Fighting The Housing Crisis With Underachieving Programs: The
Problem With Section 8, 44 Wash. U. J. Urb. & Contemp. L. 77
This journal article sets forth both the histories of Federal
statutes providing tenant rights and problems with section 8
since its inception. As most people know, Section 8 provided low
income households with the necessary monies to afford monthly
rents. Basically, Section 8 granted both landlords the security
of having rent paid on time, and low income individuals the
freedom of living without constant eviction proceedings.
Ms. Kenn however points out some worthy "loopholes"
and problems that the Section 8 has caused, and argues for some
"much" needed legislation. The major loophole she
argues soundly and appropriately is the possibility of landlord's
keeping poor and dangerous rental property. Essentially, a
landlord who has agreed to the Section 8 program may find that it
can get greater rent for his/her properties by getting out of its
federal contract. Accordingly, it is the tenant who ends up
suffering, because of a landlord's intentional neglect of the
property in hopes of failing inspection standards administered by
section 8 authorities. Although I agree with the author's
observations, I feel that she could have mentioned some ill side
affects, if legislation kept landlord's at a more strict level of
scrutiny. One area that was deserving of more attention was the
fact that the inception of such legislation may keep incentive
levels down for landlords to enter Section 8 programs from the
Randy G. Gerchick,
No Easy Way Out: Making The Summary Eviction Process A Fairer and
More Efficient Alternative To Landlord Self-Help, 41 UCLA L. Rev.
759, (February 1994).
In all fairness, I chose this next article so as to look at
the whole "rental property" from two perspectives. This
one of course, is the landlord's view. Basically the article
takes an objective perspective describing how interests of both
the landlord and tenant can have their rights maintained during
summary eviction proceedings. This of course is a reference to
the summary judgment stage in eviction court.
The article further goes on to explain the history of
landlord/tenant eviction proceedings from both a statutory and a
chronological perspective. Mr. Gerchick's main thesis is that the
entire eviction process has evolved from "permitting the
landlord to do anything he wants" to a more constrained
procedure limited by judges and juries willing to give tenants
the benefit of the doubt.
My take on the author's main point is that summary eviction
proceedings are only a last resort for a landlord seeking to
evict a tenant. In fact, his final emphasis includes suggestions
on how to screen tenants. Although he does maintain fairness in
examining both sides throughout this article, his ending comments
on "screening" will lead more than one to think that
this article was to serve a potential landlord's efficiency
needs. No doubt, he was likely looking for employment in this
area and definitely not with any Legal Aid Society. Just a
Steven Gunn, Eviction Defense For
Poor Tenants: Costly Compassion Or Justice Served? , 13 Yale L.
& Pol'y Rev. 385, (Fall 1995).
This article explores and considers possible racist and
prejudicial affects that will occur against tenants while
evictions are pending within the court system. Essentially, the
author outlines the commonly held theory that landlords who are
forced to "absorb the costs of delay" will have an
incentive to raise rents, convert their buildings into
non-residential uses or abandon their property.
If such practices become rampant, due to court procedures
taking too long, she argues that we will see more racism
practices during screening procedures. Accordingly, she argues
for a balance in making eviction procedures less costly for the
landlord, so the real issues of whether or not a tenant has paid
rent can come to be decided in a more efficient manner. On a
final note, I believe she was correct in asserting the premise
that tenants are likely to suffer from inadequate legal aid
assistance if numerous eviction proceedings are brought in a
particular area. This is because such assistance programs will
only accept clients on what they believe has "good
Karl Manheim, Tenant Eviction
Protection And The Takings Clause, 1989 Wis.L. Rev. 925 (Fall
This article is both an overview of "rent-control"
history within the United States as well as a description of the
"Takings Clause" in the constitution. On top of the
historical reflection, the author speaks of how exactly
minorities are disadvantaged by the housing scarcities in urban
areas. Particularly, the essence of "housing scarcity"
is argued as the root of problems for tenants, in that they
possess an imbalance of bargaining power when trying to find
In addition, the author finds another angle that may have
pushed some urban areas to developing a more serious
"scarcity" problem. This angle is the city's use of the
"Takings Clause." Basically, the author argues that the
government's requirement of using previously owned residential
property puts landlords in a reluctant position to further invest
in such property. As a result, minorities who traditionally use
such housing are deprived, and the city's purpose for using such
areas may be sound (administration, courthouses, etc) they need
only compensate landlords for taking property, and not the
prospective tenants. I agree with the author that if this clause
were to be used in such a manner, welfare programs would be
beneficial as well.
Samuel Zucher, Insurance For
Eviction Without Cause: A Middle Path For Tenure Rights And a New
Remedy For Retaliatory Eviction, 28 Urb. Law. 113 (Winter 1996).
This article first begins with the "sins" and
"benefits" of rent control. A major issue the author
brings up is whether tenants can afford to rent property without
legislative control. In contrast, he also acknowledges that
landlords may abandon their property if too much legislative
activism becomes apparent.
Ultimately, the author argues that too moderate of a
rent-control system may result in tenants overpaying rents, and
landlords engaging in the "shirking" of repairs because
enforcement is minimal. This side affect however, cannot seem a
harmful one. On the one hand, it should not be assumed that
landlords would repair less if their profits were larger. In
fact, he argues this point, by giving the benefit of the doubt to
landlords in the realm of repairing "dripping" faucets
and broken showers.
Paula Beck, Fighting
Section 8 Discrimination: The Fair Housing Act's New Frontier, 31
Harv. C.R.-C.L. L. Rev. 155 (Winter 1996).
This article begins with both a criticisms of present
landlords within Chicago, as well as the Fair Housing and
Discrimination Act. Basically, she claims that landlords have in
fact too much control over Section 8 programs in that they can
deny tenants whom are minorities simply because they do not want
to participate in the Section 8 program, or because they feel
that the family would be better off in another neighborhood.
Ultimately, Ms. Beck asserts that the goals of the Fair
Housing Act are not met because integration into white-middle
class communities is simply not occurring. Rather, landlords in
fact are forcing such tenants to stay in overcrowded low income
housing areas. She concludes by mentioning that a more stringent
law requiring landlords to be more open to Section 8 participants
would be appropriate.
Although I agree that it would in fact be ideal to have such
integration, I think the author misses an important legal point
concerning contract law. It is a common maxim and legal principle
that one should have the "freedom to contract." If we
put more controls on landlords, they may simply step out of the
process altogether. In that case, housing might become extremely
scarce for low income individuals.
Mark Drumble, The State As
Landlord: The Constitutionality Of The Termination Of Public
Housing Leases On Account Of A Tenant's "Illegal
Activities", 7 W.R.L.S.I. 75 (January 1997).
For an interesting change of pace, I chose this next article
to examine what kind of issues are taking place in other
countries. Essentially the main thesis of this article is a focus
on the "inequality of bargaining power" between the
tenants and landlords. The author further goes on to point out
that in Canada a landlord can protect his or herself by engaging
in the formation of leases that do in fact allow for eviction
proceedings if the tenant has been implicated in crimes that can
have a negative effect on the corresponding property.
His conclusion basically goes on to point out that to follow
the guidelines under this "Windsor" statute may provide
for arbitrary procedures exercised by a landlord. For example, if
a landlord has a problem with a tenant he or she might use as an
excuse, a petty violation like "j-walking" to remove a
tenant. He asserts that the halting of this possibility in low
income areas can be accomplished through statutory intervention.
Specifically, by more clear and concise language.
Deborah Zalesne, The
Intersection Of SocioEconomic Class And Gender In Hostile
Environment Claims Under Title VIII Who Is The Reasonable
Person?, 38 B.C. L. Rev. 861, (September 1997).
Within this paper, the author argues that sexual harassment is
"predicated on the imbalance of power." Essentially the
crux of her thesis centers on the fact that neither the
reasonable person standard has been effective in understanding
sexual harassment cases in the housing environment. She is
against the tendency of the courts to stop focusing on the
perceptions of the victim and begin to focus more on the alleged
"pervasiveness" of the activity.
In summary she asserts that the "reasonable woman
standard" too may be fatal for women in housing situations,
especially low income areas, because in effect what will happen
will be the exclusion of other subordinate groups in the
determination of such a standard.
I agree that Ms. Zalesne may in fact be predicting a form of
discrimination that may happen in the future. Specifically, if
our courts continue to focus on the "reasonable woman
standard" from a sexual harassment point of view, it is
likely that white middle class women will be the majority of the
women considered for such a standard. The reason I say this is
because women of "minority" status who live in low
income housing areas may simply be incapable of bringing
discrimination/sexual harassment suits because they cannot afford
a lawyer. Secondly, they may be less educated to even have
knowledge of a possible sexual harassment claim against a pervert
landlord. Accordingly, the reasonable woman standard will likely
be unfairly based only on white women.
Mark A. Malaspina,
Demanding the Best: How to Restructure the Section 8
Household-Based Rental Assistance Program, 14 Yale L. Pol'y Rev.
287, (September 1996).
Within this article the author gives a descriptive outline of
what Section 8 actually provides to prospective tenants who were
previously restricted to only "project" type areas. He
begins by stating the obvious advantage of Section 8 to landlords
is the government's guarantee of vouchers of rent. Basically, the
landlords do not have to worry about being paid. He secondly goes
on to explain that a tenant must go through a process to apply,
then after he or she is accepted, they must pay a certain amount
of their income to the government in return.
After speaking of the many benefits of the program he brings
up a recurring theme that other authors have pointed out.
Specifically, tenants looking to expand in housing areas
elsewhere are prevented from doing so due to a lack of
participation by landlords. Accordingly, the author here argues
for restructuring. His main assertion is that if landlords are
given more power to evict Section 8 tenants then they would hence
be more open to accept recipients within the program. His last
problem raised is that even if more tenants become attractive to
Section 8 there will likely still be innate problems of racism
with subordinate groups moving to essentially all-white
neighborhoods. This possibility could prove to show an increase
racist views coming out in the selling of homes and property.
CASES AND LAWS
EAGLE PROPERTY MANAGEMENT v.
GLORIA SMALL, 199 Wis. 2d 523; 546 N.W.2d 578; January 25, 1996
Within this case, we basically have a landlord who went
through eviction proceedings only to have a discrimination claim
be used as a defense against him to halt such proceedings.
Basically, the defendant (tenant) asserted that her landlord used
her "lawful source" of income, that being income
obtained under the Section 8 program was used in a discriminatory
fashion against her an accordingly should halt the present
The tenant points out a valid argument in that judicial
economy would be upset an undermined if the tenant was not
allowed to use "discrimination" as a defense. The Court
disagreed with this proposition and simply stated,
"injunctive relief can be obtained by the tenant to disrupt
the eviction proceedings by simply filing a discrimination action
in small claims court."
In examining the court's rationale further I found that this
is a more policy centered approach so the courts do not create
defenses, which are essentially the legislature's job. A classic
Wisconsin Stats. §
As far as applicable law goes, Small, the tenant in this case
used a legal section found in the Wisconsin Code that could well
have been interpreted as a defense. It states:
[A] landlord in a residential tenancy may not ... bring an
action for possession of the premises ... if there is a
preponderance of evidence that the action ... would not
occur but for the landlord's retaliation against the tenant
for doing any of the following:
.... (c) Exercising a legal right relating to residential
This was a great legal angle to use as far as interpreting
"black-letter" law. This is because the tenant in the
above case could in fact bring up a defense within her eviction
proceedings if she could mold it into a "retaliatory
eviction" defense. Unfortunately, the tenant lost on this
argument because she did not have enough evidence that the
landlord's actions were retaliatory. She was thus required to go
for an eviction in state small claims court. For what its worth,
I believe that some depositions or witness testimony that showed
the hostilities of the landlord may have reinforced this angle so
it was usable.
CORPORATION v. N.M., 304 N.J. Super. 586; 701 A.2d 739; March,
This case puts a "win" in the column of the tenants,
in that the New Jersey Appellate court makes it illegal for
landlords to deny low income individuals who are on section 8
assistance a place to live. An interesting phenomenon that
occurred here was that the appellate court avoided a possible
preemption of state law by 42 USCA 1437. We will examine this
statute below and see if there exists any possible questions of
"judicial supremacy" involved.
What basically occurred was that the New Jersey court
intentionally interpreted their own state statute as not
conflicting with Federal Law. Accordingly, people with Section 8
vouchers cannot be turned away "at the doors" solely
for that reason. The tenant won and was allowed to stay in her
42 USCS § 1437f
Of important note here, is that the Section 8 program has 2
main priorities. The first of course being to aid low income
families with paying their rent. The second, is to promote
diversity in neighborhoods. Specifically it states:
. . . (a) Authorization for assistance payments. For the
purpose of aiding low income families in obtaining a decent place
to live and of promoting economically mixed housing, assistance
payments may be made with respect to existing housing in
accordance with the provisions of this section. A public housing
agency may contract to make assistance payments to itself (or any
agency or instrumentality thereof) as the owner of dwelling units
if such agency is subject to the same program requirements as are
applied to other owners. In such cases, the Secretary may
establish initial rents within applicable limits. ."
Corporation v. Elizabeth Anderson, 536 N.W.2d 340; August 29,
Basically what occurred in this fact scenario was that
WestMinster corporation agreed to participate in the Section 8
program with defendant. Somewhere along the line defendant became
in breach of his lease allowing the corporation to institute a
termination action for the end of the lease.
The corporation did in fact initiate an action to terminate
the lease, but still continued to accept payments under
Minnesota's state "HUD" agency. The ultimate issue then
presented was whether the corporation waived the termination
action by continuing to accept payments from HUD. The tenant was
not able to stop the proceedings because the court found the
waiver to be non-existent. This is especially true because the
corporation at least deserved rent from some source. To allow
this tenant such an exception to the rule would make landlords
less motivated to rent to low income families.
REAL PROPS. SERVS.
MGMT. v. ANATRA, 1997 Ohio App. LEXIS 3485, July 1997
Within this case, a landlord/housing complex corporation
initiated an eviction action against a tenant who failed to pay
her rent for the month of July. In response to these allegations,
the tenant mentioned that the apartment was not being kept in
good condition and hence started paying money into a court escrow
account. This was opposed to paying the money to the landlord. In
any case, this case did in fact get quite up the procedural
ladder, and the landlord eventually was awarded a judgment in
which the tenant was to move out.
In opposition to this judgment, the tenant raised a lack of
"good cause" on the landlord's behalf for evicting her
under Section 8 guidelines. The court went on to recognize the
policy objectives behind Section 8, and did indeed raise the
point that tenants under Section 8 will be granted a standard of
"good cause" when scrutinizing a landlord's eviction
practices. Ultimately, the tenant was awarded her apartment back,
and the eviction proceedings were squashed. The landlord received
the money in the "escrow account."
ORC Ann. 5321.07
Essentially, a tenant whom has a landlord who is not doing a
thing about poor living conditions can resort to statutory
measures. The first is the stopping of payment of rent and
depositing in a clerk of courts. The second, is an application to
the court demanding an equitable remedy requiring the landlord to
fix such conditions. These statutory provisions are mentioned
. . .(1) Deposit all rent that is due and thereafter becomes
due the landlord with the clerk of the municipal or county court
having jurisdiction in the territory in which the residential
premises are located;
(2) Apply to the court for an order directing the landlord to
remedy the condition. As part of the application, the tenant may
deposit rent pursuant to division (B)(1) of this section, may
apply for an order reducing the periodic rent due the landlord
until the landlord remedies the condition, and may apply for an
order to use the rent deposited to remedy the condition. In any
order issued pursuant to this division, the court may require the
tenant to deposit rent with the clerk of court as provided in
division (B)(1) of this section...
Often times, a simple "legal" refusal to pay rent
will force the landlord into repairing the harsh conditions,
instead of facing an embarrassing loss in court. The tenant will
be protected from eviction, because her rent is in escrow.
Commission on Human
Rights v. Sullivan Associates, 1998 Conn. Super. LEXIS,1889.
A quite recent case in Connecticut has brought to the
forefront a plaguing issue that continues to trouble State
Courts. The basic conflict, as earlier mentioned, is whether or
not a landlord may deny a person an opportunity to rent based on
the fact that they are a participant in the Section 8 program.
Essentially the court within this case looked at this issue to
see if in fact Connecticut's state statute prohibits such
discrimination under the "legal source of income"
phrase. Ultimately the facts showed that a rental organization
refused to engage in the federal section 8 program because it did
not coincide with its own minimum income per year requirement for
its tenants. Ultimately the court pointed out that there is in
fact no requirement that one engage in Section 8, and its only if
a landlord discriminates after they accepted an initial Section 8
recipient will they be liable for discrimination. The rationale
was similar to evidentiary arguments of "opening the
Statutes sections: 46a-64c
The provisions of the Connecticut "legal source of
income" statute is not unlike other states. Interestingly
enough, it provides a disclaimer that theoretically would include
income derived from a section 8 voucher as a legal source of
income with a plain reading. I make this argument in light of the
fact that it mentions "public assistance." Public
assistance can be governmental and not just state subsidies. It
. . ."(a) It shall be a discriminatory practice in
violation of this section: (1) To refuse to sell or rent . . . a
dwelling to any person because of race, creed, color, national
origin, ancestry, sex, marital status, age, lawful source of
income or familial status." Lawful source of income is
defined as "income derived from social security,
supplemental security income, housing assistance, child support,
alimony or public or general assistance." General Statutes
46a-63(3). Subsection (b)(5) of 46a-64c provides an exception as
follows: "The provisions of this section with respect to the
prohibition of discrimination on the basis of lawful source of
income shall not prohibit the denial of full and equal
accommodations solely on the basis of insufficient
It seems that a tenant will only be protected here, if a
landlord has engaged in discriminatory conduct after he has
accepted the Section 8 program in its entirety.
Janis Bowman v.
William Hamilton, 601 A.2d 1074, (1992).
This case centers on a strong claim that any injured tenant
facing discrimination can assert. Basically, the District of
Columbia case sets down the rule of law governing constructive
eviction. Under this doctrine, a landlord cannot make an existing
tenant's living conditions unsuitable for healthy survival. As an
example a disgruntled landlord cannot turn the heat off, stop the
plumbing etc. If such poor living conditions do arise and the
tenant has been forced to move out, then he or she can assert a
constructive eviction claim.
This claim may seek both equitable and legal remedies in that
a party was forced to move from his living environment. Moreover,
the landlord may me required to let the tenant have the apartment
or dwelling repaired for safety purposes. (This includes the
The facts in this case center around a lease provision that
allowed a tenant to sublease. Unfortunately as the court pointed
out, the basement was not under the "sub-lease" scheme
and therefore the tenant's constructive eviction claim was doomed
from the start. In taking a common-sense point of view of the
situation, it is probable that a tenant is more likely to be
successful using this claim when "living conditions"
are atrocious. Trying to force the constructive eviction claim
into a contractual defense is risky as well as unprecedented.
Robert Atkins v.
Chicago Commission On Human Relations, 281 Ill. App. 3d 1066; 667
This last case is very useful in analyzing a possible claim of
discrimination. It specifically enumerates what a prima facie
case of discrimination entails. The first step is that the
plaintiff show that she is of a minority (or that she is a member
of a protected group). Secondly, the plaintiff must prove that
the defendant knew she was a minority. Third, it has to be proven
that defendant was capable and ready to accept plaintiff's rent.
The fourth and last requires that the defendant flat out refused
to cooperate with the plaintiff concerning rental property.
Within this case the defendant was a black female and
basically showed powerful evidence when it was found that her
"soon to be" landlord had received permission from her
former landlord to enter her apartment. This illegal procedure
cost this landlord, both the case and some cash. In fact, the
defendant landlord had never used this "checking up"
policy before, thereby defeating any defense of custom.
Ultimately the tenant proved her prima facie case because of this