Fall 2005 Edition

SPECIAL LANDLORD/TENANT ISSUE

Vol.10 – No.2

Landlord Seminar

Attention All Landlords! Get accurate, up-to-date information on the legal aspects of your rights and responsibilities. “Legal Survival for Landlords” will be presented by attorney/author Robert Friedman at Clarence High School, Learning Assistance Center, 9625 Main Street, Clarence. The course will be held from 6:00 p.m. to 9:30 p.m. on Wednesday, November 9, 2005. Mr. Friedman will discuss mold litigation, Section 8 tenants, the new Bankruptcy Law, the landlord’s duty to screen out terrorists, evictions, leases, Small Claims Court, discrimination laws, civil liability, insurance, security deposits, elderly tenants, drugs, debt collection and lead paint. There is a registration and book fee. To register, call (716) 333-5144 or visit www.clarenceschools.org.

What’s New at Friedman & Ranzenhofer, PC, PC, P.C.?

Win a $100 Gift Certificate: Complete our short online survey at www.LegalSurvival.com/satisfactionsurvey.html by November 14, 2005 and be entered into a drawing to win a $100 Galleria Mall gift certificate. New Buffalo Office: Our Buffalo office is now located at 1220 Liberty Bank Building, 424 Main Street, Buffalo, New York. Elizabeth M. DiPirro, Attorney, has received certification in Mediation and Collaborative Law. The Bar Association of Erie County honored Fred Friedman for 50 years of service and Michael H. Ranzenhofer for 25 years of service at its Annual Awards dinner.

Words of Wisdom for Landlords

Landlords can avoid costly mistakes by heeding these words of wisdom:

• Know thy tenant. Screen all prospective tenants with a rental application, credit/criminal report and proper identification.
• A verbal agreement isn’t worth the paper it’s written on. Always use written leases.
• A picture is worth a thousand words. Use move-in/move-out checklists supported by before-and-after photographs and videotapes of the apartment.
• No money = no keys. Do not give the apartment keys to the tenant until the first month’s rent and security deposit are paid and the lease has been signed.
• Get the lead out. Warn tenants of the dangers of lead paint by providing them with the “Protect Your Family From Lead In Your Home” pamphlet (see “Landlord/Tenant Websites”) and lead disclosure form (see “Free Online Forms and Checklists”) by abating any existing lead paint.
• Don’t delay until tomorrow what you can do today. Don’t wait too long to evict a tenant who is delinquent in paying rent.
• You get what you pay for. Never have tenants do repair work or painting in exchange for the payment of rent.
• Ignorance of the law is no excuse. Do not ignore discrimination laws and building code violations.

Landlord Must Warn About Child Molester

A landlord had a duty to warn tenants that a child molester might be living in their apartment complex. The plaintiff and her three children were tenants in an apartment complex. The 9-year-old daughter of another tenant was molested in a meter room on the complex, but the landlord never notified its tenants of the attack. Subsequently, the molester, who lived in the complex, sexually assaulted one of the plaintiff’s daughters as she walked to school. The plaintiff and her daughter sued the landlord for negligence, claiming that because of the landlord-tenant relationship, it had a duty to warn them that a child molester might be living there. The Florida Court of Appeals agreed, finding that it is without question that the landlord at least knew that the assault allegedly occurred, because it admitted being told of the assault by a tenant and law enforcement officials, even if not told of the precise details of the assault. Because of its knowledge, it had a duty to protect against foreseeable criminal acts of third parties by warning tenants about those foreseeable acts.

Tenants Evicted for Smoking

A couple was evicted from their condominium for smoking two to three packs of cigarettes per day, even though their lease did not prohibit smoking. The landlord convinced the Boston, Massachusetts Housing Court jury that the heavy smoking created a nuisance to other tenants in the building. The lease prohibited tenants from creating a nuisance or behaving in a way that interferes with the health, safety or enjoyment of others in the building. The landlord argued that the couple’s smoking was excessive, and created a legal nuisance by infiltrating the apartments of adjoining tenants, who complained about the strong smell of smoke. The building owner was being threatened with lawsuits from other tenants, and the condominium association citing health issues related to second hand smoke. A non-smoking Oregon tenant sued after her landlord moved a known smoker into the apartment below hers. She claimed that she began to suffer asthma and respiratory problems and that the landlord had breached his duty to keep the premises habitable. The Lackamas County, Oregon District Court jury reduced her rent by 50 percent, and ordered the landlord to pay her doctor’s bills. Tenants who were exposed to cigarette, cigar or marijuana smoke from the garage below obtained a restraining order from the Superior Court of California, Los Angeles County prohibiting the garage owner from smoking in the garage. A New York City businessman is suing the owner of a professional building, claiming that smoke from the adjoining suite seeped into his offices, causing employees to suffer from second hand smoke and forcing him to move his offices. Landlords should use lease clauses prohibiting smoking on the premises.

Landlords Can’t Ban Satellite Dishes

Landlords and condominium associations cannot prevent tenants from installing satellite dishes. The U.S. Court of Appeals, D.C. Circuit upheld a Federal Communications Commission rule that leases, zoning ordinances and condominium association rules can not restrict a tenant’s right to install dishes, antennas and other telecommunications devices. The original rule, which applied only to viewers with “an ownership interest” in the property, was expanded in 1998 to include renters. The FCC has interpreted the rule to permit the imposition of “reasonable” limits. Property owners who are concerned about liability for property damage and personal injury caused by improperly installed equipment should take the following precautions:

1. 1. Require a security deposit before the equipment is installed to cover any damages.
   2. Require the tenant to purchase liability insurance.
   3. List a hierarchy of places where the satellite dish is allowed, for example, below the eave line, back yard and front yard.

Landlord/Tenant Websites

1. 1. • THE BAZELON CENTER FOR MENTAL HEALTH LAW provides information on the fair housing rights of the disabled. www.bazelon.org/issues/housing/index.htm
      • EPA “PROTECT YOUR FAMILY FROM LEAD IN YOUR HOME” pamphlet must be given to all residential tenants of properties built before 1978. www.epa.gov/lead/leadpdfe.pdf
      • HOUSING OPPORTUNITIES MADE EQUAL
      • H O M E is a membership-based, nationally recognized civil rights organization working to ensure fair and equal access to housing. HOME promotes equal opportunity in housing without restrictions based on such factors as race, color, religion, national origin, sex, age, marital status, disability, sexual orientation, gender identity and expression, lawful source of income or the presence of children within a family. HOME’s mission is to assist the people of New York to live in the housing and communities of their choice through education, advocacy, enforcement of fair housing laws, and the creation of housing opportunities. www.homeny.org
      • HOW TO PREPARE FOR A LANDLORD/TENANT TRIAL http://www.nycourts.gov/publications/L&TPamphlet.pdf
      • MR LANDLORD has resources, forms, books, forums and associations for landlords. www.mrlandlord.com
      • NATIONAL FAIR HOUSING ADVOCATE ONLINE is a resource designed to serve both the fair housing advocacy community and the general public with timely news and information regarding the issues of housing discrimination. www.fairhousing.com
      • NEW YORK ATTORNEY GENERAL’S “TENANT’S RIGHTS GUIDE” www.oag.state.ny.us/realestate/tenants_rights_guide.html
      • NEW YORK STATE HUMAN RIGHTS LAW http://www.dhr.state.ny.us/hrlaw.html
      • NEW YORK STATE BUILDING CODE www.dos.state.ny.us/code/Title19.htm
      • RENTAL HOUSING ONLINE provides encyclopedic information and services for landlords, tenants, property managers, real estate investors, and housing professionals. Information and education regarding affordable housing, buying & selling income property, collecting judgments, environmental issues, evictions, fair housing, foreclosures, forms and agreements, landlord/tenant law, maintenance, raising rents, screening tenants, taxation, vacancy listings, valuing income property, and hundreds of other topics related to rental housing and other income properties. Additional investor, landlord, and tenant help is provided via discussion forums and e-Courses. www.rhol.org/rental/joinx.htm
      • RIGHTS OF RESIDENTIAL OWNERS AND TENANTS pamphlet is available from the New York State Bar Association www.nysba.org.
      • SMALL CLAIMS COURT information is available at:`www.nycourts.gov/courthelp/faqs/smallclaims.html

Free Online Forms and Checklists

LegalSurvival.com has forms, checklists and FAQs for landlords. The forms are Commercial Lease Addendum, Lead Paint Lease Rider, Lease Renewal, Maintenance Repair Request, Move In/Move Out Checklist, Notice to Senior Citizens, Pet Registration/Rental Application and Three-Day-Notice. The checklists are “8 Mistakes Landlords can Avoid”, “Expert Advice for Landlords”, “How Landlords Can Protect Themselves”, “Selecting a Property Manager” and “Shopping Center Lease Violates Anti-Trust Laws”. The FAQs are “Avoid Costly Mistakes in Purchasing Rental Property”, “What’s New in Landlord/Tenant Law?”, “Eight Mistakes Landlords Can Avoid”, “Landlord Can’t Be Sued for Defective Tub”, “Landlord’s Legal Fees Are Covered”, “Military Service is Grounds for Canceling Lease”, “Mobile Home Park Owner Must Provide Leases” and “Landlord’s Discrimination Questions Answered”. Robert Friedman’s book “How to Survive Legally as a Landlord”, can be ordered on the site’s bookstore.

New Bankruptcy Law

The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 is effective on October 17, 2005. Evictions will no longer be stopped by the Tenant’s bankruptcy if the landlord obtained a judgment of possession against the tenant before he filed bankruptcy. In addition, the automatic stay can be lifted if a landlord certifies that he is seeking a termination of a rental agreement based on illegal drug use or endangering property 30 days prior, unless the debtor files a response and requests a hearing. Under the old law, a bankrupt corporation that had a commercial lease had 60 days to decide whether to assume or reject a lease after filing for bankruptcy. Extensions could be granted by a court for one year or even more. The new law lengthens the decision-making timeframe to 120 days, with the option to request a 90-day extension for cause. However, after 210 days, no additional extensions can be granted without the landlord’s consent. If the corporation doesn’t decide within the 210-day period, the lease will be automatically rejected.

Verdicts for Tenants

1. 1. • $980,000 – The estate of a tenant killed in an apartment blaze claimed that management should have instructed the roof tarring crew not to clean tools with gasoline next to a pilot light (Luzerne County, Pennsylvania Court of Common Pleas).
      • $382,500 – Tenant who sustained a torn rotator cuff when the elevator stopped abruptly after freefalling blamed the company for improper roller assembly alignment.. (Union County, New Jersey Superior Court).
      • $163,900 – Tenant, whose condo developed mold after pipe burst, sued property owners for not cleaning up flooding more quickly to prevent its onset (Los Angeles County, California Superior Court).
      • $97,500 – Range tipped over, landing hot soup on a toddler. The mother blamed the apartment owners for not fixing the range which she reported as loose a month before the accident (Fresno County, California Superior Court).
      • $4,625,000 – Mobile homes sank into the ground due to improper maintenance (Los Angeles County, California Superior Court).
      • $1,364,800 – Toddler was severely burned by a radiator that had no cover (Essex County, New Jersey Superior Court).
      • $1,187,000 – Mold destroyed personal property of over 30 apartment residents (Galveston County, Texas District Court).
      • $391,454 – A tenant sustained torn tendons from a tumble downstairs due to a loose banister (Washington County, Minnesota District Court).
      • $237,500 – A tenant was forced to move out after his possessions were ruined by mold (San Francisco County, California Superior Court).
      • $98,937 – Apartment resident who slipped on a puddle near an outdoor staircase claimed that the owner knew that the water collected there (Tarrant County, Texas District Court).

Landlords Fight Terrorism

2005/2006 Winter Issue

The next issue of the LegalSurvival.com Newsletter will explain how to:

1. 1. • Properly screen-out terrorists without violating discrimination laws.
      • Prevent civil liability for terrorist acts.
      • Provide adequate security.
      • Detect terrorist activity.
      • Cooperate with law enforcement without violating your tenant’s privacy rights.

Disclaimer

While a great deal of care has been taken to provide accurate and current information, the ideas, suggestions, general principles and conclusions presented in this newsletter are subject to local, state and federal laws and regulations, court cases and any revisions of same. The reader is thus urged to consult legal counsel regarding any points of law – this newsletter should not be used as a substitute for competent legal advice. The purpose of this newsletter is to give the reader a general understanding of the law – not to provide specific advice. Every effort has been made to achieve accuracy. The law constantly changes and is subject to differing interpretations. Always consult with your attorney and act only on his or her advice. Victoria Square Publishing Co. Inc. and Friedman & Ranzenhofer, PC, PC, P.C. shall not be responsible for any damages resulting from any inaccuracy or omission. This newsletter is designed to provide accurate and authoritative information in regard to the subject matter covered. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Certain portions of this newsletter may be applicable only to New York State law.