California Eviction Defense: Protecting Low-Income Tenants 2017 Co-Chairs Madeline S. Howard Jith Meganathan Practising Law Institute 1177 Avenue of the Americas New York, New York 10036
28 Fair Housing Issues in Unlawful Detainers (PowerPoint slides) Laurance Lee Legal Services of Northern California Deborah Thrope National Housing Law Project If you find this article helpful, you can learn more about the subject by going to www.pli.edu to view the on demand program or segment for which it was written. 533
534 Practising Law Institute
Fair Housing Issues in Unlawful Detainers DEBORAH THROPE, STAFF ATTORNEY NATIONAL HOUSING LAW PROJECT LAURANCE LEE, STAFF ATTORNEY LEGAL SERVICES OF NORTHERN CALIFORNIA 535
Why Fair Housing? 2 Some Tenants are threatened with eviction for reasons related to their membership in a protected class. Fair housing laws provide protection against such evictions. 536
Roadmap 3 Section 1: Using Reasonable Accommodation as a Tool in Eviction Cases Section 2: Fair housing protections for survivors of domestic violence Section 3: Fair housing protections for people with limited English proficiency 537
Disability and Reasonable Accommodation 4 538
Common Disability-Related Evictions 5 Missing Rent Payments Hoarding/Clutter Threatening behavior Missing recertification Missing housing inspections Having unauthorized animals 539
Applicable Fair Housing Statutes 6 FEDERAL LAWS: Fair Housing Amendments Act (42 U.S.C. Section 3604) Title VI of the Civil Rights Act of 1964 (Federal) Section 504 of the Rehabilitation Act of 1973 (Federal) Americans with Disabilities Act (Federal) CALIFORNIA LAWS: Fair Employment and Housing Act (Cal. Gov. Code Section 12955) Unruh Civil Rights Act (Cal. Civ. Code Section 54.1) Government Code 11135 California Disabled Persons Act 540
What Is a Reasonable Accommodation? 7 A reasonable accommodation is a change in a rule, policy, practice, or service that may be necessary to allow a person with a disability the equal opportunity to use and enjoy a dwelling. 42 U.S.C. 3604(f)(3)(B) Cal. Gov t Code 12927(c)(1) If a tenant has an obstacle to obtaining or maintaining housing because of a disability, the tenant can request a reasonable accommodation. 541
Who is Considered Disabled? 8 An individual has a disability if that person has A physical or mental impairment that limits one or more major life activities; or A history of such impairment; or Is regarded as having such an impairment 42 U.S.C. 3602(h) Cal. Gov t Code 12926 Disability does not include Current drug user (one who is not recovered or not in a recovery program). 542
Is the Request Necessary? 9 The accommodation is needed because it: Enhances a tenant s quality of life by ameliorating effects of disability Frees the tenant from a rule, policy, or practice that interferes with the person s right to use and enjoy the dwelling. Enables the tenant to satisfy the essential requirement of tenancy. Must show nexus or causal link between the disability and requested accommodation. U.S. V. California Mobile Home Park Management Co., (1997 9th Cir.) 107 F.3d 1374, 1381 543
Is the Request Reasonable? 10 Housing provider does not have to provide accommodation if accommodation will result in undue financial or administrative burden or fundamental alteration of program. 544
Exception: Direct Threat / Physical Damage 11 A landlord will not be required to accommodate if the tenancy would constitute a direct threat to the health and safety of other individuals or whose tenancy would result in substantial physical damage to the property of others. 42 U.S.C. 3604(f)(9) 545
Making a Request 12 Tenant responsible for making request. No need to use the word reasonable accommodation Prillman v. United Airlines, Inc., (1997) 53 Cal. App. 4th 935. A request for a reasonable accommodation can be made at any time, up to the entry of judgment for possession. Douglas v. Kriegsfeld, 884 A.2d 1109, 1121 (D.C. 2005) BUT Better to make the request early. Requests should be made in writing, but not necessary (but always write it!). Must, at the very least, include: Description of disability Description of requested accommodation Explanation of how disability can be accommodated by the request 546
How Much Information about the Disability Should be Provided? 13 Provider not entitled to specific diagnosis or medical records. Provider MAY ask for verification of disability and need for accommodation. Each individual case requires a different strategy based on: Client s comfort with disclosure. Type of disability. Timing of request. 547
What if Housing Provider Denies the Request? 14 Cannot deny the reasonable accommodation request without first engaging in an interactive process Failure to respond or engage in interactive process may be deemed a failure to accommodate Joint Statement of HUD and DOJ, Reasonable Accommodations Under the Fair Housing Act, p. 7; 11. 548
Elements of RA Defense for Unlawful Detainers 15 1. Tenant is a person with a disability 2. Housing Provider knew or should have known of the disability 3. The accommodation is necessary 4. The accommodation is reasonable 5. Housing Provider refused to accommodate upon request Cite Giebler v. M&B Associates, 343 F.3d 1143, 1147 (9th Cir. 2003) 549
Case Considerations 16 Does the client have a strong affirmative case? Keep in mind claim preclusion and issue preclusion. Consider affirmative fair housing administrative complaint prior to expiration of UD notice. Create a discovery plan as soon as possible Reach out early to medical provider. Determine whether medical provider is cooperative and can help describe nexus between disability and accommodation. If not supportive, may need a plan to subpoena documents / witnesses. MSJ may be appropriate. Trial brief is good practice. Consider requesting sealing depending on type of disability. 550
Specific Case: Direct Threat 17 Standard: A landlord must show that no reasonable accommodation will eliminate or acceptably minimize risk to other residents. Evaluated post accommodation. Important considerations: Does the conduct rise to a lease violation? No: may not need RA at all Yes: RA to stay can be made, but tenant will have to show that conduct can change. Does tenant acknowledge doing the alleged conduct? Does tenant attribute the conduct to disability? What can be done to minimize future occurrences? How much change should be offered? Is there a medical provider to implement a plan to address conduct? How bad are the facts? 551
Fair Housing Protections for Survivors of Domestic Violence 18 552
19 The Relationship Between Fair Housing & Domestic Violence Memo from Sara K. Pratt, HUD Deputy Assistant Secretary for Enforcement and Programs, to FHEO Office Directors and FHEO Regional Directors (Feb. 9, 2011), pgs. 1-2. Survivors of domestic violence often face housing discrimination because of their history or the acts of their abusers Housing authorities and landlords evict victims under zero-tolerance crime policies, citing the violence of a household member, guest, or other person under the victim s control. Victims are often evicted after repeated calls to the police for domestic violence incidents because of allegations of disturbance to other tenants. Victims are also evicted because of property damage caused by their abusers. In many of these cases, adverse housing action punishes victims for the violence inflicted upon them. This double victimization is unfair, and as explained in this guidance, may be illegal (citations to footnotes omitted). 553
Statistics: Domestic Violence and Sex 20 Survivors are not a protected class under the Fair Housing Act, but most are female. Statistics: HUD FHEO DV Memo: [W]omen are five to eight times more likely than men to be victimized by an intimate partner More than 70% of those murdered by their intimate partners are women. U.S. Bureau of Justice Statistics: 85% of victims of intimate partner violence are women. U.S. Dept. of Justice: Among people who rent their homes, women are 7.4 times as likely as men to be victims of domestic violence. 554
Common Discriminatory Policies 21 Evictions or terminations based on violence against a survivor can violate fair housing laws. Examples: Policies based on gender stereotypes may violate the Fair Housing Act (FHA) Treating women differently because of their status as survivors of DV may violate the FHA Evictions for property damage caused by the abuser HUD s DV Memo also states: A neutral policy that negatively affects DV survivors may violate the FHA because of its disparate impact on women. 555
Nuisance and Crime-Free Ordinances 22 Local laws that penalize landlords and tenants when police are called too many times to the premises within a time period Impose fines or criminal charges on owners Nuisance activities range from violent crime to loitering and disorderly conduct After citation, landlords pressured to evict tenant and abate nuisance These laws harm and punish DV survivors who seek help from the police for the abuse committed against them. Cal. Civil Code 53165 prohibits evictions based on number of calls made by a tenant to a 911 system to report DV or other abuse 556
Violence Against Women Reauthorization Act of 2013 23 VAWA 2013 provides important safeguards for survivors in federally assisted housing VAWA is intended to encourage survivors who are receiving housing subsidies to report and seek help for the abuse committed against them, without being afraid of being evicted. VAWA protects individuals applying for or living in federally subsidized housing from being discriminated against because of acts of domestic violence, sexual assault, dating violence, and stalking committed against them. Only applies to federal housing programs 557
CA Laws that Provide Additional Tenant Protections to DV Survivors 24 Cal. Civil Code 1946.7: Breaking the lease Cal. Civil Code 1941.5, 1941.6: Changing the locks Cal. Code Civ. P. 1161.3: Eviction protection This law only applies when the survivor and perpetrator are NOT tenants of the same unit. Exception: If tenant has already used the eviction defense, landlord can still evict if either of the following apply: Tenant allows the perpetrator to visit the property OR Landlord reasonably believes that the perpetrator poses a physical threat to other tenants or to the right to quiet possession. NHLP toolkits covering these laws for advocates www.nhlp.org/ovwgrantees (CA Resource Packets) 558
Fair Housing Protections for People with Limited English Proficiency 25 559
Federal Legal Authority 26 Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d Lau v. Nichols, 414 U.S. 563 (1974) Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, 65 Fed. Reg. 50,121 (Aug. 16, 2000) Fair Housing Act, 42 U.S.C. 3601 et seq. 560
Title VI 27 Prohibits discrimination on the basis of race, color, or national origin in federally conducted or assisted programs Must provide meaningful language access Federally conducted or assisted programs include: HUD PHAs Subsidized housing providers (e.g., Project-Based Section 8) For a more complete list of federally assisted housing programs subject to Title VI, see HUD List of Federally Assisted Programs, 69 F.R. 68,700 (Nov. 24, 2004). Federally assisted programs do not include: LIHTC (unless ARRA funding, or other federal financial assistance received) Private housing 561
HUD/USDA Guidance 28 HUD Final Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 72 FR 2732 (January 22, 2007). HUD LEP Page: http://portal.hud.gov/hudportal/hud?src=/program_offices /fair_housing_equal_opp/promotingfh/lep USDA, Guidance to Federal Financial Assistance Recipients Regarding the Title VI Prohibition Against National Origin Discrimination Affecting Persons With Limited English Proficiency, 79 Fed. Reg. 70,771 (Nov. 28, 2014). 562
HUD Guidance Written materials routinely available in English should be translated into regularly encountered non-english languages. 29 Information in vital documents should be translated or communicated those which affect legal rights or obligations. Note there is a safe harbor where language populations are particularly small. However, housing providers should still notify LEP persons in writing (in non-english language) that free oral interpretation of available, in instances where safe harbor applies. No safe harbor for oral interpretation; generally, reasonable oral interpretation assistance should be made available regardless of LEP population size. 563
Examples of Vital Documents 30 Leases HUD: multifamily program model leases ARE vital documents. Eviction/termination notices Consent/complaint forms Intake forms Notices detailing rights, or the loss/denial/decrease in benefits or services Hearing notices Notices informing LEP persons that free language assistance is available Section 8 opt-out notices to tenants Tenant rules HUD Tenancy Addendum Briefing packets 564
LEP and the Fair Housing Act 31 FHA also prohibits discrimination on the basis of national origin. Applies to most housing providers, including private (few limited exceptions) In September 2016, HUD s Office of General Counsel issued a memo regarding the protections under the FHA for LEP persons. Memo mostly does not focus on the failure to provide language access. However, memo does note that a failure to comply with requirements to provide housing-related language assistance services to LEP persons under federal, state or local law, or by contract may be intentional discrimination. HUD OGC Memo, page 6. 565
California Laws 32 Note that the following state laws prohibit national origin discrimination: California Fair Employment and Housing Act (FEHA), Cal. Govt. Code 12955 Unruh Civil Rights Act, Cal. Civ. Code 51 Cal. Gov. Code 11135 Additionally, California law requires that persons who negotiate leases primarily in certain non-english languages provide a translated copy of the lease to the tenant. Cal. Civ. Code 1632 566
Eviction 33 Affirmative Defense Language of notices Language of program requirements Language of lease Interpreter provided Was an interpreter provided at all? Was the interpreter qualified? A family member/friend? A minor? 567
Summary 34 Always consider whether your client was evicted for reasons related to his or her membership in a protected class. If so, she may have protections that could prevent eviction. 568
Questions? CONTACT: DEBORAH THROPE NATIONAL HOUSING LAW PROJECT DTHROPE@NHLP.ORG LAURANCE LEE LEGAL SERVICES OF NORTHERN CALIFORNIA LLEE@LSNC.ORG 569
NOTES 570