Litigation is expensive. What issues result in lawsuits against managers and how can they be avoided? All property managers should beware that unlawful evictions and use of “self-help” remedies such as changing the locks or cutting off utilities can result in manager liability. Take tenant objections and complaints seriously. Look for possible discrimination claims and reports of faulty conditions that can lead to injury suits for negligent maintenance.
In residential property management, Fair Housing Act (the “Act”) violations are the basis of the majority of lawsuits (often not covered by insurance). Your staff must know the “buzzwords” and how to react to them. A request for “reasonable accommodations” may require a change or exception to rules and services, such as a dog for physical and emotional support, a reserved parking space or shoveling snow in certain areas sooner and more often. Many cases involve objections to second hand smoke from an apartment adjacent, above or below. Smoking in one’s own home can, and may have to be, prohibited. A request for “reasonable modifications” involves permitting physical changes at the cost of the occupant, such as permitting the tenant to install a ramp or an outside lift.
Straightforward discrimination based on a prohibited classification such as race, religion or national origin is easy to understand and avoid. However, many discrimination claims and cases shock managers and owners. There must be super sensitivity to avoid liability. Discrimination on the basis of familial status prohibits discrimination against families with children. It has been held that prohibiting children running in a building and leaving bikes outside of apartments constitute discrimination against families with children. Another violation involved steering families with children away from second floor apartments (even though a child previously fell from a second floor balcony). One case held that prohibiting non-toilet trained children in the pool violated the Act. It was okay to require non-toilet trained “persons” to wear waterproof swimwear.
A serious exposure unknown to most managers is referred to as the “hostile housing environment doctrine.” Inaction by the manager can result in liability. Fellow tenants may engage in harassment and abusive behavior based on discrimination against a tenant. Permitting such behavior to continue can result in management liability.
An owner can incur liability for the acts of managers and employees, even if the actions were not authorized. A 2004 Pennsylvania case held a landlord liable because the manager refused to renew a lease because of racial discrimination. The U.S. Supreme Court ruled that an owner can be liable for punitive damages for a manager’s violation, even without proof that the owner even knew of the discriminatory acts.
The owner of a property has a duty to take action to control the criminal activity of third persons which threaten persons on the property if the owner has reasonable cause to anticipate such acts. If the landlord knows that the property is being used by violent drug dealers to conduct criminal activity, there may be a duty to act. If the owner knows that the lack of lighting in the parking garage has contributed to muggings, there may be a duty to act to prevent injury.
Finally, keeping good records will not prevent claims, but may prevent liability. Record responses to issues and complaints and establish a pattern of good behavior.
