Is your rent hike illegal?

Rent it Right

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Nov. 3, 2011

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Rent it Right

Janet Portman
Inman News™

Q: After weeks of trying to get our landlord to make a repair to the roof, we decided to withhold rent. We followed our state's rules, and the landlord got the idea -- he repaired the roof. But then he served us with a rent increase. Isn't this illegal? --Dori and Tom T.

A: Most states that allow tenants to withhold rent and/or use "repair-and-deduct" also prohibit landlord retaliation when tenants invoke these remedies.

The reason is clear enough: It would defeat the purpose of these remedies if landlords could turn around and raise the rent, withhold services, or terminate the tenancy. If such responses were legally tolerated, few tenants would take the risk of asserting their rights.

However (Isn't there always a "however" in the law?), a rent hike or even a termination following a tenant's exercise of rent withholding or repair-and-deduct isn't necessarily an instance of illegal retaliation. Landlords always have the opportunity to argue that their act had nothing to do with the tenant's invocation of his or her legal rights.

For example, if the landlord raises everyone's rent once a year, without fail and with respect to every tenant in the building, he may be able to convince a judge that the hike would have happened irrespective of the tenant's action, and was not motivated by it.

Also, most antiretaliation statutes provide for a wash-out period of a few months after the tenant has invoked the remedy -- after that period ends, the usual retaliation rules will not apply. For example, Connecticut and Michigan specify 90 days; Arizona and Washington, D.C., six months; Iowa and Kentucky, one year.

If you suffer a rent hike or other negative action after the wash-out period has come and gone, you may not be out of luck, depending on how your state has structured the law.

A tenant-friendly statute will presume that the landlord's act was retaliatory if done within the time specified by the law, which makes the landlord responsible for providing evidence that will convince the judge or jury that his act was not retaliatory.

If the time period has passed, it becomes the tenant's duty to convince the judge or jury that the act was retaliatory. But not-so-friendly statutes may provide that once the time period has passed, your ability to raise the defense has also gone away.

Q: We just got around to reading the fine print in our lease, and buried in the "no illegal activities" clause, we discovered to our astonishment a sentence that says we are prohibited from "conducting vocal or instrumental practicing or instruction." Our middle-schooler has signed up for the band and will need to practice his flute daily. Can our landlord prohibit this? --Jackie and Walter

A: Your question is a good example of the dangers of fine print ... and of failing to read it. Perhaps you glazed over the clause, after seeing the prohibition on illegal activities, something few tenants would argue with, and as a result, a part of the lease that they don't ponder too much.

It's only human nature -- that's why seasoned real estate lawyers, who deal with leases that run to dozens of pages, always review them from the bottom up, literally, as well as from the start. What you miss as your eyes travel familiar text might jump out at you when you come at it from a different angle.

I'm afraid that a prohibition like the one you describe is not illegal. The landlord doubtless had some bad experiences in the past with loud practicing or many hours of instruction.

To be fair, if the quarters are close, hearing scales or a tune played repeatedly, let alone a practice session of the band, could be very disturbing to other tenants. Because players of musical instruments are not a legally protected class, singling them out for negative treatment is not illegal.

You might approach the landlord and ask him to vary the rule, but I wouldn't count on success. If the landlord makes an exception for you, it will soon become evident that the rule can be bent, and he may be approached by others.

And that's where his legal troubles might begin -- those whom he turns down may think that they're being treated differently than you because they are a different ethnicity than your family, or because of their age, or because of (substitute any legally protected class here).

If the disappointed musician files a complaint with a fair housing agency, the landlord will have to defend himself, and even if he prevails, the experience will not be a nice one.

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