Most states protect tenants from retaliation

Rent it Right

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Rent it Right

Janet Portman
Inman News™

Q: I may be heading into a contested eviction, and wonder if I should settle. These tenants went to a local nonprofit agency that handles fair housing and accused me of discrimination. The nonprofit didn't pursue it, and I terminated the tenancy. Now they're claiming that I retaliated against them. What do you think? --Bob W.

A: In most states, landlords may terminate month-to-month tenancies for any reason that is not discriminatory or retaliatory (only Georgia, Louisiana, Missouri, North Dakota, Oklahoma and Wyoming have no anti-retaliation laws). Anti-retaliation laws typically protect tenants against termination (or other acts intended to punish them for complaining) in some or all of the following situations: when they have exercised a tenant right (such as rent withholding); formed or been involved with a tenant organization; or complained in good faith to the landlord or a government agency in charge of enforcing tenant or housing rights.

Some laws presume that the landlord's motive was retaliatory if the landlord took negative action within a specified time of the protected tenant activity (such as six months), but allow the landlord to rebut this presumption by offering evidence to the contrary.

Assuming your state has an anti-retaliation law, you'll have to read it carefully, and perhaps consult the calendar if it includes a "presumption of retaliation" time period. And if your state protects tenants who complain to "government agencies," you'll need to read that part with particular care.

Some statutes clearly state that only complaints to a governmental body will come within the statute's protection.

For example, the Illinois law refers solely to complaints to "any governmental authority" (765 Ill. Comp. Stat. 720/1); Virginia similarly refers to a "government agency" (Va. Stat. Ann. § 55-248.39). California seems to take the same approach, making clear that its reference to "agencies" includes only those that issue citations or conduct inspections (private nonprofit bodies do neither) (Calif. Civil Code Ann. §1942.5).

But interestingly, Texas (not particularly known for pro-tenant legislation) goes the other way, specifying that good faith complaints to "a governmental entity responsible for enforcing building or housing codes, a public utility, or a civic or nonprofit agency" will be protected. (Tex. Prop. Code Ann. § 92.331.)

If your state follows the Texas example, and the tenants' complaint was made in good faith within a presumption-of-retaliation time period, you may be required to prove that your motive was not retaliatory. A cautious landlord may choose to wait out the presumption window, but that doesn't prevent your tenants from claiming that you acted in retaliation for their complaint. It simply means that they will have to present evidence and prove this defense, rather than taking advantage of the presumption, which requires you to prove that you didn't retaliate.

Q: I work for a property management company as its marketing director. We have a website that describes our services, and we also provide information for landlords on various aspects of the rental property business. I'm supposed to write this stuff, but I have little time, and besides, I'm a lousy writer. My boss said not to worry; he steered me to a couple of really good websites with excellent articles, just like the ones we need. He told me to write something that says the same thing, but make sure it doesn't look the same. Isn't that plagiarism? --Wendy S.

A: What you need to be concerned about is plagiarism, copyright infringement, or both.

A plagiarist is someone who publishes another person's copyright-protected expressions as his own. A work gains copyright protection when it is created; it doesn't have to be registered with the copyright office or carry a copyright notice. It would be prudent to assume that the published work you're looking at is protected. If you were to take someone's entire marketing brochure and present it as your original work, or copy entire articles under your byline, you'd be plagiarizing. But surely you're not contemplating such a blatant step. Still, you need to be careful that you don't violate the works' copyright protection in other ways.

First, there are some exceptions to copyright protections. Ideas, facts and material in the public domain are not protected. For example, if a competitor comes up with a clever analysis of the rental scene ("Wonder why the public schools are hiring? It's because this is a growing community, one that values education!"), it would not be illegal for you to praise the community's commitment to education in your ads, too. Facts, such as median incomes, school test scores, and average rents are not protected; nor is text that, by virtue of the passage of time, is in the public domain.

You may be thinking that you can get the articles you need without running into trouble by paraphrasing rather than copying word for word. Maybe, maybe not: It depends on how much you use and how extensive your paraphrasing efforts are. If the original articles and yours are "substantially similar," you're headed for trouble. That measure is gallingly imprecise, and often it boils down to what the judge and jury conclude in their collective gut when comparing two works. The more the facts, structure of the arguments, and organization of the material are similar, the greater the chances that they are, well, "substantially" similar. Paraphrasing whole articles, particularly if you use a number of articles, is likely to result in claims of copyright infringement.

Legal arguments aside, keep in mind that a property management company is always a good target for a lawsuit, especially when the claimed infringement is of a competitor's material. The real question is whether your company can risk the legal exposure. To be safe, you need to be very sure that you study many examples of marketing text and craft your own after assimilating them. And fear not; if your company is hit with an infringement claim, it's the management company -- not you, the employee -- who will be on the hook for the lawsuit.

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@inman.com.

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