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Tenant's Free Speech Derails Landlord's Sale

Written by on Monday, 17 October 2011 7:00 pm

Suppose that a registered sex offender lives across the street from your rental property that you are trying to sell. Suppose also that your tenant -- who has been disinclined to cooperate with your sale efforts -- tells you that, unless you will waive the last month (of a lease) rental fee, he will inform prospective buyers about the proximity of the sex offender. Do you have some legal cause of action against him? Can he interfere with your sale efforts in this way?

A recent California case (Cross v. Cooper, Sixth Appellate District) dealt with facts such as these. The opinion might be surprising, as well as displeasing, to landlords.

The Coopers (tenants) leased a home from Sandra Cross (landlord) from September of 2006 until the end of August, 2007. In June of 2007, Cross told the Coopers that she intended to sell the property. The Coopers were less than cooperative. Mr. Cooper, a real estate sales agent, refused to allow a sign on the property and restricted showing times to a very narrow window of opportunity. He emailed the landlord that he would provide his limited cooperation "in exchange for our August rent free...". He also indicated that he might advise prospective buyers of the proximity of the sex offender.

Despite the limited opportunity for showings, the landlord's agent did obtain an offer which resulted in a contract of sale. Shortly after the contract was signed, though, the tenant told the buyer's agent about the sex offender who lived across the street. Subsequently, the buyers refused to sign a disclosure statement about the offender and they declined to buy the property.

The landlord sued the tenants for, among other things, "intentional interference with [the] purchase contract, and intentional and negligent interference with prospective economic relations." The tenant responded with an anti-SLAPP motion.

SLAPP is an acronym for strategic lawsuit against public participation. An anti- SLAPP motion, under California Code of Civil Procedure, "allows a defendant to gain early dismissal of causes of action that are designed primarily to chill the exercise of First Amendment rights."

The trial court denied the anti- SLAPP motion. It found that the tenant had attempted "to extort one month's free rent from Cross by disclosing the location of the offender. Since attempted extortion is a crime...the court concluded that the threat did not qualify for anti- SLAPP protection. The tenants appealed. The appellate court then reversed the trial court's denial.

First, the appellate court agreed that the speech in question -- informing the buyer's agent of the presence of the sex offender -- was protected. Under the Code, anti- SLAPP protection protects conduct "in furtherance of the exercise of ... the constitutional right of free speech in connection with a public issue or an issue of public interest." Further, the Code mandates that its provisions "be construed broadly." Hence, the court agreed with the tenant's contention that protecting children from sexual predators is an issue of widespread public interest and that "his conduct involved a private communication directly related to an issue of considerable interest to the general public."

Next, the appellate court considered the claim that the tenant's action constituted attempted extortion. It examined the Penal Code definition of extortion which requires that there be a threat: (1) to do unlawful injury to another, or (2) to accuse the individual or a family member of a crime, or (3) to expose or impute to the person a "deformity, disgrace, or crime", or (4) to expose any secret affecting him or them.

Finding that the tenant did none of those things, it reversed the trial court's order denying the anti- SLAPP motion. The tenant's right to free speech was protected.

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  About the author, Bob Hunt

Individual news stories are based upon the opinions of the writer and does not reflect the opinion of Realty Times.