes can. I generally recommend a tenant's assertion to tenant clients who like their home except for the issue causing their complaint, cannot find a new place to rent, or just cannot stand the thought of the uncertainty that comes with a notice termination.
Pre-Conditions to a Tenant's Assertion
The law for tenant's assertions is laid out for non-VRLTA tenants in Va. Code Section 55-225.12 and for VRLTA tenants in Va. Code Section 55-248.27. You will notice the two sections are very similar but have some differences. Both sections include the following required pre-conditions to a tenant's assertion:
- A condition must exist on the property that allows an assertion to be approved. This condition must be a "material" violation of the lease or of the law, a fire hazard or serious threat to the life, health or safety of occupants, a lack of heat or hot or cold running water, a lack of light, electricity or adequate sewage disposal facilities, an infestation of rodents, or the existence of paint containing lead pigment on surfaces within the dwelling
- The landlord must have been "served" with a written notice from the tenant or a state agency of the condition and failed, within a reasonable amount of time after that service, to fix the condition (note that more than 30 days is presumed unreasonable)
- The condition must remain up to the day of the trial
- The "condition" on the property cannot be a rodent infestation if the property is a single-family dwelling (namely a detached home or townhouse).
- Va. Code Section 55-248.4 allows notices to be served simply by first-class mail as long as you also simultaneously swear out a certificate that you've sent the mail. The non-VRLTA tenant needs to serve notice either by formal service, or by certified mail (unless he can show proof that the landlord actually received the notice).
While Assertion is Pending
While your tenant's assertion is pending, you must continue to pay your rent in full. Instead of paying it to your landlord, however, you must pay it to the court. If you don't pay your full amount of rent to the court within 5 days of its due date your assertion will be dismissed, the money you've paid to the court will be released to the landlord, and you start over again. If you do, however, your money is held in escrow. This is the true advantage of a tenant's assertion over an after-the-fact lawsuit. If you win damages, your escrow gives you a source from which you can collect immediately, instead of having to engage in post-judgment collections.
Trial
Somewhere around 5 weeks after filing your assertion, assuming it is contested, you will have a trial. It's important to note that both the VRLTA and non-VRLTA assertion statutes allow as a complete defense a landlord to say "the condition's been fixed." This means, if the landlord fixes the problem while the assertion is pending, your assertion will lose, even if it was proper at the start! The remedy to this is to try to convince the judge to let you amend your case to a warrant in debt for damages, then still seek any monetary damages you may have suffered (you may even be able to still pull that money out of escrow).
If, however, the condition does remain as of the date of trial, you must prove the following things in order to win your assertion:
- That the condition is, in fact, of the type listed in the statute (material noncompliance with lease or law, hazard to health and safety, etc.),
- That the condition still exists,
- That notice was properly given to the landlord, or that the landlord had actually received notice even if not properly given,
- That the landlord was given a reasonable amount of time to remedy the problem before the assertion was filed, and
- That you have paid all rent, in full, into the court while the assertion has been pending.
- Terminating the lease,
- Dividing some or all of the money in the escrow account between the tenant and/or landlord as the court sees fit,
- Ordering the escrowing of rent continue until the repairs are complete,
- Abating rent prospectively and/or retroactively,
- Ordering money in escrow be paid directly to a contractor in order to repair the property,
- Referring the matter to a state or municipal agency for investigation, and
- Ordering escrow funds be used to pay a mortgage in order to prevent foreclosure.
It is very rare for a trial to end a tenant's assertion unless the landlord prevails. Instead, some form of continuing of the escrow account usually occurs. If this is the case, no escrow money can be distributed without a hearing, so there may be occasional hearings going forward to decide what to do with escrow money, or if a party is not following the terms of the order. Perhaps the most serious issue, however, is that if the condition is not remedied within six months of the date the escrow account was established, the court is then required to return to the tenant all money then in the escrow account (unless the landlord can prove he has made a reasonable effort to finish the repairs). When that happens, though, the escrow is not terminated, but a new six month period begins.
The assertion really does not end until the condition is repaired and/or the lease has ended, and all money in escrow has been distributed.
Conclusion
When a landlord is in violation of his lease obligations, a tenant's assertion is a very robust and flexible means for a tenant to assert his or her rights without risking a lawsuit from the landlord, and without necessarily having to terminate the tenancy. If you are in a landlord/tenant dispute that already involves, or may require, a tenant's assertion, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to discuss representation. Our initial consultations are free for up to half an hour!
Wednesday, November 6, 2013
Common Sense vs. The Law - When Doing What Makes Sense IS the Right Choice
As always, before reading this post, please review my disclaimer by following the link above, or by clicking on this link. As always, any legal principles involved in this post apply only to the Commonwealth of Virginia.
Introduction
Most people who have learned anything about the law know that the law's relationship to common sense is tenuous at best. Most lawyers will regularly advise people that "well, I know that makes sense, but that's not what the law says." Usually that's good advice, but not always, and I hope in this post to explain when listening to your common sense is a good idea.
The Self-Help Example
As is frequently the case, my inspiration for writing this post comes from experience with an actual case. As is unusual, however, I think talking about that case in some level of detail is warranted to explain the point. As a result, please remember that every case is unique, and relies on its own sets of facts. Do not conclude that just because something happened in one case it will happen in yours, rather your own case is unique and will require its own unique considerations.
Recently, I represented a client who was a tenant to out of state landlords. Many months earlier, the basement of the house my client was renting was flooded and rendered unusable. Under both my client's lease and the law, she should have been entitled to abate some of her rent while repair was pending, but she took no action, relying instead on the landlord to do the right thing and just repair the basement quickly. After several months of practically no repairs, however, she finally got fed up and withheld part of her rent from one of her rent payments. Those of you who have read my blog before already know that this is self-help, and that in a residential lease self-help is a big no-no. The landlords were outraged, hired an attorney, and my client received a pay or quit notice. That's when she came to me.
We agreed to pay back the withheld rent, along with late fees and the reasonable attorneys' fees the landlords had paid to get the pay or quit drafted and served. The next week, I filed a tenant's assertion on my client's behalf, seeking fairly extensive relief. After two months of rent going entirely into escrow, we finally had our trial. At trial, the judge agreed that my client should have an abatement of her rent. However, the judge's commentary didn't end there. He then expressed his outrage that the lawyers for the landlord had advised their client to submit a pay or quit, and called that conduct "reprehensible." Even acknowledging the landlords were right under the law, the judge expressed concern at their morally outrageous behavior. In the end, my client was reimbursed partial rent (a higher "portion" even than she had withheld the one month she did withhold) dating all the way back to the date the basement was flooded, and my client was even reimbursed the late fees and attorneys' fees she'd paid on the pay or quit.
The reason this relates to my blog post is this - if the landlords had ignored the law and just listened to their common sense, done what is right, all they'd have lost out on is a little bit of rent for a few months until the basement was finished. Instead, they looked bad to a judge and lost out on a heck of a lot more rent. In the end, not doing the "common sense" thing probably cost the landlords around $4,500 or more (not including the legal fees they spent defending my Tenant's Assertion). That's a lot of money to pay just to prove a legal point.
So, How Do You Tell the Difference?
So, it's simple to look at an example like that and say "ok, sure the landlords were jerks and shouldn't have been, but how do you know when to listen to common sense instead of the law?" Well, the rule I suggest following is that if you are legally barred from doing what common sense tells you to do, follow the law. If you are legally required to do what common sense says you shouldn't do, follow the law. However, if you only have the legal right to do or not do something common sense says you should not do or do, respectively, but there's no legal requirement, then listen to common sense.
Using my example above, my client was legally barred from doing what common sense told her to do (withhold rent), so she should have listened to the law, and ultimately she did. The landlords, however, only had a legal right to send a pay or quit. They weren't required to. They could have just accepted her withheld rent and said "yeah, we should have repaired the basement faster, sorry, this is an ok amount to pay us until the basement's finished." That's where the difference comes in.
Now again, you might wonder "ok, so where's the limit? Surely in your example, the landlords should have filed a pay or quit if your client had withheld all of her rent, since the basement is nowhere near all of the rented house." Well, that's the thing. Common sense is flexible while the law, generally, isn't. If the amount my client had withheld had been unreasonable (obviously I believe it was not, nor did the judge in this case) then common sense would say to the landlords to exercise their legal rights. Common sense and the law don't always conflict.
Nonetheless, while every situation is unique and I'd encourage you to consult a lawyer when making your own decision for your case, I believe the rules I've outlined above generally hold. When you are legally barred from doing or required to do something your common sense says you should or shouldn't do, respectively, listen to the law. When the law only permits you to do or not do something your common sense says you shouldn't or should do, respectively, then listen to your common sense.
More Examples
Well, the above is a bit abstract, so I want to use some more examples. Unlike my opening example, however, these examples are not taken from real cases. Like my opening example, however, each case is unique, so do not assume that something I outline here applies to your case without consulting with an attorney first. As I said, however, the following examples are simplified, and made up.
John and Suzie are married and having marital troubles. They have no children. They decide to get a divorce. John demands that Suzie gets out of the house, and while she's out one day, John changes the locks. Suzie remembers that a spouse cannot just kick another spouse out. Suzie's sister, however, owns an estate with a luxurious guest house and has regularly told Suzie she can move into the guesthouse for free if she ever needs to. In that case, despite Suzie having the right to stay in the marital home, I would suggest she move out and move into her sister's guest house (after having John sign some papers making clear that he recognizes Suzie is not abandoning the marriage). This would get her out of a probably unpleasant home situation without too horribly interrupting her life. If John were my client, however, I'd tell him to return the locks, since he is legally barred from forcing Suzie out at this point.
Bill rents a condo from Jason. Bill cannot afford the rent anymore, so he stops paying it. He finds a new place that he can afford and moves there. In the meantime, without serving any notices or filing an unlawful detainer, Jason changes the locks and bars Bill from the property. Bill wants to sue for unlawful eviction. If Bill's my client, I would advise him to let it go. He hasn't paid rent, he's already moved out, all he's doing by suing is getting Jason to get his papers in order to file an unlawful detainer that will likely cost Bill more. If Jason's my client, however, I would advise him to immediately change the locks back and let Bill in whenever he wants, since what Jason did was illegal. I'd, of course, also advise him to get his notices in order and file an unlawful detainer.
So those are a couple more examples I hope will help explain what I mean. I suppose the simplest saying to use is that just because you can do something doesn't mean you should (and the reverse, when you must do something, then you should).
Conclusion
Sometimes people get so caught up in the law and their rights that they forget that common sense still has a role to play in their decisions. Much like just because the first amendment says you can say something doesn't mean you should, so too with exercising your other legal rights. In some cases, ignoring your common sense can cost you dearly. If you're in a situation where you think your common sense and the law may be in conflict, I'd advise you to consult with an attorney before deciding what action to take. If you want that attorney to be me, please call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up an initial consultation. Our initial consultations are free for up to half an hour.
Introduction
Most people who have learned anything about the law know that the law's relationship to common sense is tenuous at best. Most lawyers will regularly advise people that "well, I know that makes sense, but that's not what the law says." Usually that's good advice, but not always, and I hope in this post to explain when listening to your common sense is a good idea.
The Self-Help Example
As is frequently the case, my inspiration for writing this post comes from experience with an actual case. As is unusual, however, I think talking about that case in some level of detail is warranted to explain the point. As a result, please remember that every case is unique, and relies on its own sets of facts. Do not conclude that just because something happened in one case it will happen in yours, rather your own case is unique and will require its own unique considerations.
Recently, I represented a client who was a tenant to out of state landlords. Many months earlier, the basement of the house my client was renting was flooded and rendered unusable. Under both my client's lease and the law, she should have been entitled to abate some of her rent while repair was pending, but she took no action, relying instead on the landlord to do the right thing and just repair the basement quickly. After several months of practically no repairs, however, she finally got fed up and withheld part of her rent from one of her rent payments. Those of you who have read my blog before already know that this is self-help, and that in a residential lease self-help is a big no-no. The landlords were outraged, hired an attorney, and my client received a pay or quit notice. That's when she came to me.
We agreed to pay back the withheld rent, along with late fees and the reasonable attorneys' fees the landlords had paid to get the pay or quit drafted and served. The next week, I filed a tenant's assertion on my client's behalf, seeking fairly extensive relief. After two months of rent going entirely into escrow, we finally had our trial. At trial, the judge agreed that my client should have an abatement of her rent. However, the judge's commentary didn't end there. He then expressed his outrage that the lawyers for the landlord had advised their client to submit a pay or quit, and called that conduct "reprehensible." Even acknowledging the landlords were right under the law, the judge expressed concern at their morally outrageous behavior. In the end, my client was reimbursed partial rent (a higher "portion" even than she had withheld the one month she did withhold) dating all the way back to the date the basement was flooded, and my client was even reimbursed the late fees and attorneys' fees she'd paid on the pay or quit.
The reason this relates to my blog post is this - if the landlords had ignored the law and just listened to their common sense, done what is right, all they'd have lost out on is a little bit of rent for a few months until the basement was finished. Instead, they looked bad to a judge and lost out on a heck of a lot more rent. In the end, not doing the "common sense" thing probably cost the landlords around $4,500 or more (not including the legal fees they spent defending my Tenant's Assertion). That's a lot of money to pay just to prove a legal point.
So, How Do You Tell the Difference?
So, it's simple to look at an example like that and say "ok, sure the landlords were jerks and shouldn't have been, but how do you know when to listen to common sense instead of the law?" Well, the rule I suggest following is that if you are legally barred from doing what common sense tells you to do, follow the law. If you are legally required to do what common sense says you shouldn't do, follow the law. However, if you only have the legal right to do or not do something common sense says you should not do or do, respectively, but there's no legal requirement, then listen to common sense.
Using my example above, my client was legally barred from doing what common sense told her to do (withhold rent), so she should have listened to the law, and ultimately she did. The landlords, however, only had a legal right to send a pay or quit. They weren't required to. They could have just accepted her withheld rent and said "yeah, we should have repaired the basement faster, sorry, this is an ok amount to pay us until the basement's finished." That's where the difference comes in.
Now again, you might wonder "ok, so where's the limit? Surely in your example, the landlords should have filed a pay or quit if your client had withheld all of her rent, since the basement is nowhere near all of the rented house." Well, that's the thing. Common sense is flexible while the law, generally, isn't. If the amount my client had withheld had been unreasonable (obviously I believe it was not, nor did the judge in this case) then common sense would say to the landlords to exercise their legal rights. Common sense and the law don't always conflict.
Nonetheless, while every situation is unique and I'd encourage you to consult a lawyer when making your own decision for your case, I believe the rules I've outlined above generally hold. When you are legally barred from doing or required to do something your common sense says you should or shouldn't do, respectively, listen to the law. When the law only permits you to do or not do something your common sense says you shouldn't or should do, respectively, then listen to your common sense.
More Examples
Well, the above is a bit abstract, so I want to use some more examples. Unlike my opening example, however, these examples are not taken from real cases. Like my opening example, however, each case is unique, so do not assume that something I outline here applies to your case without consulting with an attorney first. As I said, however, the following examples are simplified, and made up.
John and Suzie are married and having marital troubles. They have no children. They decide to get a divorce. John demands that Suzie gets out of the house, and while she's out one day, John changes the locks. Suzie remembers that a spouse cannot just kick another spouse out. Suzie's sister, however, owns an estate with a luxurious guest house and has regularly told Suzie she can move into the guesthouse for free if she ever needs to. In that case, despite Suzie having the right to stay in the marital home, I would suggest she move out and move into her sister's guest house (after having John sign some papers making clear that he recognizes Suzie is not abandoning the marriage). This would get her out of a probably unpleasant home situation without too horribly interrupting her life. If John were my client, however, I'd tell him to return the locks, since he is legally barred from forcing Suzie out at this point.
Bill rents a condo from Jason. Bill cannot afford the rent anymore, so he stops paying it. He finds a new place that he can afford and moves there. In the meantime, without serving any notices or filing an unlawful detainer, Jason changes the locks and bars Bill from the property. Bill wants to sue for unlawful eviction. If Bill's my client, I would advise him to let it go. He hasn't paid rent, he's already moved out, all he's doing by suing is getting Jason to get his papers in order to file an unlawful detainer that will likely cost Bill more. If Jason's my client, however, I would advise him to immediately change the locks back and let Bill in whenever he wants, since what Jason did was illegal. I'd, of course, also advise him to get his notices in order and file an unlawful detainer.
So those are a couple more examples I hope will help explain what I mean. I suppose the simplest saying to use is that just because you can do something doesn't mean you should (and the reverse, when you must do something, then you should).
Conclusion
Sometimes people get so caught up in the law and their rights that they forget that common sense still has a role to play in their decisions. Much like just because the first amendment says you can say something doesn't mean you should, so too with exercising your other legal rights. In some cases, ignoring your common sense can cost you dearly. If you're in a situation where you think your common sense and the law may be in conflict, I'd advise you to consult with an attorney before deciding what action to take. If you want that attorney to be me, please call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up an initial consultation. Our initial consultations are free for up to half an hour.
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