Paralegals can be involved in every aspect of this growing real estate specialty
In almost every major metropolitan area, the most active part of the court system involves problems associated with landlord-tenant law. The amount of litigation concerning the interpretation and enforcement of lease provisions has become so pervasive that many courts have designated special trial parts or courts just to deal with these tenancy issues. (The term “part” refers to the section of the court that handles a specific legal issue.) Variously termed landlord-tenant or housing courts or parts, the number of cases handled on a daily basis by attorneys in these parts or courts is so overwhelming that almost all legal practitioners employ the services of paralegals to handle both the courtroom and back-office paperwork mandated by this type of practice. A landlord-tenant paralegal’s responsibilities follow the chronology of the creation and dissolution of the tenancy relationship: entering into the lease, notifying the opposing party of a breach of that lease, instituting the appropriate lawsuit, and following up after the lease arrangement has been terminated.
The starting point for any discussion of landlord-tenant practice is the lease. A lease is a contract that establishes a relationship between the lessor or landlord, and the lessee or tenant. The landlord is the individual who has ownership rights to the property, which includes the right to transfer possession of that property to another individual — the tenant. Note that the right of possession alone does not equate with ownership. In any landlord-tenant dispute, determining rights and obligations begins with the lease; however, be aware of the fact that in many jurisdictions, the contractual right to lease property for residential purposes might be regulated by local government rules and regulations intended to protect a person’s ability to remain in his or her home. Despite this caveat, most of the laws cover both residential and commercial leases, but this article, for the most part, references residential landlord-tenant practice because the bulk of cases appearing in court involve residential situations. It is important for you to understand the nature of these lease agreements, not only because you might be involved in the drafting of the initial contract but also because it determines what steps the parties to the lease must take in order to protect their rights and interests.
Generally, there are four basic types of leases:
Tenancy for years. This type of arrangement creates a lease to the property for a period of years, and the lease automatically terminates at the date specified by the agreement. In this type of lease, the landlord retains a right of entry to gain access to the premises in the event the tenant breaches any of the significant terms of the lease.
Periodic tenancy. This type of lease continues for successive periods indicated in the lease and is automatically renewed until and unless one of the parties notifies the other of his or her intention to terminate the contract.
Tenancy at will. This type of arrangement is created by the express will and intent of the parties and can be terminated at any time without notice.
Tenancy at sufferance. This type of tenancy exists when a tenant unlawfully remains in possession of property after the termination of a lawful lease.
Under all types of lease agreements, the landlord agrees to maintain the property in a habitable condition and the tenant agrees to pay rent to the landlord as the condition of his or her right to reside in the property. The duration of the leasehold, the amount of rent due and the date on which the payment of rent must be made, as well as any other condition of passing possession, must all be included in the lease. Some of the standard provisions involve:
the right to paint, paper or alter the appearance of the premises;
the right to sublet or assign the possessory right to the premises;
the manner and timing of any notices that must be given for any alleged breach of the lease;
the consequences involved in case the tenant remains in possession after the lease period terminates;
the amount of the security deposit demanded by the landlord in case the tenant breaches the lease or leaves the premises in disrepair; and
the right to renew the lease.
Most jurisdictions utilize some form of a standard lease agreement that can be purchased by the legal practitioner. However, not all standard leases meet the needs of every landlord or tenant, and even in situations in which the form lease is primarily sufficient, some changes always are necessary. It is important to bear in mind that leases, because they involve an interest in land, should be in writing to be enforceable under the Statute of Frauds.
One of the responsibilities of the legal assistant might be to make an initial determination as to which lease provisions are necessary for a particular client and to insert the provisions in a manner that expresses the articulated needs of that client. However, having said this, realistically it’s most probably the landlord’s attorney, not the tenant’s attorney, who has the most clout in formulating the lease provisions. Also note that many corporate landlords employ in-house legal teams to deal with all of these matters, and an in-house paralegal also might be involved in the day-to-day administration of numerous residential buildings owned by the employer-landlord. For those legal assistants who have a marked administrative and organizational bent, these types of in-house opportunities might be a perfect employment match.
If you are the paralegal responsible for obtaining or drafting the initial version of the lease, it will need to be based both on the wishes of the parties and any form or statutory lease that might exist in the particular jurisdiction. Remember, a lease is just one form of a basic contract, and all of the methodology that usually is employed in forming a valid contract applies to leasehold situations. In preparing this initial version for the attorney, be sure that the lease specifies the amount of the rent plus any additional rent for which the tenant might be responsible, such as:
a portion of the water, utilities or, occasionally, a portion of the real estate taxes;
the date on which the rent is due;
how a notice for violation of the lease provisions is to be given;
the amount of the security deposit required;
how disputes over the lease provisions are to be handled; and
any restrictions imposed on the use of the premises.
Inquire as to whether the parties have used a particular lease format in the past that they found useful and use that as a basis for the new lease that is being prepared.
A Lease Dispute
Prior to taking any legal action in a lease dispute, either through the court or an administrative process, the parties to a lease must adhere to the lease provisions with respect to notice. If the landlord asserts that the tenant has failed to pay the rent in a timely fashion, or has failed to pay all or part of the rent, most jurisdictions require the landlord to send the tenant a demand letter in which the landlord indicates the amount allegedly due and specifies the period for which the money is claimed. As a predicate to instituting a nonpayment proceeding, the landlord will have to demonstrate that such a notice was served on the tenant. If the notice is oral, which can be permitted, the landlord has to indicate when such demand was made; if the demand is in writing, most states require that such notice be served on the tenant in the same manner of service as any other legal process. If your firm represents the landlord, you might be called upon to draft the demand letter as well as to serve it on the tenant or hire a process server and assist in completing an affidavit of service for the process server as proof that the demand was made.
If the problem involves the breach of another provision of the lease, such as an illegal sublet or unauthorized alterations, before legal action can be taken, the landlord must inform the tenant of the alleged problem and serve the tenant with a notice giving the tenant a specified period of time in which to remedy the alleged lease violation. This notice usually must be in writing and follow the same service formalities as a service of process.
At this point, the tenant can dispute the landlord’s claims either informally or in writing. If the tenant is represented by your attorney, you might be called upon to draft the tenant’s initial response to the landlord’s claims. This might involve obtaining the tenant’s back records or acquiring proof that the alleged violation does not exist or has been remedied. At this point, many disputes can be resolved without further legal action. If the parties resolve the disagreement, this resolution should be memorialized in writing and signed by both parties. If the parties can’t settle the dispute amicably, the next step is to institute a lawsuit.
On the other hand, if it’s the tenant who is asserting a violation of the lease, the tenant must notify the landlord in the manner indicated in the lease; however, unlike the landlord, the tenant doesn’t have to serve such notice according to the methods necessary to serve process. The tenant can simply mail the notice to the landlord, either by certified mail with return receipt requested or by first class mail with a certificate of mailing.
In certain situations, such as the failure to provide heat or the existence of dangerous physical conditions on the premises, the tenant might also have to notify a local government agency, such as the local department of buildings or code enforcement, as well as notifying the landlord. If you are the legal assistant working for the tenant’s attorney, you might be the one to draft this notification. This notification typically includes specifics of the alleged lease violations, the dates of such violations and the time that the landlord has to fix the violations before the tenant will file the complaint with the court.
Once the lease agreement has been entered into, its interpretation and enforcement fall within the jurisdiction of the local courts. Despite what many laypersons believe, neither a landlord nor a tenant has the right to self-help to rectify what he or she believes is a violation of a lease provision. The most common examples of self-help that can lead to trouble are a landlord locking a tenant out by changing all the locks on the doors or a tenant deciding to withhold rent for an alleged uninhabitable living condition. Only a court of competent jurisdiction can evict a tenant or allow a tenant a rent rebate.
Before taking the lease dispute to court, the paralegal working in this area must first determine whether there is an administrative agency that can handle the dispute. For example, the agency in New York that has concurrent jurisdiction with the court for certain aspects of landlord-tenant disputes is the State Division of Housing and Community Renewal. In places where these agencies exist, they may be able to resolve disputes such as rent overcharge (the rent charged exceeds the legal rent if the jurisdiction has some form of rent regulation, or the rent demanded exceeds the lease agreement), the need for repairs and building code violations. If such agencies exist, it might be faster and more economical to seek an administrative remedy first. However, keep in mind that the same dispute generally can’t be maintained in the agency and the court simultaneously.
Generally, two main types of actions can be instituted in court by a landlord against a tenant.
Non-payment proceeding: A situation brought about when the tenant failed to pay the rent specified in the lease on the day such rent is due.
Holdover proceeding: A situation brought about when a tenant remains on the premises after the lease has terminated. The lease may terminate either at the natural expiration of its term as specified in the lease where the lease has not been renewed, or by the breach of one of the major provisions of the lease by the tenant under general breach of contract theories.
Conversely, a tenant may generally institute two types of actions as well.
Illegal Lockout: A situation in which the landlord has barred the tenant from possession without the authorization of a court of competent jurisdiction. In these types of situations, the courts typically have some form of emergency procedures, such as emergency orders to show cause, so that the matter can be placed immediately on the court calendar to avoid a tenant remaining homeless.
An action for repairs: A situation where the landlord has failed to maintain the premises according to his or her lease obligations. This type of suit primarily is seeking equitable relief (the repairs), but tenants can also sue for the costs of repairs they have made themselves because the landlord failed to do so. In some jurisdictions, this may be brought in the landlord-tenant part itself; in others, the tenant must bring an action for monetary damages in the regular part.
Note that a tenant only can be evicted after a court has determined that he or she no longer has any right to remain on the subject premises. If the tenant fails to remove himself or herself voluntarily on the date set by the court, the landlord must obtain a warrant of eviction from the court that ordered the eviction. This warrant is sent to a marshal who will notify the tenant that if the tenant does not quit the premises within a certain statutorily specified number of days, the marshal will forcibly remove the tenant’s property.
Dealing With the Lawsuit
To institute a landlord-tenant proceeding, just as with any other type of lawsuit, the aggrieved party must serve and file a petition. The landlord-tenant paralegal will assist in drafting this petition for the attorney’s review and usually will be the one to see that the petition is properly served and filed with the court along with the appropriate affidavit of service. If the proceeding is instituted by the landlord, the petition must include a copy of the notice sent to the tenant and its accompanying affidavit of service. If the lawsuit is instituted by the tenant, the papers must indicate when and how the landlord was notified of the alleged breach. Always check the individual state statute to determine the exact form to be used for instituting these types of lawsuits, and be aware that, in addition to the general procedural state law, there might be specific enabling statutes that created the landlord-tenant court or part that must be followed. You must also be familiar with the state’s real property law, which may impact the form and substance of the petition.
As with most lawsuits, it’s very rare that the matter actually goes to trial; statistically, more than 90 percent of all lawsuits settle. When the parties come face-to-face in the courthouse, they might decide to settle the case and the paralegal will have to draft the stipulation of settlement that formalizes the parties’ agreement.
Note that if the tenant is bringing an emergency action for an illegal lockout, the procedures are different and truncated, and you should become familiar with the procedure and papers used in the appropriate court in your jurisdiction. Generally, the legal assistant will draft the initial Order to Show Cause, which is a motion that requires immediate court action. The Order to Show Cause must indicate the legal basis for the tenant’s request for judicial intervention, such as the landlord’s locking him or her out without court authorization.
It’s possible that the parties will go to trial and the court will either order the tenant to be evicted or order the landlord to make necessary repairs. Once the judge has signed the order, the paralegal must see that the order is duly entered with the court and assist the attorney in seeing that the order is carried out.
Simply because a stipulation of settlement or judgment has been entered does not mean the parties will fulfill their legal obligations. If the tenant fails to pay the rent on the dates specified or fails to vacate the premises as ordered, the landlord must return to court to have a warrant of eviction issued based on the tenant’s failure to follow through with the court-ordered actions. At this point, the tenant also has the opportunity to plead exceptional circumstances that might convince the court to permit the tenant additional time in which to perform. As the legal assistant, you might be responsible for assisting either side’s attorney in preparing and filing the paperwork necessary for these follow-up steps, such as a request for a warrant of eviction from the court if one was not included as part of the court order or stipulation, and a notice to the marshal, who is legally authorized to carry out the eviction.
Similarly, if the landlord has failed to make the requisite repairs, harasses the tenant, or otherwise neglects to adhere to the court’s orders, the tenant can return to court to seek enforcement of the stipulation or judgment as well as, under certain circumstances, sanctions against the recalcitrant lessor. Each state’s procedures are slightly different and part of being a landlord-tenant legal assistant is familiarizing yourself with the formats required in the jurisdiction in which you work.
Landlord-tenant law presents a wide variety of opportunities for today’s paralegal. From the initial negotiation of the lease to the notification of an alleged breach of that lease, to the negotiation of a resolution of the dispute through the entire court process and follow-up, the paralegal in this practice area can have a hands-on impact on the course of the landlord-tenant relationship.
Jeffrey A. Helewitz, Esq., received his juris doctorate and master of laws degrees from Georgetown University Law Center and his masters of business administration from New York University. He is the author of 20 legal texts and more than a dozen legal articles covering a wide range of legal theory, and he is a mediator and an arbitrator. He has been an adjunct professor of law and an adjunct professor of paralegal studies at various schools in the New York area. Currently, he is a court attorney to a New York City Court judge.