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who gives power to a magistrate-judge? the voters? what limits his-her power?

Posted on 2008-10-17
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Last Modified: 2008-10-22
We have a magistrate and I've spoken to him twice over the years about legal issues that did not involve my current landlord. He seemed to have an ego whose foundation was "power"
I've heard he is pro-landlord which might suggest tenants have little hope in his court.

1. I assume he was elected to office by the residents on the county?

2. What are his power limitations?

3. Can he make a decision based on his personal opinion?

4. Can he make a decision based on his personal beliefs?

5. What about his "incorrect' interpretation of the law?

I know there must be an appeal process, but even in national media court and jury trials jwe've been forced into our homes by the media, judges have made "shocking" decisions.

6. Why can they make any ruling they want?

A poor evicted tenant who is lucky to get a hearing at all, might not able to have a lawyer or be able to appeal so a unreasonable judges's decision could affect that person's future life in negative ways.

7. Who regulates a judge's power or is their power unlimited?
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Question by:nickg5
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PeterMac earned 250 total points
ID: 22741059
Magistrates
They are "selected", not elected, believe currently by a committee from local government.
They do not sit on civil cases, only minor criminal ones, so your aqauintances "bias" towards landlords is unlikely to affect any cases he sits on.
Powers are strictly limited, in terms of sentensing, smal fines, community service, or very short prison terms.
Decisions usually will be made based on his personal opinion, and beliefs, regarding evicence presented.
For interpretation of law, there will be a qualified lawyer (Clerk of the court) present, who will give advice on points of law, in some cases without request, if they feel that law is being misinterpreted.
Appeal process is relatively straightforward, and will usually be granted on request of defendant (they need to bear in mind that an appeal court will have much greater power, and if the appeal fails they are likely to face a much greater penalty.
Magistrates are expected to make reasonable dicisions, and although they do have a fairly free hand in coming to a decision, they are not likely to remain in office long if they make controversial decisions (this is not true of judges where appointment system is different, and is essentially for life).

The process a landlord needs to go through to even get an eviction hearing into court, means it is extremely unlikely that the "poor evicted tenant" has any valid reason to remain resident in the property.
If the tenant is paying rent, was not given a termination date at start of tenancy, and has not broken any of the rules given in the tenancy agreement, a landlord could not even get an eviction order into court.
legal representation would normally be free for anyone with limited finance. Often the boot is on the other foot, a small private landlord would be unlikely to get free legal aid, and could probably not afford a decent lawyer, but his tenant probably could.

A high court  judges power is pretty much unlimited, and needs to be, but appeals are possible in both criminal, and civil cases. legal representation would normally be free for anyone with limited finance.
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by:nickg5
ID: 22741203
The process a landlord needs to go through to even get an eviction hearing into court, means it is extremely unlikely that the "poor evicted tenant" has any valid reason to remain resident in the property.

.......in the above situations, I'd be referring to landlords who say they can evict someone as an undesirable tenant.....reasons acceptable in court? hair color?

my landord has threatened to evict me as an undesirable tenant for another tenant's failure to pay rent on time, another tenant's lease violations, planting a tomato plant in my yard, having an overnight guest, etc. Get the idea? Phony reasons....

In my county the Magistrate handles evictions and my landlady says she has never lost and "believe me" she has no limits on what she would spent in eviction fees to get rid of someone.

A tenant in a fight for their home may need a lawyer to make sure the magistrate goes the honest route in a decision. And we're talking about private property rental spaces and not public housing.
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by:PeterMac
ID: 22741483
Really sorry for your situation. Thought from your original post you were asking from third party perspective, and just gave general information. Most does apply though, even to your situation.
There are some rougue landlords around, to assess situation properly would really need to know why landlord wants rid of you. If you really are paying rent (even if not always in time) and generally are behaving reasonably, there should not be a reason.
In terms of fighting eviction, best advice I can give, is to visit your local citizens advice bureau, and explain problem to them. They will be able to give advice based on your personal situation, and tell you exactly what your rights are. They may even be able to organise legal defense for you. make sure you take copy of your lease/rental agreement with you, and any evidence of rent payments. pluss details of any complaints the landlord has made against you.
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by:nickg5
ID: 22741534
already taken the lease to Legal Aid Services...........overnight visitor rule is a violation of constitutional rights and other clauses of lease are against the law.
Also, lease is month to month and this may prevent the landlord from being liable.
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by:nickg5
ID: 22741575
here are grusome details if you have the time. I'm seeing a lawyer on Monday. I'm expecting that on private property and a month to month lease that has never been enforced, I have 2 choices......live here and go insane or move out with an income of $1000 (disability) and a 40 year old mobile home where no place to put it and if sold I'd need a 26 foot truck to carry all my stuff, and where would I go with this truck?

http://www.experts-exchange.com/Other/Miscellaneous/Q_23811403.html
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by:PeterMac
ID: 22741726
Month to Month could be a problem, depends how long you have been living there.
If only for a short period, may be accepted as just a short term lease, and you really would not have much to fight with. If you have been there longer, a couple of years or more, then you could probably argue against that. Any idea why landlord really wants you out ?? so far you have only given phony manufactured reasons.
Still reckon your best bet is through Citizens Advice Bureau. If this landlord has a bad record of evicting people that itself could be used as a defense.

Last point, how difficult would it be for you to find alternative accomodation ?? Is it really worth the hassle of fighting for your current place, with the prospect of having to do so more or less on a continual basis. It might be in your interests to agree to leave - on conditiosns (full return of any deposit, a reasonable time to find alternative accomodation, etc.) knowing why they want you out could be a lever.
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by:nickg5
ID: 22741801
I've been here 7 years........
I need to have overnight visitors, such as friends from other states-countries.
She forbids it since her main purpose there is to prevent men from having their girlfriends over and vice versa. Her Christian life says unmarried couples are a sin. She'll evict you if you are found not to be married.
She is allowing another tenant to have a "guest", a local one that could be 1+ nights week forever. My type guest would be single events for maybe 2-3 weeks.
She says she'll evict me as an undesirable tenant with a 30 day notice if I continue to arge why the other tenant should not have a guest. The truth is she knows the parents of the "guest" and is fearful of hurting the friendship.

you say manufactured reasons........well, I'm told she can evict for ANY reason with a 30 day notice, the lease allows her to terminate with a 30 day notice. That is what legal services lawyer told me. I'm going for a 2nd opinion on Monday.
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by:PeterMac
ID: 22741904
Sorry last posts crossed, I assume now that your lease is just for the land your mobile home is currently occupying, rather different situation to what I understood before, and much harder to fight eviction.. Don't think I can offer you any further advice though, as my knowledge of US law on these points is not that good. Very similar to UK law, but there are variations by state that complicate matters a lot. I wish you best of luck, but although you seem to have a good case to fight, am not sure what your real prospects are.
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by:PeterMac
ID: 22742290
Possible you could fight that kind of lease, on grounds of unreasonableness, due to time you have lived there, particularly if you have dissability, but prospects are not good. Doubt your landlord would even bring up real reason in court, so no way to fight that there. Unfortuneately attacking her on basis of her made exceptions in another case will not have helped situation.
I assume you were aware of her restrictions, and views when you took the lease, so best thing you could do would be to agree to her demands for the moment, and let things blow over for a while. If all your visitors are opposite sex, it is unlikely you can convince her they are really just friends visiting, but idf you could arrange to have a couple, or even same sex friend visit occasionally you may be able to convince her that your friends are just that, and that you are not just having "girlfriends" over. Try and convince her that your views are at least broadly in line with hers, and she may act a little more tolerantly with you.
In meantime you should continue to explore both legal situation, and prospects of finding somewhere you could move to.

                   Sorry will be going out shortly so not able to post anything more. Can't really think of anything else that would help, other than sympathy.
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by:nickg5
ID: 22742656
I found an article by searching google for eviction as an undesirable tenant.
It was not for my state but it said, if a tenant files a complaint: ex: I file a complaint that her overnight guest rule is aginst the law, she can not evict someone who has a complaint against her since it would be seen as revenge.
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by:nickg5
ID: 22772057
tenant-landlord lawyer has spoken. He seemed not to be a pro in that field. Any way, he says the landlady can let everyone in here violate the lease, any term of it, and deny the same to me. That seems unfair and unreasonable.

He said when a lease has to be fair and reasonable, it means it has to "read" that way. If the landlord does not want to enforce it fairly, well that is another story.

He agrees with legal aid services that overnight visitors of any kind, even boy or girl friend types is a constitutional issue. He recommended someone "highly" but when I got there she said she does handle these type cases and has litigation going out many months. She basically refused to give me an appointment before she knew the issues due to her work load.

She referred me to someone else.

The plan is to find a lawyer willing to write my landlady a letter informing her that parts of her lease are against the law and maybe she revises her lease or takes it to her lawyer for review. I assumed she had her lawyer write the lease in it's formal format, but the lawyer said maybe not so, she might have gotten a do it yourself kit and her lawyer does not know the illegal terms. Even if he did, there is no law against having illegal terms you just got to be prepared for someone to complain.

My choices are just hang out and wait until I want an overnight visitor and just do it. Wait to be caught and wait for a warning. On a lease violation you have to have some time to "correct" the behavior.
Maybe a letter to her by me with the comments from Legal Aid ends it.
Maybe she and I come to some agreement that my visitors will be allowed since she is letting others have guests and the matter can be confidential between me and her. If she wants to go to court then I would need to file a complaint first and this way she can not evict me or it is revenge.
If I decide to let a lawyer help me fight the constitutionality then I'll have plans ready for how I'd move out if the worse happened, lose the case and she evicts, or have my own guest, get caught, and she evicts or I win and she gets mad and evicts. All evictions will have to have a "sound" reason.

Another thing he said was to maybe go ahead and have a guest, if caught, then she evicts for brealing the lease. Instead of leaving a like a whipped dog, THEN take the eviction to court and surprise her with the eviction is invalid due to the reason being un-constitutional.
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by:PeterMac
ID: 22774461
Sounds about the best you can manage. The last point sounds good, but make sure chances of success are high before going along with it, once she has eviction order, the clock is ticking for you. With it presented as a complaint beforehand she will find it more difficult to get the eviction order, she would have to prove the complaint unreasonable. Unfortuneately even if you are successful, living there is not going to be that pleasant afterwards. If your landlord is vindictive she is likely to continue to make trouble for the rest of your stay there.
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