Q: I had problems with roaches at my apartment, which came from the neighbor downstairs. They moved out three weeks ago and left a very filthy place, infested with roaches. The manager has been trying to get rid of them, by fumigating constantly. The problem is that my apartment and furniture is impregnated with the smell of the pesticides. My daughter and I have had to leave (the fumes are aggravating her asthma), and we’ve been away for two weeks (with no sign of when the fogging will stop).
My landlady offered me to move to another apartment, which is bigger, but I would have to pay more. In addition, I would have to pay to transfer my phone and electricity bill, hire people to move my stuff, and clean and wash everything.
I’ve asked that she not charge me more for the new unit, and that she help me with the added expenses that the move will entail. She argues that she can’t give me the apartment at the same rate as mine, because of the Fair Housing Act. Is this true? –Veronica O.
A: At least your landlady is aggressively treating the roach infestation. But that seems to be where her good sense stops. You have a very good argument for having your temporary housing paid for. If the extermination goes on for much longer, you should also ask for reimbursement of your moving costs and a reduced rate for the new unit. Your landlady’s reference to the Fair Housing Act is creative, but it won’t work. Let’s look further into your options.
First, when problems make a rental unlivable, and the tenant or her guests haven’t caused them, it’s up to the landlord to make the situation right. Even if the landlord is doing her best to address the problem, she has to do more if those efforts make the unit unfit to live in.
Typically, landlords pay for temporary housing during the extermination period and, if the original unit won’t be livable for some time, the landlord can make alternate quarters available. If the only option is a larger and more expensive unit, that’s too bad for the landlord — you didn’t cause the infestation, and it’s not your fault that there’s no exact match available to move into. The landlady can instead continue to put you up at a reasonable motel or hotel, but she should not expect you to incur any extra expenses while she deals with this problem.
Your landlady’s reference to the federal Fair Housing Act is about 180 degrees off. Offering you a reduced rent for the only replacement unit she has will not violate the Act. In fact, the Act may be on your side — or more particularly, on your daughter’s side. The Act protects persons with disabilities — those who have a physical or mental disability that substantially limits one or more major life activities. Your daughter’s asthma, depending on how serious it is, might qualify her as a person with a disability (surely breathing is a major life activity). When tenants with disabilities ask owners to vary a policy so that they can live safely and comfortably on the premises (known as an accommodation), landlords must comply unless doing so poses an unreasonable burden to their business.
If your daughter’s condition qualifies as a disability, you could invoke the Act and ask your landlady to make the alternate unit available at no extra charge as an accommodation. Your landlady may object, citing the lost rent, but she may not be able to make a convincing case that the differential will pose an unreasonable burden. For some advice, talk to a fair housing counselor in your area — go to the Web site of the National Fair Housing Advocate Online, and use their Resources function to find a group near you.
Q: I’m having a tussle with my insurance company over whether they’ll cover me on a claim from one of my tenants. The tenant was having a party that seemed to be getting out of hand, so I went to the apartment to check it out. Once there, I decided that a private discussion between the tenant and me might result in calming things down, so I guided her into the hallway by placing my hand at her elbow. She sued me for false imprisonment and emotional distress, which is bad enough, but my insurance company won’t cover me. They say there was no "accident," but I say that I had no intention of causing distress or preventing her from leaving. Am I out of luck? –Jack D.
A: Your insurance company is required to represent you if you accidentally cause an injury that results in a claim. So, the question is whether taking your tenant by the elbow and guiding her across the hall constitutes an "accident." Under settled principles of insurance law, an accident is something that happens when you’re mistaken about the facts. For example, suppose you pull away from a stop sign and hit a pedestrian you didn’t see. You’ve made a mistake about a fact (that the pedestrian was in the crosswalk), and your carrier will represent you. On the other hand, if you know the facts but your action leads to unintended consequences, that’s not an accident. For example, suppose you see the pedestrian but start off anyway because you’re in a hurry and think you can avoid him. Here, you have not made a mistake about a fact, because you clearly saw the person. Your error in judgment (that you could avoid him) will not count as the necessary "accident" that must happen before your insurance carrier will step up.
In your case, you deliberately took your tenant by the elbow, so you can’t plausibly argue that somehow you didn’t realize your hand was on her arm. Her unanticipated and unintended response won’t convert that deliberate act into an accident. You’ll have to defend this claim on your own, without the assistance of a lawyer furnished by your insurance carrier, but don’t lose heart — if you can convince a judge or jury that the tenant is overreacting and unreasonable, you may escape liability.
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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