Is That Legal. . .? What Is The Law?

Well, Is It?

Spokane Attorney, justice statue

1.       Laws are rules or standards by which humans intend to regulate, encourage or punish some aspect of human behavior. Law also refers to an entire system of government, rights and obligations and an institutionalized manner of resolving disputes.

2.       Lawyers will often be asked a question by a client that starts:  “Is it legal to . . . ?” Isn’t it against the law to . . ?” usually followed by a complaint about the behavior of a neighbor, co-worker, ex-wife or party to a contract. So, what does it mean to be “against the law?” Usually, they are asking if a written law prohibits the behavior, but that is not the only source of law.  If there is a contract involved, the lawyer must first look to the written agreement of the parties to see if the act is prohibited by the express terms of the contract. Then the client may allege a breach of contract, which is a private wrong between the parties.

3.       Perhaps your client’s neighbor is building a fence through their petunia patch. Your client has called the police saying the neighbor is “trespassing.” The policeman has told your client that it’s “a civil matter” that must be resolved in court between the two parties (unless the neighbor bonks your client on the head with a fence post.) In the case of the fence, a matter of real estate law, the lawyer will have to consult with a surveyor, purchase a title report, look at public records of deeds and boundary line agreements, interview neighbors, apply a common law theory of “adverse possession” and consider a lawsuit to “quiet title” based on a “statute of limitations” before the answer may be clear.

4.       Perhaps the neighbor is building a pig farm next to your client’s Zen garden. There might be a land use and development statute, ordinance or zoning regulation that prevents that use.  The use may be prohibited by a recorded covenant that sets rules for the subdivision that can bind future owners. There also may be a common law nuisance action found by reading cases and then a trip to court to obtain a restraining order after posting a bond.

5.       Your client has been attacked by the neighbor’s developmentally disabled child and his pet pit bull, causing personal injury and property damage. You must now look up case law regarding negligence. If the neighbor knows of the dangerous propensities of child and dog he may be negligent if he has not used reasonable care to prevent such an attack.  There may be a statute that regulates dangerous animals, which may help you show evidence of negligence. If your client throws a fence post at the dog and instead the neighbor’s window is broken, who is liable for the cost of repair? Will you client receive a counterclaim for property damage and assault?

6.       The answer to any one of these scenarios may be found with reference to overlapping statutes, contracts, regulatory rules and common law legal principles. This is why you need a lawyer to help navigate through these matters to arrive at a resolution in an adversarial legal system.

Hoarding: Out of Hiding

Hoarding is a Worry

There has always been great concern about tenants who accumulate vast amounts of seemingly useless possessions and garbage, including newspapers, furniture, cats, etc. Usually, this situation comes to the attention of landlords because neighbors or code enforcement officers discover a situation that is hazardous to life and health. We are fortunate that the mental condition that leads to such situations has now become the topic of much discussion, including televisions shows, such as A & E’s Hoarders. In May, the American Psychiatric Association is expected to releases its 5th edition of the Diagnostic and Statistical Manual of Mental Disorders, officially recognizing hoarding as a psychiatric disorder. This means that Hoarding will become subject to the Americans With Disabilities Act (“ADA”) and require “reasonable accommodations” under the act.

Hoarding, also known as pathological collecting, is a pattern of behavior that is characterized by excessive acquisition of and inability or unwillingness to discard large quantities of objects that cover the living areas of the home and cause significant distress or impairment. Professionals who treat hoarding disorders however, remain optimistic that the condition can be controlled in many cases.

New Hoarding Designation Protects Rights

Now, before you have a fit over this because more rights are being given to problem tenants, please realize that the designation gives a much more certain way of dealing with the issue. Before this diagnosis, the landlord’s choice was to give a 10 day notice to comply or vacate and then a messy, costly eviction and cleanup. Now, reasonable accommodations could include a plan that requires 30 days of cleaning and support service for hoarders in an effort to avoid eviction. In other words, professional help to eliminate the danger caused by the condition can be required.

This is important: The main problem with hoarders is the creation of unsanitary and hazardous conditions that threaten the safety of the hoarder and other tenants. If the condition is under treatment, it doesn’t have to be cured, just made safe, in order to solve the landlord’s problem. Some landlords have even realized that the hoarder, being obsessed with keeping their collection, will go to great lengths to pay the rent and be undisturbed. They can be good tenants.

Also, because there is plenty of discussion in the media about this, some of the confusion and stigma is removed. If a hoarder, like an alcoholic, can stand up and say: “I am a recovering hoarder” then the required “reasonable accomodations” can actually help with their recovery.

Landlords Still Cannot Discriminate

One thing a landlord cannot do is discriminate based on a medical diagnosis. A prior history of eviction and code enforcement or police intervention could be a reason not to rent to a particular tenant. A person that discloses a medical condition however, cannot be rejected on that basis.

A good website to review is www.addressourmess.com which provides services to Hoarders and their families nationwide. The website includes useful information for understanding and dealing with Hoarders. For example:

At Address Our Mess we’ve developed a program that helps the hoarders and the family of the hoarder and we can offer much more than just a cleaning. First, the hoarder needs to be open for a cleaning and fresh start from all the materials that have no use to them. Once the house is cleaned, they need to develop a daily routine to keep it clean. Sometimes having drawers for each type of item and once that drawer gets filled than something must be emptied to keep the new stuff otherwise the new stuff must be thrown away. This limits the collection of stuff and always offers storage. Other hoarders may need the one for one rule; every time something is purchased something must be given away.

The ability to deal with Hoarder situations compassionately and intelligently, from a position of knowledge rather than confusion, will benefit both landlords and tenants.

Steampunk Eviction

Eviction Takes Too Long – Or Does It?

I often hear the complaint from landlords that eviction takes too long.  Why does it take up to a month or more to remove a tenant from the three-day noticed to the Sheriff on the doorstep?  Why do tenants have all these rights?

Steampunk Eviction Notice SpokaneThe answer is historical.  Before the “modern” eviction statues were enacted in the 1880’s, the common law of real property ruled.  Thus the Steampunk reference to eviction. A tenant had more right to possession to rented property than its owner (still true today with some restrictions) and the landlord had to resort to the long legal process of ejectment and quiet title, or take a shotgun and chase the tenant off.

The law also allowed the landlord to confiscate the tenant’s property and hold it until rent was paid, called “distraint for rent.” This also usually involved shotguns on both sides. To avoid bloodshed and give both sides a more predictable process, “unlawful detainer” laws were enacted that give evictions the highest civil priority in the court system and prevent both sides from physical and economic excesses.  Also, the fact and legal issues are limited to possession and rent.  Other matters that would slow down return of possession to the landlord are tried in a separate case.

Eviction Confusion

Such a statute is “in derogation of the common law.” This means that the speeded up relief is available only if the rules in the statute (RCW 59.12 and 59.18) are strictly followed.  This leads to much confusion. For example, service of a three day notice by certified mail is not provided for under the statute and therefore, is not effective.  Posting the eviction notice and mailing by regular mail is provided for in the statute and therefore, is sufficient.  Although a landlord can store personal property for an evicted tenant, the only charges allowed are for hauling and storage, not for rent.

No Need for Shotguns

There are many other examples, but suffice it to say that the process is much quicker and more certain for all sides than a year-long ejectment or quiet title action, or shotguns and “Get off my lawn!”  A landlord should obtain forms and instructions for evictions from the Landlord Association or their attorney.