Q: I’m feeling increasingly uncomfortable about the dynamics I’m witnessing at my apartment community. The manager is constantly hitting on my neighbor in public settings (like the pool), even to the point of insisting that she accept his "back rubs." She hates it and has tried to stop it, but she’s afraid to complain to the owner (the manager is the owner’s son). If I complain to the owner, can he evict me? –Deborah E.
A: The behavior you’re describing sounds like sexual harassment — unwelcome and offensive sexual conduct that is severe enough to alter the conditions of a person’s living situation. It sounds like your friend could be facing a sexually hostile environment, in which she feels like she has to put up with the manager’s inappropriate behavior in order to keep her home.
As a legal matter, sexual harassment is considered a form of gender discrimination, and it is prohibited by the federal Fair Housing Act and the fair housing laws of most states. Depending on how serious the manager’s behavior is and how often it happens, your friend could have a very good claim of discrimination.
And, if she suffered any repercussions for complaining about it (in the form of higher rent, mistreatment, denial of services, or eviction, for example), she would also have a strong legal claim that she was retaliated against for exercising her legal rights.
The situation you’re describing is one step removed, however. You’re considering complaining about behavior directed not at you, but at another person. So the question is, are you — as a witness but not a direct victim of the harassment — also protected from retaliation?
There are two ways you might be protected: as someone who is also exposed to the harassment and as someone who makes a complaint about it.
If you were describing a workplace situation, it’s clear that you would be protected under either theory. In the workplace, courts have found that someone may suffer from harassment even if it isn’t directed at him or her. For example, if a manager is harassing one subordinate, to the point that it generally poisons the working environment for everyone else, anyone who has been affected by the harassment could file a claim.
And, because the laws that prohibit sexual harassment in the workplace protect anyone who "opposes" harassment, any employee who complains about it is protected, whether that employee is opposing her own treatment or the treatment of another.
The U.S. Supreme Court recently confirmed that an employee who participates in a workplace investigation of alleged harassment against others is protected against retaliation, even if that employee did not file her own complaint. These rules are intended to encourage employees to come forward and make abusive behavior known, so the company can take immediate action to stop it.
As a housing resident, common sense dictates that you should be able to make the first type of claim: that the manager’s behavior is making your living environment hostile. No resident should be confronted with the unseemly conduct you’re describing, and you shouldn’t feel uncomfortable in common areas (such as the pool) that you’re paying to use.
In other contexts, tenants not directly affected by illegal discrimination have been able to assert the protections of antidiscrimination laws.
For example, a tenant who lives in a multifamily community where management illegally turns away members of a protected class may complain about discrimination, although that tenant was not the direct target.
The reason is that this illegal behavior has deprived the tenant of the opportunity to live with people who are chosen on the basis of their qualities as tenants, not the color of their skin. A tenant who files a complaint based on discrimination against others would be protected from retaliation if the landlord filed for eviction or took some other negative action.
The same reasoning could be applied to your situation. Sexual harassment is a form of discrimination, and you should be able to complain without fear of reprisal if its presence at your residence creates a "hostile living environment." You may also find support in your state’s landlord-tenant laws.
As for the second argument, it also seems clear that you should be protected from retaliation if you make a complaint about sexual harassment, whether you are complaining on your own behalf or not. Federal fair housing laws protect a tenant from retaliation for trying to exercise and enjoy the right to be free from discrimination, including harassment.
They also protect a tenant who aids or encourages another tenant in exercising and enjoying that right. And, many state fair housing laws protect against retaliation, some using the same "opposition" language that courts have interpreted broadly in the employment context.
Q: I own a downtown building with three tenants: one operates an ice cream retail shop, the other is an accountant, and the third is the call center for a large online shop. I’ve always divided the electricity costs according to the amount of space each tenant has rented. The accountant thinks this is not fair, and has asked me to submeter his space so he can pay only for what he uses. This will be too expensive. Is there another way to allocate costs? –Ralph W.
A: Your accountant has a valid point. He probably uses very little electricity because his use is mainly for lights and computers. The ice cream store, on the other hand, runs freezers that guzzle electricity; and the call center is staffed with workers and is doubtless open late and on the weekends, when the accountant has closed up shop. Basing electricity charges on the tenants’ square footage fails to take these usage differences into account.
Before turning to how you might allocate usage more fairly, we need to address a preliminary issue. Whatever solution you come up with will require the voluntary agreement of the other two tenants. That’s because the tenants have leases, which include the current method of sharing electricity costs.
The call center and ice cream store will not benefit from a reallocation of costs, no matter how you do it, for obvious reasons. They’re likely to insist that you honor their leases for now, and raise the issue if and when they renew.
Of course it’s possible that they will recognize the injustice in the current setup, and you may be able to sweeten the deal by offering something in exchange for their willingness to modify their leases. Once you get buy-in, modify their leases accordingly, and include a provision that allows you to reallocate in the future as the tenant mix changes (more on that below).
Assuming all of your tenants are willing to explore different ways of allocating utilities, how to do it? Here you may need to get creative. Enlist the help of your local utility company and an electrical contractor. Ask them if they can evaluate the three businesses and give you an estimate of how much electricity each uses, based on their workforce, hours of operation, and equipment.
Assuming you can allocate usage among your three current tenants to everyone’s satisfaction, be prepared to start over when one tenant leaves and a new one, with different electricity needs, takes its place. Suppose the ice cream store departs and you rent to a lawyer — now, you’ve got two low-usage tenants, with the call center probably taking the largest portion.
You shouldn’t have trouble getting the two remaining tenants to revisit the electricity question, because you should have made this reevaluation part of the revised lease clause.
And, because you can make accurate allocation of electricity usage part of your new tenant’s lease, the newcomer will be bound to cooperate once the lease is signed. But even with cooperation, it will take time and energy to recalculate electricity shares. The tradeoff for realistic electricity charges is added work for you.
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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