Landlord may face steep fines for sexual harassment

Rent it Right

Q: My landlord has behaved dreadfully towards my teenage daughter, harassing her with suggestive remarks and questions about her appearance and social life. I’ve told him to stop, but he hasn’t. He’s threatened me, too, warning that if I sue him and lose, I’ll have to pay for his attorney and court costs. It seems that I would, since my lease has an “attorney’s fees” clause that says that the loser pays the winner’s costs and fees. I know lawyers are expensive and lawsuits are not sure winners, and I don’t know if I could pay. –Marcie E.

A: The clause in your lease is common, but it applies only to lawsuits that concern the meaning and implementation of the lease. For example, if you fail to pay the rent and the landlord has to go to court to evict you, the clause means you’ll pay the landlord’s attorney’s fees and court costs. Or, if the landlord fails to return your security deposit and you successfully sue to get it back, you’ll be able to collect your fees and costs from him. In practice, the attorney’s fees clause is used mostly in eviction lawsuits, because most other legal spats over the tenancy end up in small claims court. In many states, you can’t bring a lawyer to small claims court (though there are modest filing fees).

A sexual harassment lawsuit, however, would not be covered by the attorney’s fees clause in your lease. This means that the general rule — each side pays its own fees and costs — will apply, unless a specific state law directs that in your type of case, the loser pays the winner’s fees and costs. You’ll need to check with a lawyer in your state familiar with harassment lawsuits to find out. But first, consider filing a complaint with the Department of Housing and Urban Development (HUD) or your state’s agency responsible for enforcing anti-discrimination laws. These agencies have lawyers who will evaluate and handle your case, and you will not be asked to front your own fees or costs.

Q: A family of four recently visited the large apartment complex that I manage. They asked to be shown 3-bedroom units near other families (they said they wanted to make it easy for their kids to play with others, and they were hoping they might share child-care with other renters). I insisted on showing them every available 3-bedroom unit, thinking that fair-housing laws required me to do so. The family went along with the tour, but thought I was being ultra-politically correct. Was I? –Kay J.

A: You were following the law. Here’s why: Far too often, landlords assume that families will bring noise and commotion to an apartment complex, and will make the complex less inviting to future tenants. To minimize a family’s impact on the community, some landlords shunt families towards specific rentals or parts of the building. Known as “steering,” such practices are clearly illegal under fair-housing laws. But in the situation you describe, the tenants asked to be “steered.” Would you be violating the law if you complied?

This question was answered about 10 years ago by HUD, the main federal agency in charge of enforcing and interpreting fair-housing laws. For a mere three months, HUD said that a landlord would not be guilty of steering as long as it was abundantly clear that the applicant initiated the request. Fair-housing advocates objected, pointing out that allowing landlords to steer in certain situations gave them a handy defense to trot out whenever they were accused of discrimination. For example, the landlord who steered a family to the back of the building could, upon being challenged, simply say, “Well, that’s the unit they asked to see!” If steering is disallowed no matter who initiates it, such a defense can’t be used. The upshot is that although it may seem nutty, your response was the legally sound one.

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Q: Our 1950s-era apartment building is about to undergo extensive renovation, including the removal of heating-duct insulation. The owner tells us that although the insulation is asbestos, the workers will be careful and there won’t be any health risks. I don’t believe it — this guy cuts corners whatever he does, and I don’t trust him to keep the asbestos from flying around everywhere. Since I suffer from asthma, I want to move out while the work is being done, but of course the landlord won’t pay for it. Do I have any legal arguments to back me up? –Patricia W.

A: Your concern is reasonable. When asbestos fibers become airborne, as happens when old asbestos is torn out, they can be inhaled and lodge in the lungs. People with sensitive lungs need to be particularly careful to avoid airborne asbestos, and everyone who works with it is legally required to take precautions. (The federal OSHA requirements for workers are at www.osha.gov. Search for asbestos.)

The buildings’ owners are being short-sighted to refuse your request. You do indeed have some legal ammunition to back you up. First, in virtually every state, your landlord is legally required to offer fit and habitable housing, which includes housing that doesn’t pose serious health risks. Your landlord’s claim that he will adequately protect you isn’t enough. Ask for the name of the contractor who will do the work, and talk to that person if possible. Find out whether the contractor is licensed to handle and remove large quantities of asbestos. A reputable outfit that’s been hired to do a careful job may give you the reassurance you need. But if you learn that the building handyman and his nephew will be doing the work, you have evidence that the landlord is about to create a serious health hazard — a violation of the duty to maintain safe and habitable housing.

Assuming the owner is hiring the handyman or a variation, what does this newfound knowledge do for you? A lot. Once rental premises become seriously dangerous (that is, unfit and uninhabitable), the landlord must take reasonable and prompt steps to fix the situation. In addition to removing the airborne asbestos, you’ll argue that a further reasonable step would be to remove you from harm’s way. Don’t wait for the first whiff of asbestos. Begin now by writing to the landlord, explaining your health situation and your reasonable grounds for concern. Say that you’ll be staying in modest digs (don’t book a room at the Ritz!), that you’ll continue to pay the regular rent, and that you’ll expect to be reimbursed for your alternate housing costs when construction is over. Any landlord with half a brain will realize that the alternative to your request — the risk of a personal injury lawsuit, in which you claim that the landlord’s refusal to grant your request resulted in a painful asthma attack, lost wages, doctors’ bills, and so on — is much costlier than a week or so at the downtown motel.

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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