How to Win in Court

Documentation: A Landlord’s Best Friend in Court
by Nathan Miller

I was reading a property management advertisement the other day from a property management company trying to earn my business and on their information sheet they say “less than 1% of our leases end up in court”. 1%?!!?!? So as many as 1 in 100 leases end up in court. They were bragging about this, so perhaps other property managers are 2 in 100 or more? That tells me that of all the industries I participate in, the property management (landlord) industry by far and away spends more hours in a courtroom than any other that I’m aware of.
Nobody wants to end up in court, it’s a drain on valuable resources; time, money, energy. Then there’s always the worst that can happen and the tenant has a better case and walks away with the prize. Granted, some property managers run bad business and it is good that tenants have a recourse through the court system; however, in many cases property managers are doing their best and are just winding up defending a frivolous claim because the tenant felt they should really live in your house free for a year, plus emotional damage of course for the eviction letter trauma you caused.
This leads me to my next point. Documentation is EVERYTHING. Whether you’re initiating a proceeding and you’re sitting on the right side of the courtroom or a past or current tenant did and you’re on the left side, the best protection you can enter with is full and complete documentation of the event. Some may argue having an attorney at your side is the best protection; however, while attorneys do know the system well, I would certainly say having documentation is your first defense, and an attorney (if one can be afforded) will present that documentation. However, without the documentation the attorney won’t have much ammo to defend the case.
You never know what might end up in court, so it’s best to document everything
Here are some tips I’ve learned through the years:
Ask for it in writing. Unless you can legally and are recording every call and voicemail, a phone call is as good as nothing. Get it in writing whether it’s a complaint from a tenant, an invoice, an issue with a neighbor, whatever it is, get it in writing, scan it, and save it electronically where it can be easily accessible if needed.
Save all your receipts. Great tip not only for documenting repairs, etc, but this also provides solid proof of expenses in the event of a tax audit. I scan my receipts and upload them with the expense transactions to my property management software.
Take pictures. A picture is better than almost anything. If one person says it was this way, and another person says it was a different way, it’s simply word vs word and a court cannot make a decision. However, if one or another brings a picture to backup what they are stating their position all of a sudden is much stronger and can also discredit the others thereby not only proving this point but strengthening the whole case.
Take video. If you have a lot of area to cover, it may take a hundred pictures to cover everything. On the other hand, video handles this situation nicely. If you want to record the condition of a property for instance, walking through with a video is a great way to document the condition of a large area. Ideally use the highest quality video setting on your device so if need-be the video can be paused and details of that area can be seen. Also pan slowly as to be sure not to blur your video. Taking a video to document the condition of a property before a tenant moves in is a very good idea.
Save your documentation, pictures, and videos electronically in a safe place. Paper can be messy, especially if you have file cabinets (or chronologically filed piles as the case may be) which means it can take a very long time to find what your looking for. Scan and save your documentation electronically where it can easily be accessible if the need arises.
There’s a bit of a misconception about how hard it is to electronically store documents. Nowadays it’s very easy. Drop by your local office supply, Costco, Staples, or almost any electronics store and pickup a multi-function printer that includes a sheet feed scanner. They can be purchased for as little as $150. There’s also scanners designed strictly for the purpose of scanning documentation which work very well, do two sided scanning, rarely jam, and cost a bit more. Any of these options work. Also, most scanners include software to automatically save to PDF, which is a universal format that can be opened on any computer.
Now saving it somewhere safe. If you maintain your own IT infostructure, be absolutely sure you are backing everything up. Hard drives die all the timeand people can lose all their valuable data when this happens. Backup your data ideally off-site to a secure storage medium or online backup service. Another very convenient method is if you use a property management software that allows attachments and a file library, simply upload your documentation here for safe keeping and easy access, which is what I have found the most convenient.

is an experienced landlord and real estate investor with superb computer skills who co-created Rentec Direct property management software.

Leaky Roof: Where to find the problem and the solution by Jay Dee

So your roof is looking a little shabby and you are wondering when it's time to replace your roof. There are some places on your roof you can check, they tend to be the weakest points on the roof due to high volume of water or trees covering a section of a roof.

Asphalt shingles are a large blanket covering an area of a lot of moisture. Over the years it is quite common especially with bad ventilation to notice that the shingles curl upwards. Over the years the moisture need to find a way out, when the heat softens the asphalt the shingles actually go against gravity and curl upwards, cedar shake has a tendency to do this as well. over time the curling cause the shingles and shakes to split and crack. It generally takes three in a row to split vertically and trouble will begin.

Chimney and skylights over time have the ability to accumulate debris and moss growth around the base where they meet the roof. generally behind the chimney or skylight enough debris accumulates for the water to dam up and push the flow against gravity up a shingle and into the attic. you could stop this leak by cleaning around the flashing and making sure that water has a clear path towards the eaves trough.

Valleys are the area on a roof where two angled roofs meet and is also a point on the roof that has the most water running along it. Using steel in valleys is a common but new practice with the majority of the roofs have knitted shingles in the valley. Shingles are strong against the elements but are not designed to deal with that kind of flow of water. Valleys are probably the biggest reason roofs leak.

New Snow Policies that affect Property owners

Man's fall leads to a change in snow law
By Julie Manganis
Staff writer of the Salem News posted July 27, 2010

DANVERS — An elderly Peabody man's trip to Target to stock up on soap one winter morning ended in a fall and a broken pelvis.

Now, more than seven years later, his case has led to what one lawyer called a "sea change" in the law.

The state's highest court yesterday scrapped a 19th-century standard that absolved property owners of liability for accidents that occurred on "natural" accumulations of snow and ice, in favor of the same legal standard that is applied in all other slip-and-fall cases: Did a property owner use "reasonable care" to ensure that his premises were clear of hazards like snow and ice?

"This is a major, major decision," said former Massachusetts Bar Association President David White of the firm Breakstone, White and Gluck. "It reverses a century-old rule on the duty of landowners and landlords."

It also brings Massachusetts into line with other states, including states that get as much snow — or even more — than the Bay State.

Emmanuel Papadopoulos, now 84, drove to the Target store in Danvers on the morning of Dec. 20, 2002, to buy soap he'd seen advertised on sale. He parked in a handicapped spot, which happened to be next to a large pile of plowed snow.

As he left the store that cold morning and walked back to his car, he slipped on what he described as a "globber" of dirty, icy snow, breaking his pelvis in the fall.

A Suffolk Superior Court judge later dismissed his lawsuit against Target Corp., which owns the lot, and the Weiss Landscaping Co., which had been hired to plow the lot.

The judge found that the "globber" of snow (a word coined, apparently, by Papadopoulos) was a natural result of the snow pile freezing, melting and refreezing, as opposed to an unnatural or man-made condition.

Under a doctrine established in an 1883 case involving a Salem tenement owner, property owners in Massachusetts couldn't be held liable for what Mother Nature left behind, only for hazards that were the result of some action, or inaction, such as ice from a leaking gutter.

But that left a lot of room for interpretation — including in the Papadopoulos case.

The natural vs. unnatural distinction "has sown confusion and conflict in our case law," Supreme Judicial Court Justice Ralph Gants wrote in yesterday's decision.

"We now discard the distinction between natural and unnatural accumulations of snow and ice, which had constituted an exception to the general rule of premises liability that a property owner owes a duty to all lawful visitors to use reasonable care to maintain its property in a reasonably safe condition in view of all the circumstances."

The court held that it will now be up to a jury to determine "what snow and ice removal efforts are reasonable in light of the expense they impose on the landowner and the probability and seriousness of the foreseeable harm to others."

The ruling reverses the lower court's dismissal of the case and puts it back on the trial docket.

Emmanuel Papanickolas, the Peabody lawyer who represents Papadopoulos, said his client was "extremely happy" about the ruling.

"The decision is a well-reasoned, well-written decision by Justice Gants, and it's the right decision," Papanickolas said. "It's really a victory for all of the people in Massachusetts."

Papanickolas said injuries from falling on snow and ice can be devastating because they happen so quickly and because "there's no give on ice. It's like crashing into stone."

"I don't care whether it's natural or unnatural," said the lawyer, who called the ruling the most significant one he's achieved in a 50-year legal career. "The standard should be reasonable care. That's the standard for every other situation for a property owner."

"All of the other states seem to be doing just fine with this rule," said Danvers attorney Paul Moraski, who also represented Papadopoulos.

"It's a notice to landowners that they have to use caution," White said.

"You're better protected now," said Moraski, who called the decision "monumental."

"More people are going to clear their sidewalks and lots and clear them properly," Moraski said. "Before, you didn't have any duty to shovel at all."

"The only real losers here are the insurance carriers," Moraski said.

Indeed, the major opposition to the change came from attorneys representing insurance companies — including the lawyers who argued on behalf of Target.

Martin Rooney, who submitted a friend of the court brief on behalf of the Massachusetts Defense Lawyers Association, expressed disappointment in the decision.

"We did not and still do not see any reason for this sea change in the law," Rooney said. "This decision will engender a lot of litigation."

Rooney said that while other states use the "reasonable care" standard, their courts have had time to establish guidelines on what "reasonable" means.

"Right now," he said of yesterday's decision, "it's the wild, wild West."

Sign Ups for New EPA Lead Paint Classes

Just sent an email out today about any member interested in signing up for the new EPA Lead Paint Certification. The Greater Salem Landlord Members qualify for a group discount. Anyone interested in signing up please contact me. Classes are usually held Monday through Friday from 8am to 5pm with a half hour lunch break.

Another Holiday, Another Late Payment

This article was written by Kris Rudeegraap, Marketing Coordinator for RentPayment. For more information visit www.RentPayment.com or email krudeegraap@RentPayment.com or call 1-866-289-5977 ext 212.

Fourth of July weekend just passed and for many us that meant fireworks, BBQing, and celebrations with friends and family.
As with any holiday that falls in the beginning of the month, renters frequently delay paying their rent until they are back from vacation. Many companies give their employees the 5th of July off which means rent checks might be delayed even longer.

These rent payment delays can cause headaches and cash flow issues for property managers, along with unhappy residents who are hit with late fees. These issues can all be resolved by simply accepting electronic payments.
Electronic payments such as credit cards and e-checks make paying rent on time much easier. Residents can pay online or by phone and also have the option of setting up a recurring automatic payment that debits their bank account each month.
With an electronic payment solution in place, property managers can focus more on closing leases and spend less time collecting rent.
For holidays like the Fourth of July, residents can easily setup a one-time payment before leaving on vacation or have their recurring payment setup months in advance.
If you have more questions about electronic payments or want more information about signing up please contact a payment expert at RentPayment today.
This article was written by Kris Rudeegraap, Marketing Coordinator for RentPayment. For more information visit www.RentPayment.com or email krudeegraap@RentPayment.com or call 1-866-289-5977 ext 212.

More on Lead Paint Legislation

Published June 29, 2010 in the Salem News

Our view: New lead-paint rules a nightmare for contractors, homeowners

"Bureaucracy is the death of all sound work," Albert Einstein once said, and sadly, we haven't come very far since his time on this planet.

The latest victims of bureaucratic misfortune are contractors, and ultimately, homeowners, who make improvements in homes or other buildings that may contain lead paint.

Starting in April, the federal Environmental Protection Agency enacted a major change in how contractors deal with lead paint. The regulations have greatly increased the cost to consumers who want to have their homes painted or have work done that involves disturbing anything over six square feet in area that may contain lead paint.

Your bill will likely be 15 to 30 percent more under the new regulations. For people wanting to have the entire exterior of their home painted, the added cost will amount to thousands of dollars.

That's bad enough. For contractors, bureaucratic bungling has caused even more problems.

The new law calls for contractors to be professionally trained or face fines of up to $37,500 for each violation. But the EPA failed to ensure there would be an adequate number of trainers available to teach the 8-hour course. As a result, some states had no trainers in place when the law went into effect. Massachusetts had relatively few trainers — there were only a couple of dozen or so to handle the tens of thousands of contractors who needed to be trained. The entire state of Maine had only three trainers.

The net effect was many small contractors simply stopped working on homes that were built before 1978, the year that the United States banned the use of lead paint. Which means the pool of contractors has dwindled significantly.

Under howls of protest from Congress and trade organizations, the EPA last week postponed enforcement of the regulations until the fall, in hopes that trainers will catch up with the long line of contractors waiting to take the course.

No one would argue it's a bad idea to remove lead from homes and from buildings where children come in contact with it. Exposure to lead — in this case, through lead paint — can cause severe health problems. It is linked to developmental disabilities in children.

It's the disconnect between bureaucracy and the working world that it is supposed to regulate, that is most frustrating. Enacting laws from on high without giving contractors an adequate way to comply, is irresponsible. Congress should look into this matter, trace it through the EPA's chain of command, and hold the responsible bureaucrats accountable.

The United States banned lead from paint in 1978, and even back then we were decades behind the times. As early as 1904, doctors clearly traced lead paint's health impacts on children. In 1909, France, Belgium and Austria were the first nations to ban interior use of lead paint, followed in short succession by most European countries. America had a chance to join its League of Nations allies in 1922 in a ban on lead paint, but opted out.

Our efforts to catch up should be better planned than the fiasco we are currently witnessing.

Congress May Delay Fining for New EPA Lead Paint Laws

Congress may delay fining contractors and property owners until at least September to allow more time for training. The U.S. Senate voted 60-37 to approve a bill that would prevent contractors from being fined for not complying with a new U.S. Environmental Protection Agency rule on lead paint by blocking funds in a supplemental appropriations bill from being used to levy fines. A contractor who is not certified faces a fine of $37,500 per day. The bill, sponsored by Sens. James Inhofe, R-Okla., and Susan Collins, R-Maine, passed Thursday with the support of all of the Senate Republicans who were present and opposition from 36 Democrats and one Independent. The senator also called on the Senate Environment and Public Works Committee to hold an oversight hearing on the rule.

The EPA's Lead Renovation Repair and Painting Rule, which went into effect April 22, 2010, requires that renovations of homes built before 1978 be supervised by a certified renovator and conducted by a certified renovation firm to prevent workers from contaminating homes with potentially harmful lead dust.

The new law was not well advertised so no one was aware that it would become effective in April of 2010 and the EPA has too few instructors to train everyone before the deadline. As of May 7, there were 212 training providers to service the entire country with 10,000 courses offered*. Massachusetts had only five instructors to cover the entire state and the Moderate Risk Deleading training that most property owners were certified in was not accepted by EPA as proper training.

The bill's passage is a sign that "there is bipartisan concern about the disastrous implementation of EPA's lead-based paint rule," Inhofe said.

Inhofe and Sen. Tom Coburn, R-Okla., have also introduced another bill that would put off enforcement of the lead paint rule for at least a year, until contractors have a chance to take the required training course.



*EPA says that as of June 14, 2010, 247 accredited training providers have conducted more than 15,000 courses.