Avoid Appearance of Retaliation Against Residents

When is an eviction retaliatory? That is an important question for managers of rental housing because many state and local rental housing laws bar “retaliatory eviction.” In addition, the Fair Housing Act makes certain retaliatory actions against residents illegal if they hinder the residents' exercise of their civil rights.

How can you avoid a charge of retaliation? Know the specific requirements of your state and local laws. Be careful in your policies and procedures. And train your staff.

Know What You Can and Cannot Do

State and local definitions of “retaliation” vary, so be sure to check with your attorney to find out what the laws in your area say. Generally, though, laws against retaliatory eviction mean that you may not terminate a tenancy, or refuse to renew a lease, in retaliation against a resident because he has:

• Reported a possible violation of the building code, housing code, or health code;

• Asked you for reasonable repairs to his unit;

• Challenged you in court;

• Tried to organize a tenants' union or association;

• Called on tenant protection provisions in the law; or

• Tried to address complaints through a community or advocacy group like Legal Aid.

Laws typically do not limit retaliatory actions to giving an eviction notice. You also may not “constructively evict” a resident by cutting her services, hiking her rent, or charging special fees. You may not make her unit unlivable—for instance, by cutting off the heat, water, or electricity or changing the locks. And you may not ignore legitimate requests for repairs.

Be Prepared

According to Eric Willison, an Ohio attorney who has represented both owners and renters in eviction cases, retaliation is a common defense against eviction actions, so you need to be ready for it. Residents seeking to overturn an eviction in court don't have many paths to success, so don't be surprised if they claim retaliation. Instead, be ready to show a court that your action to evict was appropriate and was not motivated by your personal feelings.

Very often retaliation is not well defined in the law, says Willison, so it can be a matter of appearances. If Resident Smith complains about bad plumbing one day and receives an eviction notice the next, it is easy for a court to assume bad faith on the part of the site manager, even if there was none. Timing is very important. You should keep a careful record of the dates of resident complaints and your responses so you can show a court your typical response time. (In the best scenario, you'll be able to show that you resolved the issue the resident complained about before you issued the eviction notice.) When a resident complains, you should record the complaint in a log and set a time frame in which you will follow up. You should also avoid issuing eviction notices immediately after a resident has complained to you.

Even if many days separate the resident's complaint and your notice, you still may be on the hook. Some states accept a resident complaint within six months of the eviction notice as evidence of retaliation. Some states, like California, even assume a retaliatory motive unless you can prove otherwise.

Cite the Lease

Your eviction notice should include clear, specific references to the resident's lease. You need to document very clearly the specific resident actions that have resulted in the eviction. Your records must establish a valid nonretaliatory motive for evicting the resident. You also need to show that you followed the specific time frames set in the lease. For instance, if the lease requires you to send warning letters or give the resident a specific period in which to resolve the problem, you need to establish for the court that you abided by these provisions. If the resident owes you an outstanding balance, detail for the court how you arrived at the amount owed. All of these steps will help the court understand that you were enforcing the lease fairly and not arbitrarily.

Don't Single People Out

A resident can make a stronger case for illegal retaliation if you enforce your site policies and lease provisions selectively. People similarly situated should expect the same treatment from you. If you are generally lax in enforcing rules but suddenly decide to evict one resident for breaking them, a court could conclude that your motive was primarily personal. If you accept late rent payments from everyone but Resident Green, she might be able to show a court that your inconsistency was part of a pattern of retaliation against her. In contrast, if you keep careful records and enforce your house rules and lease provisions systematically, Resident Green will have to find other evidence of your hostile feeling against her.

Be Businesslike

Willison suggests that you remain even-tempered in your personal interactions with residents. In your face-to-face communications, be calm, courteous, and professional. Avoid arguments and displays of pique or hostility. Your written communications should take the same professional tone. If you appear in court, your references to the resident should be in professional rather than personal terms. Your attitude and your evidence should help the court see that you acted entirely on business reasons, not personal animosity.

• Fair Housing Act: 42 U.S.C. §3617.

Insider Source

Eric Willison, Esq.: 625 City Park Ave., Columbus, OH 43206; (614) 580-4316.

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