DOCUMENT, DOCUMENT, DOCUMENT

By Kathy Belville, Esq. Kimball, Tirey & St. John March, 2005

As an attorney, there is nothing more frustrating than not being able to achieve the result a client wants, because of an error by the client that was avoidable. 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, Kimball, Tirey & St. John (KTS) 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. Let me try again to convince readers of this article that keeping records is 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 landlord not only has to strictly comply with the law, but needs to be able to provide convincing proof that he 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 a landlord convince a judge or jury that his position is the one which is “more likely than not” to be right?

A judge or jury may believe that a resident’s memory of something that happened to him is likely to be more specific than a manager’s memory of the scenario. The theory being that the manager has to deal with many people and many scenarios, 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. That should be you!

Perhaps a couple of examples will help to underscore the importance of documentation:

1. In an eviction for non-payment 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 7 months. The judge’s eyes opened very wide as he considered how to punish the terrible slumlord. If the manager had only been able to counter with a statement that the resident was wrong, the landlord would probably 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 which stated that the all non-emergency 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 has 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 for the landlord.

2. A resident had lived in a community for 4 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 2 months. Finally she hit the manager and threatened her. She lived in subsidized housing. The clients wanted to evict the resident. 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 worker’s comp 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 to the residents 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 is likely that the clients would have trouble prevailing in an eviction and the resident might even have a fair housing case against them if they proceeded. In addition, if someone was injured, there could be a valid personal injury suit.

How much better it would have been 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 if you are a self-managing owner. It takes time and effort. It takes 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.

Please do yourself and your attorney a favor and make your lives easier: document, document and document!

Kimball, Tirey & St. John provides our clients with preventive law legal advice to avoid potentially costly lawsuits. Please contact our office to speak with one of our attorneys when you are facing a fact pattern that has potential legal ramifications

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