National Housing Law Project Housing Justice Network Conference by Fred Fuchs, Texas RioGrande Legal Aid
With the assistance of a scholarship from the Legal Access Division of the State Bar I attended the National Housing Law Project Housing Justice Network Conference in October 2017 in Washington D.C. About 200 housing advocates from all over the United States gathered to hear the latest from colleagues about developments relating to federal housing programs and tenant rights. The conference focus was on the advocacy being done primarily at the state and local level to secure housing justice. In this article I will briefly describe some of the advocacy discussed in the sessions I attended. If anyone is working on a similar issue, you are welcome to send me an email at ffuchs@trla.org, and I will send you the materials from the session. Session on Just Cause Eviction Ordinances Some local government entities are attempting to deal with the affordable housing crisis by enacting ordinances that provide protections to displaced tenants. This session focused primarily on the City of Portland, Oregon, ordinance effective in 2017. The ordinance provides that when a landlord terminates a rental agreement without cause or increases the rent by more than 10%, the landlord must pay the tenant a relocation assistance payment to defray the cost of the relocation. The payments range from $2,900 for a studio apartment; $3,300 for a one-bedroom apartment; $4,200 for a two-bedroom apartment; and $4,500 for a three-bedroom apartment. The ordinance gives tenants a private right of action to sue for enforcement and to recover attorney’s fees. The ordinance was challenged in court on the grounds that it was preempted by state law, illegally impaired the obligation of contract, and illegally created a private right of action. The trial court rejected these claims in its judgment issued on July 12, 2017. An appeal is pending. In addition to Portland, two cities in California have recently adopted just cause ordinances. The city of San Jose, California, passed a just cause ordinance in May 2017. And, in Mountainview, California, a just cause ordinance was submitted to the voters and passed in November 2016. Session on Local Advocacy on Re-Entry This session dealt primarily with a recently enacted ordinance in Seattle that bars landlords from asking rental applicants about their criminal history and considering their criminal history in selecting tenants. Advocates noted that this ordinance was the result of a number of factors, including, a very progressive city council, a years-long effort for a local ordinance; the family reunification impact of the ordinance, the reduction in recidivism when former offenders have stable housing; and state law specifically providing that landlords cannot be held legally liable for failing to screen. The ordinance requires the adoption of local rules, and that process is just beginning. Seattle will study the results of the ordinance over the next 3-4 years to determine its effects and whether any modifications are necessary. Washington D.C. has an ordinance prohibiting landlord from considering criminal convictions that are more than seven years old. But the ordinance does not create a private right of action. Similar efforts are underway in Cook County, Illinois, San Francisco, and Richmond, Virginia. The effort in Cook County is being led by formerly incarcerated moms.
Sessions on Advanced Low-Income Housing Tax Credit (LIHTC) Advocacy and Preservation of LIHTC Properties The focus of the session on advanced LIHTC advocacy was on the good cause for eviction requirement in LIHTC housing and the Qualified Allocation Plan (QAP). Many states have not required LIHTC landlords to use a lease addendum imposing a good cause requirement for nonrenewal of the lease. In Texas, however, the Texas Department of Housing and Community Affairs has adopted a rule that requires owners to “specifically state in the lease or in an addendum attached to the lease that evictions or terminations of tenancy for other than good cause are prohibited.” See 10 Tex. Admin. Code § 10.613(a) (2017) (Tex. Dep’t of Hous. & Comm. Affairs). Thus, for advocates in Texas the primary emphasis is to ensure that LIHTC landlords use the good cause addendum and that the notice of non-renewal specifies the facts constituting good cause when the owner chooses not to renew the lease at the end of the term. The speakers also discussed the QAP and the important role in plays in establishing the guidelines by which the state agency decides which proposed projects to fund. Community groups that wish to emphasize certain priorities can use the QAP comment process to influence the decision-making process. The session on preservation of LIHTC units focused primarily on advocacy in Michigan involving an owner who advocates suspect is trying to obtain early releases from the affordability restrictions by arranging for planned deeds in lieu of foreclosure. See Rozanski v. Heule, No. 1:17-CV-00234-PLM-PJG (W.D. Mich., May 12, 2017, First Amended Complaint filed). The litigation is in the early stages with a motion to dismiss pending. Advocates in Texas should be especially wary of similar schemes in Texas. Session on Challenging Criminal History Tenant Selection Policies under the Fair Housing Act This session included a discussion of two pending cases under the Fair Housing Act that challenge landlord policies that bar leasing to individuals with criminal convictions. See The Fortune Society, Inc. v. Sandcastle Towers Housing Development Fund Corp., No. CV-14-6410 (VMS), (E.D. N.Y. filed October 30, 2014), and Alexander v. Edgewood Mgmt. Corp., 1:15-cv1140-RCL, 2016 WL 5957673 (D.D.C. July 25, 2016). In both cases the plaintiffs have asserted that the landlord’s policy barring leasing to persons with criminal convictions has a disparate impact on minority applicants. Summary judgments are pending in The Fortune Society case. In The Fortune Society case, the evidence shows that the landlord absolutely bars any applicant with either a felony or a misdemeanor conviction. In Alexander the court refused to dismiss the case, holding that the plaintiff had stated a plausible claim under the Fair Housing Act in his challenge to his denial because of a 1991 misdemeanor and 1991 overturned felony conviction. These cases will have important national implications on Fair Housing claims challenging landlord criminal history policies. Two foundations, The Impact Fund and the McDowell Family Fund were identified as foundations that will fund experts for litigation challenging landlord policies that unreasonably deny leasing to individuals with criminal history convictions.
Session on Combatting Displacement The primary focus in this session was on a lawsuit filed in Minnesota by a tenant association after sale of the property to an owner who gave notice that the 698 unit apartment complex would be remodeled, rents would increase, and Section 8 housing vouchers would no longer be accepted. See Crossroads Residents Organized for Stable and Secure ResiDencieS v. MSP Crossroads Apartments LLC, No. 16-223 ADM/HB, 2016 WL 1555697 (D. Minn. April 15, 2016). Plaintiffs asserted that the changes implemented by the new owner in raising rents, imposing new rental criteria, and discontinuing participation in the Section 8 Program would have a disparate impact on the basis of race, disability, familial status and national origin. Plaintiffs sought a preliminary injunction requiring the new owner to accept Section 8 vouchers from existing tenants with vouchers while the lawsuit was pending. The court denied the motion for a preliminary injunction. See id. But the court subsequently refused to dismiss the case, finding that the plaintiffs had stated a plausible claim for violation of the Fair Housing Act. See id., 2016 WL 3661146, *4-8 (D. Minn. July 5, 2016). The court also held that plaintiff had stated a plausible disparate impact claim for familial status discrimination with respect to the new owner’s occupancy standard effectively prohibiting more than two persons from living in one unit. Id. at *8-9. Plaintiffs recently settled the lawsuit under the terms of which the owner agreed to pay $650,000 in damages to the tenants and their attorneys. See http://www.startribune.com/former-richfieldapartment-tenants-reach-650-000-settlement/451636403/. Of that amount, the former tenants will receive $290,000, and $200,000 will be paid to the NOAH Impact Fund, a Minnesota fund to preserve affordable housing. Id. The balance of the settlement funds will pay the attorney’s fees and legal costs. Id. The new owner also agreed to make some changes in its tenant selection policies -- eliminating minimum income requirements, adopting less stringent tenant selection requirements on criminal history and prior evictions, and agreeing to accept a variety of forms of identification. Id. Although the residents were not successful in maintaining the complex as an affordable housing complex or forcing the owner to accept vouchers, they did achieve some measure of justice. Conclusion If you are representing clients in housing issues and have not done so, you should join the Housing Justice Network housing list serve. It is maintained by the National Housing Law Project. You may go to their website and obtain information on how to join. The list serve is an invaluable tool with its network of housing experts throughout the United States.