May 2011: Beware of Retaliation

Fair Housing law defines retaliation as an act of harm by the owner, manager, or agent against a resident or applicant because that resident or applicant has asserted their fair housing rights. This important legislation protects the right of the applicant, resident, prospective homebuyer, or loan seeker to file a discrimination case, or to participate in a discrimination investigation. Sufficient evidence can support a charge of retaliation even if it does not support the main discrimination charge.

A common retaliatory eviction often stems from landlords who do not want to provide reasonable maintenance. Here is a true instance of this action but the names used in this article are fictitious.

Mrs. McElroy's tenant, Jane, usually put in a request for maintenance every time she paid her rent. She would always include a note in writing asking for some specific repair. Mrs. McElroy's answer was always, "the property never needed repair when I lived there," but she would reluctantly have the repair done in most instances. Jane's requests were reasonable and they were the owner's responsibility.

After a year, Jane's lease term expired and the rental agreement continued as a month-to-month agreement. After fourteen months of tenancy, Mrs. McElroy gave Jane a notice, stating, "I am not willing to do monthly repairs - you should find another landlord who will put up with your annoying requests." Obviously, Mrs. McElroy did not consult legal counsel or management advice. Jane quietly moved to another residence and then filed a lawsuit based on "retaliation," demanding payment for moving expenses and the emotional distress suffered by her family.

Mrs. McElroy consulted an attorney who, after reviewing the facts, advised negotiating an out-of-court settlement for the reimbursement of the moving expenses. However, Mrs. McElroy was enraged that she should have to pay anything and they subsequently went to trial. The court awarded Jane all moving costs, a settlement for unfair landlord/tenant practices, and all legal fees.

Here are more examples of a "retaliatory eviction."

• The property owner or manager gives a tenant notice because they have testified on behalf of another tenant in court.
• The property owner or manager gives a tenant notice because the tenant filed a complaint with a government agency, such as Fair Housing, rent control board, health department, etc.
• The property owner or manager gives a tenant notice because they have organized other tenants to file complaints against the owner or request repairs.
• The property owner or manager gives a tenant notice because they are associating with people of a certain nationality that the landlord does not approve visiting his or her property.

Owners must also avoid "selective" retaliation, even though the tenant may be violating their lease; they should treat all tenants equally.

• The property owner or manager gives a tenant notice when they moved in a dog, but allowed other tenants in other units to have animals even though their lease also prohibited animals.
• The property owner or manager gives a tenant notice for paying late, but consistently allows other tenants in other units to pay late, without serving them notices to pay or quit.

There are tenants that make unreasonable demands, damage property, do not pay their rent, and who practice illegal activities endangering the investment. There are also times when owners want to move back into the property, sell the property, do major rehabilitative repairs that require vacating the property, or suffer damage from disasters that make the property uninhabitable.