Take Six Steps When Tenant Seeks Help Enforcing Restraining Order
Protecting tenants against domestic violence is a difficult problem many owners face. In some situations, you may be required to let a domestic violence victim out of her lease. In New York State, the tenantial lease termination bill was signed into law on June 4, 2007, and amended on Aug. 15, 2007. Together, the original law and the amendment authorize courts to issue orders terminating the lease or rental agreement of a domestic violence victim who has obtained an order of protection and can prove that she is at substantial risk if she remains in the dwelling.
The law requires multiple procedural steps. The victim must first request that the landlord release him or her from the lease; the victim's financial obligations to the owner must be satisfied; the victim must give notice to the owner and any co-tenant; and the lease may be bifurcated between the co-tenant and the victim, if the co-tenant does not object.
But what if the victim is not asking to be let out of the lease, but rather, asks for your help in enforcing a restraining order against her abuser? Fortunately, if the tenant has taken legal steps to obtain a restraining order or an “order of protection” against an abuser, the rules are fairly clear.
A court issues these orders only to people who can show that someone has been violent with them or threatened violence. We will discuss what you need to know about restraining orders and what to do when a tenant shows you one.
What Is a Restraining Order?
A “restraining order” is a piece of paper issued by a court ordering one person to stay away from another. Courts issue these orders only to those who have proven that a partner or spouse has threatened or hurt them.
In the vast majority of cases, restraining orders are issued against men, says Norman Bates, a security expert. It is usually a preprinted form with boxes checked off and spaces filled in. At the top, it lists the name of the court, and below, it lists the names of the potential victim and the spouse or partner. It orders the spouse or partner to stay away from the potential victim.
It may specifically order that the spouse or partner stay away from the apartment building where the tenant lives. And it may order other things—for example, it could order the spouse or partner not to abuse the victim, not to contact the victim, or to seek counseling.
What to Do When a Tenant Produces a Restraining Order
If a tenant shows you a restraining order, it puts you on warning that she is in danger. As an owner, you may have a responsibility to do something to help prevent an attack. If you do nothing, you could be liable if an attack occurs, warns Bates.
Here are six steps you should take when a tenant shows you a restraining order and asks for your help:
Step #1: Get copy of restraining order. The first thing to do when a tenant tells you she has a restraining order is ask to see the order. Then make a photocopy of the order, says Bates. Keep the copy in the tenant's file so you'll know where to find it in case you later need to show it to the police.
Step #2: Verify that order is genuine. Make sure that the restraining order is genuine. It should be signed and dated by a judge. Most orders have a court seal, but some don't. In either case, call the phone number of the court, at the top of the order, to make sure the order is valid. Give the clerk the case number listed on the order and confirm the name of the case and the names of the potential victim and the spouse or partner. Also, show the order to your attorney for confirmation of its validity and advice on what it means.
As an owner, you would not want to take action based on a fake restraining order against a law-abiding tenant whose name is on the lease. Also, check for an expiration date. Orders typically expire after a set period—for example, six months after the date issued. The police won't be able to arrest the spouse or partner for violating the order if the order has expired.
If you discover that the order is no longer in effect, advise the tenant to contact the police and the court if she continues to feel threatened.
Step #3: Ask tenant for photograph and description of abuser. Ask the tenant for a photograph of the spouse or partner. Keep the photograph in the tenant's file. Make copies and distribute them to your employees, says Bates.
Also, get a detailed description. This will help your employees identify the spouse or partner if the tenant doesn't have a photo. And even if she has a photo, you will need additional information about the spouse or partner. Get the age of that person and a description, including height, weight, hair color, eye color, and any distinguishing features that the prohibited person may have, such as scars or tattoos.
Step #4: Alert building employees. When a tenant shows you a restraining order and you have verified that it is authentic, tell security staff, building managers, leasing consultants, maintenance staff, and other on-site employees what is going on. Tell them to be on the lookout for the spouse or partner and what to do if they spot him. You can adapt our Model Letter: Alert Employees of Danger to Tenant.
Step #5: Call police if spouse or partner shows up. If you or your employee sees the spouse or partner on or around the property, call 911. When the police arrive, show them a copy of the restraining order.
The police can decide how far the order goes and what action to take. If you simply tell them about the order, the police will be relying on your interpretation of it, and you might be wrong. Giving the police the order puts the matter in their more experienced hands.
If the date on the restraining order has expired, contact the tenant to ask if she has gotten a new order. If she has not, ask her if she intends to do so and tell her to show you the new order as soon as she gets it.
Step #6: Change locks at tenant's request. If the tenant requests it, take steps to change the locks, says Bates. But make sure you consult your attorney about the specific language used in the restraining order before changing the locks. Your actions should be within the scope of the order.
It is a tricky situation when the spouse or partner named in the restraining order is a tenant whose name is on the lease. Normally, you can't just lock tenants out without facing penalties and perhaps criminal charges. But a restraining order may change this.
In most situations, you have to worry more about the danger to the tenant than about locking out the spouse or partner. The order will give you support for the decision to grant the tenant's request and change the locks, says Bates. Generally, courts will determine that whatever right the abuser may have to enter the apartment is outweighed by the potential harm to the victim.
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