Articles in This Edition:

• Google-savvy tenants - what they may be learning via the Internet.

• A landlord victory and the lessons learned.

• An informant amongst us - are you being tested?

• Show me the money - avoiding Section 8 rent subsidy abatements.

Google-savvy tenants - what they may be
learning via the Internet.

One thing the Internet has offered everyone is ready access to lots of information.  As property owners and managers, many of you have recognized the potential power easy access to electronic information offers you in your efforts to market your communities and their offerings for potential residents.  In fact, most of you have taken advantage of that power and are effectively using a wide variety of Internet-based technologies to increase interest among potential applicants for your communities.  Congratulations!

However, that same ready access to information via the Internet also has some drawbacks and presents some challenges.  I recently did the following search on Google: “tenant rights Connecticut.”  The results were astounding.  Here’s what I learned in a matter of 15 minutes.

I learned that there are no less than eleven organizations in Connecticut who focus exclusively on improving, enforcing, or expanding tenant rights.  I found publications I could download from the Connecticut Judicial Branch website on foreclosures, evictions, lead poisoning, discrimination, fair rent commissions, lockouts, rent increases, how to use housing code enforcement, and how to handle utility charges with the landlord (this one even talks about having the landlord arrested).  I also found opinions from the Office of Legislative Research on unhealthy apartments, evictions and the elderly, evicting disabled residents, and relocation assistance.

I then explored HUD’s website, which came up number two in my search.  Under the title of “Tenant Rights, Laws and Protections: Connecticut,” I found the following organizations that HUD identifies as resources for tenant assistance: 

• Connecticut Commission on Human Rights and Opportunities (aka “CHRO” – the organization responsible for enforcing fair housing laws)

• The Connecticut Housing Coalition

• Connecticut Fair Housing Center

• Office of Protection and Advocacy for Person with Disabilities

• Attorney General’s Office

• Department of Banking, and

• Legal Assistance (which consists of at least Connecticut Legal Services, New Haven Legal Assistance, Connecticut Legal Rights Project, and Greater Hartford Legal Aid). 

HUD’s website then invites visitors to contact a housing counseling agency to learn about additional local resources available to tenants.

The third search result was called “Bad Landlord – The Source for Renter’s Rights”.  In addition to some of the organizations already mention above, it included the Connecticut Public Interest Research Group and the Fair Housing Association of Connecticut as two additional resources to assist tenants and help them expand their rights.

My point is that in the same amount of time, it takes someone interested in living in one of your communities to learn about who you are, where you are, and what you offer to your residents, that same person can also learn a great deal about your obligations as their landlord and how to enforce those obligations if you fall short.  Don’t get me wrong.  I don’t suggest you are not otherwise meeting those obligations.  But, as I suggested before, many of the organizations listed above have as part of their mission the expansion of tenants’ rights – giving your tenants more privileges on and control over the property you own or manage.  So, not only can someone learn how to enforce your already existing obligations, they can also learn how to increase your obligations or push the limits as they exist.

Your tenants are obtaining more information than they ever have before.  Some of it is accurate, some of it is not.  They will attempt to use that information to influence your relationship with them or your operations in their entirety.  Be wary of the position your tenant takes that sounds a little suspicious.  It may be true, false, or somewhere in between.  When they take such a position, ask them for their source of information and then vet that source with your landlord attorney.  They can help you formulate a proper response that addresses the legal rights and responsibilities of the tenant as well as the legal rights and responsibilities you have as the landlord.

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A landlord victory and the lessons learned.

A residential landlord client recently achieved a terrific victory in a summary process case by taking steps that are valuable for every residential and commercial landlord to keep in mind and follow (if it matches and works for the landlord’s business and processes).  Our client faced what many landlords perceive to be an “un-winnable” court hearing. 

The tenant was a mentally disabled tenant living in elderly and disabled housing (but not supportive housing) who could not control her behavior to comply with the lease, rules and regulations, and governing statutes after a stipulated judgment and significant third party assistance, and who was hospitalized (for the behavior) on the date of the court hearing.

The tenant’s behavior on the premises (both in the tenant’s unit and in the common areas) had become significantly damaging to the community and was morphing from disturbing her neighbors’ quiet enjoyment of the premises, to becoming a threat to their and the landlord’s health and safety, including property damage to the premises.  Tenants and staff were demanding that the landlord “do something NOW.” 

In less than two (2) weeks, our client went from the first court hearing to regaining possession of the premises and resolving all the nuisance and serious nuisance issues by taking the following steps:

• First, our client sought legal advice throughout the summary process case.  As discussed more fully below, this gave our client excellent clarity about its rights and obligations, and allowed our client to make thoughtful, considered business decisions in the face of tremendous stress and pressure from other tenants and staff alike to take immediate action.  Our client also benefited from an often overlooked and highly beneficial reason to engage an attorney, which is that it creates “space” (or a buffer) between the events occurring and the client’s need to respond.  Indeed, as good negotiators will tell you, silence (or not entertaining further communication) can allow events to proceed in a positive direction for the client.

• Second, our client refused to continue the hearing to a new date upon learning (for the first time at the courthouse) that the tenant remained hospitalized and would not attend the hearing.  Our client reasoned appropriately that the tenant, and the third parties working with the tenant, knew about the tenant’s conduct and hearing date well in advance.  Moreover, despite our client reaching out to them the week before the hearing, the third parties decided against communicating with either the client or our office about the tenant’s and/or their position.  Rather, one of them faxed a last minute letter to the court about the tenant being in the hospital and not attending the court hearing – nothing more.  It was an unclear, undefined, and unlimited communication, which denied anyone the ability to understand the dynamics in play, particularly whether the tenant was capable of returning to independent living and, if so, when.  Accordingly, our client demanded that the hearing take place as scheduled.

• Third, our client exercised its right to obtain a ruling from the judge that would resolve the summary process action (or, at least, keep things moving in that direction).  Although this sounds obvious, it is rare, as more than 95% of all cases settle without the parties requiring the judge to conduct any hearing at all.  Kudos also to the judges involved, who recognized their responsibility to be judges and make timely rulings that acknowledged, respected, and enforced the laws governing and protecting both the landlord and the tenant.  They did the bench proud and reflected what we often see from Connecticut judges, which is thoughtful and considered rulings, and not advocacy for either the landlord’s or tenant’s position.     [TOP]

An informant amongst us - are you being tested?

As this article is published, we will have recently completed a fair housing seminar for members of the Connecticut Apartment Association.  It dawned on me in preparation for that seminar that many who read this newsletter may have never received any formal fair housing training or your training may be somewhat outdated. 

Fair housing is a popular topic in this publication because it is one of those areas where you can take very effective preventative measures that will protect you from significant potential liabilities.  In this article, we will discuss a situation that even well-trained property owners and managers can sometimes overlook – fair housing testing.

Testing occurs when someone contacts you about renting a unit who isn’t actually intending to rent a unit, but rather, is investigating whether you violate any fair housing laws in your encounter with them.  They will ask questions that are designed to trip you up and push the edges of your fair housing knowledge.  Depending on the testers, they may be just collecting data to examine the instance and frequency of fair housing violations, or they may be gathering evidence to use in claims against you and your company for such violations.  Regardless of their motivation for the test, much of the information they collect will often result in some sort of enforcement action against you if you fail the test.

What’s important for you to know is that such testing is happening more and more these days and it is getting more and more sophisticated.  I recently happened upon “Discrimination Against Persons With Disabilities: Testing Guidance for Practitioners,” a HUD commissioned and published guidebook to train people and organizations on how to test landlords and property owners for discriminatory practices.  It is a training manual on how to set up tests, how to conduct them, how to gather evidence for use in fair housing law enforcement proceedings, and how to report violations to the proper enforcement agencies.  It even goes so far as to train testers on how to use persons with actually disabilities (as opposed to actors) to conduct such tests in an effort to better disguise from the unsuspecting landlord the fact that you are being tested.  At least now, you won’t be unsuspecting.

So, the people who enforce fair housing laws are being trained on how to test your policies and procedures.  Question is, are you being trained well enough so you will pass the test?   Here are some thoughts on how you can be sure that after you are tested you don’t end up on the wrong end of an enforcement proceeding:

1. Get regular, updated education on fair housing laws and issues.  Fair housing laws and enforcement is a very dynamic area of the law.  You must be up-to-date if you want to protect yourself from a misstep.  Also, get your training from the landlord perspective.  There are many training opportunities available that are presented by tenant-advocacy groups.  One thing is certain, these tenant-advocacy groups have little knowledge or interest in your company as a business.  Their purpose is to expand tenants’ rights.  Keep that in mind when you chose your training program. 

2. Test yourself and your staff.  Yes, I mean do exactly what the practitioner training manual teaches others to do – investigate your staff’s ability to handle fair housing situations on the move, in the middle of their day-to-day work. 

3. Make sure your training and testing efforts are incorporated into your regularly updated policies and procedures.  Take what you have learned and make it a part of your company or office culture.

We have recently seen a significant increase of complaints to the Connecticut Commission on Human Rights and Opportunities (“CHRO”).  CHRO is responsible for enforcing fair housing laws against landlords and learns of violations of such laws through complaints from harmed individuals.  And, be very clear, even someone who is only testing you and never intended to rent an apartment from you in the first place is a harmed individual under the fair housing laws and can bring a claim against you for discrimination.

You are always being tested, whether officially or unofficially.  Make sure you always pass the test.  The consequence of a failure are very time consuming and very costly.    [TOP]

Show me the money - avoiding
Section 8 rent subsidy abatements.

Several clients recently have described increased numbers of tenants with Section 8 vouchers, which follows reports that federal and state Section 8 Administrators are approving higher monthly rents under a Landlord-Section 8 Administrator contract (see our February 2009 article entitled “Section 8: So many contracts, so little time” for a thorough discussion of that and the two other (2) contracts involved with a Section 8 tenant).  These landlords are often excited about the anticipated increase in rent collection and related decrease in rent collection expenses, as the tenant faces paying no more than one-third of the tenant’s monthly income in rent (usually an affordable percentage, so the likelihood of timely payment increases) and the Section 8 Administrator timely pays its portion of the rent each month.

However, landlords often neglect to recognize the possibility of increased administrative expense – and threat to the Section 8 Administrator’s rent subsidy payment – from the Section 8 inspection regime.  While under contract, landlords must comply with all Section 8 terms and conditions, including maintaining the unit to the Section 8 program’s housing standards (often called “housing quality standards” or “HQS”) and state and local housing code(s), to obtain the Section 8 subsidized portion of the rent.  The Section 8 inspection regime starts with pre-approval of the apartment and then moves to annual inspections timed to correspond with the end (and anticipate the renewal) of the Landlord-Section 8 contract and landlord-tenant lease, with interim inspections done at the request of either the landlord or tenant.

Landlords should be primed to act immediately upon receiving a letter from the Section 8 Administrator (or its inspection agent) that demands repair to the premises.  This (usually) two-page letter seems deceptively simple, yet is fraught with danger for the landlord.  In short, it is the landlord’s only warning that the Section 8 Administrator monthly rent subsidy payment to the landlord is in jeopardy. 

Upon receiving this letter, the landlord should do three (3) things. 

• First, the landlord should immediately investigate the issue(s) contained in the letter – for example, by noticing and conducting its own inspection of the apartment – to identify the scope of the problem(s) and whether the tenant is responsible for them. 

• Second, the landlord should determine whether repairs can be completed within the letter’s response deadline, which is often two (2) weeks before the 30-day date noted in the letter after which the Section 8 Administrator’s monthly rent subsidy will be “abated,” or stopped. 

• Third, the landlord should contact its attorney if the landlord determines that the tenant is at fault for the inspection failure and/or the repairs cannot be completed within the letter’s response deadline.

It is very risky for the landlord to sign and return the letter before the repairs are completed, because the Section 8 Administrator will treat a signed and returned letter as verification that the repairs have been completed, will schedule a re-inspection, and – if they find the repairs not completed – will abate the rent subsidy payment.  It is similarly risky for the landlord not to respond to the letter – absent a response, the Section 8 Administrator will assume that the landlord has not completed the repairs and will abate the rent subsidy.  Once abated, the monthly rent subsidy payments cannot be recovered for those months preceding the landlord’s completion of the repairs and the Section 8 Administrator’s re-inspection and verification that the apartment meets the applicable housing standards.    [TOP]
 

DISCLAIMER:
The reading of this newsletter does not form an attorney-client relationship. The contents of this newsletter are for informational purposes only and do not constitute legal advice. Nothing in this newsletter is intended to imply or predict the outcome of any legal matter that you may be considering or be involved in. The Landlord Law Firm makes no warranties of any kind regarding the information contained in this newsletter.