Landlord shames tenants by posting offenses online

Rent it Right

Q: Our landlord has begun posting the names of tenants who violate the "house rules" on the property’s website. For example, people who park illegally or get talked to by management for excessive noise get listed (so do those who pay rent late). He claims it’s a way to encourage compliance and it will make the property a safer and cleaner place to live. I think it’s an invasion of privacy. Is it legal? –Betsy B.

A: Perhaps your landlord has recently revisited a classic from his childhood, "The Scarlet Letter," and wants to see if websites are as effective as letters sewn onto a dress. Or maybe he’s heard about California’s new law, which took effect in January 2012, that makes employers who willfully misclassify workers as independent contractors (when they should be classified as employees) put a statement on their company website or in the workplace, for a year, saying that they violated the law (see California Labor Code Sections 226.8 and 2753).

Commentators haven’t hesitated to call this "public shaming," and it’s not new; in Tennessee, drunken-driving offenders must pick up trash on the side of the road while wearing a jumpsuit that says, "I am a drunk driver" (see Tennessee Code Section 55-10-403).

It’s one thing for the legislature to specifically permit or require public shaming for convicted defendants, but can a private businessperson adopt a public shaming strategy of its own, without worrying about breaking a criminal law or civil liability? That depends on how your state would approach the question.

Let’s start with whether the landlord has committed a crime. A person whose name ends up on a website or lobby bulletin board might go to the police or prosecutor and complain of harassment. All states have anti-harassment statutes, which make it a crime to act in a way designed to annoy, provoke, threaten or otherwise cause another person emotional distress.

To be guilty of harassment, the offender must specifically intend the results of his actions (the distress). But when you apply this definition to what you’ve described, you can see that the required intent isn’t present: Your landlord is posting the information to deter similar misconduct, not to cause the "victim" distress.

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What about a civil action? A claim for defamation comes to mind, but here, too, there’s a major problem. Defamation requires the publication of a statement that hurts the subject’s reputation — but the statement must be false. As long as the statements are true, there’s generally no liability.

Suing for the "intentional infliction of emotional distress" is another possible claim, but again there’s a problem: The landlord arguably intended only to teach other tenants a lesson, not to pour salt on the wounds of the transgressors.

That leaves us with negligently inflicting emotional distress, but this usually involves distress that follows someone’s careless act, such as the pain suffered by a parent who watches a child be injured during a car accident. That’s a far cry from embarrassment resulting from a printed statement that you were late paying your rent.

So the unfortunate subjects of your landlord’s list may not have legal recourse. But one can’t help but wonder about the practical wisdom of the landlord’s practice. From a marketing angle, it can’t be helping him.

Prospective tenants who visit the website may decide to look elsewhere, for fear that their accidental mistakes may set them up for public shaming.

Q: My tenants want to install shelving in the garage and track lighting in the kitchen. What’s the best way to handle this? –Brandon T.

A: Your tenants’ proposals amount to a request that they "alter" the rental property by adding to it. All too often, tenants think that at the end of the tenancy, they can take away what they’ve installed; and landlords either think they can keep the additions or charge the tenants for the cost of returning the property to its original state.

Arguments ensue, deductions from the security deposit follow, and sometimes small claims court is the end result.

With a little forethought, however, you can avoid this confusion. First, understand that an alteration that is attached to or becomes part of the structure legally belongs to the landlord, unless there’s a different agreement. Your tenants’ proposals qualify; hooking up a portable dishwasher would not, nor would shelving that is kept in place by isometric pressure.

Next, decide whether these additions are likely to enhance your property and make it possible to either set a higher rent next time, or give the rental a marketing edge. If so, and if you trust your tenants to do the job right (a big "if"), you may want to keep these additions when the tenants move out.

But to be fair, you’ll need to pay for at least some of the materials and some of the labor, too. How much? That’s up for negotiation — you may feel that something less than full price is fair, because it’s the tenants’ wish, not yours, to add these things now. The more valuable the additions and the more they add to your property’s marketability, the more you ought to pay for them.

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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