mace training: fair housing for local governments metropolitan saint louis equal housing and...

MACE Training: Fair Housing for Local Governments

METROPOLITAN SAINT LOUIS EQUAL HOUSING AND OPPORTUNITY COUNCIL

Zachary Schmook, Deputy [email protected](314) 534-5800 ext. 7013

Kalila Jackson, Staff [email protected](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.


What does EHOC do?

• Counseling

• Investigation

• Enforcement


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


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


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


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


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)


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)


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


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


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


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


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


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


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


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


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)


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


Questions?

Condemnation/Receivership


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


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


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


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


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


Warrant Requirements

▪ Probable cause

▪ Affidavit

▪ Application

▪ Definition of area covered

▪ Warrant

▪ Execution

▪ Return


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)


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).


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.).


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


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


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)


St. Louis County Occupancy Permits

Require Occupancy Permits Require Certain forms of Identification


St. Louis County Demographics

African Americans by Census Tract Median Household Income by Census Tract


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


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


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


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


Accessibility FAIL


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


Accessibility FAIL


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


Accessibility FAIL


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


Questions?

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