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What Rights do Tenants have from
Discriminatory Practices of
Landlords in Low Income Housing?

Annotated Bibliography

Mark Capozzoli**

3rd Year Law Student
The University of Dayton School of Law

Fall 1998


Introduction

This annotated bibliography describes the extensive rights a tenant has in situations within the landlord-tenant relationship. Although the emphasis is on low income tenant rights, the law is applicable to a variety of situations and the following articles will show such versatility.

Moreover, the concentration of these annotation focuses on discrimination tenants face because they are involved in the Federal Section 8 program. As will be shown, there are not many constraints on landlords as far as required participation. As a result, the law does in fact allow "economic discrimination" in many circumstances. The tenant however is not without remedies. As will be show, there are many instances in which the tenant can recover from landlords if they fail to exercise just policies of fairness. In the final outcome however, more legislation is needed to balance both the landlord's right to contract and the tenant's right not to be discriminated solely because he or she is receiving federal assistance.


The following articles, statutes and cases are included in this bibliography:
Statutes 

42 USCS 1437f (1998) 

Connecticut General Statutes sections: 46a-64c

Wisconsin Stats. 704.45(1), (1994). 

ORC Ann. 5321.07 (Anderson 1996). 

Case Law

 EAGLE PROPERTY MANAGEMENT v. GLORIA SMALL, 199 Wis. 2d 523; 546 N.W.2d 578; January 25, 1996.

SAVA HOLDING CORPORATION v. N.M., 304 N.J. Super. 586; 701 A.2d 739; March, 1997. 

Westminster Corporation v. Elizabeth Anderson, 536 N.W.2d 340; August 29, 1995.

REAL PROPS. SERVS. MGMT. v. ANATRA, 1997 Ohio App. LEXIS 3485, July 1997 

Commission on Human Rights v. Sullivan Associates, 1998 Conn. Super. LEXIS,1889.

Janis Bowman v. William Hamilton, 601 A.2d 1074, (1992).

Robert Atkins v. Chicago Commission On Human Relations, 281 Ill. App. 3d 1066; 667 N.E.2d 664.

Law Review and  Other Articles

Deborah Kenn, Fighting The Housing Crisis With Underachieving Programs: The Problem With Section 8, 44 Wash. U. J. Urb. & Contemp. L. 77 (Summer/Fall 1993).

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).

Steven Gunn, Eviction Defense For Poor Tenants: Costly Compassion Or Justice Served? , 13 Yale L. & Pol'y Rev. 385, (Fall 1995).

Karl Manheim, Tenant Eviction Protection And The TakingsClause, 1989 Wis.L. Rev. 925 (Fall 1989).

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).

Paula Beck, Fighting Section 8 Discrimination: The Fair Housing Act's New Frontier, 31 Harv. C.R.-C.L. L. Rev. 155 (Winter 1996).

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).

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). 

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).

 

 
Mark Capozzoli is a third-year law student at the University Of Dayton School of Law in Dayton, Ohio. He graduated cum laude. In 1996 from Saint John Fisher College with a B.A in Political Science and a minor in English. Upon graduation from the University of Dayton School of Law, he will become involved in landlord/tenant, criminal and personal injury law. He also will be heading for the sunny beaches of Florida to practice.

Annotations

Deborah Kenn, Fighting The Housing Crisis With Underachieving Programs: The Problem With Section 8, 44 Wash. U. J. Urb. & Contemp. L. 77 (Summer/Fall 1993).

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 outset.



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 thought. 



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 cases."



Karl Manheim, Tenant Eviction Protection And The Takings Clause, 1989 Wis.L. Rev. 925 (Fall 1989).

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 housing.

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 eviction proceedings.

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 "hands-off" approach.



Wisconsin Stats. 704.45(1), (1994). 

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 tenancies.

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.



SAVA HOLDING CORPORATION v. N.M., 304 N.J. Super. 586; 701 A.2d 739; March, 1997. 

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 apartment.



42 USCS 1437f (1998) 

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. ."



Westminster Corporation v. Elizabeth Anderson, 536 N.W.2d 340; August 29, 1995.

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 (Anderson 1996). 

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 below:

. . .(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 door."



Connecticut General 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 reads:

. . ."(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 income." 

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 move-in).

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 N.E.2d 664.

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 evidence. 



 
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