Recent D.C. Opinion on Lease and Option

In a recent opinion the Chancery Court of the District of Columbia considered what it characterized as an “unusual” and even “bizarre” question:

Does the contract law of the District of Columbia require the owner of a building to accept a lease that no reasonable lessor would ever sign simply to facilitate the lessee’s exercise of a contractual option to purchase the building?

The option holder sought specific enforcement of an option contract.  The owner argued that to exercise the option the option holder had presented a lease that no reasonable lessor would ever sign.  The owner counterclaimed for an alleged lost opportunity to sell the property to a third person.

The court denied both parties requested relief. 

Section 8 Tenants and Federal Fair Debt Collections Law

In an important decision the New Jersey Court of Appeals held that landlords and their attorneys violated the Fair Debt Collections Practices Act (FDCPA) by demanding in eviction pleadings more rent than allowed under both state and federal law.[1]

The lease in question defined late fees and other charges as additional rent. The court held both the landlord and its attorney violated both state and federal law by demanding an amount that included the additional amounts as rent.

The case is important because it has implication for landlords in every American jurisdiction, not just New Jersey. Several courts have held that attorneys who regularly perform evictions for landlords are debt collectors for the purposes of the FDCPA.[2] And although evictions are brought through state law processes, the Section 8 program is governed by federal law. [3]Continue reading

All Eviction Notice Forms are Not the Same

All eviction notice forms are not the same. It really does matter in what state or jurisdiction the rental property is located.

Some states require 7 days notice to the tenant for failure to pay rent. Many require 3 days notice. Some none.

Even within a state local county or city landlord-tenant law may change the eviction notice form requirements. For example, in Seattle just cause eviction ordinances must be complied with and arguably change the eviction notice form requirements. In Tennessee, an eviction notice may be a prerequisite to bringing an eviction in some metropolitan areas, but not in a more rural county.

When in doubt consult a landlord-tenant attorney in your area.

Ohio Supreme Court Holds Landlord Not Liable for Hostile Housing Environment

The Ohio Supreme Court has held that a landlord is not liable for a failure to prevent racial harassment of one tenant by another. 

 

In a recent decision, Ohio Civil Rights Commission v.  Akron Metropolitan Housing  Authority, the Ohio Civil Rights Commission brought a lawsuit against Akron Metropolitan Housing after a series of racially charged altercations between one family and another. 

 

The trial granted summary judgment for the landlord.  However, the Ohio Court of Appeals held that a landlord could be held liable for a hostile housing environment if the landlord, through its agents or supervisory personnel, knew or should have known about harassment and failed to take immediate and appropriate corrective action.

 

The Ohio Supreme Court overturned the Court of Appeals.  This case has no bearing on a situation in which the landlord is creating the harassment, as the Ohio Supreme Court pointed out is its opinion.  The appeals court had extended the law of employer liability for a hostile work environment to housing.  The Supreme Court noted that a landlord does not have the same type of control over a tenant that an employer has over an employee, stating reasoning that a “reasonable opportunity or effective means to control a third person does not arise from the mere power to evict”. 

 

The Court concluded that “[a]lthough the conduct alleged by the appellees is reprehensible, we decline to extend liability to behavior so far beyond the reach of the statutory language, especially in light of the absence of an agency relationship between a landlord and his tenants and the landlord’s comparative lack of control over his tenants”.

Just the Fax – The Tenant May Appear and Defend the Eviction by Fax

A tenant who responds to a summons and complaint has appeared in the eviction action and is entitled to notice. Victory by default is no longer possible and the landlord must set a hearing in order to evict the tenant.

Though courts have held phone calls to an attorney constitute an appearance, there has been no clear and unambiguous legal authority for appearance by fax until now. A new law makes it explicit that a tenant may serve the response to the summons and complaint by fax. The new law also changes the mandatory language in the summons so notice is given to the tenants that they may respond by fax.

Failure to use the new summons form could result in the eviction being dismissed. Contact landlord attorney Scott Eller for more information.

New Mold Disclosure Law

New Mold Disclosure Requirement

A new law went into effect July 24, 2005 that requires Washington landlords to make disclosures to all tenants regarding potential health hazards of mold. 

The legislature found that “residents of the state face preventable exposures to mold” and that such exposure has “been found to have adverse health effects”.

The new mold disclosure law further states in the legislative findings that “steps can be taken by landlords and tenants to minimize exposure to indoor mold”.  And that as “the reduction of exposure to mold in buildings could reduce the rising number of mold-related claims submitted to insurance companies and increase the availability of coverage, the legislature supports providing tenants and landlords with information designed to minimize the public’s exposure to mold”.
 

The new law requires landlords to provide all new tenants with information provided or approved by the Department of Health about the health hazards associated with exposure to indoor mold.  The information must be provided in writing either individually to each tenant, or may be posted in a visible, public location at the dwelling unit property. 

The landlord must provide the information:

1) to new tenants at the time the lease or rental agreement is signed, and

2) to current tenants no later than January 1, 2006, or post the mold information in a visible, public location at the dwelling unit property beginning the effective date of the act  (July 24, 2005).

A mold disclosure pamphlet approved by the Department of Health is available for download on our Evictions Forms page.

 

Washington landlord attorney Scott Eller

New Law Makes Taking a Default Judgment Against Tenants More Difficult

A recently enacted law requires all plaintiffs, including landlords, to provide evidence that defendants, including tenants, are not in military service before taking a default judgment.  This affects virtually all civil actions, including evictions.   

Alternatively, the landlord may submit a declaration establishing that the landlord has no knowledge as to whether the tenant is in the military.  Presumably, though the statute does not so state, courts will require a showing of diligence on the part of the plaintiff to ascertain the military status of the tenant. 

The statute is silent as to just what sort of supporting facts will suffice to establish that the defendant is not in the military or that after a diligence effort the plaintiff is unable to ascertain the military status of the tenant.  It is therefore up to each court to decide on a case by case basis. As this law is freshly minted, there is little to suggest what types of supporting evidence will gain currency.