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My girlfriend and I are in an open case against our landlord…

My girlfriend and I are...
My girlfriend and I are in an open case against our landlord for failure to pay rent due to inhabitability. He ignored our letter and filed a Notice of Petition against us, 2 days before our lease states he can, for failure to pay rent. He also did not provide us with a three day notice for a demand for rent, he used the wrong address from what is stated in our lease, and he did not include every tenants name on the filing. Our court case was granted an adjournment and the case was pushed back and set for this Thursday, February 22nd. Since our court case was pushed back, he has held a four hour open house on Sunday (yesterday) and brought tenants that just moved into the apartment upstairs two weeks ago to see the apartment. He did not "show" the apartment, he just stood in the living room looking at our papers while I showed the apartment to the people living upstairs. He gave us a 24 hour notice, but we never responded to the notice..yet he still showed up. Now he texted us today that he will be having someone come at "noonish" to inspect the apartment on Wednesday, the day before court. He did not provide the company he would be using. He has also been telling the tenants that we are suing him and having them fill out a questionnaire, with yes or no questions and a likert scale, stating that their heat is working properly (yes or no), if the have evidence of mice (yes or no) (We stated bats and squirrels in our letter, not mice), and that he has responded in a quick manner to requests (1-10 likert scale).We would like some guidance on how to format our best defense/counterclaim against the claimant. We have so many things that he has done, but we don't want to bombard the judge with every single counterclaim that we could use. We are unsure of the proper path forward for the strongest defenses/counterclaims. Also, we don't know what is legal/illegal for our landlord to do while the case is still open.Attached for your reference:- certified letter we sent him on February 1st, 2018, stating we would withholding rent for the month of February.
- list of text messages between all parties dating back to November 2nd, 2017
- summarized list of laws, that we believe the landlord has violated
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Customer reply replied 4 months ago
Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Legal Research on Case Law, Codes, etc. + Write Legal Documents + Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Answered in 2 hours by:
2/19/2018
Gerald-Esquire
Gerald-Esquire, Attorney
Category: Landlord-Tenant
Satisfied Customers: 5,239
Experience: Over 30 years of experience
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Hello,
Thank you for using Just Answer. Please bear with me while I review your question. I will respond fully shortly. Thank you for your patience.

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I am working on your answer now. I am sorry for the delay. It takes some time to prepare a complete answer. Please note the phone call requests are generated automatically from the system. I do not control them.

Thank you for your patience and understanding.

Kind regards,

Gerald

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Customer reply replied 4 months ago
Thank you very much, Gerald. It is greatly appreciated.

Hello,

Thank you for your patience and thank you for using Just Answer. I want to provide you the best service I can. Please feel free to ask any follow-up questions you have.

I am an attorney with 30 years of experience; I hope to provide you information that will help you in resolving your question.

You have done an excellent job of documenting the violations by the landlord. Also do so with his obvious attempts to harass and intimidate you.

As far as presentation - one of you should testify. The other can confirm the testimony and add anything that was forgotten.

You should be able to use your notes as an outline.

Make sure that you bring copies of all communications that you sent to the landlord and their response.

If you have any photos of the conditions bring them.

If you have anyone who can testify in support of your testimony that would be great. Friends are good, but neutral third parties are better (for example if you have a person that cleans for you that can testify about the condition of the apartment).

Start with the most egregious violations. Break the violations into categories if you can.

Also you can prepare a "trial brief" and offer it to the court. They may or may not take it, but if they do it can be beneficial to you. A trial brief summarriazes your fact, you can attach copies of your exhibits, summarizes the law, and asks for the remedy that you want.

It is important to know what remedy you want and ask for it.

Dress well, be professional and civil. Try not to show your disdain for the landlord. Let the facts speak to that.

I hope the information I provide is useful to you. I want you to be comfortable and satisfied with my attempt to assist you. Please, if you have ANY follow-up questions, feel free to ask.

If you ask a follow-up question and I do not respond immediately, it is because I am temporarily unavailable. I promise to respond as soon as I return. Please note that I am often unavailable Friday evening through Sunday.

Please do not forget to give me a positive rating. It adds nothing to your costs but helps me greatly. Thank you.

If you are dissatisfied with my response, PLEASE let me know before giving me a negative review so that I may try to be of better assistance. Or, if you prefer, let me know and I can “Opt Out” and your question can be re-posted without additional cost to you. I will be fair to you, and only ask the same from you.

Good luck.

Please note: Information is educational and not given as legal advice. Only your local attorney can give legal advice. I can't establish or accept an attorney-client relationship with you. All posts are available for public viewing.

Kind regards,

Gerald

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Customer reply replied 4 months ago
1. We are subpoenaing:
- the code enforcement case worker, who red tagged our apartment in December
- Healthy Neighborhoods case worker who did a walk through a provided a report for the apartment
- The exterminator who inspected the house for bats and squirrels
- The maintenance man (hired from the mission, who is not certified)
*Should we subpoena other tenants that have been told by the landlord that we are suing him?2. Do you think it is appropriate to apply for a Subpoena Duces Tecum for our landlord to provide:
- Proof of last house inspection
- Receipts of when the carpet was last replaced (He told us the carpet was replaced three years ago when we moved in and that he wouldn't be replacing it. This was before we saw evidence of mold under the carpet)
- Receipt for the last time the boiler was inspected
- Receipt that the boiler was fixed properly when the apartment was red-tagged
- Receipts of smoke alarms being installed by a certified electrician
- Reports of Lead paint inspection/correction (Our apartment was built pre-1960)3. Is it legal for our landlord to hold an open house during an open court case? Does this count as harassment of any kind?4. Should we bring up the harassment? Do our encounters even count as harassment?
a. Entering without proper notice
b. Intimidating the tenant
c. Interfering with the tenants right to privacy
d. Refusing to do proper repairs required by law
i. Corrected red-tag, but not by a licensed professional. Boiler still doesn’t work properly.
If so, what is the best way to present this to the judge?4. Is it legal for our landlord to hold an inspection of just our apartment and not the whole house during an open court case? We stated that multiple tenants have complained about bats and squirrels, so shouldn’t he have to inspect the whole house?5. Since only one occupant is listed on the lease and the notice of petition, does that mean that I would still hold possession of the property if we lose the case?6. If we provide the court with a trial brief, do we provide this document prior to the court date or while in court? Can this document provide extra information or just information we will be bringing up in court? I’ve never heard of a trial brief before.7. Should we focus only on a few counterclaims and then file a small claims court after this case ends? Or should we present all of our evidence in this case?8. When presenting to the judge, do we have to provide the law code number that he was violating?9. When asking for a remedy, can we ask that the property be properly fixed AND that our lease is terminated early, or is that overkill?

Wow. You have a lot here. Please give me some time to go through it.

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Customer reply replied 4 months ago
Sorry, our landlord is a total slumlord, so our list of possible defenses/counterclaims is about a page and a half to two pages long. I do have text messages back and forth from the landlord and the reports given to us by the agencies that have walked through the apartment, if you would like me to attach them.Also, if you would like to take tonight and send your response to the questions tomorrow, that would work as well. I would just like to have the questions about subpoenas and the trial briefing answered tonight, since we have to apply for them tomorrow to comply with the 48 hours prior to the court date rule.

Okay. I'm going to try to cover everything as you laid it out:

1. We are subpoenaing:
- the code enforcement case worker, who red tagged our apartment in December
- Healthy Neighborhoods case worker who did a walk through a provided a report for the apartment
- The exterminator who inspected the house for bats and squirrels
- The maintenance man (hired from the mission, who is not certified)
*Should we subpoena other tenants that have been told by the landlord that we are suing him?

This is all very good. You should have one tenant testify to the degree that it shows that the landlord is trying to isolate you from the other tenants and that he is harassing you. One is enough for this.

2. Do you think it is appropriate to apply for a Subpoena Duces Tecum for our landlord to provide:
- Proof of last house inspection Yes
- Receipts of when the carpet was last replaced (He told us the carpet was replaced three years ago when we moved in and that he wouldn't be replacing it. This was before we saw evidence of mold under the carpet) Yes
- Receipt for the last time the boiler was inspected Yes
- Receipt that the boiler was fixed properly when the apartment was red-tagged Yes
- Receipts of smoke alarms being installed by a certified electrician Yes
- Reports of Lead paint inspection/correction (Our apartment was built pre-1960) Yes

3. Is it legal for our landlord to hold an open house during an open court case? Does this count as harassment of any kind?
It is probably legal - because there is likely a term in the lease. But youc an bring it up as an indication that he has been retaliating against you. Move it to a lower priority in your case.
4. Should we bring up the harassment? Do our encounters even count as harassment?

a. Entering without proper notice
b. Intimidating the tenant
c. Interfering with the tenants right to privacy
d. Refusing to do proper repairs required by law
i. Corrected red-tag, but not by a licensed professional. Boiler still doesn’t work properly.
If so, what is the best way to present this to the judge?

Yes to all. State to the Court that "You would like to orally amend the complaint to include allegations that the landlord has engaed in retaliation since you started exercising your rights.

4. Is it legal for our landlord to hold an inspection of just our apartment and not the whole house during an open court case? We stated that multiple tenants have complained about bats and squirrels, so shouldn’t he have to inspect the whole house?

You can use this to indicate the harassment and retaliation, buthis conduct is not per se illegal.

5. Since only one occupant is listed on the lease and the notice of petition, does that mean that I would still hold possession of the property if we lose the case?

If he did not name you by name or as a "Doe" defendant the Complaint to Evict is defective. Make a Motion for it to be dismissed.

6. If we provide the court with a trial brief, do we provide this document prior to the court date or while in court? Can this document provide extra information or just information we will be bringing up in court? I’ve never heard of a trial brief before.

It is better to have it filed ahead of time. But if you do not have time to complete it bring it to court. It is a toss up as to whether or not the Court will accept it. You have to serve a copy on the defendant. Regular mail or overnight mail will do. Overnight may be better because you will have a receipt it was delivered.

Trial briefs are often used to help the court have an organized presentation. It will include a summary of the evidence you intend to introduce with references to the exhibits or witness that you use to prove the allegations.

7. Should we focus only on a few counterclaims and then file a small claims court after this case ends? Or should we present all of our evidence in this case?

Counterclaims are your side of the suit. You do not get to file an additional case after this one on the same issues and facts. So this is your opportunity to presnt your case. All of it.

8. When presenting to the judge, do we have to provide the law code number that he was violating?

You should refer the Court to the citations to the law. Bring copies in case the Judge asks. Your goal is to make the Judge's job as easy as possible to find for you

9. When asking for a remedy, can we ask that the property be properly fixed AND that our lease is terminated early, or is that overkill?

Ask for: 1) early termination without penalty, with a grace period of 60 days to find a new apartment 2) Refund of all rent payments made while the property was unfit, 3) Punitive damages for the retailation, 4) return of your security deposit. Give dollar amounts where you can.

IF you negotiate a settlement get paid up front.

Kind regards,

Gerald

(Please do not forget to rate me – click the five stars. It adds nothing additional to your costs, but it helps me greatly. Plus it is good Karma for you. Thank you.)

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Customer reply replied 4 months ago
Thank you so much!I just have a few more follow up questions to your answers:If we ask for the case to be dismissed, will we not be able to go forward with our counterclaims?When asking for punitive damages, is this a monetary value that we just come up with? Or is there a list/document we go off of?Do we ask the judge to have the settlement be paid up front or is that done out of court?

If you filed your counter claims they are your lawsuit against him. You are asking ONLY for the eviction to be dicsmissed since it did not properly name you BUT NOT your counterclaims. You need to be clear how you present that to the Court.

You are probably not going to get the punitive damages. But you should still ask. You are in small claims court. So there is a limit anyway.

The point of the litigation should be to put you in a good negotiation position. Settlment is almost always better than having a judge decide. Settlements are agreements outside of Court. BUT if you do make a deal make sure you get paid up front and that there are releases signed by everyone to make sure the case is really over.

Some of this is a little too complicated to type about. Essentially the Court is there fore when you can't reach a settlement.

I have submitted an OPTIONAL offer to you for a premium service phone call so that we can discuss your concerns more easily. It is purely optional and I do not want you to spend extra money if it is not necessary. We can continue to post at no additional charge.

Otherwise if you are satisfied with the information please do not forget to rate me – click the five stars. It adds nothing additional to your costs, but it helps me greatly. Plus it is good Karma for you. Thank you.

Kind regards,

Gerald

Gerald-Esquire
Gerald-Esquire, Attorney
Category: Landlord-Tenant
Satisfied Customers: 5,239
Experience: Over 30 years of experience
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