Retaliatory Eviction: Landlord Defenses

| February 21, 2013 More

By Tracey March

You are steamed. This tenant was trouble from the beginning and you ignored your gut instinct because you wanted a renter in the unit–it had been vacant for three months. Then this guy applied. He had a good job and rental history. Even his previous landlord’s reference was positive. You suspect now that the landlord wasn’t forthcoming because she didn’t want to deal with him again.

At the outset he complained about the lock. It was a little tricky, but once you knew to pull the door towards you, it worked just fine. Lacking patience, your tenant broke it one day, but he didn’t tell you. Then you got a notice from the building department that you were in violation of the requirement that working locks be on all exterior doors. You immediately sent a locksmith over to replace the lock.

You should have stopped there. Instead, you sent the tenant a letter raising the rent $200 a month, hoping that would get him to move. His next rent payment did not include the rent increase, so you gave him 30-days written notice to pay rent or vacate. The increase wasn’t included the following month, again. When you called him, he claimed that the increase was retaliatory and against the law–he would not pay it. Fortunately you consulted with your attorney before you filed an eviction, because tenant was right.

Unfortunately, situations like the one above are not uncommon. Often, new rental property owners are unaware of the strict rules governing landlord retaliation and their ability to get rid of problem tenants. Not knowing the rules in your state, or failing to follow them to the letter, could get you in trouble–perhaps even sued.

What is Retaliation?

In almost all states, it is illegal for landlords to retaliate against their tenants for asserting their legal rights. According to nolo.com, these rights include:

  • complaining to a government authority (for example, a building, fire, or health inspector) about unsafe or illegal living conditions
  • exercising the right to assembly, such as joining or organizing a tenant’s union
  • deducting money from rent to fix defects the landlord has not repaired

Examples of how a landlord might illegally retaliate include:

  • terminating, or refusing to renew, a lease
  • increasing rent, or
  • decreasing services

In many states, the law presumes the landlord is retaliating if the tenancy is ended or services are reduced within a certain amount of time after the tenant exercises a legal right, usually six months.

Trapped: Can You Can Still Evict an Otherwise Bad Tenant?

Even though it may look like illegal retaliation, you can still evict an otherwise bad tenant for nonpayment of rent, violation of the rental agreement, bad faith complaints to the authorities, or to make necessary repairs to the unit (where those repairs require the unit to be vacant). The key is to comply with the letter of the law at all times, and to have a supportive paper trail. Here’s how:

  • Non-payment of rent: every time the rent is late, send the required notices for nonpayment of rent at your first legal opportunity.
  • Failure to follow the terms of the rental agreement: Give the tenant the required written notice of violation of the rental agreement, which in most states requires cure of the violation with 10 or 14 days, or move-out in 30 days. Document every violation with incident reports and complaints from other tenants. Keep copies of any letters, notes, or notices you send to the tenant. When you move to terminate the tenancy, the tenant may claim that it is a retaliatory eviction. If you have properly documented legitimate violations, you will have a defense that the eviction has a legitimate business basis.
  • Complaint made in bad faith: Consult your attorney if you suspect a tenant’s complaint to the authorities was frivolous, groundless, and made in bad faith. For example, using the sticky lock situation described above, if a licensed locksmith installed a new lock before the tenant moved in, and you have evidence that the tenant deliberately broke the new lock (say, a witness or an evidentiary statement from the locksmith that the damage was intentional), you could send a notice terminating the tenancy if the tenant complained to authorities. Before acting to evict a tenant for a complaint made in bad faith, always consult your attorney.
  • Have to vacate unit for repairs: You can require the tenant to vacate the rental unit if the purpose is to repair the items the tenant complained about, and the only way the repairs can be made is if the unit is empty.

While most states have anti-retaliation laws, you may have a defense against a tenant’s claim of retaliatory eviction if you can show the tenant unlawfully withheld rent, violated the rental agreement, or complained in bad faith. In addition, you may have to have a tenant vacate a rental unit to make repairs. Be sure that before you take any action you check the specific law in your state and consider consulting your attorney. In addition, you could hire a reputable property management company to manage the property going forward. Most important: don?t try to be clever?thinking you can get away with retaliation by doing an end-run around the law will only make things worse.

Do you have any nightmare tenant and eviction stories?

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Category: Landlord/Tenant Law, Property Management, Tenants

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