Q: I am a tenant and also the manager for our apartment building. I’ve just been fired from the manager’s job, and given a termination notice, too. Here’s what happened: The owner has been refurbishing rental units as they come vacant, having our maintenance crew rip up old floors and repaint. The building is old and I’m certain that the guys are dealing with lead paint and asbestos floor tiles. The owner told me to shut up about it, and for a while I did. But my conscience got the better of me, and I called the local health department, who sent an inspector over. The upshot was that OSHA got involved and the owner was told to do the job right, but the first thing he did was fire me and hand me a 30-day notice to leave. Do I have any rights? –Rex B.
A: When renovation involves disturbing lead paint and asbestos, owners need to follow federal guidelines and laws that dictate how such jobs must be handled (some states impose additional requirements, too). These rules aim to protect workers’ health, because lead dust and asbestos fibers are known to cause serious problems. Lead paint should be removed carefully, minimizing dust, containing the debris, and cleaning up thoroughly. Beginning in 2010, contractors working with lead will have to be certified and follow specific work practices to prevent lead contamination (you can read about the new requirements on the Environmental Protection Agency’s Web site.) Working on asbestos-containing materials, such as ceiling and floor tiles, requires similar measures to prevent asbestos fibers from becoming air-borne.
When you called the local health inspector, you were blowing the whistle on your landlord, who was exposing your maintenance crew to health risks in violation of federal (and possibly state) law. Federal law protects whistleblowers who initiate or participate in an OSHA investigation, and square within that protection is your right not to be fired for reporting a problem. You can file a complaint with OSHA by contacting their local office (get contact information from the OSHA Web site).
You may also have a state claim. All states have laws that protect whistleblowers from retaliation such as you encountered, but not all states will protect workers who report any legal violation. Some states give whistleblower protection to those who report violations of particular laws only, such as labor laws. And some states’ laws target large employers only, leaving employees of smaller businesses without protection.
Your landlord’s decision to terminate your tenancy sounds like retaliation, too. You’ll need to rely on state law to help you here, because the federal OSHA protections extend only to your job. (However, if living on the premises was a condition of your employment as the manager, you may be able to get OSHA protection for that, too.) But even if you have no OSHA protection for your tenancy, many states have anti-retaliation statutes on the books. These laws typically prohibit landlords from taking adverse action, such as hiking the rent or starting eviction proceedings, against a tenant who complains to the authorities about a health or safety violation.
Before filing your complaint, you might want to have a talk with the owner, explaining your rights and giving him a chance to reinstate your job and your tenancy. If you get nowhere, off you go to pursue your legal options — but be prepared to answer an eviction lawsuit if the landlord holds firm on his decision to kick you out. If you can prove that the landlord had no motivation for terminating you other than your whistleblowing, you should prevail. But you’ll do so at a price — with an eviction lawsuit in your past, even one that you’ve righteously won, you may have a hard time getting future rentals.
Q: Our landlord is having our main bathroom renovated and the project is going to take three weeks. Two of our three bedrooms including the master bedroom will be involved in this project. We have cats that are indoor cats, and the renovation project will be stressful on them. We are thinking about moving in with a friend during this construction period. Do we have a right to ask for a rent reduction during this construction period? If we decide to stay, are we within our rights to ask that water damage around several window sills be fixed? Also, we are considering buying a house or condo soon, and we’d like to know if we should ask to postpone the construction until we leave? –Jim S
A: From a practical point of view, it sounds like you and the landlord would be better off postponing these repairs until you move out. You won’t have to endure the disruption, and the landlord can get the work done more quickly and easily if the unit is vacant than if the contractors have to work around your schedule, belongings, and need to use the facilities. Of course, it could take several months or more to search for a home, negotiate terms, and then wait for escrow to close.
One of the reasons it’s cheaper and quicker to work on a vacant unit is that the landlord has a duty to provide alternate digs when a renovation project results in serious disruptions, makes the unit dangerous to live in (when dust, fumes, and construction debris fill your home), or overtakes most of your living space. From the sounds of things, that’s what will happen when the workers arrive at your front door. Your landlord should not expect you to make do during the disruption this work will cause, nor can he reasonably expect you to continue to pay full rent. The fair response is to not charge rent for the days you are not able to live there, or to charge full rent but pay for reasonable alternate digs. The value of staying with friends can be worked out by comparing the amenities you’ll be enjoying with short-term rentals in the area that offer similar features.
Finally, if you decide to move out and then move back in, it is reasonable to ask for window sill repair, but the landlord would not have to do it. Legally, only repairs that are necessary for your safety or affect the structural soundness of the building are "must-dos" for a landlord. However unsightly, water stains don’t rise to the level of a structural defect (though if water streams in during the winter, and especially if it causes mold, that’s another story). Any half-way experienced landlord will attend to this kind of problem at turnover time, when workmen are in the unit and already working.
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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