Midwest Affordable Housing Management Association 2013 Regional Housing Conference Eviction Defenses June 4, 2013

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1 Midwest Affordable Housing Management Association 2013 Regional Housing Conference Eviction Defenses June 4, 2013 Presented by: William L. Willis Willis Law Firm 141 East Town Street, Suite 200 Columbus, Ohio P F

2 Keep Your Friends Close and Your Enemies Closer (Machiavelli)

3 Funny, but true! 88 Different Counties + 12 Different Appellate Districts + 1 Ohio Supreme Court = Many Different Local Rules, Policies, and Quirks

4 Types of Housing

5 Public Housing Managed, owned, & facilitated by PHA Governed by 24 C.F.R. part and a host of other federal statutes

6 Project Based Subsidized Housing Section 221(d)(3) and (d)(5) Section 236 and 202 Project Based Subsidized Housing **And others receiving benefit of subsidy in the form of: below market interest rates, rent supplement payments, & Housing Assistance payments (Project Section 8) 24 C.F.R. Part 247

7 Common Defenses to all Kinds of Properties Waiver Defenses Waiver by acceptance of future rent Accepting partial rent Accepting rent after knowledge of breach by tenant Cashing check or money order, even if landlord tenders back

8 Holding of Rent May Equal Acceptance Evidentiary purpose for holding Notice to tenant that rent is being held, but not accepted

9 Other Waiver Defenses Waiver of Breach by Landlord Action When a landlord has knowledge of the tenant s breach of the rental agreement, the landlord waives the breach if the landlord takes action that is inconsistent with a termination of the tenancy

10 Tenant and landlord make sweat equity agreement where tenant agrees to paint in lieu of paying rent, but landlord fails to buy paint supplies and then files eviction for failure to pay rent Landlord tells tenant not to pay rent because landlord intends to evict tenant for some other reason, but then files eviction for nonpayment

11 Waiver of the R.C or Notice of Termination If the landlord accepts future rent after the expiration of the thirty-day period of an R.C or R.C (B) notice of termination, it may constitute waiver of the notice or create a new periodic tenancy

12 Waiver of timely tender of rent by Pattern and Practice There is a sufficient pattern and practice between the parties of late rent payment and acceptance that charges the due date as a matter of law. Finding Sufficient Pattern: (Greene County) 5 times in 2 years 30 times in 15 years 4 times in 11 months

13 Finding Insufficient Pattern: The tenancy has only existed for three months, even if the payment has been late each month. (Trumbull County) 296, 688 N.E. 2d 16 There are 2 late payments in 10 months

14 Landlord must provide written notice of strict compliance to end the pattern with a reasonable amount of time for tenant to comply (probably at least 30 days)

15 Equity Defense When a party raises an equitable defense, it is the responsibility of the court to weigh the equitable considerations before imposing a forfeiture

16 Equity Defense Equity may allow a tenant to cure the default/breach as long as: Failure was beyond tenant s control and failure was not malicious or willful. Tenant is able to make landlord whole. In subsidized housing the court may also examine, in addition to the above factors, the tenant s substantial interest in maintaining the rent subsidy and the hardship on the tenant if the eviction is ordered.

17 Winchester Station v. Angela Walters No 96 APG Tenth District, Franklin County Making whole court costs / attorney s fees Balancing of equities between the Parties balancing all of the circumstances

18 Remedy of the Condition Specified in the R.C Notice of Termination If a tenant remedies the R.C violation prior to the date specified in the R.C notice of termination, the rental agreement is not terminated pursuant to the notice and the tenant s conduct that violated R.C cannot be the basis of the eviction.

19 Obligations of Tenant ( ) Keep unit safe and sanitary Comply with housing codes Operate electric and plumbing properly Don t destroy premises or appliances Don t disturb neighbors Don t sell drugs Access (must allow) Guests, too!

20 Fictitious/Trade Name Registration If the landlord is doing business under a fictitious name that has not been properly registered, the landlord is barred from commencing or maintaining an eviction action.

21 Unauthorized Practice of Law

22 Conditions Counterclaims: R.C Must be a claim for nonpayment and tenant must file an answer and counterclaim on or before day of trial Tenant defense premised on landlord s breach of duties under R.C or the lease This breach is usually related to conditions and/or failure to repair that cause damages to tenant and/or tenant s possessions and/or reduces fair market value of unit. Tenant not required to use escrow process under R.C R.C allows tenants another option to protect themselves if they fail to use R.C Rent in escrow should be defense to eviction for nonpayment

23 Retaliation R.C (A) prohibits a landlord from bringing an eviction action against a tenant (1) because the tenant complained to an appropriate governmental agency of a code violation at the premises that materially affects health and safety, (2) because the tenant complained to the landlord of an RC violation, or (3) because the tenant joined a tenant organization Exceptions: R.C (A)(1)-(4). (1) Tenant is in default in payment of rent; (2) the condition about which the tenant complained was caused by the tenant or the tenant s guest; (3) the performance of the repairs necessary to achieve code compliance would effectively deprive the tenant of the use of the premises; (4) the tenant is a holdover for the tenant s term.

24 Discrimination When a tenant s race, color, religion, sex, handicap, familial status, or national origin is a significant factor in the landlord s decision to terminate the tenancy, a defense to the action may exist under one or more of the following statutes: a) The federal Fair Housing Act, 42 U.S.C b) Section 504 of the Rehabilitation Act of 1973 if handicap discrimination is alleged and the landlord receives federal financial assistance. c) Title II of the Americans with Disabilities Act if handicap discrimination is alleged and the landlord receives state or local government financial assistance. d) The Civil Rights Act of 1866, race discrimination. e) The Ohio Civil Rights Act, R.C (H)

25 Lease, Procedures for Termination A landlord must comply strictly with the termination procedure terms of the lease before instituting forfeiture proceedings

26 Deficient Content/Service of Notice to Vacate or Notice of Termination If a landlord fails to serve a notice to vacate, or serves a notice to vacate but its content or the service fails to comply with R.C , the trial court lacks subject-matter jurisdiction over the action.

27 Termination of HUD Subsidized Housing See HUD Handbook Chapter 8

28 Termination of Tenancy CFR , , 5.901, 5.903, and (Termination of tenancy in Screening and Eviction for Drug Abuse and Other Criminal Activity; Final Rule) CFR 247.3, , , and (Fraud, minor violations, nonpayment of rent, state or local Landlord and Tenant Act) CFR 247.3, , , & (Substantial lease violations) CFR , , , & (Other good cause) CFR , , , & (Lease expiration)

29 Eviction for Drug Abuse & Other Criminal Activity 24 CFR , , 5.901, 5.903, and (Eviction in Screening and Eviction for Drug Abuse and Other Criminal Activity; Final Rule) Note: These regulatory requirements do not apply to owners of housing assisted by the Rural Housing Service under Section 514 or Section 515 of the Housing Act of 1949

30 Providing Notice of Termination of Tenancy 24 CFR Termination Notice 24 CFR Eviction

31 Allowable Circumstances for Terminating Tenancy Material noncompliance Substantial lease violations Fraud Repeated minor violations Nonpayment of rent Drug abuse and other criminal activity Material failure to carry out obligations under a State Landlord and Tenant Act Other Good Cause

32 A Landlord s termination of an assisted housing tenancy is subject to a good cause requirement Good cause constitutes any material noncompliance with the rental agreement, material failure to carry out obligations under any state landlord and tenant act, certain criminal activity, certain alcohol abuse, or other good cause

33 Nonpayment of Rent Improperly Calculated Rent Nonpayment of improperly calculated rent by the property owner is not good cause for termination of subsidized tenancy.

34 Nonpayment of a Charge a) Nonpayment of a small charge may be a minor violation of the lease and, for that reason, might not be good cause to terminate an assisted housing tenancy. b) Nonpayment of a disputed charge may be good cause to evict an assisted tenant, but certain procedural requirements should be satisfied

35 Recertification Violations Failing to furnish accurate information at recertification is only good cause to terminate a project-based subsidized housing tenancy if the omission/misrepresentation was fraudulent. See HUD Handbook , pages 5-18 & 8-13

36 Unauthorized Occupant/Authorized Guest Regulatory definition of guest Guest, only for purposes of 24 CFR, part 5, subparts A and I, and parts 882, 960, 966, & 982, means a person temporarily staying in the unit with the consent of a tenant or other member of the household who has expressed or implied authority to so consent on behalf of the tenant. The requirements of parts 966 & 982 apply to a guest as so defined. 24 CFR Factors to consider in distinguishing between an occupant and a guest include (1) number of days per week or length of stay, (2) any use of another residence, (3) where clothes and other personal belongings are maintained, (4) where meals are eaten, (5) where mail is received, (6) address used for driver s license & other documents, & (7) other indicia of residency.

37 Non-Criminal Conduct of a Tenant s Child In determining good cause to evict, courts distinguish between children of tenants and children who are non-household member, non-guests

38 Non-Criminal Conduct of a Guest The conduct of a guest might not be good cause to terminate an assisted housing tenancy if (1) the tenant neither knows nor has reason to know that the guest is inclined to engage in improper conduct, (2) the tenant had no knowledge of the guest s improper conduct, and/or (3) the tenant could not reasonably have foreseen or prevented the guest s improper conduct R.C (A)(6) does not impose a strict liability standard on a tenant for a guest s improper conduct

39 Criminal Conduct of Tenant, Household Member, or Guest In general, HUD regulations define the criminal activities that are grounds for terminating an assisted housing tenancy Discretion of Landlord With one exception the conviction of a tenant or household member of manufacture of methamphetamine on the premises of assisted housing landlords have discretion in terminated assisted tenancies for criminal activities of tenant, household member, or guests

40 Criminal Conduct of Tenant, Household Member, or Guest To constitute good cause to evict, certain criminal activity must be engaged on or near the premises. Drug related criminal activity must occur on or near the premises for project-based subsidized housing or Section 8 voucher tenancy. See 24 CFR 5.858, 247.3(a)(3), (b)(1)(iii)(project-based); (c)(1)(voucher) Violent criminal activity must occur on or near premises to constitute good cause to terminate Section 8 voucher tenancy. 24 CFR (c)(2)(i)(C).

41 Criminal Conduct of Tenant, Household Member, or Guest To constitute good cause to evict, certain criminal activity must be a threat to health, safety, or peaceful enjoyment of the premises of other residents

42 Innocent Tenant Equity Defense Conduct of an uninvited person

43 Minor Violation of the Lease One minor violation of the lease is not good cause to terminate an assisted housing tenancy. 24 CFR 247.3(c)(2), (b)(3)(ii), 966.4(1)(2)(i), (a)(1) Although repeated minor violations of lease can be good cause to terminate an assisted housing tenancy, for projectbased subsidized housing, repeated minor violations are only good cause to terminate if (1) disrupt livability of the project; (2) adversely affect the health or safety of another person, (3) adversely affect another tenant s right to quiet enjoyment of the premises, (4) interfere with management of the project; or (5) have an adverse financial impact on the project. 24 CFR 247.3(c), (b)(3)

44 Low Income Tax Credit Program LIHTC. 26 U.S.C. 42(h)(6); IRS Revenue Ruling , C; IRS Revenue Procedure Good cause requirement for termination or nonrenewal of the lease

45 Tenant Based Section 8 Voucher Issues Service of Notice to Vacate on the PHA: A landlord s failure to serve the PHA with a copy of the notice to vacate is a defense to the eviction action. HUD Tenancy Addendum, 8(g)(2); 24 CFR (e)(2)(ii)

46 Tenant Based Section 8 Voucher Issues Abatement/Termination of Payments Based on Landlord s Failure to Make Repairs During period of PHA abatement of rent subsidy payments: Tenant payment of tenant s share of the rent precludes eviction for nonpayment of rent. 24 CFR (b), (b)(4)(iii)

47 Tenant Based Section 8 Voucher Issues Three potential defenses, in evictions for nonpayment of the rent subsidy portion of the rent. See Peter M. Iskin, Ohio Eviction and Landlord- Tenant Law (3 rd ed.), at ) R.C (B) defense 2) Equity 3) No tenant liability for that rent

48 Tenant Based Section 8 Voucher Issues PHA failure to make a rent subsidy payment to the landlord is not good cause for a landlord to terminate the lease. 24 CFR (b)

49 Contents of the Notice of Termination of Tenancy Notice 1) The Notice must state the Date of Termination of Tenancy 2) The Notice must state with Sufficient Specificity to allow the tenant to prepare a defense the reasons for termination of tenancy 3) Advise the tenant that remaining in the unit on the termination date specified in the notice may result in the owner seeking to enforce the termination in court, at which time the tenant may present a defense

50 Contents of the Notice of Termination of Tenancy Notice 4) Advise the tenant that he/she has 10 days within which to discuss termination of tenancy with the owner. The 10-day period begins on the day that the notice is deemed effective 5) **Advise that persons with disabilities have the right to request reasonable accommodations to participate in the hearing process 6) Tenants must be given prior notice before termination of tenancy for other good cause

51 Contents of the Notice of Termination of Tenancy Notice 7) Be served on the tenant by: 1) Sending a letter by first class mail, properly stamped & addressed & including a return address, to the tenant at the unit address; and 2) Delivering a copy of the notice to any adult person answering the door at the unit. If no adult answers the door, the person serving the notice may place it under or through the door, or affix it to the door

52 Contents of the Notice of Termination of Tenancy Notice The date on which the notice is deemed received by the tenant is the later of: The date the first class letter is mailed; or The date the notice is properly given Service of the notice is deemed effective once the notice has been both mailed and hand delivered

53 REMINDER When provided to a tenant with a disability, this notice must be in a form accessible to the tenant (e.g., in Braille or audio form for a tenant with a vision impairment)

54 ** Does not apply to Section 8 tenant based voucher, although landlord is required to serve PHA with notice to vacate prior to filing an eviction

55 As a general rule, in federally subsidized housing the tenant must be served a federal notice to terminate the tenancy. This notice can be served or combined with a notice to vacate. (RC ) The landlord MUST strictly comply, not substantially, with the federal notice requirements

56 Specificity: State reasons for the proposed termination with specificity for tenant to prepare a defense. See 24 CFR To be specific, the notice must answer the questions of who, what, where, when and how as to each of the specific instances

57 IMPORTANT: It does not matter if the tenant is aware of the reason for termination. The notice fails for lack of specificity when: The notice is blanketed in broad language and does not refer to specific instances of conduct The notice fails to notify tenant of dates of the alleged incidents or the individuals involved in the alleged incidents The notice is a restatement of the lease language The notice only cites lease section that was violated ** Specific dates on which the alleged incidents occurred and the names of the individuals involved in the alleged incidents

58 Administrative Hearing/Meeting Defenses Noncompliance with grievance process or informal meeting is an eviction defense Section 8 project-based, section 236, section 202, & section 811. Informal meeting. HUD Handbook REV-1 at Ch.8. Right to a meaningful opportunity to be heard at administrative meeting The ten day meeting is to be an opportunity to resolve any issues that give rise to the notice of termination Meeting is an attempt to resolve the controversy to avoid the tenant s loss of the subsidized housing while protecting the rights of the landlord

59 ** Special Thank You to Emily Crabtree and Dianna Parker, Legal Aid Society of Columbus ** Abigail C. Staudt, Legal Aid Society of Cleveland ** Stephen E. Goldberg, Staff Attorney, Legal Services of Northern California ** Procedural Defenses to Evictions from Federally Subsidized Housing