Q: I live in a large apartment complex near my university. Management is very poor here: they don’t respond to repair requests; they close the laundry and pool facilities regularly; and they don’t keep the common areas clean. When the tenants have bad experiences, we’ve taken to tweeting about it to each other and our friends. Can we get into legal trouble for this? –Jason K.
A: Whether you face possible legal liability for the content of your tweets depends, first, on what you say. On this point, the law is rather clear: If your tweets are clearly expressions of opinion, or are factually true, you have nothing to fear.
For example (please excuse my failure to use only 140 characters), if you were to say, "I think this property is poorly run and management is taking advantage of us as students," most judges would see that as an expression of your opinion, which they’ll protect as your right to free speech.
Or, if you were to say, "Management is embroiled in a rent strike with tenants, and have been sued by several," and if these statements were factually true, you’d be in the clear.
However, you may face liability for defamation if your tweets are both untrue and damage the reputation of the person or organization you’re tweeting about. You’d be on thin ice, for instance, if you said that management never responds to repair requests (if in fact they do, albeit randomly or tardily), and management were able to show that they had lost tenants as a result of your remarks.
Courts are just beginning to hear cases brought by upset subjects of tweets. An apartment management company in Chicago has been sued by a tenant who claimed that her apartment had mold. The management company claimed that her tweet — "Who said sleeping in a moldy apartment was bad for you? (Management) thinks it’s OK" — was both false and damaging to its reputation.
But even if the company is correct on both scores, the fact that the message came in a tweet may affect the outcome. Does the forced bluntness of a tweet message somehow give notice to the listener that the message should be taken with a grain of salt? If so, perhaps tweets are to be understood differently than, say, a lengthy and reasoned newspaper piece, even if the message from each is roughly the same.
These are some of the issues judges will begin to wrestle with as cases make their way through the courts.
There is one precaution you might consider, which might help you in the event the management company gets litigious: Make your tweets private, rather than public. That way, only a limited number of people will see them. Because damages (the amount of money a judge or jury would order you to pay the management company as compensation for being wronged) are measured in part by how many people viewed the message (as well as its impact), you can see how limiting your audience will lessen the hit.
Q: A few of my tenants have given me rent checks that have bounced. Although I could have terminated their tenancies, I didn’t want to do that, given their otherwise good behavior. But I want to make it very unattractive for them to do this in the future. Besides late fees, is there anything else I can do? –Dan N.
A: Landlords typically charge tenants a "bounced check" fee, which should deter most tenants from casually writing a bad check. In some states, such as California and Florida, the amount you can charge is regulated by law (California allows up to $25 for the first bad check and $35 for subsequent checks; in Florida, the maximum is $25 or 5 percent of the face value of the check, depending on the amount of the check).
In states that haven’t passed similar legislation, the recipient of a bounced check is limited by general principles of law: You may charge for your actual damages, which includes any bounced-check fee charged by the bank, plus the value of your time spent dealing with the matter. …CONTINUED
In all states, writing a bad check is a civil wrong (for which the recipient may sue the check writer) and a criminal offense (which allows the prosecuting attorney to file charges). In both cases, states have set the damages (for the civil suit) and the penalties (for the criminal charge). These dollar amounts are higher than the amount a private person could legitimately charge without going to court.
This stands to reason: If the check recipient (or the prosecutor) has had to go to court, the amount of time spent on the matter has increased substantially. Practically speaking, however, you’re more interested in getting your money now rather than suing or prosecuting your tenants later. So, let’s focus on your right to charge a fee.
First, remember that you can charge only what your state allows or, in the absence of a statute, your actual damages. If you charge more, your fee has become a penalty, which a court will not uphold. "But my true damages aren’t large enough to effectively deter bad-check writing," you say. Fair enough — let’s see what else you can legally do to protect your interests.
One effective approach, in addition to a legitimate bad-check fee, would be to require tenants to pay future rent, at least for a while, with a certified check after they’ve given you one bad check. Assuming this is legal in your state (California, for example, regulates when and how you can impose this condition), you’ll get the effect you want (deterring future bad-check writing) without running afoul of the law. In your bad-check lease clause, be sure to cover these points:
- Apply the policy to all tenant checks, not only those for rent. For example, it should apply to checks you receive for security deposits.
- Make sure that the policy kicks in when a check is rejected for any reason, not just for insufficient funds. For instance, if the tenant forgets to sign or date a check and you submit it without noticing, the check will be rejected and the bank will charge a fee, just as it would had there been insufficient funds.
- It should be clear that the bad-check fee is not your only remedy when a check is returned. You want to preserve your ability, for example, to send a termination notice for nonpayment of rent, if you so choose, instead of imposing a bad-check fee and agreeing to accept another check.
- Avoid using online forms to demand that the tenant make good on the check or face specified monetary consequences. Many of these forms require the tenant to pay the civil and criminal damages and penalties that are available only after the landlord or prosecutor has filed, and won, a lawsuit against the tenant. As explained, these consequences are vastly more serious than the amount a recipient can demand short of going to court, but the forms-writers haven’t made the distinction. If the tenant challenges your right to impose these damages and penalties, you’ll lose.
Make the cashier’s check policy run for several months, but not forever. After a few months of dealing with the hassle of obtaining a cashier’s check, most tenants will make very sure that their rent checks don’t bounce.
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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