From juxlaw.com
What does it mean when your landlord tries to force you out of property by turning off the utilities? It means you have a really sleazy landlord because such forms of "constructive eviction" are unlawful in all 50 states.What does it mean when your brother, who happens to be a lawyer and a landlord, tries to convince you it's perfectly fine for landlords to turn off utilities in order to get tenants out? It probably means you have a pretty crappy brother.
My wife, Carol, and I experienced both of these scenarios in the process of losing our home in Birmingham, Alabama, to what now appears to be a wrongful foreclosure. To say the experience was unpleasant would be a Bunyanesque understatement. When it happened, I had just been released from being unlawfully incarcerated for five months -- and if forced to make a choice, I would gladly go back to jail for another five months over going through another foreclosure.
Who was the landlord that illegally shut off our utilities? That would be Spartan Value Investors, a Birmingham company headed by a fellow named Clayton Mobley, which apparently was the winning bidder for our house in a courthouse auction. Once Spartan bought our house -- assuming it was done lawfully, and that's a big if -- we became "tenants at sufferance" and they became our landlords. That means they could use the normal eviction process, if necessary, to get us out of the house. But they could not turn off our utilities. Someone apparently forgot to tell the creepy capitalists at Spartan about that little quirk of the law.
What about the lawyer/landlord who tried to convince me that it would be fine for Spartan to shut off our utilities? That would be my brother -- attorney David N. Shuler of Springfield, Missouri.
Hmmm . . . whose side was David Shuler really on here?
First, let's consider the actions of Spartan Value Investors. As one of their employees, Lindsay Jackson Davis, periodically stopped by to post threatening notices on our door, we received word from Alabama Power and Birmingham Water Works that our accounts had been taken out of our names and placed with Spartan.
This was strange for several reasons. In most landlord-tenant agreements I'm aware of, the tenant pays for utilities, so the landlord wants them in the tenant's name. Here was Spartan doing just the opposite -- putting the accounts in their name, even though it was our responsibility to pay them as long as we were there. Even more troubling, both utilities swapped the accounts over before ever contacting us. They apparently just took Spartan's word that the property belonged to them and did not check with us before making the change. I'm not a lawyer, but it seems Spartan came real close to tortiously interfering with our business relationships with the utility companies. (Note: After Carol had several conversations with them, Alabama Power apparently came to its senses and put the account back in our name -- we timely paid it, and our power never was shut off.)
With my brain fried from having been kidnapped and thrown in jail, I tried to consult my lawyer brother about all of this. Here's what he said, via an e-mail dated May 28, 2014:
I don't handle real estate matters and I certainly do not know the law in Alabama. I do know that here in Missouri, they do start turning off utilities one by one to try to get people to leave the house voluntarily as opposed to being removed by force. I know there are some rules about turning off the heat if it is extremely cold outside, but otherwise, I think the new owner can turn off the utilities as they see fit. Again, that is just my understanding but I certainly do not know the law on that issue.
That paragraph includes enough qualifiers to sink the Lusitania, but the gist of it this: According to David Shuler, Esq., it's common practice for landlords to turn off utilities, one by one, on tenants. And get this . . . such tactics are designed to get the tenant to leave "voluntarily." Who knew?
My brother and Spartan Value Investors apparently were on the same wavelength. (Imagine that!). A "friend" from my college days visited us in Birmingham and convinced me to go back to Springfield with him for a few days, while Carol held down the fort in Birmingham. While I was gone, I got a frantic call from Carol, saying that our water had been turned off. My memory was that it was off for several hours before, via multiple calls to Birmingham Water Works, she was able to get it back on.
Was any of this lawful -- and did my attorney brother have a clue what he was talking about? First, let's consider the law in Alabama, where this happened and where Spartan Value Investors operates. This is from Code of Alabama 35-9A-427:
Section 35-9A-427
Recovery of possession limited.
A landlord may not recover or take possession of the dwelling unit by action or otherwise, including willful diminution of services to the tenant by interrupting or causing the interruption of heat, running water, hot water, electric, gas, or other essential service to the tenant, except in case of abandonment, surrender, or as permitted in this chapter.
OK, it's real clear: Landlords cannot shut off utilities in Alabama. What about the law in Missouri --where David Shuler, being both a lawyer and a landlord, might be expected to know a little something about such matters. This is from Missouri Statute 441.233:
Any landlord or its agent who willfully diminishes services to a tenant by interrupting or causing the interruption of essential services, including but not limited to electric, gas, water, or sewer service, to the tenant or to the premises shall be deemed guilty of forcible entry and detainer as described in chapter 534; provided however, this section shall not be applicable if a landlord or its agent takes such action for health or safety reasons.
That is as clear as the law in Alabama, maybe clearer; a landlord who shuts off utilities to a tenant is violating the law. How could David Shuler, who is both a lawyer and a landlord, not know that?
Is David Shuler a bad lawyer, a bad landlord, a bad brother -- or maybe all three? Or maybe, like so many other members of his profession, he instinctively turns into a con man when it serves his purposes -- or the purposes of other con artists who have sought his assistance.
That leaves us with this question: Whose purposes is David Shuler serving, and does it involve stabbing his brother and sister-in-law in the back?
