Q: My sister has lived in a rent-controlled apartment for 16 years. Over the past month there has been evidence that someone has been entering her apartment. Little things are disturbed, such as a picture on the floor that’s moved to the computer and her printer changing from English to Japanese. We believe it is the manager because he is the only one with a key and the front door is always locked upon her return. In these tough economic times, we think they are trying to get rid of her so they can get more money for her unit. What recourse does she have? –Shirley G
A: Landlords with long-term tenants in rent-controlled cities are often anxious that these folks move on. When tenants don’t leave voluntarily, there’s no opportunity to raise rents to market levels. Many times, the allowable rent increases do not cover the landlord’s increased cost of doing business. It’s unfortunately common to hear of landlords decreasing services or otherwise making life miserable for long-term tenants, in hopes that these harassments will lead to their departure.
If the manager is indeed entering as you describe, not only is he violating your state’s entry laws (practically all states have legislated allowable reasons for landlords to enter, and this obviously isn’t one of them), he’s trespassing and breaking the rent-control ordinance too. If you have proof that this is what’s going on, the first step would be to confront the owner and manager, then present the issue to the police and your rent board. But you’ll need hard evidence first — you can be sure that without it, your claims will be dismissed as paranoid imaginings.
You might want to consider hiring an investigator, but understand that this could be an expensive proposition. Investigators have all sorts of clever ways of staking out a scene (perhaps a well-placed Web cam could capture everyone who enters through the front door — and maybe you could set this up yourself). In the meantime, be sure your sister removes all easily taken valuable items, and begins keeping a log of every time she returns to find something amiss.
Q: I pay one of my tenants to perform certain tasks around my small apartment building, such as gardening, collecting rent, purchasing supplies, dealing with tenant complaints, and showing vacancies. He just asked me for a W-2. But I don’t consider him my employee, and I’ve never withheld taxes or anything like that. Have I been breaking the rules? –Tim A
A: It can be tricky to know whether your manager, in the eyes of the law, is an employee or an independent contractor. That you never withheld taxes and don’t think of him as an employee isn’t really determinative. Whether your manager is an employee or an independent contractor (to whom you wouldn’t give a W-2) depends on how he performs his work. …CONTINUED
In general, if the manager exercises control over the result of his work, and not over the way he achieves those results, he’s likely to be considered an independent contractor.
For example, if you don’t specify what the landscaping should look like or tell your manager how to collect the rent (and deal with tardiness), or tell him what to buy when purchasing supplies, the manager has control over these issues. Similarly, if you leave it up to him on how to field complaints and how to show vacancies, he’s likewise apt to be considered an independent contractor. But chances are, you are more of a hands-on owner, and do dictate what kinds of landscaping goes in, how to handle late rent, what to purchase for upkeep supplies, and so on.
It’s a rare small owner who isn’t interested in setting complaint policies and telling managers how to show the property. These landlords are exercising significant control over the way the jobs get done, which makes the manager more likely to be considered an employee instead of an independent contractor.
As an employer, you are required to comply with wage and work-hour rules for your state, and you must make Social Security payments and deductions, and withhold income tax, unemployment insurance and disability insurance. Workers’ compensation comes into play, too. These responsibilities and costs are the main reason why owners strive to classify managers as independent contractors. But as much as they may want to avoid the hassles and expense of being an employer, owners who control the details of the job will have to take them on. Your only recourse is to either back off substantially in how you manage your manager, or hire a property management company whose own employees will show up and perform the tasks you hire them for.
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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