Q: We rent a single-family home that needs some work. We’re going to hire and pay the contractors, and deduct the cost from the rent. Our written agreement with the landlord includes our promise that we not allow a "mechanic’s lien" to be filed against the property (we lose our lease if that happens). What does this mean? –Jeb B.
A: If you don’t pay contractors or suppliers, they may place a lien against the landlord’s property. A lien is a notice to lenders or buyers that the lienholder (the contractor) claims to be owed money for work done on the property. The lienholder will record the notice in the county land records office, and if the owner doesn’t pay up, the lienholder can take the matter to court. If the lienholder wins, he can force a sale of the property to pay the debt. Even if the dispute underlying the lien is eventually settled out of court, its filing is a "cloud on the title" and will at the very least scare off any potential lender or buyer.
Naturally, your landlord wants nothing to do with any of this (even if he or she is not planning to sell the property soon). By putting your tenancy at risk if a lien is filed, the landlord is pressuring you to pay up and argue with the contractor about the validity of the claim later.
You may be able to take steps before work begins to protect the property from liens. Get some information — start with your state’s official Web site, and look for consumer protection pages that cover mechanics’ liens (California has a helpful site, as do many other states). Be sure to work with a reputable, licensed contractor, and sign a contract that clearly spells out the work to be done, schedule and other important issues.
Q: I am a leasing agent for a multistate apartment firm, and regularly meet with prospective tenants and guide them around the property, answering questions and hopefully initiating the application process. A co-worker recently told me that he thinks the firm has hired people to pose as prospects, who report back to the firm on how well we have done our job. I know that fair-housing watchdog groups send "testers" who do the same thing, looking for fair-housing violations, but it seems really wrong for my own employer to be spying on me like this. Is it legal? –Chris Z.
A: You’re describing the practice of sending "shoppers" to an apartment community. Like the "mystery" or "secret" shoppers sent to retail stores, apartment shoppers are hired to pose as prospective tenants, then report back to the property owner on a variety of issues, including whether agents are complying with fair-housing laws, how agents promote and show the properties, and so on. Shoppers aren’t usually sent out to investigate alleged wrongdoing; they’re simply documenting the experience of a typical apartment seeker.
Your description of feeling "spied upon" suggests that you think this practice invades your privacy. As long as the shoppers aren’t doing anything different than an actual prospective tenant would, however, you probably don’t have any legal arguments on your side. Your job of showing apartments, answering questions, and starting the application process requires you to interact with people. The process doesn’t become "private" simply because some of those people may not actually be looking for an apartment.
If these fake tenants do any kind of secret recording, however, the situation might be different. For example, a shopper might secretly tape record your sales pitch or make a secret video of your apartment walk-through. Recording someone without his or her knowledge is illegal in some states, and state law may also protect employees from being secretly recorded.
Even if your state doesn’t protect you from this type of behavior — or if the shoppers aren’t recording you or your co-workers — you may want to simply talk to management about what you’ve heard. You might ask whether there are issues that concern them, that you’re unaware of. Tell them that you aren’t comfortable being checked up on like this. Assuming your firm is interested in retaining professional agents, they should be happy to work with you to improve your performance and not have to rely on third-party reports.
Q: The owner of my rent-controlled apartment filed an eviction lawsuit against me. I believe it was in retaliation for my calling the health department about vermin in the building, which the landlord will not take care of. (I did this only after complaining to the landlord several times, to no avail.) I fought the eviction, and the owner withdrew the case. How can I recoup my $3,000 lawyer fee? –Ben K.
A: Most states have laws that protect tenants when landlords try to evict them for exercising their tenant rights. Complaining to the landlord or a government agency about unsafe or unfit housing conditions and organizing other tenants to press for their rights are commonly protected activities. Some rent-control ordinances, too, include retaliation protections of their own, to discourage landlords from ousting long-term tenants with below-market rents who have exercised their rights.
Let’s assume that your state or rent-control ordinance gives you anti-retaliation protection. Your action (complaining about unhealthy and dangerous conditions in the building) would fall within the list of protected activities. Your lawyer’s response to the eviction lawsuit probably argued that the landlord’s retaliatory conduct should completely defeat the eviction. Had you gone all the way to trial, and if you had won on those grounds, chances are that the judge would have ordered the landlord to pay your legal fees and costs right then.
However, your case was dropped short of trial, and apparently there was no opportunity for the court to rule on the validity of your anti-retaliation claim. You won’t get fees and costs unless you have a judicial finding (or the agreement of both sides) that retaliation motivated this attempted eviction.
But wait — all is not lost. You can file your own lawsuit against the landlord, in small claims court, for damages you suffered as a result of the landlord’s actions. Your court costs and attorney’s bill, as well as the cost of taking time off from work, are your damages. If the judge finds that the landlord acted outrageously, the judge may be able to impose punitive damages as well, which are additional monetary sums meant to punish the landlord for her bad behavior.
Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at janet@sandbox.inman.com.
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