Category Archives: Landlord/Tenant

Connecticut landlord/tenant law.

McKeen Moderating Connecticut Landlord-Tenant Law Seminar

“You’re going to look back and think this was one of the best things that’s happened to you professionally.”

It surely didn’t feel that way at the time. Those were the words of a partner to me in my first year of practice. I was in the middle of one of the nastiest and most difficult cases that I’ve encountered in my nearly 9 years of practice. It was a commercial eviction.

I am representing the landlord. The tenant is represented by two law firms. The tenants lawyers file every motion in the book seeking to delay and/or deny my client possession of their property. I obtain judgment for my client but the case isn’t over.

It’s the day before Christmas Eve. It’s supposed to be an easy day in the office. I plan to have lunch with the partners after exchanging gifts. Except I get served with an injunction, ordering me to refrain from serving a writ of execution. The fax machine starts spewing out paper – motion after motion appears on my desk.

The clerk calls – the Judge wants argument on a Writ of Audita Querela at four o’clock. I’ve never heard of a writ of audita querela. The judge wants a brief in 90 minutes. I frantically research the the issue and respond.

Ultimately, I win a dismissal of the tenant’s case on appeal and gain possession of the premises for my client.

Going through the process was terrible. There were all sorts of motions, hearings, discovery, and challenges. My comfort zone as a young lawyer was being tested every day for months on this case.

Landlord-tenant law has been a part of my practice for 9 years. It is a quirky area of practice filled with pitfalls for the unwary. The very nature of summary process has helped me improve my trial and litigation skills – deadlines are quick and trials happen. I’ve represented both residential and commercial landlords and tenants.

I’m looking forward to moderating and being a panelist at Lorman’s Residential Landlord-Tenant Law Seminar in Rocky Hill on September 23rd. Mostly I’m looking forward to listening and learning from an outstanding group of lawyers.

My presentation focuses on abandoned property. It is an area of significant potential liability for landlords.

If you are interested in attending, please email me: ryan at mckeenlawfirm.com. I can send you a 50% off promo code.

All of my speaking fees generated from the seminar are being donated to Achilles International CT.

 

2012 Interest Rates for Mortgage Escrows and Security Deposits

It’s not everyday an email from the Connecticut Attorneys Title Insurance regarding a press release from the Department of Banking catches my attention but today an email did just that.

The Connecticut Department of Banking has released the new minimum statutory interest rates for mortgage escrows and residential tenant security deposits, pursuant to Conn. Gen. Stat. §§ 49-2a and 47a-21(i), respectively.

For the first time in many years, the minimum rate set for tenant security deposits will differ from the rate set for mortgage escrows, due to a recent legislative change. That legislation, Public Act 11-94, removed the statutory requirement that the established minimum rate for tenant security deposits shall be no less than one and one-half percent, regardless of prevailing interest rates. With the removal of this language, the yearly rate will now reflect these prevailing rates, with no statutory minimum.

Another legislative proposal would have removed the one and one-half per cent minimum rate as to escrow accounts held by mortgage lenders. This legislation was unsuccessful, however, and therefore the interest paid on mortgage escrow accounts continues to be subject to the one and one-half per cent minimum, regardless of prevailing interest rates.

The 2012 minimum interest rate for residential tenant security deposits is .16%, and the rate for mortgage escrow accounts is 1.5%.

Looking at interest rates from a local(ish) bank, it appears that a prevailing rate is below the former minimum rate of 1.5%.

“My Baby Is Going To Be Homeless”

There she was. Standing before a judge. Holding her baby. The baby looked to be about 10 months old. I know what a 10 month old looks like. One lives in my house.

The landlord was representing himself. He told the judge that the young woman failed to make payments pursuant to a stipulated agreement signed several months ago. The penalty for failing to make such payments is eviction.

The judge asked the woman if the landlord was correct.

The young woman admitted that she failed to make a scheduled payment. This sealed her fate and the fate.

“But please judge, I just need more time. You see, I’ve applied for assistance and they’re processing my application but it hasn’t gone through yet. If I’m evicted I have nowhere to go. My baby is going to be homeless”.

The law is the law. The law in the young woman’s case was simple. Fail to make payments and you’re homeless. Your baby, too.  Both the young woman and the landlord knew the law. They knew it when they signed the agreement several months prior. They knew it when they walked into court that morning.

Perhaps that’s why the woman had her young daughter with her. She knew what was going to happen. She hoped that holding a baby would somehow soften the blow.  Or perhaps she had no one to watch the baby for her. Either way, she stood there clutching a 10 month old, as the judge prepared to make his ruling from the bench.

The judge did the right thing. He followed the law. Even if the outcome is harsh, society is best served when judges follow the law and apply it fairly to the facts.

This judge ordered her out of the apartment. Both her and baby had until Friday to move their stuff before a marshal and movers came and moved it for them. The practice of law is not for the faint of heart.

The woman turned around after the judge had ruled. Her face was pale. Her baby was going to be homeless on Friday. The baby continued to play with her rattle.

As I waited for my case to be called, I thought of my daughter. What if she had been born under different circumstances? What if she was about to be homeless?

It was with a heavy heart that I stood up and argued my case. Fortunately, on that day, I was on the side of a commercial tenant. I was comforted by the fact that no matter what happened in my case, it wasn’t going to result in a homeless child.

When I got home late that night, my daughter was sleeping. She was comfortable. I went in her room and did something I almost never do – I woke a sleeping baby. I picked her up. I stole a moment with her.  I kissed her on her head and then gently placed her back in her crib.

Hartford Housing Judges Still Busy Writing Opinions

by Ryan McKeen

I originally published this post in July of 2008. Since that time, Judge Gilligan has presided over housing court in Hartford County.  In that time, Judge Gilligan has picked up where his predecessors left off. He writes opinions. Many of them.

In this week’s CT Law Tribune case digests, there are 4 housing opinions. All of them written by Judge Gilligan.

Several years ago, I went to a landlord/tenant continuing legal education course. One of the instructors, a well respected authority on housing law, lamented that Connecticut Superior Court judges were not writing judicial opinions.

The instructor said that the absence of judicial opinions on housing law harmed both landlords and tenants.

Since that seminar, I’ve noticed that Hartford J.D.’s housing court judges have been responsible for writing the vast majority of decisions on Connecticut housing law in recent years.

I wish I had the numbers to support my assertion but I think I’m right here.

From what I’ve noticed, the past three Hartford J.D. housing judges (Judge Bentivegna, Judge Peck, and Judge Wiese) have authored a number of opinions.

Housing law is complicated. Very few cases ever get appealed (landlords almost never appeal because it is usually cheaper and faster to simply start another eviction proceeding). Lots of questions remained unanswered. When judges write opinions it provides lawyers and litigants much needed guidance.

If Property Is Owned Jointly Is The Consent Of All Owners Required To Evict A Tenant? The Answer Is “Maybe”.

by Ryan McKeen

According to Judge Abrams, the answer is that all owners of jointly owned property must join together to  commence an eviction action.  Greene v. Cabarrus, DN: NHSP-08-098865 (Abrams, J.)

Judge Abrams’ ruling is consistent with Conn. Gen. Stat. Section 47a-23 which requires “the owner” to serve a notice to quit. In applying the law to the facts, Judge Abrams reasoned that the legislature could have used the words “an owner” and not “the owner” in 47a-23.

I think he’s right. The opinion is consistent with the rules of statutory interpretation.

Other Connecticut Superior Courts are split on this very issue. Making this ripe for appeal. However, appeals in summary process cases are rare. And in this case a check of the judicial branch website indicates that no appeal was filed.

I’ve written about how a different judge reached the opposite outcome on similar facts.

Just another issue to be aware of in the minefield that is Connecticut housing law.

The Connecticut General Assembly should consider clarifying 47a-23 during the next legislative session.

CT Fair Housing Center: $600,000 Settlement Ends Discriminatory Policies At Housing Complex

by Catherine Blinder, Communications Director, CT Fair Housing Center

Four years after filing a federal lawsuit, the CT Fair Housing Center and the State of Connecticut Office of Protection and Advocacy for Persons with Disabilities have settled a landmark housing discrimination case with New Horizons Village, an apartment complex which markets itself as providing independent housing for people with severe physical disabilities. Under the consent decree, New Horizons will cease requiring tenants to open their private medical records for review and to show that they can “live independently”. New Horizons will also pay damages and attorney’s fees of $600,000 to a former tenant who challenged its discriminatory policies. This is believed to be the largest settlement in a case challenging independent living requirements in Connecticut.

The case was initially brought by Denise Laflamme, a person with disabilities, who resided at New Horizons Village in Unionville, CT in 2004. “I really wanted to live at New Horizons because it gave me the chance to live in a community of people with disabilities and an accessible apartment.” However, after a brief hospital stay, New Horizons, deemed Ms. Laflamme “too disabled” to return to her apartment, despite her attending physician’s instruction that she return to her apartment upon her release from the hospital.

Greg Kirschner, Legal Director for the CT Fair Housing Center, and Ms. Laflamme’s attorney, said “New Horizons used its tenant criteria to discriminate based on type and severity of disability. The Fair Housing Act is absolutely clear that it is impermissible to limit the housing choices of people with disabilities based on stereotypes about their ability to care for themselves; people with disabilities are entitled to the same freedom to choose how and where they want to live as people without disabilities.”

Nancy B. Alisberg, Managing Attorney of the Office of Protection and Advocacy for Persons with Disabilities said, “New Horizons treated individuals with disabilities differently than any landlord is permitted to treat its tenants. It is fundamental under the Fair Housing Act that people with disabilities may not be required to disclose their private medical records as a condition for receiving housing. The consent decree will protect the rights of both applicants and current residents. We also hope that this case will serve as a lesson for other providers of housing that the rights of individuals with disabilities will be protected by the courts.”

In April of this year, Judge Janet Bond Arterton, of the Connecticut Federal Court, held that New Horizons’ independent living policy, which included a requirement that tenants and applicants disclose medical records, violated the Fair Housing Act. NHV used these medical records to screen out individuals it considered “too disabled” to live independently and disclosed applicant’s medical information to other tenants as part of the application process. “A discriminatory housing practice is still unlawful even if made with good intentions if it denies housing to individuals with disabilities based on their disabilities.” (Laflamme et al. v. New Horizons, Inc. et al., 605 F.Supp.2d 378 (D.CONN. 2009).)

The settlement includes complete revision of New Horizons requirements for tenancy, including ceasing the practice of inappropriately requesting private medical records. It further requires that determinations regarding the need for personal care assistance shall be decided on a case-by-case basis, and that any request for additional personal care assistance by a tenant shall be considered a request for reasonable accommodation. Under a unique statutory arrangement, New Horizons receives and allocates state funds for personal care assistance for its residents. While New Horizons markets itself to people with disabilities regardless of their ages, the Court’s ruling could also have significant implications for the challenge senior citizens face when seeking quality housing.

A court-approved monitor will receive and review monthly disclosures from New Horizons Village to ensure compliance with the Consent Decree and provide quarterly reports to the Court.

Kinda Sorta

“So in Connecticut, it is easy to fire someone for any reason or no reason at all and difficult to evict someone for a good reason. No wonder our state has problems.” -A recently unemployed landlord.

This came to me via email and is published with the author’s permission.  The statement is not a legal thesis and I don’t post it as such. If you’ve been fired then you should contact an attorney and have your rights explained to you. If you need to evict a tenant then you should contact an attorney. This blog is not your attorney.  I post this as an example of the difficulties confronting Connecticut residents during these difficult economic times.

Mediation: The Need To Be Heard

by Ryan McKeen

Learning from the little things.

I’ve been doing a lot of reflecting on litigation and with good reason. Other than a real estate closing, forming a company, or doing an estate plan – it’s most of what I do.

A few weeks back, I was involved in a small dispute between a landlord and tenant. As is often, but not always the case, I was representing a landlord. This just happened to be a security deposit dispute. The plaintiff was pro se.

I tried my darnedest to negotiate a settlement in the case with the plaintiff.

Using my best reasoning skills, I spent a half hour trying to negotiate a fair proposal and avoid a hearing.

The plaintiff heard what I was saying in the hallway that day but it may as well have fallen on deaf ears.

Why?

In the plaintiff’s own words: “I paid my filing fee, I want the judge to hear this.” The plaintiff asserted her right to the fundamental right to be heard.

So we went into court and tried the case.

In practice, I see the need to be heard as one of the fundamental needs/wants/hopes of all parties. When a person feels wronged and he wants to tell someone about it. Ideally, he wants someone to validate his claim, but he’ll often settle for being heard.

From what I’ve observed, to most clients, it doesn’t matter who hears the case. It doesn’t matter the title of the person sitting at the head of the table. The person could be a judge, magistrate, JTR, housing specialist, family relations officer, an ATR or a private trained mediator.

Most of the time the only thing that matters is that the person listens and is neutral. That’s one of the reasons why I think mediations tend to resolve cases.

Back to my pro se plaintiff.

We got a ruling from the magistrate in the case and it turns out that my offer was slightly ($23) more generous than what the magistrate ordered in the plaintiff’s favor.

I haven’t spoken with the plaintiff since we left court that day but I’m willing to bet the plaintiff would tell me that the $23 that it cost her to have the hearing was money well spent.

Sheriff Tom Dart: The Right Idea, The Wrong Solution. Protecting Tenants Whose Landlord Has Been Foreclosed

I’ve written before about how the foreclosure crisis has impacted tenants in Connecticut.

The situation is sickening. I represented a 100 year old woman who lived alone in an apartment for close to 20 years and always paid her rent on time. She lived on the same street for over 40 years. Even at age 100, she was living by herself in Hartford.

Her landlord failed to pay his mortgage and as a result the bank foreclosed and filed eviction paper work against my client.

She was distraught that she was being evicted and within weeks of being served a notice to quit found herself in the hospital for the first time in her life. She died several weeks later.  Her official cause of death was “natural causes” but the doctor could have written “eviction.”

I’m very sympathetic to tenants who wind up in this situation.

Our legislature should act and afford these tenants greater protection under the law.

That being said,  I was appalled at what I was hearing on CNN radio while driving into work this morning.

Cook County, Illinois, Sheriff, Tom Dart was explaining that he is refusing to evict tenants whose landlords were foreclosed on.

Residents of foreclosed properties in Chicago and other parts of Cook County don’t have to worry about deputies forcing them out. Sheriff Tom Dart says that starting Thursday his office won’t take part in evictions.

Dart says he’s concerned that many of the people being evicted are renters who were unaware that their landlords have been failing to pay their mortgages. He says his deputies have no way of knowing whether they’re removing someone who has defaulted on a loan or someone who has been faithfully paying rent. AP Story.

As much as I agree with Sheriff Dart that something should be done to protect tenants in this situation, I strongly disagree with his refusal to carry out court orders.

Dear Sheriff Dart, we are a nation of laws, not of men.

This is a case where the “cure” is worse than the disease. It is not a sheriff’s job to determine what laws he thinks should be enforced. It is a sheriff’s job to enforce the law.

It is the legislature’s job to protect its citizens. This is the way our system works.

Shame on the Connecticut legislature for not doing more to protect tenants who find themselves in this situation.

If our legislature can pass laws about monogramming dentures, it has the time to both examine and act on this problem.

What say you? I’ve made it much easier to comment and I always welcome discussion.

New Connecticut Law On Safeguarding Social Security Numbers

Yesterday, I wrote about a law with no teeth. Last week, I wrote about a law on teeth.

Today, I’m writing about a law with teeth.

Connecticut Public Act 08-167 requires that anyone who collects social security numbers in the course of their business to publish a privacy protection policy that ensures the confidentiality of social security numbers, prohibits their unlawful disclosure and limits access to them.

Such a policy must be published or publically displayed including on the internet.

The legislature provides for a fine of up to $500.00 for each violation up to a maximum of $500,000 per event.

You’ll notice that this statute specifies a fine. Further, the statute does not come out and say that a violation is not an unfair trade practice.

It’s not everyday that I can both write about and comply with a new law in a single post. Enjoy:

LEONE, THROWE, TELLER & NAGLE

PRIVACY POLICY NOTICE 

Lawyers, as providers of certain personal services, are now required by the Gramm-Leach-Bliley Act and by Connecticut Public Act 08-167 to inform their clients of their policies regarding privacy of client information. Our law firm understands your concerns as a client for privacy and the need to ensure the privacy of all your information. Your privacy is important to us and maintaining your trust and confidence is a high priority. Lawyers have been and continue to be bound by professional standards of confidentiality that are even more stringent than those required by both Acts. Therefore, we have always protected your right to privacy. The purpose of this notice is to explain our Privacy Policy with regard to personal information about you that we obtain and how we keep that information secure.

It is the policy of our law firm to:

Protect the confidentiality of Social Security numbers and all nonpublic personal information of our clients; 

Prohibit the unlawful disclosure of Social Security numbers and all nonpublic personal information of our clients; and

Limit access to Social Security numbers and all nonpublic personal information of our clients.

 

 NONPUBLIC PERSONAL INFORMATION WE COLLECT 

If you have any concerns about our policy regarding your non public information that you have provided to us, please do not hesitate to discuss your concerns with any member of our firm.

We collect nonpublic personal information about our clients that is provided to us by them or obtained by us with their authorization or consent. We do not disclose social security numbers or any other nonpublic personal information about any current or former clients obtained in the course of representation of those clients, except as expressly or impliedly authorized by those clients to enable us to effectuate the purpose of our representation or as required or permitted by law or applicable provisions of codes of professional responsibility or ethical rules governing our conduct as lawyers.

CONFIDENTIALITY AND SECURITY

We retain records relating to professional services that we provide so that we are better able to assist you with your professional needs and to comply with professional guidelines or requirements of law. If we dispose of any records, any documents containing nonpublic personal information in those records are shredded. In order to guard your nonpublic personal information, we maintain physical, electronic, and procedural safeguards that comply with our professional standards.