MACE Training: Fair Housing for Local Governments

METROPOLITAN SAINT LOUIS EQUAL HOUSING AND OPPORTUNITY COUNCIL

Zachary Schmook, Deputy Directorzschmook@ehoc-stl.org(314) 534-5800 ext. 7013

Kalila Jackson, Staff Attorneykjackson@ehoc-stl.org(314) 534-5800 ext. 7007

Oct. 27, 2015METROPOLITAN ST. LOUIS EQUAL HOUSING AND OPPORTUNITY COUNCIL 2

What is EHOC?

• EHOC is a non-profit Fair Housing Organization assisting people who believe they have been victims of housing discrimination through the Fair Housing Initiatives Program (FHIP).

• EHOC’s mission is to work to ensure equal access to housing for all people through education, counseling, investigation and enforcement.

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What does EHOC do?

• Counseling

• Investigation

• Enforcement

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Outline

Morning (Zachary Schmook)

▪ Legal Advice and Legal Ethics

▪ Missouri Landlord/Tenant Law Basics

▪ Condemnation and Receivership

▪ Right to Entry of Private Properties

▪ Occupancy Permits and Residential Licensing

▪ ADA Basics

Afternoon (Kalila Jackson)

▪ Fair Housing 101

▪ Design and Construction Requirements Under the Fair Housing Act

▪ Fair Housing Lawsuits Against Cities

▪ Affirmatively Furthering Fair Housing (AFFH)

Legal Ethics

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Legal Information vs. Legal Advice

Legal Information

▪ Can be given by anyone with adequate knowledge

▪ Facts about the law and the legal process

▪ “Who? What? Where? When?”

▪ “How?” (usually)

▪ EDUCATION

Legal Advice

▪ Can only be given by an attorney

▪ Application of law to specific facts of a case

▪ “Should I?” ▪ “What’s the best way to . . .?”▪ “He can’t do that, can he?”

▪ GUIDANCE

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General Guidelines

▪ OK to provide information set forth in Self Help sections of city website (or information that could be provided there as generalized statements about the law)

▪ How communication is framed matters

▪ You have until Oct. 30 to file an appeal BAD▪ Property owners have ten days to file an appeal GOOD

▪ OK to explain rules and procedures

▪ Not OK to suggest which of several available procedures is best COA

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General Guidelines

▪ Can provided forms and instructions

▪ Can record information provided by users on forms

▪ Can check a user’s papers for completeness

▪ Can provide guidance about what kinds of information is required▪ E.g. “You need a legal description of the property there, not just the address.”

▪ CANNOT draft specific wording to be used

▪ CANNOT tell someone that something is/isn’t legal

▪ CANNOT advise someone whether they should go to court or file appeal

MO Landlord/Tenant Law

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Tenant Responsibilities

• Pay rent on time

• Do not damage the property

• Do not allow others to move in without permission

• Do not rent the apartment to someone else (sublease)

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Landlord Responsibilities

• To provide habitable property

• To make reasonable repairs

• To give proper notices for rent increase

• Not to evict without following proper procedure (no “self-help” evictions)

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The Lease

Written Lease

▪ May be for a set time or may renew periodically

▪ Can set any rental period (monthly, weekly, quarterly, etc.)

▪ May establish extra protections or obligations for landlord and/or tenant

▪ Not all clauses are legally enforceable

▪ E.g. Cannot waive warranty of habitability

Oral Lease

▪ By operation of law, all oral leases are month-to-month

▪ Generally cannot establish late fees or other obligations beyond basic agreement

▪ Courts infer contract obligations by conduct of the parties

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Habitability

• Basic living standards required in all rental properties (non-waivable)

• Determined by reference to local code

• Tenant may be able to withhold rent if not habitable

• Includes lack of utilities, infestation, severe mold

• Does not include cosmetic deficiencies, appliances, or air conditioning

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Eviction Process

LL must demand

rent due or give written

notice of termination

Notice/ Demand

Can serve person or property

Service

30 days until

judgment is final

Court Judgment

Must be overseen by sheriff

Execution

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Appeals

• Taken in same manner as other civil actions (no more trial de novo)

• Filing appeal alone will not stay execution

• Tenant must pay court-set bond to stay execution

• In cases filed for nonpayment under Chapter 535, tenant can pay all rent due plus court costs to avoid eviction from property

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Illegal Evictions

• Without a court order, a landlord cannot:

• Change the locks

• Remove a tenant’s belongings

• Shut off utilities

• Remove or board up doors or windows

• Holdover tenant who enters legally is not trespassing and cannot burgle property that he legally is entitled to enter

• Remember the difference between legal advice and legal information

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Illegal Evictions

• Tenants should contact landlord directly or seek legal assistance

• Tenants can use reasonable force to re-enter property that they have been locked out of but can be held responsible for repairs in some cases

• Emergency lock out situations may require police action

• Potential civil and criminal penalties for landlords

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Security Deposits

• “[A]ny deposit of money or property, however denominated, which is furnished by a tenant to a landlord to secure the performance of any part of the rental agreement, including damages to the dwelling unit.” § 535.300.7 RSMo.

• Does not include pet deposits

• Limited to 2 times the rental amount (no matter how its named)

• E.g. For $500/month property:• $500 security deposit + last month’s rent OK

• $750 security deposit + last month’s rent NOT OK

• Must return full deposit or itemized list of deductions within 30 days of move out

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Abandonment

• A landlord can remove a tenant’s belongings without court order if:

• LL has reasonable belief that tenant has vacated; AND

• Rent is unpaid for more than 30 days AND

• LL posts a written notice on the premises of belief of abandonment AND

• LL mails notice, return receipt requested, to tenant’s last known address AND

• Tenant does not respond in 10 days

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Lead Paint

• Before 1978, 75% of all houses had lead-based paint

• Lead poisoning most common from lead dust (from paint) in older houses

• Children under 6 are most vulnerable

• More info by calling 800-424-LEAD (5323)

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Legal Obligations re: Lead Paint

• LL cannot deny housing to families with children bc of lead paint

• For homes built before 1978, LL must include notice re: lead in the lease

• MO Dept. of Health and Senior Services, or a representative of a unit of local government or health department licensed by the department for this purpose, determines that there is a lead hazard at a dwelling or child-occupied facility which poses a risk of adverse health effects upon young children, notice to LL

• If property with lead hazard is occupied by a child, LL can be forced to make repairs

• Cannot evict family for reporting lead or to make the property no longer child-occupied

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Questions?

Condemnation/Receivership

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Vacation, Repair, or Demolition of Dangerous Buildings

▪ City entitled to correct nuisance that causes a hazard or some detriment to public health, safety, and welfare § 67.450 RSMo

▪ Must be specific risks identified, and must be specifically connected to violator

▪ Requires:

▪ Written notice

▪ Opportunity for hearing (typically pre-deprivation, but may be post-deprivation in emergency situations)

▪ Chance to fix by owner/possessor

▪ Findings and decision

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Abatement

▪ If owner fails to remove/abate nuisance within 7 days (or other longer time specifically set by city), city can remove or abate nuisance directly § 67.398 RSMo

▪ City many issue special tax bill against property for nuisance abatement § 71.780 RSMo

▪ Creates lien on property

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Abatement

▪ If owner fails to remove/abate nuisance within 7 days (or other longer time specifically set by city), city can remove or abate nuisance directly § 67.398 RSMo

▪ City many issue special tax bill against property for nuisance abatement § 71.780 RSMo

▪ Creates lien on property

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Receivership

▪ Where nuisance creates a threat to the public health, safety or welfare, property can be taken over by local government

▪ Can be initiated by county, municipality, local housing corporation or neighborhood association

▪ Filed in court after giving 60 days notice to interested parties

▪ Can collect rent and use to make repairs. Surplus goes back to owner, deficiency becomes a lien on property

Right to Entry

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Landlord right to entry

▪ LL can enter for legitimate purposes with reasonable notice, including repairs, inspections, and showing property to prospective renters or buyers

▪ MO law does not specify what notice is reasonable

▪ LL can clearly enter without notice in case of emergeny

▪ Remedy for tenants is violation of right to quiet enjoyment of property

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Warrant Required Unless Waived by Consent

▪ Occupant can give consent to entry

▪ Landlord can give consent to entry where there is an imminent risk

▪ Unclear whether landlord can consent to entry on request from local government without imminent health or safety concern

▪ Inspectors must seek administrative warrant if they cannot obtain consent

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Warrant Requirements

▪ Probable cause

▪ Affidavit

▪ Application

▪ Definition of area covered

▪ Warrant

▪ Execution

▪ Return

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US Supreme Court Decision

▪ “The question is not . . . whether these inspections may be made, but whether they may be made without a warrant. . . . It has nowhere been urged that fire, health, and housing code inspection programs could not achieve their goals within the confines of a reasonable search warrant requirement.”▪ Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523; 87

S.Ct. 1727, 18 L.Ed.2d 930 (1967)

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State Courts Agree

▪“Entries onto private property by government officials, like searches pursuant to a criminal investigation, are governed by the warrant requirement of the Fourth Amendment.”▪ Bezayiff v. City of St. Louis, 963 S.W.2d 225, 232 (Mo. App. 1997).

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Pre-Move-In Inspection Requirements

▪ Some courts have held that cities cannot require inspections before issuing permission to occupy

▪ “Aproperty owner cannot be regarded as having voluntarily given his consent to a search where the price he must pay to enjoy his rights under the Constitution is the effective deprivation of any economic benefit from his rental property.”

▪ Sokolov v. Village of Freeport, 52 N.Y.2d 341, 346 (N.Y. 1981) (invalidating an ordinance requiring landlords to obtain a rental permit before letting or reletting their property);

▪ Recent federal court decision invalidated an ordinance requiring licenses and annual inspections for all rental properties

▪ Baker v. City of Portsmouth, No. 1: 14CV5L2, 2015 WL 5822659, at *1 (S.D. Ohio Oct. 1, 2015) (slip op.).

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Pre-Move-In Inspection Requirements

▪ May be more able to withstand legal challenge when focused on rental properties only (and not depriving all use of the property)

▪ See Ashworth v. City of Moberly, 53 S.W.3d 564, 580 (Mo. App. E.D. 2001)

▪ Some courts reason that rental property deserves special protection since owners don’t live there and have less incentive to keep up

▪ Other ordinances have been upheld where they allow owner to select a licensed architect or engineer to conduct inspection

▪ Platteville Area Apartment Ass’n v. City of Platteville, 179 F.3d 574, 578 (7th Cir. 1999)

Occupancy Permits and Landlord Licensing

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Occupancy Permits

▪ Require each new occupant to obtain occupancy permits before they move in, as long as property is occupied

▪ Typical in St. Louis area, but unusual in other areas of the country

▪ Most areas require occupancy permit only on first construction

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Residential Property Rental Licenses

▪ Require landlords to obtain license to rent out property

▪ More common throughout the country

▪ Many require landlords to go to trainings or provide contact information

▪ Some require inspections (potential warrantless search issues)

▪ Some require landlords to evict certain tenants (many legal issues)

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St. Louis County Occupancy Permits

Require Occupancy Permits Require Certain forms of Identification

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St. Louis County Demographics

African Americans by Census Tract Median Household Income by Census Tract

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Legal Issues with Occupancy Permits

▪ Constitutional Right to Travel

▪ Policies that tend to deter people from moving to an area evaluated using strict scrutiny (Is there a compelling government interest at stake that cannot be pursued using other methods?)

▪ ID Requirements raise issues

▪ MO Supreme Court overturned ID requirements for voting▪ Weinschenk v. State, 203 SW 3d 201, 206 (Mo. banc 2006).

▪ Right to Travel is fundamental right, just like right to vote

▪ Best practice: focus on suitability of property, not suitability of tenants/occupants

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Legal Issues with Occupancy Permits

▪ New York courts have rejected an ordinance that “required the issuance of a new certificate of occupancy prior to each new tenancy or occupancy” to be onerous and unreasonable

▪ Sokolov v. Village of Freeport, 82 Misc.2d 1087, 1088 (N.Y. App. Term 1975); People v. Spitz, 356 N.Y.S.2d 480 (N.Y. App. Term 1973)

▪ May raise due process concerns where no opportunity for appeal or hearing

▪ Fair Housing Issues

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State Law Issues with Landlord Licenses

▪ Hancock Amendment

▪ Limits ability of governments to raise taxes without public vote

▪ Whether a charge is a tax (requires vote) or user fee (doesn’t) is case-by-case analysis

▪ Determined by looking at five factors (When? Who? Scalable? Providing something? Historical government responsibility?)

▪ Moberly landlord license ordinance was narrowly decided in favor of City, 3 factors to 2▪ Ashworth v. City of Moberly, 53 S.W.3d 564, 580 (Mo. App. E.D. 2001)

▪ Smaller cities not authorized to issue licenses for rental properties

▪ Clifford Hindman RE v. City of Jennings, 283 S.W.3d 804, 808-809 (Mo. App. E.D. 2009)

Americans with Disabilities Act

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ADA v. FHA

Americans with Disabilities Act

▪ Covers places of public accommodation and public entities

▪ Requires cities to remove barriers to provide alternative access to programs and services for persons with disabilities

▪ No grandfathering clause

Fair Housing Act

▪ Covers housing and related services (insurance, banking, housing codes, etc.)

▪ Includes requirements regarding design and construction for properties built since 1992

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Accessibility FAIL

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Accessibility FAIL

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ADA Title II (State/Local Government)

▪ Curb cuts and accessible routes

▪ Required for new constructions and alterations▪ Resurfacing is an alteration

▪ Pothole repair is not

▪ Interpreters for blind, deaf, hard of hearing

▪ Simple transactions may not need an interpreter

▪ Required: Hearings, interviews by police, public meetings

▪ Reasonable accommodations/modifications

▪ E.g. zoning rules, parking, ramp installations, group homes

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Accessibility FAIL

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Accessibility FAIL

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ADA Title II (Public Accommodations)

▪ Includes

▪ Restaurants, hotels, recreation

▪ Education

▪ Transportation

▪ Stores, public displays, care providers

▪ Sets building standards for new construction and alterations

▪ Readily Achievable Barrier Removal

▪ Reasonable Modification/Accommodaton

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Accessibility FAIL

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Accessibility FAIL

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Section 504 of Rehabilitation Act

▪ Federal law designed to prohibit discrimination against persons with disabilities

▪ in activities or programs receiving federal financial assistance (including state and local governments) and

▪ programs, services and activities of the federal government.

▪ Basic requirements

▪ No discrimination in programs and activities

▪ Reasonable Accommodations/Modifications

▪ Physical accessibility

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Questions?