Q: I own and manage a small apartment complex. I’d prefer not to have tenants running day care operations. I’ve allowed it before, but the noise and comings and goings of the children and the parents were disruptive; and I’m worried about my liability if someone is injured. Can I specify that this type of home business will not be allowed? –Janice C.

A: In a few states, including California and New York, a landlord’s attempt to prevent home day care operations on rental property would be illegal. In those states, the legislatures and courts have concluded that society as a whole has too much to lose, in the way of affordable, quality care for its children, if landlords are allowed to prevent home day care. But the majority of states have not reached that conclusion.

That’s not the end of the question, however. Depending on how the courts of your state have approached the question (if they have at all), you might be on thin ice if you try to implement such a policy. That’s because under federal law, landlords can get into trouble if they establish a policy that has the effect of discriminating against a protected class, even if they didn’t intend to discriminate. In this context, tenants have successfully argued that a policy barring day care has the effect of discriminating against families (the assumption is that families are likely to be the ones who will want to run such operations) and women (again, the assumption is that women, more than men, will seek to run a day care center).

To escape a finding that you have indirectly discriminated, in most states you’d have to convince a judge or jury that this policy is necessary to the operation of your business, and that no feasible alternative policies can be implemented to achieve the goals you seek, without a discriminatory impact.

Trying to justify your policy under this standard could be tough. If you find that the drop-offs and deliveries are causing problems, you could probably find ways to address them. For example, perhaps you could set aside a place for parents to park that’s not in the way of your other tenants. You could limit parking time to minimize congestion. You could work with your providers to make sure children don’t run wild or otherwise disturb other tenants (but the sound of children playing during the day is not something you can forbid). And you can check into the issue of liability by finding out whether the day care licensing laws of your state require providers to carry insurance (many do). You should also check with your own insurance carrier to make sure you’re covered. You might be able to ask the center to reimburse you for any additional premium you might need to pay to obtain a policy or rider that will cover incidents at the center. …CONTINUED

Q: This morning as I left my apartment, I saw that a huge pile of construction materials had been stacked inside my patio, taking up almost all of the space. The landlord is redoing the foundation, apparently. The workmen are also using an exterior power outlet, which I pay for, and they are depositing debris in my trash bin. How can I handle these intrusions without getting kicked out? –Charles E.

A: While landlords are certainly entitled to work on their properties — and laws in virtually every state require that they do, to keep them habitable, safe and sound — they have to compensate tenants when this work infringes on the tenants’ rented spaces and rights to peace and quiet. Experienced and considerate landlords will advise tenants of upcoming projects, and work with them to minimize disruptions. Most tenants understand the need to keep the property up, and will accept some level of inconvenience if only they’re consulted in advance. Your landlord’s clumsy mistake was to spring this major project on you, with predictable results.

Depriving you of the use of your patio is a significant loss to you. Your landlord should compensate you for that. Similarly, using the electricity you pay for to accomplish a capital improvement is not right, and if you cannot use your trash bin because it’s full of construction debris, you’ll be forced to rent an additional one (or let garbage pile up, which would be a violation of your duty as a tenant to not allow such a condition to occur). A smart landlord, faced with this list of transgressions, would work with you, by compensating you for the loss of your patio, telling the construction guys to get a longer extension cord and use a common-area outlet, and renting additional debris bins or boxes.

If your landlord fails to take these reasonable steps, you could go to small claims court and sue. Can you estimate what a patio-less unit would rent for? If so, your rent, minus that rent, times the months you’re without the patio, is the amount you’d ask for. Similarly, can you estimate the hours per day that the construction crew is using your outlet? You may be able to estimate the amount of electricity used by comparing your pre- and post-project electricity bills (be sure to correct for seasonal use). Finally, the cost of renting an extra bin could be added to your demand.

A landlord served with a small claims court summons is not going to be a happy one, and might be tempted to retaliate with a termination notice. If you’ve got a lease, trying to terminate it won’t work, because a landlord can terminate a lease short of its ending date only when the tenant has done something wrong (you haven’t done anything wrong by going to court over these problems). But if you’re month-to-month, the landlord can terminate with proper notice (30 days in most states), which requires no proof that you did something wrong. In that case, you’ll need to check your state’s anti-retaliation laws to see whether they are broad enough to protect tenants who have asserted their tenant rights in a reasonable way (most states’ laws will cover you). Be aware, however, that if you decide to stay, fight the eviction and lose, you’ll lose your rental. Month-to-month tenants will want to think long and hard about whether this route is worth the risk.

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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