Lawyer 2.0

Well, after almost four years of practicing law, I finally know what it feels like to pay out money on a frivolous claim in order to avoid the hassle and expense of litigation!

Let me back up.  A while ago, my wife and I were living in a tiny, cramped little apartment on the other side of Watertown.  We were making less money than we are now, and with less sense of job security, too.  Its main attractions were that:

1. it was cheap, and
2. heat and hot water were included 

Its main drawbacks were:

1. our crazy upstairs neighbor who heard voices in the middle of the night and claimed we were responsible for them
2. the kids in the adjacent lot who threw rocks at our car
3. the people in our building who would steal our Sunday paper on a regular basis
4. the people in our building who would use our detergent if we left it in the laundry room, and
5. did I mention tiny?  No really, we had to step outside to change our minds. 

The landlord took a security deposit of one month’s rent, and proceeded to make all of the classic landlord mistakes, i.e. never sent notice of where it was being held and never sent notice/payment on interest accrued.  We signed a one-year lease beginning July of 2006, ending June 30, 2007.  Landlord didn’t send us notice of renewing the lease the following year which, under MA law, creates a month to month tenancy-at-will under the terms of the old lease.  Which suited us just fine, as in June 2007 we were planning our wedding and did not want to be stuck in that apartment for a full year.  Having month-to-month flexibility was our best case scenario.

In late July, we received a substantially modified lease, retroactively dated July 1, for another year.  Now when I say “substantially modified,” I mean that the landlord went from using a non-standard form to the RHA standard form that I’m sure Bostonians are all familiar with.  We were also instructed to sign the lease and leave for pickup within about 48 hours.  The prior lease had a rider attached to it indicating that landlord was required to give 30 days notice if making modifications to the lease.  Clearly, we were not given 30 days notice of the modifications.

We thought about trying to negotiate a month to month lease, but the landlord kinda had us over a barrel.  We didn’t want to move so close to the wedding (expense + logistics = ACK!).  And the landlord knew or should have known that we were getting married soon; my wife and the building’s property manager compared notes on wedding planning a few times.  So, I decided to look in the lease and see if there was a provision for early termination.

Long story short (too late!), I found language in the lease rider that suggested we could terminate the lease early, on 30 days notice.  It was ambiguous, so I ran it by a couple of my colleagues.  They agreed with my interpretation.  That, plus the landlord’s shenanigans with the security deposit and breach of old lease, suggested to me that as long as we left within about three months of the new lease ending and gave plenty of notice, the landlord wouldn’t want to make a big deal out of it.

Yeah, it didn’t exactly happen like that.

We left within three months of the lease ending.  We gave plenty of notice (more than 45 days).  The landlord involved its lawyer from the start, who sent a letter in response to our notice that we were terminating the lease saying that we couldn’t do that.  I wasn’t impressed: the lawyer’s letter characterized our letter to the landlord as a “Notice to Quit,” which is legally impossible; the landlord can send notice to quit to tenants, but not the other way around.  He also wrote ”libel” when he meant to write “liable.”  I try very hard not to make fun of other people for spelling or grammar errors.  However, when you are a lawyer, there’s a world of difference between “libel” and “liable,” and failure to double-check something basic like that seems sloppy to me.  In response to the letter, I had a conversation with the landlord’s lawyer which went, in part, like this (and I paraphrase):

Lawyer: “I just want to make sure we’re looking at the same document…what lanaguage do you think gives you the ability to vacate on 30 days notice?”

Me: “Well, if you look in the back, there’s a rider attached.  About halfway down, it says ‘Notice when vacating: 30 days.’ 

Lawyer: “Well, I don’t think it really says that you can vacate on 30 days notice.”

Me: “OK, we’re going to have to agree to disagree on that, then.” 

We paid rent in full for March, but moved out on the 16th.  By the 18th, we were completely out of the old place.  They had two full weeks on our dime to show the place unoccupied, not to mention a month before that to look for tenants.  They didn’t even have the realtor check the place out until about a week before we moved, at which point, the place was a mess — boxes everywhere.  At the end of April we got a letter from the landlord’s attorney saying that the landlord found tenants for June, that we owed them two month’s rent (April and May), and that they’re keeping our security deposit to apply against that balance, leaving us one month’s rent to pay.

I had all sorts of strategies for just making the whole thing go away.  I thought my argument would win in front of a judge.  I thought it was pretty unconscionable that the landlords deprived us of bargaining power by waiting until after our previous lease had expired to railroad us into signing a new lease on short notice when they knew we were in the middle of planning a wedding.  I thought that the landlord’s mishandling of the security deposit gave rise to a plausible counterclaim under the security deposit statute, which would have cost the landlord potentially three month’s rent.

But in the end, I negotiated for a mutual release in exchange for payment in full.  I didn’t want to put my wife — or myself, truth be told – through the stress of dragging this out any longer.  As a commercial litigator, it’s basically my job to argue with people over money all day; the last thing I want to do when I come home is argue with people over money.  If it came time to actually go into court (if I were in his shoes, I’d probably at least file a complaint), I didn’t want to have to gather all the paperwork together, write out an answer, go through the steps of documenting our counterclaims, etc.  They already had our security deposit in their hands; we could be done with it for the cost of one more month’s rent at the old place (I suppose I’m looking at the security deposit as a sunk cost.  I never assume I’m going to get a security deposit back in full.  Not because I trash apartments, but because in my experience, landlords typically overreach and deduct amounts that they shouldn’t be deducting, and it’s a pain to fight over it).  The landlords still had leverage over us: they could ding our credit reports, badmouth me to the legal community, etc.

In the end, we did the “nice” thing: we paid a bill that we disputed we even owed in the first place.  We had prudential (selfish?) reasons for not fighting; but I still can’t shake the feeling that I failed us as an advocate.  If it were a client I was arguing for, I probably would have opened negotiations with an offer to let them keep the security deposit and call it even with a mutual release.  Given their potential exposure for security deposit counterclaims, that would have been reasonable.  But I argue for other people much better than I argue for myself.

I know full well that defendants who dispute their liability — often on very compelling grounds — will often pay to make claims against them go away.  As a lawyer, I was trained to see this as a good thing: if a client settles for a higher amount than he would have had to pay out at trial, that means he places more value on finality than on pursuing the full scope of his rights under the law, conserving scarce judicial resources for those defendants who vote with their legal-fee dollars to let the process play out in front of a judge.  Free markets FTW!  Except that as a thinking human being, I realize that any system which rations out access to justice based on ability or willingness to pay for it is fundamentally flawed.  I’m not talking capital-J Justice; having to pay a month’s rent for the privilege of leaving a lease early doesn’t implicate my fundamental human rights, or anything that drastic.  But the fabric of Justice is a tapestry woven from thread consisting of thousands of transactions, exchanges and happenings each day, and a lot of ‘em ain’t exactly just.  At what point do enough of these unjust transactions accrue so as to have an effect on Justice as a whole?

Well, I’m just rambling now, so it’s probably time to pack it in.  Fact is, I just got lawyered.  When I was coming up with my strategy (fight a claim for rent), I assumed that I’d have the time/energy to carry it out.  In the end, I failed to consider that maybe, just maybe, it wouldn’t be worth it to fight back.  It’s a great reminder on a professional level: you can have the best argument in the world, but sometimes the client just wants to avoid the mess of the courtroom.