Negotiation Checklist: Landlord-Tenant Disputes - ABA YLD 101 Practice Series

By Michael Robertson

This list is intended to provide a useful checklist for landlords and tenants who will be entering into negotiations, either directly or through mediation, in an eviction proceeding. The focus is on preparing for the negotiation itself and making sure that you come to the table with the information most relevant to a landlord/tenant dispute. Because the vast majority of these cases settle, the negotiations will likely take the place of a trial so make sure you don't leave any value on the table. You won't be able to go back and put it in a deal later. With that in mind, preparing for trial is the best way to prepare for a favorable settlement. Here are the questions you need to be able to answer before sitting down at the negotiating table:

What are the claims/counter-claims being brought against me?
This may seem like a no-brainer. Of course I'll know what claims I'm facing right? Probably. The point is that it can be very easy to focus on the big claims, e.g. non-payment of rent or breach of warranty of habitability, and lose track of smaller ones such as failure to return a security deposit. This is a small, but important point.

How strong are my claims and the claims against me?
In housing cases, it is extremely important to evaluate each and every element of every claim involved in a case. This can be especially difficult because much of the evidence needed to prove an element is limited to the testimony of the landlord versus the testimony of the tenant. This can be the case in questions of the actual amount of rent due ("The landlord said I could pay $700 instead of $1000 because of the condition of my apartment.") or whether the landlord had notice of the conditions of a tenant's apartment ("Of course the landlord knew I had roaches, he's seen them in here himself!").

To avoid these problems, and to really be able to gauge the strength of your case, seek out all documentary evidence where possible. Some key documents you will want to procure, either through your client or subpoenas are: City housing inspection reports, any photographs of the apartment with bad conditions (if they exist), copies of rent checks, and any written communication between the parties. When housing is on the line, emotions can run high. Documentary evidence is the best way to avoid getting into a he said/she said battle which neither side can really win.

What are the parties' goals?
In many cases, the client's goal is "to win." In a housing dispute, your client's goal may simply be to have a roof over her head when all is said and done. Maybe the tenant only wants to make sure that the heat is working properly in the winter and is less interested in monetary damages.

As the landlord's attorney, make it your first priority to try and learn the tenant's goals. If there is a bad conditions claim, you need to come to the table with a rough estimate of how much it will cost to repair the conditions, otherwise you will have a hard time trading off promises of repairs against any statutory damages you are liable for. Of course, you should also be up-to-date on the repairs the landlord has already finished, which will affect the tenant's claims.

As the tenant's attorney, your client counseling will play a paramount role in preparing for negotiations. It is easy to only concentrate on the legal elements of your client's case, but you will need to dig deeper for the human elements as well. Alright, that sounds corny, but it's true. The big question is whether your client actually wants to stay in the apartment if she prevails. The answer to this question should guide your objectives for the rest of the negotiation.

The Negotiation
Now that you've done your prep work, have your evidence prepared, and know what your client wants to get out of the negotiation, it is time to sit down at the time with opposing counsel. As with any negotiation, it is imperative that you go into settlement talks knowing what your best alternative to no agreement is. By definition, you should accept this settlement, even if it is your "bottom line" so long as you've carefully set that walk-away point. Good luck!

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