July 11, 2014
The California Nanny and Mediating Legal Disputes Through the Media
Marcella and Ralph Bracamonte brought Diane Stretton into their Upland, California home to provide childcare services in exchange for room and board. Ms. Stretton and the Bracamontes got into a dispute over their arrangement. Ms. Stretton stopped working and refuses to move out. Why is this story national news? The answer illustrates some pitfalls of mediating legal disputes through the media. Parties are better off resolving seemingly intractable disputes through judges, qualified mediators and experienced attorneys.
Every day, disputes arise over the treatment, performance and compensation of employees. Most states have employment commissions to alleviate stress on the court system. Disputes over how soon a landlord is entitled to have a non-paying tenant depart are also commonplace. Many courts even have special hearing days for evictions. Diane Stretton has been dubbed the “Nanny from Hell,” “Nightmare Nanny” or “Won’t Go Nanny.” Why has her story captured our attention?
In March 2014, the Bracamontes family hired Ms. Stretton off CraigsList to be a live-in nanny for their three children. Over the next three months, the relationship deteriorated. According to the Bracamontes, Stretton stopped working and continued to occupy the premises after they fired her on June 6th. See Jul. 8, 2014, J. Hayward, “Nanny from Hell and the Squatter Ethos.”
Ms. Stretton maintains that as the weeks progressed, Marcella Bracamonte demanded additional tasks of her far beyond their original arrangement. When someone isn’t getting paid their wages and doesn’t like the work, usually they simply quit and go home. For Stretton, the workplace was home. Ms. Stretton stayed despite the couple’s demands. On June 25th, they served her with legal notice in the living room of the residence.
No Self-Help Eviction. In California, like Virginia, once someone makes a property their residence and declines to leave voluntarily, the owner cannot evict them without going to court. Each state has a different housing code. Some are more friendly to landlords, others favor tenants. The common principle is that in the event of a dispute, the resident cannot be booted out without legal action. All of us sleep better at night knowing that we have a right to due process before a mortgage lender or landlord attempts to remove us from our home.
Boundaries are Good. Both the Bracamontes and Stretton voluntarily entered into this living & working arrangement as strangers without establishing significant boundaries. The Bracamontes not only consented to have Stretton care for their children, they also agreed to allow her to live with the family. On the level of human intimacy, this high on the trust scale.
Stretton is also vulnerable. She isn’t being paid a salary and relied on her “host” family for food, water, shelter, etc., in exchange for her labors. Tom Scocca of Gawker sees an element of exploitation on the part of the Bracamontes, characterizing them as seeking a live-in nanny while ignoring California’s wage & hour laws. After the situation deteriorated, they went to the media, complaining that their unpaid servant will neither work nor leave. Jul. 3, 2014, T. Scocca, “The ‘Nanny from Hell’ is an American Hero.”
A written lease agreement sets out the remedies available to the parties in the event of a default of specific obligations such as paying rent. However, the document performs another role. Even if the parties had entered into a thorough legal contract, Stretton still would be entitled to have her case heard by a judge, a process that could take several weeks or months, depending on the jurisdiction. Experienced landlords and employers know that a written agreement does not guarantee that the tenant or employee will perform according to that document. A written lease agreement is a legal instrument, but it is also an opportunity to define boundaries of human relationships at the time they form. For the Bracamontes and Stretton, those dynamics stretch both professional and personal boundaries. If the lease and employment agreement negotiation process had been conducted properly, this whole situation may have been avoided in the first place.
Counterproductive Media Attention. According to a July 9, 2014 People.com article, Stretton’s belongings still remain at the Bracamonte’s house. Although she is no longer sleeping there, she has declined to move out until conditions are met. She is unhappy that the news media is camped out around the Bracamonte house. To move she would have to run gauntlet of cameras and microphones in the hot sun. Some reports indicate that she suffers from health complications. As I mentioned earlier, eviction and employment termination disputes are common. News outlets don’t normally monitor them. Did the family or the nanny instigate the media attention to their case? The Bracamontes are no longer making appearances with CBS2 because the family now has an Exclusivity Agreement with another media network. Jul. 9, 2014, CBS2, “Controversial Nanny Tells Her Version of Events.” In the other ring of the circus, Stretton provided a “mountain of paperwork” to People magazine supporting her position. If the Bracamontes had simply gone to court like other landlords reaching an impasse, perhaps Stretton would have left of her own accord by now. Perhaps they fear a counterclaim. The parties decisions to interact with each other through the media has escalated the conflict in a mutually detrimental way. The media presence must have an effect beyond deterring the nanny’s move. I imagine news trucks interfere with day-to-day family life.
I hope for the sake of those three kids, Ms. Stretton gets a reasonable opportunity to remove her belongings from her room. Once the TV trucks leave, the adults can resolve their monetary claims. Bracamonte v. Stretton illustrates the risks of presenting a legal dispute to the news or social media rather than in court or at the settlement table.
photo credit: fredcamino via photopin cc
January 2, 2014
Can My Landlord Evict My Business Without Going to Court First? – Part II – Complications to Landlord Self-Help
In Virginia, landlords have a right to evict commercial tenants without going to Court first. This does not make it likely or wise. Even in jurisdictions where self-help is legal, it is unusual to see landlords piling up their tenants’ business property on the curb. There are several reasons why:
1. Lease Terms: Any self-help must comply with the terms of the lease agreement. The laws of Virginia and its neighbors vary regarding a landlord’s remedies upon the tenant’s default. Many commercial leases are forms adapted from use in other jurisdictions. These forms may be a challenge to interpret under Virginia law. Even terms drafted with an eye to the law of the jurisdiction may not contemplate the exercise of the self-help remedies desired by the landlord’s agents. The terms of some lease agreements eliminate the right of self-help eviction entirely. Many other leases do not clearly define the landlord’s rights to exercise self-help. When parties negotiate the lease agreement, tenants typically request that any detailed landlord self-help eviction terms be edited out. The landlord often finds himself reserving, in a general way, its common law remedies, including self-help, without defining how they may be exercised. When the issue comes up upon default, both parties experience uncertainty regarding how a court would view the landlord’s threatened action.
2. Possibility of Property Damage: The landlord may be averse to taking possession of the property in a way that may damage the tenant’s property or involve physical confrontation with the tenant’s personnel. The landlord may desire an award or settlement for the balance of the lease. Property damage counterclaims complicate collection efforts.
3. Forcible Entry Claims: In certain situations landlords and tenants may be punished criminally under forcible entry, detainer or trespass for aggressive action taken with respect to the premises and business property in dispute.
4. Bankruptcy Stay: If the tenant is in bankruptcy, then an automatic stay likely prohibits self-help. The dispute between the landlord and the debtor-tenant over rights to possess the space is addressed in federal bankruptcy court.
5. Sublease: The landlord-tenant relationship may be complicated by a subletting arrangement. A sub-landlord and the master-landlord may disagree regarding their respective rights to possess the sub-leasehold. Disagreements between the property manager and the sub-landlord may delay action.
6. Institutional Landlords: The organizational structure of the landlord may play a role. When the same individual is the owner and property manager of the building, that person will likely exercise broader discretion than in a more institutional context.
These issues do not necessarily preclude the use of self-help. A risk-adverse landlord may view going to court to gain possession as a desirable alternative.
What should a tenant do if the landlord is threatening to take possession prior to going to court? The simplest options are to (a) avoid falling into default or (b) plan a move-out in advance if a default appears imminent. In certain situations, the circumstances of the business or relationship with the landlord may be too complex or attenuated for that. The tenant may have business operations or valuable property to protect. In any case, careful consideration of the lease terms and cogent communication with the landlord are essential. Where property and income are at stake, potential risks associated with changing locks and removing property are too great for either side to view landlord self-help as the logical first step towards resolving a dispute. In these situations, a tenant is best served by interacting with the landlord through experienced brokers and lawyers.
photo credit: vasilennka via photopin cc
December 31, 2013
Can My Landlord Evict My Business Without Going to Court First? – Part I
Part I – Landlord Self Help in Virginia
Suppose a company leases commercial property to run its business. Due to economic conditions, the tenant struggles to pay rent. The landlord has declared the tenant in default, or is threatening to do so. One of the remedies asserted by the landlord is “self-help” such as changing the locks and removing the business’ property from the premises. Can the landlord do that? What strategies and considerations are available to the tenant in such a situation?
When a tenant of a commercial property falls into default under the lease, or such default is imminent, knowing what options the landlord has moving forward is essential. The tenant making present use of the leased premises needs to know the landlord’s potential legal remedies so it can craft its own plan for the immediate future and to provide a framework for negotiations. In Virginia, and other jurisdictions where landlord self-help is permitted, threats such as changing the locks or otherwise barring the tenant from re-entry, removal of the property from the premises and placing it elsewhere may be the most urgent concern to a struggling commercial tenant. Understanding the respective rights of the landlord and tenant are crucial to planning continuity of business operations and safeguarding company property.
In Virginia, a landlord in a residential lease has no right of self-help eviction. However, the right of self-help remains an option for non-residential leaseholds. The commercial landlord is limited to using reasonable force in taking possession of the property upon default. The landlord may not “Breach the Peace” in taking possession. In other words, confrontation threatening physical harm is not permitted. Self-help may be attractive to the landlord in order to make an urgent transition to a new tenant without having to go to Court, take the case to trial and have the sheriff come out to the property.
While the remedy of self-help is legal in Virginia in non-residential matters, there are several considerations that make landlords reluctant to pursue it. In Part II, I will discuss several reasons why landlords usually avoid trying self-help eviction.
