Feature
by Kathy Belville
As an attorney, there is nothing more frustrating than not being able to achieve the result a client wants because of the client’s avoidable error. Clients are also frustrated when they realize that they could have increased their chances of reaching their business goals, but didn’t take the necessary steps to do so. I have learned over the years that the most common regret is the failure to be able to produce sufficient written records to support the client’s position in litigation.
Our law firm believes in practicing “preventive law”—the avoidance of legal entanglements through preparation—the cornerstone of which is education to help landlords make informed legal decisions. We provide hundreds of landlord training programs throughout the state each year. At each session, we consistently stress the importance of documentation. Nevertheless, we still find ourselves with little or no documentation in case after case. But keeping records is more than worth the effort.
Landlords have an uphill battle trying to win cases against residents. Whether the landlord is the plaintiff in an eviction or the defendant in a claim of discrimination, judges and juries have a tendency to hold landlords (even “mom-and-pop” landlords with only a unit or two) to a higher standard than residents. So the residents get the benefit of the doubt. The landlords not only have to strictly comply with the law, but also need to be able to provide convincing proof that they did so.
We all think that if we tell the truth under penalty of perjury, we should be believed. Unfortunately, it is not that simple. When I represented clients at trial, I often thought, “Why doesn’t the judge hurry up and give us our judgment? It is obvious that my client is right.” Then I became a judge pro tem, and saw things from the other side of the bench. Usually there were witnesses on each side of the case who gave believable testimony. I agonized over how I could tell what the facts were or who was telling the truth. A very experienced judge once told me that he did not care about the truth or the facts. I thought he had become cynical, but he went on to explain that his job was to look at the evidence and decide what was “more likely than not” to have happened based on that evidence. I realized he was right. How can landlords convince judges or juries that their position is the one “more likely than not” to be right?
A judge or jury may believe that residents’ memories are likely to be more specific than managers’ memories of the scenario because managers have to deal with many people and many scenarios and may not get the facts exactly right. Thus, presenting documentation created at the time of the incident has great evidentiary value. The bottom line is: the side with the best records usually wins.
Perhaps a couple of examples will help to underscore the importance of documentation. In an eviction for nonpayment of rent, a resident’s defense was that the landlord did not maintain the premises in a habitable manner. To prove his position at trial, the resident testified that his living room window had fallen out and the landlord had not fixed it for seven months. The judge’s eyes opened very wide as he considered how to punish the terrible slumlord. If the manager had been able to counter with only an oral statement that the resident was wrong, the landlord probably would have lost.
The judge needed evidence to show that it was “more likely than not” that the landlord was the type who properly maintained his rental units. Fortunately, the landlord believed in documentation. The rental agreement included a paragraph that stated that the all nonemergency-maintenance requests must be submitted in writing. There was a chronological log of maintenance requests. The log did not show any request from the defendant regarding a window. There was no written maintenance request about a window repair. There was, however, a record that the resident had asked for a dripping kitchen faucet to be fixed and the log showed a quick response. The judge decided it was not likely that a landlord who had such a good paper trail and quickly fixed small things like a faucet would ignore a request to fix a window. He found in favor of the landlord.
Unfortunately, there are also many cases when a lack of documentation has harmed our clients. In one case, a resident had lived in a community for four years when she began acting strangely. She screamed at neighbors and staff, and exposed herself. Management spoke to her several times over a period of two months. Finally she hit and threatened the manager. The clients wanted to evict the resident, who lived in subsidized housing. They had a grievance hearing at which the resident stated that she could not be evicted because she was bipolar and entitled to a disability accommodation. (The manager is on workers’ compensation as a result of the psychological impact of the attack.)
When the clients called to see whether to serve a notice, there were several issues to consider: the termination of tenancy in subsidized housing requires more proof than in conventional housing, the resident requested an accommodation and there was potential liability for physical injury to staff or other residents.
We asked about documentation. There were no letters from other residents regarding their complaints. In the absence of such letters, there were no confirming letters indicating that they had made oral complaints. There were no warning letters to the disabled resident indicating that her behavior was unacceptable. There was only the client’s word against that of the disabled resident’s.
Considering the lack of documentation, it was likely that the clients would have had trouble prevailing in an eviction; and the resident might even have had a fair-housing case against them if they had proceeded. In addition, if someone was injured, there could have been a valid personal-injury suit.
The case would have been improved immensely if there was a paper trail showing all the problems with the disabled resident and that management had made it clear to her that she must come into compliance with the rules, or face eviction. The resident might have sought treatment and avoided trouble or, if not, the landlord might have been able to protect residents and staff by requiring the problem resident to relocate.
Keeping records requires establishing policies and procedures even for self-managing owners. It takes time, effort, organization and storage space.
But records can be worth their weight in gold. It is hard to quantify how much time and money can be saved by avoiding legal difficulties. Fair-housing and personal-injury cases can wipe out a rental investment in the blink of an eye. Make life easier and document, document, document!
The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of SFAA or the San Francisco Apartment Magazine. The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem. Kathy Belville is a lawyer with Kimball, Tirey & St. John, 800-338-6039. Copyright © 2006 by the San Francisco Apartment Magazine. All rights reserved.