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.
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