Q: We rent a really cool loft in a renovated downtown building, which has space for retail on the ground floor. We were hoping we’d see a restaurant, caf

Q: We rent a really cool loft in a renovated downtown building, which has space for retail on the ground floor. We were hoping we’d see a restaurant, café or other retail establishment move in, but instead we’ve just learned that a mental health services organization will be our new neighbors. We know that the neighborhood is "edgy," and we accept the fact that there are a fair amount of homeless people in our midst. But enough is enough — it just doesn’t feel safe. Do you think we have grounds to break our lease? –Juan L.

A: You’re not the first to react in dismay when a health services facility or clinic appears in the building, though it’s arguable whether your fears are well-grounded. Commercial tenants also typically don’t welcome low-income health or law clinics, or a government agency (such as unemployment or probation offices) or other specified businesses as neighbors. Depending on the clout the tenants have, they insert clauses in their leases that make the landlord promise not to rent to specified organizations or tenants. Residential tenants rarely think about these issues, though in situations like yours, before signing the lease, you could press for such a clause. But since you’re already a tenant, this route won’t do you any good (this time).

As an existing tenant, you have two theories you might rely on to support breaking your lease: lack of personal safety, and any landlord promises regarding new neighbors. But they find slim support in the information you’ve supplied. Let’s see why.

In virtually every state, tenants can break a lease when the landlord fails to properly maintain the premises, exposing the tenant to a serious risk of injury. The duty to maintain has been extended, in many states, to include the duty to keep tenants reasonably safe from foreseeable criminal acts, by providing adequate locks, lighting and security personnel, and warning tenants about known dangers. When landlords fail to take these safety measures and a demonstrably unsafe situation develops, tenants can sometimes successfully break their leases and move. But your "feeling" alone that people attending a mental health services office makes the building unacceptably unsafe probably would not convince a judge that it should support your lease-breaking.

You will want to think back to the sales pitch you got from management when you visited the building. Were you given any reason to believe that the ground-floor spaces would be rented to retail establishments only? If so, you might be able to argue that this representation was not only a promise, but a critical piece of information for you, without which you would not have rented the loft. If you can prove that management knew that "retail only downstairs" was highly important to you, you might be able to convince a judge that management should be bound by it, and that when this promise was broken, you were free to move out.

Q: I manage a small apartment community, and have been asked by one of our residents to tell a member of our maintenance staff to stop wearing the after-shave cologne he regularly uses. She claims to be super sensitive to strong odors, and that any time she encounters our employee, she has a coughing fit. How should we respond to this request — and what about our employee’s rights? –Carole M.

A: Your tenant is asking you to treat her as a person with a disability who wants you to accommodate her condition by prohibiting employees from wearing cologne. Never mind that she hasn’t described herself this way explicitly — once you get a request like this, you need to evaluate it as if she had.

The Fair Housing Act requires you to make reasonable accommodations for a tenant who has a disability. This means you may have to change your policies or practices — including allowing employees to use cologne — to make it possible for the tenant to use her apartment. But this explanation begs a couple of questions: Does your tenant have a disability? And, is it reasonable to tell an employee what products he can or can’t use?

As for the first question, a condition becomes a "disability" that you are legally required to accommodate only if it substantially impairs a major life activity. Courts have been pretty strict in interpreting this definition — even conditions that most people would consider serious might not be disabilities, depending on how they affect the person who has them. Does your tenant suffer serious respiratory problems from any contact with certain fragrances? If so, she might have a disability. You may ask your tenant for verification that she has a disability within the federal (or state) definition of that term (some states define "disability" more inclusively than the federal definition). A note from her doctor would suffice. A doctor will consider whether her sensitivities are temporary or intermittent, the severity and duration of her coughing episodes, whether she experiences after-affects from the exposure that affect her in a pervasive way, and so on.

If your tenant produces verification that she has a disability, you’ll have a choice. You can work with her towards a reasonable solution of the issue, or you can refuse, in which case you should be prepared for a legal fight if she goes to a lawyer. Common sense suggests that the better course would be to sit down with your employee, discuss the situation, and come up with a plan. Perhaps you can make sure that another employee responds to her maintenance requests or that when the employee works in your tenant’s unit he refrains from using cologne.

It’s possible that your employee will refuse to modify his habit of daily cologne, and if this happens, you’ll need to evaluate whether you can still accommodate your tenant’s request. If you can’t — perhaps he is your only maintenance worker, or his duties necessarily bring him into daily contact will every tenant — you can make "no cologne" a condition of his continued employment. He may feel that his personal independence has been compromised, but he won’t find much support in the law. Your condition is a reasonable one, given your legal duty to accommodate the needs of tenants with disabilities, and it is a benign rule that puts him through no hardship.

Q: My lease has a late-fees clause in it, which says that I must pay a fee of $20 if my rent is more than two days late. I mailed a check to the manager a couple of days ahead, but she says she didn’t receive it until the third day. I refused to pay the fee, and just got a "pay or quit" notice from management! How can a late fee morph into an eviction lawsuit? –Wendy C.

A: If you’re going to mail the rent, you need to make sure you send it so that it will arrive on time. Two days is not, alas, the standard turnaround time for the mail in many places. Assuming the manager is telling the truth, your rent was late.

Now, how did that $20 fee suddenly jeopardize your tenancy? Take another look at your lease. Chances are, embedded in that late-fees clause is a phrase that describes the late fee as "additional rent." This is a crafty move, because it means that if you don’t pay the fee, technically you haven’t paid rent. And when you don’t pay the rent, the landlord can demand it with a pay-or-quit notice. Without this phrase, the landlord would have to sue you to collect the fee, which of course no landlord wants to take the time to do.

You might be able to challenge the fee on the grounds that it’s an unenforceable penalty. You’d argue that the fee bears no reasonable resemblance to the real losses the landlord suffered as the result of your late payment (this is the standard that any late fee will be measured against). Unless the landlord can produce credible evidence of the actual consequences of late payment, a judge should strike it. And the minute the landlord begins saying that the fee is a penalty, or punishment for paying late, or even a deterrent against tardiness, you’ll be ahead — none of these reasons should support the imposition of a late fee.

Before girding for action, however, understand that objecting to the fee now means responding to an eviction lawsuit. The stakes are very high — if you lose, you lose your rental. Few tenants, no matter how principled, are willing to take that chance over $20.

If you’re determined to fight this charge, consider paying it (and avoiding an eviction lawsuit), then challenging it in small claims court using the penalty arguments mentioned. If you lose, you’re out your time and a small filing fee, but you still have your rental.

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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