Nothing is certain in the time of COVID-19. With cases skyrocketing in parts of the US and federal rent protections ending soon, we’re seeing millions of out-of-work renters being forced to contend with the real possibility of an impending eviction. To make matters worse, the pandemic has complicated the process of finding a new home in general, with physical apartment tours posing serious threats of spread and contamination.
When confronted with confusion and discord, it’s always best to turn to the experts, and that’s exactly what Janet Portman and Ann O’Connell are. Aside from informing and authoring a lot of the content on the invaluably comprehensive Nolo.com, they also have years of direct experience with landlord/tenant law under their belts, with Janet serving as a public defender before becoming the site’s Executive Editor and Ann working as both an attorney and real estate broker. We called up the two to get their takes on the pandemic and all of its unruly consequences, from the new normal of virtual tours to the intensified strain between landlords and tenants as everyone struggles to stay afloat.
ApartmentRatings: Unfortunately for us all, it seems like the new reality of renting (for the time being at least) is virtual apartment tours. Are landlords allowed to show units fully furnished under the guise that that’s how the tenant will be getting them?
Ann: I’m not aware of any hard and fast rule that says “no, you can’t take pictures of a unit with somebody else’s stuff in it and post them online.” I think some current tenants might be upset about that, but hopefully landlords are taking steps to remove private pictures and other personal belongings like that. But the landlord for the most part can’t enter an occupied unit without giving proper notice under state law, which is usually at least 24 hours for non-emergency situations. So hopefully, if everybody’s playing by the rules, the tenant knows and is aware that the landlord is there, and the landlord’s getting permission to take these pictures and do these virtual showings.
Janet: You know, it’s actually less intrusive, in a way. I mean, if a landlord says they’re going to be walking through your apartment for 15 minutes and asks you to please take away the photos of your family, make sure there isn’t any mail on your coffee table — make sure there’s nothing in there that would say “Oh, I know who lives there,” that sort of thing. So the landlord walks through once, takes one video, and that’s it. As opposed to multiple showings, which quite arguably are much more inconvenient.
AR: Do you think there’s more incentive right now for landlords to be dishonest with their videos, as a means of quickly filling vacant units in this tough time?
J: Well, that’s always the case… visual puffing has always been a problem. They use wide-angle lenses that make a room look likes it’s tremendous when in fact it’s a closet, but people are onto that. I think there’s nothing you can do about it except assume that anybody with any experience looking at homes for sale or for rent on the internet has figured out that “staging” can be done virtually as well as physically.
AR: And legally speaking, are there any laws explicitly against this sort of “puffing”?
J: There’s no law that says “thou shalt not puff.” But what there is is the consequence if you promise there’s a jacuzzi and there isn’t one. The answer there is that the tenant who moves in says “where’s the jacuzzi?” or, “where’s the dishwasher? The ad said that the place was fully equipped with a dishwasher, and a microwave, and those two items aren’t here.”
And that’s a garden-variety contract claim. The tenant goes to small claims court and says “I’m paying for an apartment with a jacuzzi, I haven’t been given one, and I want you, the judge, to order the landlord to reduce the rent.” Judges in small claims typically won’t tell the landlord to buy the jacuzzi, but they’ll say “this place is worth 50 dollars a month less without a jacuzzi, and that’s my ruling.” And typically the landlord gets the picture and puts in the jacuzzi, but that’s the way it’s handled.
Years ago, I heard a story that I thought was just wonderful about a dishwasher. The tenant said it was advertised but never showed up, and all that time they kept a log of how many hours they spent hand washing the dishes. They multiplied those hours times the wage of the local dishwasher downtown at the local diner, and essentially calculated the value of their labor. And the judge bought it! And ordered the landlord to pay him those hours. But the landlord had no excuse. They didn’t do it, and it was there in the ad, and that was a very brilliant way of addressing it. And the tenant got his money, and not so long thereafter, got his dishwasher.
A: That’s a great example. I was just wondering what would happen if a landlord posted a virtual video online, only for a new tenant to sign the rental papers only to walk in physically and discover that the place smells like cat urine? Or what if there’s a roaring train nearby that goes by every five minutes? You know, things like that you can’t necessarily catch in the video. And I think Janet’s answer holds completely true, in that the tenant is still bound to those papers, unless there’s some egregious thing that makes the place uninhabitable. But they could always go back and try to get the rent reduced, or eventually even break the lease and try to get a judge to agree with that.
Another thought I had was, well what if the landlord goes in and takes pictures of the walls and the furnishings and everything else and then the tenant moves and looks down, and they see this carpet that’s stained and torn? With those sorts of things, there still will be the normal ways for tenants to get compensated for that trickery, or just unmet expectations. It might just take longer for the court system to get those results right now, given the way things are.
AR: That’s exactly what we were about to ask — If you think going through a small claims court is still a viable option for people who feel they’ve been tricked.
J: Sure. It’s certainly better than trying to go regular trial court, and in many cases you’ll have to because the value of your claim is too small for a regular trial court. But small claims is going to be backed up, too. There’s no way around it.
AR: And pandemic aside, are small claims courts normally backed up?
J: Totally depends on where you are. In some counties, where there’s a big population and a surplus of lawyers, those lawyers will be hired as temporary judges just to move the cases through. In other places where there’s a small population and not a lot of lawyers, they will have fewer cases, but they don’t have the ability to ramp up quickly the way a bigger county would. There’s ways that people could get creative, of course — a judicial branch in a particular state could send temporary judges to various counties, where they don’t live. That would be a good way to handle it, but of course all that takes money, and whether a state is going to get money from the legislature to do that, I don’t know.
A: My guess is that, after this is over and some of these court delays are lifted, things in small claims still might move a lot more quickly. That’s because in many small claims courts, and especially when it comes to landlord-tenant issues, they might send you out to a mediator to discuss something before it’s actually held before a judge. And in small claims you don’t have jury trials, and all the ordinances I’ve seen that are putting holds on courts are pushing jury trials out much farther than anything that’s just held in front of a judge, because you can do that much more easily through Zoom or some other kind of virtual meeting. But if you have anything in a regular court that requires anybody else like a jury, that’s going to be a long time coming. So things might ultimately move more quickly by way of court-ordered mediation or small claims court.
AR: For anyone who might be looking to take this kind of action right now, what’s the first step on that path? Can you go to a particular website to file a small claims court?
J: Well, the first step is actually not to go to court. If you were to do that, you’d be tossed out. The first thing to do is to write a demand letter to your landlord, setting out the facts and giving them a reasonable amount of time to fulfill their part of the bargain (i.e. supply the dishwasher). If you don’t get results, send another one, and at that point, if you still don’t get results, then you should head for small claims. And as Anne pointed out, almost all of them will require you to at least try to mediate the dispute before you go before a judge.
AR: Are physical tours actually illegal right now? Or is that also state by state?
A: That tends to be state by state and where you’re located, even down to county by county. It depends on whether or not it’s considered an essential service. In some places, I think in-person showings are still allowed, with recommendations that people take precautions for social distancing and stagger showings. In other areas they still can’t do it, so it really depends on where you’re located.
AR: Let’s say the tenant currently living there doesn’t want strangers coming in because of the virus. Can the landlord still show the unit then?
J: Great question (laughs). We don’t know. Here’s the thing, the landlord can do a lot if they want to. They can even show the place when the tenant’s not home — I mean, that’s something that a landlord could do. But that’s not the question. The question is: if a landlord were to do that, what would be the risk to the landlord? The risk is that the tenant either breaks the lease, stating that the landlord has introduced a contagion into their home, or in some other way seeks compensation for harm against the landlord. That said, it would be pretty difficult for the tenant to prove that the people who walked through for 15 minutes infected their home, but the point here (as is true in so many matters of civil law) is that it’s not so much whether you win, but if you’re willing to file a lawsuit and find a lawyer who’s willing to front it for you. You can probably get some sort of settlement simply because it’s too expensive for the other side to fight it. It’s called the settlement value. So the tenant might go to a lawyer who will say “I don’t think we can actually win, but it’s worth taking the case because we probably settle for something — by the way, I’ll take 33 percent
— but we’ll get something.” And that’s the risk.
AR: But then again, that could take a while, too, couldn’t it?
J and A: Yeah.
A: It’s a prefect example of how you can landlords see taking advantage of certain demographics that they know aren’t going to fight or that don’t want to go to court. It’s a power struggle. Using your imagination, you can picture multiple situations where a landlord’s just going to do what they want and walk all over the tenants, unfortunately.
AR: And the best recourse for tenants in those cases is still the law, right?
J and A: Absolutely, yeah.
This interview has been edited and abridged for clarity.