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The Protected Landlord: Leveling The Playing Field
THE PROTECTED LANDLORD: LEVELING THE PLAYING FIELD
Myatt Legal News wrote about this issue at the request of several clients who are current landlords
In our communities we are so often trying to protect our property, investments and family homes. Unfortunately, we make choices that do us more harm than good. Some landlords have become landlords by default, both mom and dad have passed on or we have inherited the brownstone from Uncle Al, with all of the headaches associated with it. What is generally the major part of the headache is the presence of tenants, who for whatever reason, decide it is no longer in their best interest to pay rent. Thus, as the taxes, water bill, Con Edison, gas or oil bills and mortgage bills mount, the frustrated landlord is always at his/her wit’s end. In an effort to hold onto the property and provide services to all tenants, the landlord must enter a world that is confusing, intimidating and time consuming.
Here are some tips to turn that forum into a place where the landlord feels secure, safe and protected:
A landlord must realize that you cannot rely solely on the real estate broker o do a complete and adequate background check of the prospective tenant. The typical searches are for credit worthiness, employment and references (personal and previous landlords). What the landlord must incorporate in this search is a check of prior housing court cases brought by other landlords against the tenant. Therefore, a check should be made of the housing courts in the five boroughs (or other counties and states if that applies). Some tenants are like itinerant preachers, moving from borough to borough and county to county with a trail of court dockets and unpaid rent.
As a landlord, you may think you can sue your broker for failing to adequately conduct a background check on your prospective tenant, however, you cannot. Any claim you may have against the broker merges into the lease contract, thereby waiving any action you may have against the broker. More importantly, a lawsuit against your broker certainly affects any future dealings you may have with each other.
Leases are a landlord’s most critical piece of evidence. A lease “protects the landlord 100%” because it is a contract, says Attorney Jason Green. Without a lease the court process becomes even more time consuming as without a lease a tenant is entitled to a jury trial, a time consuming endeavor. With a lease the tenant waives the right to a jury trial.
Furthermore, leases allow landlords to insert protections in the contract. Therefore, anything the tenant violates, whether it involves no guests longer than one week; adhering to recycling rules; no pets; no sublease; no smoking, becomes a breach of contract. Such breaches then permits the landlord to take the tenant to court for violating the clauses in the lease.
Oftentimes, landlords inquire as to how long they should wait before bringing a tenant to court if tenant has failed to pay rent. “At the second month. Why wait,” says Attorney Green. “By waiting you are allowing the tenant to get further behind in rent and the issue is subject to the doctrine of laches.” The “doctrine of laches” is based upon the maxim that equity aids the vigilant and not those who slumber on their rights. In other words, should the landlord delay in bringing the tenant to court, the tenant can argue that s/he has been prejudiced by the delay and the court can deny the landlord from bringing his/her lawsuit against the tenant.
The final question remains: does the landlord really need an attorney to represent him/her in housing court, since that court is seen as the people’s court. Attorney Green says, “just as criminal attorneys would not advise their clients to represent themselves, it’s no different in housing court.” It is better to have an attorney, whether you are a landlord or a tenant. The presence of attorneys for landlords and tenants makes it a level playing field. The attorney is present to explain the law to you, explain your rights and your options. When you go to court without an attorney, you are unaware of the parameters of the litigation process. The process then has the feeling of walking through darkness.
Note: In the next issue we will give equal time to the tenants.