Q: I agreed to co-sign a lease for my nephew. He lost his job and fell behind on the rent, and eventually left the rental. But he owes two months’ rent, and the landlord has demanded that I pay up. He’s even threatening to garnish my wages or attach my bank account. Can he do this? –Julian A.
A: Agreeing to be a co-signer is a significant undertaking. When you did so, you agreed to pay debts that the tenant, your nephew, failed to pay. Unless the agreement says otherwise (and most don’t, because these agreements are written by lawyers who are working on behalf of landlords), the landlord won’t have to try to get the money first from the tenant, nor even exhaust the security deposit, before turning to you.
If you are a deep pocket and easy to find, the landlord will naturally look to you. In fact, savvy landlords won’t accept co-signers who are not well heeled and local, for precisely this reason.
The most problematic consequence for co-signers occurs when the tenant has a defense to the demand. For example, suppose the tenant moves out and the landlord claims he has left damage that exceeds the security deposit. The tenant says that the damage existed when he moved in.
The landlord cannot garnish wages or attach bank accounts until he has gone to court and obtained a judgment for money damages. But if the tenant does not show up for court, and lets the landlord win by default; or offers a losing defense, your wages and bank accounts will be on the line if the tenant won’t or can’t pay.
Of course, skipping town or not vigorously defending the case would be a rotten thing to do to Uncle Julian. Most tenants who use family as co-signers will do their best to protect their family members. And savvy landlords know that a family co-signer will exert significant psychological pressure on the tenant to honor his obligations, which makes such a co-signer a good bet.
Many states want to make very sure that co-signers understand the extent of their responsibilities when they co-sign a consumer credit contract, loan, or vehicle lease. California requires that the following warning accompany any such contract in which a co-signer is involved:
"You are being asked to guarantee this debt. Think carefully before you do. If the borrower doesn’t pay the debt, you will have to. Be sure you can afford to pay if you have to, and that you want to accept this responsibility. You may have to pay up to the full amount of the debt if the borrower does not pay. You may also have to pay late fees or collection costs, which increase this amount.
"The creditor can collect this debt from you without first trying to collect from the borrower. The creditor can use the same collection methods against you that can be used against the borrower, such as suing you, garnishing your wages, etc. If this debt is ever in default, that fact may become a part of your credit record. This notice is not the contract that makes you liable for the debt." (See California Civil Code Section 1799.91.)
Landlords are not required to give similar warnings, but there’s no logical reason not to. It might scare off some co-signers, but in the long run, it will make things easier for a landlord who has to turn to the co-signer to satisfy a tenant debt.
Q: We manage a large apartment complex that has several play areas for kids. Two residents have complained about another resident’s child, whom they say is bullying their children. They expect us to do something about it. Beyond speaking with the parents, are we obligated to do more? –Deana and Tom C.
A: The schoolyard bully has unfortunately received considerable press in recent years. And the bullying has moved beyond the play yard to the Internet, where cyberbullying is a recognized evil. Whether the taunts and jabs are vocal or virtual, bullying involves:
- Imbalance of power: People who bully use their power to control or harm, and the people being bullied may have a hard time defending themselves.
- Intent to cause harm: Actions done by accident are not bullying; the person bullying intends to cause harm.
- Repetition: Incidents of bullying happen to the same person over and over at the hands of the same person or group. (Source: Stopbullyingnow.gov, Department of Health and Human Services.)
Bullying is also a form of illegal harassment if the victim is chosen and tormented on the basis of his or her sex, gender identity, race, religion, and so on. If this type of bullying occurs at school, the school must take steps to stop it. As recipients of public money, schools are subject to federal and state civil rights laws that proscribe such conduct.
Many states have laws that specifically target bullying, making it actionable on its own as a civil wrong and even as criminal offenses. Recently, the White House itself convened a conference on the subject; the website devoted to the meeting contains a wealth of information on identifying and dealing with the problem.
Of course, you are not a school. The question for you is whether a private landlord owes a duty to its tenants when bullying occurs on the property, and the tormentor is neither the landlord nor an employee.
Let’s assume that the victims are being chosen and tormented on the basis of their membership in a "protected class," such as race, religion, and so on. Do landlords have a duty to intervene and stop the bullying, as they would, for instance, if the tormentor were a manager or staff person?
A good argument could be made for treating the play yard no differently than the workplace, where such conduct among workers would be considered a "hostile work environment," which the employer would be expected to address. But although there are many cases based on the "hostile work environment" theory, it’s harder to find cases alleging hostile living situations, in which the hostility is the result of bad behavior by tenants, not management.
For this reason, your tenants (or their lawyers) might want to use a simpler and more effective argument: The bullying has interfered with their children’s right to quiet enjoyment of the premises. Though it sounds rather quaint, this sturdy right is very powerful. It means that landlords must maintain enough peace and quiet so that tenants can reasonably enjoy the premises.
A breach of quiet enjoyment is frequently invoked by landlords when they have to terminate troublemakers, or by tenants who leave in disgust (without future liability for rent) when landlords fail to deal with problems.
The complaining families may well have grounds to break their leases and leave if you don’t address the problem. Whether they could also hold you civilly liable for permitting the bullying to continue on the property is a more difficult question. But rather than take chances — and for the sake of all involved, including the tormentor — consider some affirmative steps. Begin by going to stopbullying.gov for excellent suggestions that you can pass on to your tenants.
If conditions don’t improve, you may find yourself considering a termination based on interference with other residents’ rights to quiet enjoyment.
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 firstname.lastname@example.org.
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