Smoke-Free Buildings...

Today we are featuring an article specifically for Maine Landlords and Property Managers. You can learn more about our Landlord Tenant Practice at www.shankmanlegal.com.

SMOKE FREE BUILDINGS
One of the biggest controversies currently facing landlords and property managers is the balance of the rights of smokers who smoke tobacco, and non-smokers to be protected from the affects of second hand smoke. Can you establish a “non-smoking” policy for a building when your tenants began their tenancy with the freedom to smoke? While there is an inherent risk in every decision for change, the fact is that you are more likely to be exposed to liability by permitting smoking.
Generally speaking, the common areas of buildings must be smoke free pursuant to Maine’s Public Place Smoking Law, Title 22 M.R.S.A. §1542. There is nothing in the law that requires a landlord to forbid tenants from smoking in their apartments. But what happens when the smoke from one unit spreads into the hallway, or into the unit of another tenant?
The Americans with Disabilities Act and the Federal Fair Housing Act both enable individuals with disabilities to seek a “reasonable accommodation”. A tenant who has a breathing disorder may use either law to bring legal action against a landlord for not making “reasonable accommodations” to protect them from secondhand smoke in common areas of the building. This would include the consequences of seepage between apartments.
The Maine Human Rights Act prohibits discrimination in housing on account of physical disability. The definition of discrimination includes “the refusal to make reasonable accommodations” in rules, policies, practices or services when those accommodations are necessary to give an individual equal opportunity to use and enjoy a rental unit.
While there have been no reported cases in the State of Maine, there have been lawsuits filed in other jurisdictions pursuing claims against landlord, who permit smoking. Areas of liability have included breach of the covenant of quiet enjoyment, negligence, nuisance, breach of the warranty of habitability, battery, intentional infliction of emotional distress, negligent infliction of emotional distress, trespass and constructive eviction.
Your ability to change rules will be determined by the terms and conditions of your lease. If there is a provision authorizing you to change the rules upon thirty days’ notice, then that is all you have to do. If the lease is written in such a way that it is nothing more than a month-to-month tenancy, then you must give a minimum of thirty days’ notice of a “New Contract” which would essentially be your old lease with a new provision. If there is no written document, then you are dealing with a tenancy at will situation. Under those circumstances you would have the right to change the terms and conditions of the tenancy upon thirty days’ notice (again, essentially creating a new tenancy).
In dealing with public housing, or other subsidized housing, you may add a non-smoking provision to the lease at any time it is renewed. If you are dealing with a Public Housing Authority, make sure the change is approved by them in advance.
For those landlords who want to get more creative, you have the option of establishing a non-smoking policy for new tenants, while allowing existing tenants to continue to smoke in their units. The key to all of this is making sure that any change in policy has been properly noticed to all affected individuals.
The law is quite clear at this point. Landlords in the State of Maine have the right to prohibit smoking in their buildings. The only issue is whether the change in the lease terms or building rules has been done properly…with proper notice and in full compliance with the applicable contract and/or applicable Federal or State regulations. The right to smoke is not protected under the law. As long as the policy is not used to target a protected class or minority, smoking restrictions (or prohibitions) are legal and binding.
Do you have questions? We have answers, give us a call today @ 207.786.0311 or send us an email.

NEW LEASE PROVISION REGARDING BEDBUGS...

On July 11, 2010, a new law regarding bedbug infestation and eradication went into effect in Maine. We have previously posted an article outlining the impact of the law. However, based on ambiguity in certain aspects of the law and the need to be able to evict tenants who are being uncooperative when bedbug issues arise, we have drafted a new section to be added to your market rent leases. We hope that you find this information helpful.

Both tenant and landlord are required to comply strictly with the Maine Bedbug Law (Title 14 M.R.S.A. §6021-A). Tenant agrees to promptly notify landlord if he knows of, or suspects, an infestation of bedbugs in the dwelling unit. Upon the tenant receiving notice of a need for access to the premises for bedbug issues, he must fully cooperate with the landlord and any pest control agent hired by him. The tenant is required to comply with all reasonable measures to eliminate or control bedbug infestation. Failure of the tenant to fulfill his obligations hereunder is a breach of this lease and is grounds for termination of this tenancy.

If you have more questions please call Shankman & Associates at 207.786.0311 and ask for Karen Cook.

Radon Testing, The Law and YOU...

This is a short and sweet commentary about the most recent RADON Testing Law.
During the last legislative session a law was enacted that requires landlords to have their residential buildings tested for radon no later than 2012, with subsequent testing every ten (10) years thereafter. It is not clear from the statute itself, or from the legislative history, whether the phrase “by 2012” is intended to require that the testing be done prior to the commencement of that year, or prior to the end of that year. See Title 14, Section 6030-D of the Maine Revised Statutes.Home testing kits are not permitted. Radon tests must be conducted by a person who is registered with the Department of Health and Human Services.
If test results reveal a level of radon of 4.0 picocuries per liter of air or above, the landlord is required to take all necessary steps to mitigate the level of radon to a number below that standard.
“Mitigation services” must be provided by a person registered with the Department of Health and Human Services. Landlords are required to provide written notice to tenants and potential tenants regarding the presence of radon in the building. This information must include the date and results of the most recent test and must explain the risks associated with exposure to radon. Standard disclosure forms are being prepared by the state and will be accessible at some point during 2010. Go on line at
www.state.il.us/IEMA/radon/pdf/DisclosureRadonHazards.pdf.
If a landlord fails to comply with the requirements of state law, he or she would be subject to a fine of not more than $250.00 per violation. It is likely that enactment of this new law will strengthen the
hand of Plaintiff’s lawyers who are filing litigation on behalf of individuals who have been harmed by exposure to radon.
Landlords, do you need a new lease or help with an eviction? Give us a call we can help. 207-786-0311

Eeek... Bed Bugs, You and the Law...

BEDBUG LAW
WILL BITE YOU IF YOU ARE NOT CAREFUL

As problems with bedbug infestations have increased throughout the State of Maine, the Legislature has been called upon to respond. In 2010, a new law was enacted. Title 14 M.R.S.A. §6021-A. It will go into effect on July 11, 2010.

If a landlord receives either written or oral notice from a tenant that a dwelling unit may have a bedbug infestation, the landlord must conduct an inspection within five days. If it is determined that an infestation of bedbugs does exist, the landlord has ten days to contact a pest control agent as that term is defined in Title 22 M.R.S.A. §1471D. The landlord is required to “take reasonable measures to effectively identify and treat the bedbug infestation” through a pest control agent who carries liability insurance.

Landlords are prohibited from renting a dwelling unit unless they disclose to a prospective tenant that an adjacent unit is currently infested with, or being treated for, bedbugs. If at any time a current tenant or a prospective tenant requests information, the landlord must disclose the last date the unit was inspected for a bedbug infestation and found to be free of such a problem. The landlord may not rent a unit that the landlord knew or should have known is infested with bedbugs.

A tenant is required to promptly notify his landlord when he knows or suspects that there may be an infestation of bedbugs in the unit. If the landlord gives a tenant reasonable notice that he needs to inspect the premises because of a concern regarding bedbugs, the tenant is required to grant the landlord or his pest control agent access to the unit. The law specifies that the initial access to the unit may include only a visual inspection and manual inspection of the tenant’s bedding and upholstered furniture. If the pest control agent reasonably believes that additional items need to be inspected, the tenant is obligated to cooperate. If the pest control agent finds bedbugs in either the rented unit, or an adjoining unit, the individual may have additional access to the tenant’s personal belongings.

Furthermore, the tenant is required to comply with all reasonable measures to eliminate and control a bedbug infestation. The “unreasonable failure” to completely comply with the pest control measures may result in the tenant being “financially responsible for all pest control treatments of the dwelling unit”.

If for any reason the tenant is unable to comply with the requested bedbug inspections or control measures, the landlord is required to offer to “make reasonable assistance, including financial assistance”. Quite frankly, neither the law nor the legislative history clarify exactly what the Legislature was intending by that provision. However, it appears that once the landlord discloses the anticipated cost of the tenant’s compliance with the inspection and control measures, the landlord may charge the tenant “a reasonable amount for any such assistance, subject to a reasonable repayment schedule, not to exceed six months”.

Failure of a landlord to comply with the terms and conditions of the bedbug law is presumed to be a violation of the warranty of habitability (the landlord unreasonably failed, under the circumstances, to take prompt, effective steps to repair or remedy a condition that endangers or materially impairs and health or safety of a tenant). If the landlord fails to comply with the provisions of the law, he is liable for a penalty of $250.00, or actual damages, whichever is greater, plus reasonable attorney’s fees.

If a tenant fails to provide reasonable access, or comply with reasonable requests for inspection or treatment, or if the tenant otherwise unreasonably fails to comply with the requirements of the law, the landlord can seek a Protective Order pursuant to 14 M.R.S.A. §6030-A. If the court finds that the tenant unreasonably failed to comply with the bedbug law, the court is authorized to issue a temporary order, or an interim order, pursuant to Title 5 M.R.S.A. §4654, the Protection from Harassment statute. The court is authorized to grant the landlord access to the premises, allow him to engage in bedbug control measures, and require the tenant to comply with specified measures or, if the tenant fails to comply, assess him with costs and damages related to the tenant’s non-compliance. Any emergency order granting the landlord access to the premises must be served upon the tenant at least twenty-four (24) hours before the landlord enters the premises.

Landlords/Property Managers and Rental Property Management Companies, are you currently a member of Shankman and Associates "Lawyers-online" program? If not, you should know that for a set price you will have many advantages and benefits. Click here for more info.

Three New Books & A Maine Landlord Tenant Law Conference...

We have been very busy at Shankman & Associates. We have just finished our third book on Maine Landlord -Tenant Law. This has been an important undertaking. The laws are constantly changing and the commentaries in the books must be updated and sometimes almost entirely re-written every few years. The three Maine Landlord/Tenant books written by Neil Shankman this year are: Landlord-Tenant Relations: Process & Procedures, Maine Landlord-Tenant Statutes & Commentaries and Landlord-Tenant Relations In Mobile Home Parks & Land Leased Communities.
We held a conference a few weeks ago for the Mobile Home Park & Land Leased Community Landlords. It was interesting and everyone went away with the clear knowledge of what the new laws are and how to apply them. The also were able to ask questions and have some great dialog about Landlord/Tenant Relations.
Are you a Landlord in the state of Maine? Are you interested in coming to our seminar? We do have one coming up on April 9th at the Ramada Inn, in Auburn. Attending the conference will help you to interpret the new laws and you will have the opportunity to ask questions.
Registration is simple, we have a copy of the registration form in the February MAOMA Newsletter. You can also email Karen Cook or give her a call at Shankman & Associates, 207.786.0311 she will be more than happy to email you a copy of the registration form. We look forward to seeing you there!

Landlord/Tenant Conference...

Big News... Shankman & Associates is hosting the Landlord/Tenant Conference on April 9, 2010 9AM-4PM at the Ramada Inn in Lewiston, Me. We will be covering the new laws that will affect you and your business. We will also be releasing our newest Landlord/Tenant Relations publications.
If you want to stay on top of your game this is one conference you will not want to miss.
Registration is simple, we have a copy of the registration form in the February MAOMA Newsletter. You can also call Karen Cook @ Shankman & Associates, 207.786.0311 she will be more than happy to email you a copy of the registration form.
We look forward to seeing you there!

Bankruptcy Advice in Maine...

Bankruptcy can be a difficult decision. In these uncertain economic times Bankruptcy is not an uncommon solution. At Shankman & Associates, we are Maine Bankruptcy Attorneys. We will guide you through your options, and help you to make a decision that helps you. Bankruptcy is an option. We can help to stop repossessions, wage garnishment, lawsuits and foreclosure. In our economy today, you are not alone. You may be able to keep your home, your car and your wages. A fresh start is possible. We will help you to take control of your financial future. We know that it is never an easy decision to go forward with a "Bankruptcy" at Shankman & Associates we can help you to navigate this difficult time with the answers you will need for a fresh start. This is not a decision to be entered into lightly. It will affect your future, both positive and negative.

Mr. Shankman is the Maine representative for NACBA The National Association of Consumer Bankruptcy Attorneys. He and his staff have been helping folks file for Bankruptcy since 1981. We can help you to decide the best route to take, Chapter 7, Chapter 11 or a Chapter 13. We will answer all of your questions and help you to get back on track. Now is the time to give us a call and to schedule an appointment 1.207.786.0311.
We look forward to helping you.