15 minute read
Law In Order
WHY CAN’T WE ALL JUST GET ALONG? CONFLICT MANAGEMENT AND RESOLUTION WITH TENANTS
By Hari Nathan Kalyan (Partner), Allison Mattocks (Partner) and Mari Garza (Counsel)
Conflict is everywhere. Just watch the daily news or scroll through your social media feed, and you’ll find disagreements and disputes all around you. As a result, knowing how to effectively address conflict is an indispensable skill. Everyone has different communication styles and conflict management approaches, and it’s common for one to default to what is comfortable. But not every conflict requires the same response. Effective conflict management and resolution can help you navigate your next dispute.
Doing so has many benefits. You can reduce the negative impact conflict can have on your mental health and that of those around you. You can also reduce the time you spend cleaning up a mess that has spun out of control by constructively addressing the conflict when it first arises. Proper conflict management can also promote trust among the participants.
The best way to resolve conflict between the property and tenant is to prevent it all together. Even the most ironclad lease agreement and preemptive measures cannot entirely prevent misunderstandings and disagreements, but they certainly can help. The lease agreement is a legally binding contract, and a court is likely to rely heavily on the provisions of the lease agreement in resolving a dispute. That is why it’s essential to review the written lease agreement and community policies and utilize these documents as support for your position in a dispute.
You’ll rarely hear tenants of multifamily properties make statements such as, “I didn’t know doing [insert prohibited conduct here] was against the rules. Thank you for explaining this to me.” Regrettably, pointing to lease paragraphs that the tenant violated may do little to assist the tenant in seeing things from management’s perspective. After all, the tenant did not negotiate any of the provisions of the lease they signed; they simply agreed to all of the provisions in exchange for housing.
Instead, we urge you to provide a written explanation of such rules in order to memorialize delivery of the message to the tenant, confirm receipt by the tenant, and to repeat this process consistently. This type of lease discussion with a tenant may be the first of many steps taken toward gaining a tenant’s compliance or addressing their dissatisfaction. Each step must be properly and thoroughly documented internally using your tenant-management software system and externally by memorializing your discussion in writing by email or some other manner to the tenant. Too often, we encounter situations where management’s prior efforts to resolve disputes are lost because of personnel changes within the company. When a manager is terminated or moves on from the property, their firsthand knowledge leaves with them.
To avoid this, make sure each member of your management team documents their dispute resolution efforts in a record made at or near the time of the event or reasonably soon thereafter. Taking the time to memorialize the discussion in a written communication, lease violation, notation, or memorandum will cause that discussion to become part of the landlord’s business records. Under the Texas Rules of Evidence, Rule 803(6), these business records can be brought into a lawsuit without the need for testimony by the manager who originally had the discussion and made the record.
This is a powerful tool to overcome the inevitable personnel change and faded memories of the parties involved.
The cost of unresolved conflict can be pricey. Dissatisfied tenants, just like misbehaving tenants, cause disruption in business operations by diverting management’s time and resources. As such, it is often management’s goal to encourage the dissatisfied tenant to voluntarily vacate or to judicially remove the misbehaving tenant through eviction proceedings. Months, sometimes years, down the road, however, the unresolved conflict may show up in the form of a lawsuit brought by the tenant against the property owner, management company, or management personnel. Even to defend against a small claims case in the justice court, where a judgment awarded to the prevailing party cannot exceed $20,000 including attorney’s fees, a business can incur thousands in legal fees. Whether or not the lawsuit has merit, management is usually instructed to hire local legal counsel who will investigate and respond on the landlord’s behalf. Legal counsel, usually charging hourly, will rely heavily on the business records you created at or near the time of the conflict to evaluate the landlord’s exposure to liability. After evaluating the evidence, the attorney will determine whether engaging in settlement discussions is the most cost-effective way to settle the new claim stemming from the old, unresolved conflict.
Under the tenant’s lease and the Texas Property Code, the landlord has a duty to make diligent efforts to address concerns that are made known to them by the tenant. The swiftness with which management is able to investigate, evaluate and resolve those concerns depends on numerous factors. A crucial factor that cannot be overlooked is your ability to effectively manage conflict from the onset.
Conflict Management Styles
Conflict management styles break down into five categories: (1) Accommodating; (2) Avoiding; (3) Collaborating; (4) Competing; and (5) Compromising. Their identifiers are relatively straight-forward and as you read this; we imagine you have already identified which “style” is your default. Here are the elements of each style: Accommodating requires a less-assertive approach, where your position is voluntarily sacrificed for the position of the other party. This style is often beneficial with a trivial conflict, where you lack time and energy to devote to squabbling, or where preservation of the relationship is more important than being right. You cooperate fully to allow the other’s needs to be met.
While it is important to adhere to and enforce community policies and apply them evenly to all tenants, you may, and should, make exceptions to the rules on a case-by-case basis. Sometimes, the situation calls for an accommodating approach. In fact, eviction holdoff agreement exist to accommodate this conflict management style. Fortunately, under paragraph 24 of the Texas Apartment Association (TAA) Lease, should the landlord accommodate the tenant on this occasion, the landlord is protected from waiving their right to enforce their rights in the future.
Keep in mind that taking the time to think through the problem or when your focus is on putting out another (larger) fire can qualify as “avoiding,” but do not let it drag on for too long.
Collaborating demands all parties involved in the dispute cooperate to find a beneficial solution for all. This style requires time and usually requires lots of communication between the parties. Managing an apartment complex full of tenants with diverse opinions and outlooks may make collaboration seem like a difficult option, but it does not have to be. Collaboration can be useful where there are many different versions of the same facts. For example, you may find an opportunity to collaborate by mediating a dispute between feuding neighbors. In doing so, management can help to remove the physical and metaphorical wall which separates them and find a way forward.
Avoiding conflict management style is just that, turning a blind eye to the conflict. There is low assertiveness and cooperation here. This is an unproductive conflict management style with landlord tenant conflict and likely will result in the tenant thinking you do not care; not to mention, you may be violating the law by dodging the concern. Avoidance can lead to a larger problem.
Competing may be useful when you need a fast resolution, and you have no choice but to “force” your position onto the other. This highly assertive style has low cooperation from the other involved, but sometimes is needed when you are in a higher position of power than the other. This conflict management style is undoubtedly closer to how landlords and their management teams are perceived by the public. The landlord in the multifamily housing context is typically a company and is, in fact, in a position of power over the tenant. Not only do the TAA Lease provisions favor this power dynamic but, so long as we strictly follow those provisions, so do the courts. To save time, and while juggling a multitude of other tasks, sometimes managers must act decisively on behalf of the landlord. Specifically, a manager may be required to act quickly and enforce the rule, only to later uncover facts which inform the landlord’s decision to make an exception to that rule. While this conflict management style is effective at resolving a tenant’s immediate concern, once able, a follow-up email with additional explanation may be helpful. The email would not only help your relationship with the tenant, but it would also create a record for the tenant’s file.
Compromising is a middle-ground conflict management style. There is moderate assertiveness and cooperation from all involved, and everyone gets their needs met. Limited time constraints can help move this style along, though they can stifle creative options, which can lead to some dissatisfaction in the result. This is the “you may not love it, but you can live with it” method.
In property management this is perhaps the most utilized conflict management style due to its effectiveness. Apartment living, by its very nature, is replete with situations that require compromise. In fact, such compromises are codified in the lease and property law. For example, by signing the TAA Lease, the tenant agrees, under paragraph 10.5, that odors, smoke, and smells, including those related to cooking and everyday noises or sounds, are all a normal part of a multifamily living environment. The tenant further agrees that it is impractical for the landlord or its agents to prevent them from penetrating their apartment. Despite the initial agreement to these terms, conflicts which require compromise inevitably arise.
Managers serve as the compromise facilitators, weighing the rights of one tenant against the responsibilities of another. There is no one-size-fits-all solution to the conflicts managers are presented with each day; thus, your ability to reach a compromise with and among tenants will elevate you among your peers and lead to higher tenant retention.
Conflict Resolution
When conflict walks through your door or pops up in your inbox, first ask yourself what is truly the problem? This requires active listening, asking clarifying questions, and investigating all necessary information to fully understand the “problem.” Our human nature often requires we be “heard.” That is the essence of the court system. But we can still be heard in dispute resolution. This does not require us to be a punching bag, but sometimes just listening can ease the stress of a dispute. Understanding the tenant’s motivation and concern is important because you can narrow down the true nature of their complaint. Often, tenants who are—for lack of a better word, difficult—are reacting from a different emotion. They may be fearful of losing their housing. They may be struggling with a separation or divorce. They may be unhappy at work. They likely also do not have awareness of their communication and conflict style. Doing this can help you identify which conflict management style will be the best approach.
Stay calm, be rational, and remain disciplined. Do not raise your voice. Before responding, if you feel your emotions rising, take several deep breaths, blink, pause. Many people take hints from the verbal and non-verbal reactions of others. You should also set those communication the concern, the conversation, the action plan, and any deadlines. You may also keep a written log of communication as an internal business document. Having a “paper trail” is important for follow through and knowing when the conflict is truly resolved.
When conflict cannot be resolved between the property and tenant, the lease agreement is your guide for next steps. A mediation or arbitration clause, or both, will dictate what step comes next. These forms of alternative dispute resolution include a structured, interactive approach through an impartial, third party who assists with resolving conflict. Mediators and arbitrators are trained in the skillset and can guide different personalities and work styles towards a common result. You can use a private mediator/ arbitrator, or, in Austin, the Dispute Resolution Center offers community mediation services to all people in Travis County and the surrounding Austin, Texas areas, including landlord/tenant law.
Operational Measures
Addressing conflicts effectively can help maintain a positive community environment and keep tenant turnover low. But you don’t have to, and in fact you cannot, do it alone. Here are some operational measures a multifamily property management company can implement: boundaries at the outset. Be clear you will not tolerate and end the conversation if it turns to yelling, use of vulgarities or foul language, and especially if it turns to threats or violence. When left to their own devices, tenants will rely on Google, blogs, or other misleading forums of information on how to handle certain situations. Be the model for how communication and conflict resolution will happen. Effective conflict resolution requires respect, and that starts with you.
Be timely in your responses and document everything. This is especially true if you have in-person or telephone contact with the tenant. Follow up with an email recounting the concern, the conversation, the action plan, and any deadlines. You may also keep a written log of communication as an internal business document. Having a “paper trail” is important for follow through and knowing when the conflict is truly resolved.
When conflict cannot be resolved between the property and tenant, the lease agreement is your guide for next steps. A mediation or arbitration clause, or both, will dictate what step comes next. These forms of alternative dispute resolution include a structured, interactive approach through an impartial, third party who assists with resolving conflict. Mediators and arbitrators are trained in the skillset and can guide different personalities and work styles towards a common result. You can use a private mediator/ arbitrator, or, in Austin, the Dispute Resolution Center offers community mediation services to all people in Travis County and the surrounding Austin, Texas areas, including landlord/tenant law.
Operational Measures
Addressing conflicts effectively can help maintain a positive community environment and keep tenant turnover low. But you don’t have to, and in fact you cannot, do it alone. Here are some operational measures a multifamily property management company can implement:
1. Training: Provide regular conflict resolution and customer service training for staff. This will equip them with tools and techniques to handle disputes calmly and professionally.
2. Clear Communication: Ensure that all policies, fees, and guidelines are communicated clearly to tenants from the outset, reducing the potential for misunderstandings.
3. Open Lines of Communication: Establish regular channels for tenants to voice concerns or grievances, such as monthly meetings or a suggestion box.
4. Responsive Maintenance: Address maintenance requests promptly. A lot of tenant disputes arise from unaddressed maintenance issues.
5. Document Everything: Keep detailed records of all interactions, complaints, and resolutions. This can be crucial for both understanding recurring issues and for legal protection.
6. Regular Feedback: Solicit feedback from both staff and tenants about potential areas of concern before they escalate.
7. Conflict Resolution Protocol: Have a set protocol in place detailing the steps staff should follow when a conflict arises. This ensures consistency and fairness in handling disputes.
8. Respect and Empathy : Train staff to always approach conflicts with an attitude of respect and empathy, understanding that every tenant’s concern is valid from their perspective.
9. Flexible Solutions: Sometimes, offering a compromise or alternative solution can defuse a situation. Empower staff to be creative in their problem-solving.
10. Safety Measures: Ensure that there are security protocols in place for staff in case conflicts escalate to threats or violence. This might include panic buttons, security personnel, or camera systems.
11. Stay Updated on Laws: Ensure that all staff members are updated on tenant-landlord laws in your jurisdiction. This can prevent legal disputes and misunderstandings.
12. Regular Check-ins: Periodically check in with tenants, especially those who’ve had previous disputes, to ensure their concerns are being addressed.
13. Neutral Spaces: Create neutral spaces in the property where disputes can be discussed away from other tenants, reducing the chance of public confrontations.
14. Follow Up: After resolving a conflict, follow up with the involved parties to ensure the solution is still working and no new issues have arisen.
Remember, proactive measures are just as important as reactive ones. By fostering an environment of open communication and trust from the start, many conflicts can be prevented before they begin.
Notwithstanding, in property management, as in all things with life, encountering the inevitable “bad apple” tenant who does not pay rent, repeatedly violates the lease agreement, or intentionally damages property. When the situation is exigent or seems beyond repair, do not hesitate to contact an attorney for legal advice on the best course of action to take to protect the property’s interests.
The authors can be reached at Warren Kalyan & Mattocks, 506 W14th Street, Suite A, Austin, TX 78701, or through their firm’s website at www.WarrenKalyan.com. Email: hello@warrenkalyan.com; phone: 512-347-8777; instagram: @warrenkalyan
