$300 smoking 'fine' crosses the line

Rent it Right

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted May. 4, 2011

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Rent it Right

Janet Portman
Inman News™

Q: We recently rented a vacation house that had a "no smoking" policy. We honored it, but during an evening when we were away, our adult children did not. There was no damage, but you could smell the smoke. The owner "fined" us $300 for the transgression, saying that by imposing a fine, she didn't have to prove that it actually cost her $300 do deal with the smell. Can she do this? --Christine K.

A: Your owner is attempting an end-run around settled principles of landlord-tenant law. Even though this was a short-term vacation rental, the owner can't circumvent the law protecting tenants from unreasonable charges like these.

When landlords want to charge tenants for damage beyond normal wear and tear, they must be able to prove that the amount claimed was reasonably necessary to fix the damage. In other words, if tenants treat the place like "Animal House," leaving the owner with six hours of cleaning, she can fairly charge for six hours of her cleaning crew's time (assuming the crew charges a commercially reasonable price).

What she cannot do is arbitrarily charge any old amount (most commonly, a sum high enough to discourage tenant misbehavior in the first place).

When landlords try to impose arbitrary amounts -- sums that aren't tied to the actual amount of damage caused -- on tenants who harm the property, judges don't allow it. Legally speaking, these sums are "liquidated damages": monetary penalties set in advance for specific misbehaviors, which are not tied to the actual cost of the damage.

Liquidated damages are generally illegal in consumer contracts. In fact, they are allowed only in situations when it would be very hard to measure the consequences of misbehavior, and both parties to the contract specifically agree beforehand that this is so. Often, liquidated damages clauses must contain specific language in order to be enforceable.

To my knowledge, no state has given landlords the green light to use liquidated damages in vacation rental settings. Although vacation rentals do get to bend a few of the rules that otherwise apply to the landlord-tenant relationship, this isn't one of them.

Calling her fee a "fine" won't disguise the fact that it's a predetermined price for damage, regardless of its extent. Incidentally, a true fine can be imposed only by a government entity; it is punishment for violating a health or safety law.

Though society has given our governments the power to punish, we haven't given consumers the power to punish one another; we allow them to sue for their actual and reasonable damages only. Civil punishments are allowed only in specific situations, after a court trial in which someone is found to have committed particularly outrageous conduct.

For example, a landlord's deliberate, widespread and long-standing policy of withholding tenants' deposits without good reason will make him a candidate for punitive damages, but only if the law allows for it, and only if a judge or jury decides it's merited.

Go back to your landlord and explain that while you are willing to pay for the consequences of smoking during your stay at the house, you are not prepared to pay a "fine," or any other amount, that does not correspond to the landlord's actual and reasonable expense in dealing with the problem. Then think about having a talk with your children. (And I'll address the question of whether you could legally require them to indemnify you for the damages another time.)

Q: I live in a condominium community, and have two assigned parking places. I have an illness that interferes with my ability to walk, and as a consequence I have a (disabled) parking sticker on my car. Now and then, I need to use (disabled) parking spots, which are closer to my unit. But lately the association has decreed that these spots may not be used for more than three hours, or overnight. Can they do that? --Susie A.

A: Your association is taking a narrow, and ill-conceived, approach to your request. Ironically, your occasional need for a close-in spot may be sidetracking them. If you were asking for a permanent spot, perhaps they'd see the request for what it is: a request for an accommodation under the Fair Housing Amendments Act.

Renters and occupants of common unit developments, who have a legally recognized disability, are covered by the Act. A condition that significantly interferes with a major life activity qualifies as a legally recognized disability. Often, people have to establish that they qualify. But you have already done so, by obtaining a government-issued sticker. In the old days, tenants needed a "doctor's note" to prove their status, but in recent years, tenants may establish their status in a variety of ways.

Recognition by a government entity, such as a municipal parking authority, that your condition entitles you to close-in parking should be adequate to prove to your association that you have a disability.

Now the ball lands in the association's court. They must begin a meaningful discussion with you about how they can accommodate your request. If your suggestion is a reasonable way to solve the problem, which doesn't involve excessive costs or policy changes, they refuse at their peril.

A request for a close-in parking spot to accommodate a disability usually doesn't provoke protracted arguments or heavy legal artillery. That's because it's usually so easy to do, even for an association.

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