THE WORDS I CANNOT PRINT

             In 2010 Donahue Francis, as a residential tenant, signed a Lease for a Long Island apartment with Kings Park Manor using the House Choice “Section 8” Voucher Program. Things went well. Until they didn’t.

            In 2012 Francis’ next-door neighbor Raymond Endres began to torment Francis with racial harassment, abuse and threats. Here is a sample:

            February: Jews, effng Jews. Effng [n word].

            March 3: Damn effng Jews. Effng a-hole.

            March 10: [N word]. Effng [n word], close your god darn door, effng lazy, goddamn effng [n word].

            March 20: [N word].

            May 14: F you.

            May 15: Keep your door closed you effng [n word].

            May 22: I oughta kill you, you effng [n word].

            August 10: Effng [n word]. Black bastard.

            From the start, Francis contacted the police and Kings Park Manor to complain. Officers from the Suffolk County Police Hate Crimes Unit inspected, interviewed witnesses, and warned Endres to stop. One of the police officers also spoke to Kings Park.

            Kings Park Manor did nothing.

            Francis called the police again and filed another report in May 2012. This time, Francis sent Kings Park Manor a letter of May 23, 2012, notifying Kings Park of Endres’ racist conduct over the previous months.

            Kings Park did not respond.

            Endres’ conduct persisted. Finally the Suffolk County Police Department arrested Endres for aggravated harassment.

            On August 10, 2012, Francis sent Kings Park another letter. It informed Kings Park that Endres continued to direct racial slurs at Francis, and anti-Semitic, derogatory slurs against Jewish people. Francis also disclosed to Kings Park that Endres had been recently arrested for harassment.

            Kings Park ignored it.

            Endres’ attempt to photograph Francis’ apartment on September 2 was the last straw. Francis contacted the police and the next day sent Kings Park a third and final letter complaining about Endres’ racial harassment. On receipt of the letter, Kings Park advised its property manager not to get involved.

So, again, Kings Park did not reply.

            The situation was resolved only when Endres’ lease expired and he relocated in January 2013. In April 2013 Endres pleaded guilty to harassment, and the NY State Court entered an Order prohibiting him from contacting Francis.

            In June 2014 Francis sued Kings Park Manor and Endres, claiming that they had violated the federal Fair Housing Act and Civil Rights Act. Other claims related to violations of NY State laws.

            Raymond Endres never appeared or defended.

            The federal District Court made short work of Francis’ claims against Kings Park, dismissing what had not been voluntarily withdrawn. Francis appealed.

            The federal Circuit Court started by reviewing the Fair Housing Act, which makes it unlawful to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status or national origin. The appellate Court determined that it would give the FHA a “generous construction,” once reminded that the purpose of the Act is to “eliminate all traces of discrimination within the housing field.”

            No surprises yet. The fundamental issue here, for those that follow FHA cases, is whether this Court would punish a landlord for choosing not to control tenant-on-tenant harassment. This claim is similar to tolerating or facilitating a hostile environment by purposeful inaction.

            Yes indeed, says this federal Circuit Court. Donahue Francis has a legitimate claim against his landlord Kings Park Manor, not for the landlord’s discrimination against Francis but instead based on the theory that Kings Park had notice of discrimination by one tenant disparaging and harassing another, and Kings Park failed to respond.

            Francis wins; Kings Park loses; Raymond Francis is cleared to prosecute his case. See Francis v. Kings Park Manor, Inc., US Court of Appeals; 2^nd Circuit; Docket No. 15-1823-cv; March 4, 2019: http://www.ca2.uscourts.gov/decisions/isysquery/d43720d6-f19f-477d-93bb-1fe2e0326eb7/1/doc/15-1823%20Complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d43720d6-f19f-477d-93bb-1fe2e0326eb7/1/hilite/.

Note however that the opinion was withdrawn for unstated reasons shortly after it was released, so perhaps we’ll get more clarity soon: https://www.courthousenews.com/wp-content/uploads/2019/04/francis-ca2.pdf.

           

            Lessons Learned / Questions Asked (assuming the Opinion is not overhauled):

1.      Lesson: Here is what we know now that we didn’t know before. After the lease is signed, Fair Housing laws continue. Landlords must now police the actions of their tenants to be sure none are engaging in harassing and discriminating behavior against other tenants, applicants, residents or occupants.

2.      Lesson: This case will put a spotlight on fair housing claims insurance and its availability to multi-family owners and property managers. This decision will also spotlight fair housing education and seminars for those professionals who deal with these issues.

3.      Question: Does your Lease form allow you to forcibly move or evict a tenant who harasses others? If not then your request of the Judge to remove this tenant may fall on deaf ears. In that situation, you cannot comply with Fair Housing Act laws – as interpreted by this decision – because you do not have the legal right to abate this situation.

4.      Coda: Oy vey ist mir.

                                                                                    Stuart A. Lautin, Esq.*

* Board Certified, Commercial (1989) and Residential (1988) Real Estate Law,

Texas Board of Legal Specialization

Licensed in the States of Texas and New York

Higier Allen & Lautin, PC

2711 N. Haskell Avenue, Suite 2400

Dallas Texas 75204

P: 972.716.1888

E: slautin@higierallen.com

W: www.higierallen.com

THE IMPORTANCE OF TENANT ESTOPPELS

             In February 2012, Johnson Thermal Systems, a producer of industrial refrigeration equipment, entered into a Lease with Gilbert Family Trust for a one-year lease term. The Lease granted JTS an option to renew for two more one-year terms, but required JTS to give Gilbert at least 60 days prior written notice.

 

            In March 2013 JTS and Gilbert amended the Lease to provide that JTS was exercising its option to extend the Lease for the first of its additional one-year terms. That amendment extended the Lease until April 15, 2014.

 

            JTS began constructing a new facility in 2014. In the interim, agents for both JTS and Gilbert discussed plans for exercising the second (last) one-year term. During lease term extension negotiations, Gilbert presented to JTS possibilities of month-to-month, six-month, and one-year lease terms at different rates.

 

            On April 10, 2014, JTS told Gilbert via email that it “would like to do a 6 month lease with the option to go month-to-month for an additional 3-6 months.” So JTS and Gilbert signed an amendment extending the Lease until October 15, 2014. JTS was allowed further extensions in that document, which required appropriate advance notice.

 

            During the six-month extension term agents for JTS and Gilbert discussed extending the Lease past October 15. However, JTS never definitively answered whether it would extend or not. Instead, JTS consistently gave Gilbert possible vacation dates, each within the six-month extension term.

 

            October 15, 2014 passed without a written or oral agreement extending the Lease. JTS continued to occupy the building and pay rent. In November 2014 Gilbert entered into an agreement to sell the property to Caldwell Land and Cattle.

 

Gilbert sent JTS a written “Notice of Termination” which required JTS to surrender possession by January 31, 2015. In opposition to the Notice, JTS asserted that it had exercised the final six-month extension term, and was entitled to remain in occupancy through April 15, 2015.

 

            Gilbert and Caldwell closed the deal in December 2014. JTS refused to vacate, so Caldwell started eviction proceedings in January 2015.

 

            Although JTS ultimately vacated, it made no repairs to the property and left in place a leased electrical transformer which JTS had installed one year earlier.

 

            Since JTS had vacated, Caldwell amended its complaint by dropping the eviction claim and instead asserting damages and related matters.

 

            In August 2017 the district court held a trial, and ruled that JTS and Gilbert had created a month-to-month tenancy after October 15, 2014. The court concluded that JTS had breached the lease by removing the transformer without Caldwell’s permission, and failing to repair the leased premises.

 

            The district court held that Caldwell was entitled to recover $85,389 from JTS, plus $150,000 attorney’s fees. JTS appealed.

 

            Sparing you the analysis undertaken by the Supreme Court, the conclusion is that JTS did not exercise the six month extension. As a consequence, JTS was treated like a month-to-month or “at-will” tenant, subject to the holdover provisions of the Lease.

 

            This is not the reason why I selected this case for your reading enjoyment. There is another reason altogether.

 

            Caldwell knew the property was occupied before Caldwell closed the deal. And although unstated in the Appellate Opinion, it does not appear that Caldwell or Caldwell’s lender sought to confirm the position of JTS prior to closing in a Tenant Estoppel Certificate or equivalent.

 

            A Tenant Estoppel Certificate would have stated the position of JTS and provided that Caldwell (and perhaps, its lender) has been inducted by the Estoppel to close the purchase, and is detrimentally relying upon the factual accuracy of the statements contained within it. Typically Estoppel Certificates state the lease term, amount of rental owing, security deposit, finish-out allowances remaining unpaid, remaining renewal and extension options, that Landlord is or is not in default, and similar.

 

            Instead, it seems that Caldwell purchased the property subject to the superior possessory rights of JTS, without completely understanding (or at least knowing) the extent of those rights.

 

            Caldwell wins; JTS loses. See Caldwell Land And Cattle, LLC v. Johnson Thermal Systems, Inc.; Supreme Court of Idaho; Docket Number 46056; November 15, 2019: https://law.justia.com/cases/idaho/supreme-court-civil/2019/46056.html.  

 

            Lessons Learned / Questions Asked:

 

1.      Lesson: One might only wonder if this lawsuit could have been entirely avoided if Caldwell had insisted upon a Tenant Estoppel Certificate from JTS as a condition to closing. Such a Certificate presumably could have disclosed the leasing term issues. Caldwell could then have forced Gilbert to address the problem prior to closing, at Gilbert’s expense.

 

2.      Lesson: In fairness to Caldwell, perhaps such a Certificate was received – but the Opinion does not describe it. Or maybe Caldwell knowingly completed this purchase without such a Certificate based on an indemnity from Gilbert or closing escrow, funded by Gilbert. Maybe.

 

3.      Lesson: Yes Caldwell ultimately prevailed in the lawsuit, but how difficult will it be for Caldwell to collect this Judgment?

 

                                                                                                               Stuart A. Lautin, Esq.*

* Board Certified, Commercial (1989) and Residential (1988) Real Estate Law,

Texas Board of Legal Specialization 

Licensed in the States of Texas and New York 

Higier Allen & Lautin, PC

2711 N. Haskell Avenue, Suite 2400

Dallas Texas 75204

P: 972.716.1888

E: slautin@higierallen.com

W: www.higierallen.com

 

                   

 

LEASE RENEWAL NOTICES

            In my Texas world, lease renewal and extension notices must strictly adhere to all requirements specified in the lease. If the tenant is late, uses an incorrect address or method for delivery, has triggered an event of default, addresses an envelope incorrectly, or otherwise stumbles, then the notice can be effectively challenged.
 

            Guess the rules are different in Illinois.

            In July 2006 LI. Portfolio Holdings, LLC leased Chicago retail space to Gap, Inc. Portfolio was succeeded by 900 North Rush LLC; Gap, Inc. was acquired by Intermix and Intermix Holdco, Inc. succeeded the Gap as the tenant.

            The initial lease term ended April 30, 2017, but the lease contained a renewal option that the tenant could exercise to extend the term for five more years. 120 day advance notice was required.

            On November 29, 2016, an attorney in Gap’s real estate law department sent a letter to 900 North Rush, on Gap’s letterhead. The reference line provided that the purpose of the letter was an exercise of option notice pertaining to “Intermix #2357.” The letter stated that, pursuant to Article XXI of the lease, “Tenant hereby exercises its right to extend the term of the Lease.”

            The letter was signed by Matthew Irwin, on behalf of Old Navy, LLC. The Gap is the parent company of Intermix, Old Navy, and many other retail clothing stores.

            The Manager of 900 North Rush timely received the letter and knew that Intermix was attempting to exercise the renewal option. However, because the option was purportedly exercised in the name of Old Navy, he believed that the option was improperly exercised.

            The Manager advised Intermix that the letter was deficient since the Tenant did not exercise the option – instead, a stranger to the lease (Old Navy) attempted to do so.

            Predictably, Intermix did not vacate the premises when the lease term ended. So 900 North Rush served Intermix with a demand to vacate, then filed an eviction lawsuit.

            The trial court held that Irwin’s letter was an effective exercise of Intermix’s renewal option. 900 North Rush appealed.

            The question presented to the Court of Appeals is a narrow one – did Intermix satisfy the Lease requirement to exercise a renewal option? 900 North Rush contends that a letter sent by Old Navy cannot serve to properly extend the Lease. Intermix argues that Irwin and Old Navy acted as agents for Intermix.

            Really, it’s a question of strict compliance. The tenant (Intermix) was the beneficiary of the extension option. Absent a principal-agent relationship, neither Irwin nor Old Navy had the right to exercise the option on Intermix’s behalf.

            The Illinois Appellate Court, like most other courts, first determined that a commercial tenant must strictly comply with a renewal option exercise or it is forfeited. In fact, the Court used the word “fatal” to describe the failure to properly exercise an option.

            Further, the Court opined that neither oral notice nor the landlord’s actual knowledge of the tenant’s intent to renew is sufficient, if a lease requires a writing.

            Sounds bad for Intermix, right. Clearly, this is not going well for Old Navy’s continued presence on East Delaware Place in Chicago.

            But wait, says the Appellate Court. The letter stated that it is being sent regarding the Lease at issue and for the purpose of exercising the option. The letter properly identified the location, date of Lease, parties to the Lease, and that Intermix was the Tenant.

            The fact that Irwin’s signature is below the words “Old Navy, LLC” is hardly dispositive, says this Court. Old Navy was only referenced in Irwin’s signature block. The content of the letter, says the Court, speaks from the perspective of Intermix.

            So, somehow, someway, this Court concludes that Old Navy had the lawful ability to exercise a renewal option for Intermix. And that Landlord is stuck with this Tenant for five more years.

            Intermix wins and gets to stay; 900 North Rush loses. I hope this is further appealed.

See 900 North Rush LLC v. Intermix Holdco, Inc.; Appellate Court of Illinois, First District, First Division; Numbers 1-18-1914, 1-18-2030, 1-18-2684; August 26, 2019: https://law.justia.com/cases/illinois/court-of-appeals-first-appellate-district/2019/1-18-19141.html.  

 

            Lessons Learned / Questions Asked:

1.      Question: Does your Lease contain renewal / extension provisions? Of course it does. This case is an aberration. Option exercise requires strict compliance.

2.      Question: Conversely, are you a tenant who failed to exactly, precisely, follow the option exercise provisions? This decision gives you some wiggle room, at least in Illinois.

3.      Lesson Reminded: Renewal / extension options benefit only the tenant. From a landlord’s perspective, avoid them if you can. For a tenant: 100% insist on them, always.

                                                                                                                          Stuart A. Lautin, Esq.*

* Board Certified, Commercial (1989) and Residential (1988) Real Estate Law,

Texas Board of Legal Specialization 

Licensed in the States of Texas and New York 

Higier Allen & Lautin, PC

2711 N. Haskell Avenue, Suite 2400

Dallas Texas 75204

P: 972.716.1888

E: slautin@higierallen.com

W: www.higierallen.com