Clause in lease doesn’t protect landlord with habit of leering

Question: My landlord has behaved dreadfully toward 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. What do you think?

Answer: The clause in your lease is common, but it applies only to lawsuits that concern 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 with you 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. That means that the general rule -- each side pays its own fees and costs -- would apply, unless a specific state law directs that in your type of case, the loser pays the winner’s fees and costs.

But first, consider filing a complaint with the Department of Housing and Urban Development 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.

Manager avoids a ‘steering’ trap

Question: A family of four recently visited the large apartment complex that I manage. They asked to be shown three-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 showed them every available three-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?

Answer: 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 toward 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?

Yes. Allowing landlords to steer in certain situations would give 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.

Remodeling raises asbestos worries

Question: 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. I suffer from asthma, and I want to move out while the work is being done. The landlord won’t pay for it. Do I have any legal basis to back me up?

Answer: 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 building’s owners are being shortsighted to refuse your request. You do indeed have some legal ammunition to back you up.

First, in virtually every state, landlords are 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.

Once rental premises become 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.

A reasonable landlord 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 an asthma attack, lost wages, doctors’ bills and so on -- is much costlier than a week or so at a motel.

No automatic loss of security deposit

Question: My tenant has a one-year lease that will end in six months. Our lease stipulates that she is responsible for the lease amount for the entire year (even though she pays monthly). She has given notice that she intends to break the lease in 30 days. I’m willing to let her out of the lease because I understand the personal situation that compels this decision. Am I legally allowed to keep the security deposit and not refund it because she is breaking the lease?

Answer: You may not automatically keep the deposit just because your tenant has broken her lease. Here’s why: When tenants sign a lease, it’s true that they are always responsible for paying the entire rent, even though they pay periodically. Many leases drive that point home by stating the total rent due for the length of the lease.

However, this statement won’t vary another legal rule that’s true in most states: If your tenant breaks the lease, you must take reasonably prompt steps to re-rent and, when that’s accomplished, your original tenant’s responsibility for rent for the balance of her lease is over.

Let’s assume you live in California, which imposes this rule. This means that you should begin advertising the unit now, and once it’s re-rented, your original tenant will be off the hook. Most of the time, you’ll need a month or so to land another tenant. If this is your experience, you may use the deposit to cover the rent you lost during that period, and if the deposit won’t cover it, you could sue in Small Claims Court for the shortfall.

Whether you may keep your lease-breaking tenant’s deposit depends on how quickly you re-rent the unit, using reasonable efforts and setting a market rent.

Janet Portman is a California attorney, author and managing editor at the publishing company Nolo. She can be reached at [email protected].