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|A T T E N T I O N
Here is your ticket to
|INSTRUCTIONS FOR USE OF COVER PLATE
1. Simply unscrew one of the electrical cover plates in your apartment from the wall. Presto! A code violation.
2. Now call the health inspector to redeem your free-rent coupon.
3. Stop paying rent immediately. You are legally entitled to not pay any rent at all until this simple code violation is repaired.
4. When your landperson wants to make the repair, make an appointment only at your convenience, sometime next week or next month. If your housing provider knocks at your door, now is not a convenient time.
5. Don't start paying rent until your apartment is code-perfect. Often, when one code violation gets fixed, another one shows up.
6. Use your free-rent ticket especially if you have already stopped paying rent and got an eviction notice from your landperson. Your free-rent ticket turns your evictable nonpayment of rent into non-evictable "rent withholding."
7. Just let your unpaid rent pile up in your bank account. Then, if you have to move, you have a tidy nest egg to start your new life with.
8. Don't worry. It's almost impossible for your housing provider to get this money back from you. Just leave town with it.
BONUS #1. Send your landperson a bill for the reduced value of your apartment because of the code violation. That's right. Each code violation entitles you to a rent refund. Look around. Be creative. You may find dozens of code violations, just like this one, all around your apartment.
BONUS #2. If your landperson takes a long time to make the repair(s), he or she is obviously negligent. You are legally entitled to triple damages and attorney's fees. You have just hit the jackpot. Who cares if you eventually have to move out of your damaged, worthless apartment?
TOO HARD? You'd rather not go through all the trouble of getting your landperson to do all those repairs? Just tell your landperson you will gladly move out upon receiving $10,000. Your landperson will thank you for such a good deal.
Housing inspectors tell their experiences
We did not go to the inner city. We visited small towns in the countryside. We interviewed local housing inspectors. Every day they go into many homes. Usually it's the worst housing around.
What turns buildings into slums? Do the laws help or hurt?
They all agreed: rent withholding, a state law, is actually creating worse housing conditions in their towns.
Tenants live rent-free as long as bad housing conditions remain. So cash-starved housing gets run rapidly into the ground - literally in many cases.
All these inspectors support mandatory rent escrowing, which preserves a tenant's right to withhold rent - but doesn't let the tenant pocket the money, so that ultimately the landlord will have the money to save the housing.
Here is what these inspectors told us.
Quotes from the Inspectors:
"The code is being manipulated not for public welfare but as a tool for litigation
"The lead law has killed many mom-and-pop landlords."
"This town is crumbling before our eyes."
"It's a progressive-type problem that turns into a cancer in the community."
"We are a tiny town with every single problem that a major city has."
"Rent escrowing will remove the landlord mantra that they have no money to
"I believe rent escrowing has a lot of merit."
Inspectors Lisa Hebert & Sharon White
"This was a great vent session," said Sharon White, a roving county inspector who stops once a week in the small town of Greenfield, Massachusetts, population 18,600. "I just dropped ten pounds of frustration."
Their frustration is with the kind of tenant-landlord situations that "take up so much of our time," Sharon explained. "They want hearings. There are accusations and counter-accusations. They refuse mediation. It's a very time-consuming process for us. Meanwhile, the housing is not getting fixed up."
She and Lisa Hebert, Greenfield's full-time inspector, had been talking for nearly two hours about the problems in Greenfield's low-income housing. And their sympathy went out to the many little landlords hurt in the process.
"The majority of landlords are people who have bought one house," Lisa said. "They don't know how to treat the property as a business, they don't know the state sanitary code, they don't know how to screen tenants, and they wind up in a situation they can't control."
"Yep," Sharon agreed. "Problems escalate, the tenant basically has control of the property, and the owner can't afford to do the repairs."
Lisa went on to describe the "problem-type" tenant who is not paying rent, claiming code violations and even damaging the property. "The owners are not savvy on how to use the court system," Lisa said, "and it becomes a major emotional deal for small owners. Their nerves are on edge."
"I've had landlords in this office crying," Lisa said, referring to a husband and wife who got cited for lead paint, tried several different methods to finance the lead paint abatement - and failed because there was not enough value in the building to support a loan. The owners asked the tenant to leave; the tenant refused. The problem was only solved when the owners took a radical step: they sold the single-family home they lived in, moved into the rental property, and used the sale proceeds to abate. "It was solved at a very high cost to the family," Lisa admitted.
Picking up the point, Sharon said: "The lead law has killed many mom-and-pop landlords." She was referring to the high cost of deleading that hits at the very moment that tenants stop paying their rent. "The tenants call us and boast that they have lead paint or boast that they have roaches. It kills these small investment owners," she repeated. "The tenants are thinking: 'Good, now I can live rent-free.'"
Now Lisa picked up the point: "I think that's what these tenants are told by legal services. They are pretty much savvy legally by the time they come to us. They have talked to legal services."
"Some tenants won't allow landlords in to repair," Sharon said.
Then Lisa told of a case that went on for month and months. "Every time we went," Lisa said, "there was another code violation to look at. The tenant hadn't paid rent for a full year. Finally, it was settled out of court with four more months of free occupancy."
Sharon continued the story: "It was a tremendous settlement for the tenant, but still the tenant could not drop the code violations. 'I'm earthquake-scared,' the tenant said to us afterwards. 'What about these floor boards?'"
How much do tenants deliberately damage? "If it's filth, like a filthy refrigerator," said Lisa, "it's easy to write up the tenant and we do. But broken windows? We can't determine who. I went into one apartment where every screen was ripped. 'How did this happen?' I asked. 'I don't know,' says the tenant. Even if the tenant did it, the landlord has to fix them, so we write up the landlord. And it happens over and over. That landlord told me 'I want to be there for the reinspection. I've fixed that screen three times.' That's the part of the system that really doesn't work. The owner fixes an eave, the tenant pulls down the board. The tenants are owning the building at this point. And I can't blame the owner. The owner just puts his hands over his face. Some owners don't even try to evict. They become immobilized."
"The balance is off in the laws," they agreed. Mandatory rent escrowing "would tighten up the system. The only other alternative besides escrowing is receivership, but that's very hard to do."
JOB WELL DONE. Inspectors Lisa Hebert (left) and Sharon White stood before a multi-family house in Greenfield they "rescued" after it went downhill fast. "It was a cute property," the neighbors said. Then it went into foreclosure. "The tenants were using the system, definitely creating code violations," Sharon said. "The tenants refused a financial offer to move out." Lisa and Sharon described how it used to look: five unregistered vehicles in the driveway, including a school bus leaning on the house next door; animals; two dangerous chimneys spewing black smoke; trash all around. And the worst: a basement they would not even walk in. It was filled with raw sewage from a broken pipe. It had to be shoveled out.
Inspector Charlie Kaniecki
About once every six months, Charlie Kaniecki boards up another multi-family house in Easthampton, Massachusetts, a small town of 17,000 population where Charlie is the health inspector.
Typically, there is a non-paying tenant, a tenant who is "withholding" their rent. But when a house gets boarded up, all the tenants get evicted including paying ones. They are being evicted by Charlie's Board of Health, not their landlord.
And as Charlie said, "the town is losing housing stock."
What kind of housing is it? It's all woodframe housing. Usually, it's housing in the center of town, originally built for working-class and immigrant families, with four to ten units in each building. "Rarely do you see duplexes turn into slums," Charlie said.
What kind of tenants? Charlie described them as lower-income families, usually three or four children, living somewhat crowded, earning a living in machine work, warehousing, manufacturing.
What kind of owners? We thought we'd hear about high-income speculators. But Charlie said most of them were long-term owners, typically in their 50's, usually a husband and a wife working together full-time in the rental business.
"This section of the community has become stagnant," Charlie explained, "and it affects the entire neighborhood."
Many of these tenants are left out of the current economic boom, Charlie went on, so tenant incomes limit how much these landlords can charge for rent. As a consequence, the owners, too, are missing out on the economic boom, and that limits their maintenance and repairs. There is no equity to take out loans to do capital improvements. So the only work done on these properties is "response-type" repairs or "crisis management."
These owners do "some repairs," Charlie said, like fixing broken hot water heaters, keeping furnaces operating, basic plumbing repairs. They do their own repairs themselves (because they can't afford to hire tradesmen), and they do "zero capital improvements," Charlie said. Of course, there's no money for capital improvements either.
"For example, they won't change an electric hot water heater into a gas hot water heater that's more efficient for everyone," Charlie said. "And they'll tack up a piece of No. 2 grade pine instead of higher-quality moulding wood."
So the quality of the unit gradually goes down hill. "It's a progressive-type problem that turns into a cancer in the community," Charlie said.
The real killer of this marginal housing is, finally, the rent-withholding tenant, Charlie explained. When there is suddenly no income from rent, "this only magnifies the repair problems," he said. "That's what's causing the landlord to fall into the 'slumlord' category."
Most of the time, rent withholding does not start with code violations. It starts with tenants who can't pay their rent. Charlie explained: "The first comment I get at the door from the tenant is: 'I'm going to withhold my rent.' They don't even talk about code violations. The bulk of the calls come in after they get the eviction notice."
Do the tenants actually damage their apartments? "It's hard to call that issue," Charlie said. "Coming in two days later, I've got no way of knowing whether the tenant did the damage."
But deliberate damage or not, Charlie was very clear: "The code is being manipulated not for public welfare, but as a tool for litigation between tenant and landlord. I believe rent escrowing has a lot of merit. It would free up my time for bona fide cases." Charlie estimated that maybe 5% of rental housing is marginal, "but it takes up 50% of my time." Charlie also has to inspect restaurants and septic systems, do "perk" tests for new septic systems, and other responsibilities.
Then Charlie outlined the typical scenarios that follow rent withholding, as the housing goes, in most cases, rapidly to its death.
"You've got a non-paying tenant and orders to do repairs," Charlie explained. "The landlords can't do the repairs without any money and no equity for loans. So the Board of Health must take the owners to courts as 'criminals.' Finally, the Board of Health must condemn the buildings, evict the tenants including the paying ones, and board them up. Condemnation is the 'kiss of death' in most cases."
"The property sits there for a time," Charlie went on. "There are several scenarios. Maybe the owner finally finds money for repairs. Maybe the abandoned building attracts vagrants and squatters and becomes a public nuisance. Maybe the city takes it for back taxes and puts the building up for auction. If nobody bids, the city must pay to tear it down."
Inspector Joan Barry
The town of Montague, Massachusetts, has a population of just 8,300, but its health inspector, Joan Barry, complains: "We have every single problem that a major city has, right in our center."
Those problems are drug activity, domestic violence, poor housing, abandoned housing, and businesses that have closed out of fear of crime.
"This town is crumbling before our eyes," Joan said. "It feels hopeless sometimes." Just a couple blocks from her town hall office, Joan pointed out two abandoned houses and one former "wreck" she helped save.
Her description of the housing at the center of the problem was very similar to Charlie Kaniecki's description for Easthampton: 4-to-10-unit woodframe buildings originally built in the town's former industrial center. It's occupied, Joan said, by tenants who pay little or no rent, whether it's because of low incomes or - in the case of "professional tenants" - a pattern of rent withholding for code violations.
"I've been in the houses, it's all the same people, it's all one package," Joan said.
Joan's goal is to "recapture" the housing. When a rent-withholding situation gets to the point where the Board of Health wants to condemn it, Joan knows the housing is on the brink of the downward spiral to destruction and abandonment.
"The last thing we want to do is go to court," Joan said. "It never helps anyone. It is our last resort. If someone is interested in fixing up their property, we work with them, even if it takes time. We are 100% supportive."
Rather than condemning a property or putting it into receivership, Joan has worked out a device called non-occupancy agreements. The city negotiates a period of non-occupancy with the owners, who get time to fix the property up or sell it to someone who will fix it up.
Another device Joan would like is mandatory rent escrowing. "The system supports 'professional tenants' who have nothing to lose and everything to gain by not paying rent," she said. "Rent escrowing will discourage them." And she added: "Rent escrowing will remove the common landlord mantra that they have no money to repair their property."
BEFORE INSPECTOR Joan Barry came on the scene, a house one block from the town's center had rotting back porches, junk cars parked in back, dogs tied up to fences, a dumpster overflowing with trash, a garage with no doors filled with debris for all to see, and no grass or flowers. Joan worked with the owner, letting him take time. "The owner is now grateful," Barry said. Tenants living rent-free could stymie an owner's efforts to fix a place like this up and force the owner to walk away.
Just two blocks away, on the town's main street, no one was paying rent in a Montague commercial/residential building when a fire broke out, killing one person and seriously injuring another. Doesn't public health require something be done?
The state and our cities and our towns spend millions paying housing inspectors to keep housing in good shape. And then the state cuts off their legs - by encouraging rent withholding that makes it impossible to improve (or even save) the housing.
If a tenant claims an owner is not putting any money into the house, the tenant's rent money should go into the house, not into the tenant's pocket. Massachusetts law, as in many states, lets the tenant pocket the money. It's a rip-off. It's a law that is wrecking owners, wrecking housing, wrecking neighborhoods.
Levant Street, Dorchester, Massachusetts
Free lawyer for tenant - 11 months no rent - owner goes bankrupt.
Powellton Street, Dorchester, Massachusetts
20 months no rent ! - 'I never want to be a landlord again.'
Sumner Street, Revere, Massachusetts
Six units - no rent for a year - owner walks - city condemns - housing boarded up.
Norfolk Street, Cambridge, Massachusetts
Free lawyers for tenants - six units - coordinated attack - owner forced to sell cheap.
High Street, Waltham
Free lawyer for tenant - 2-1/2 years of partial rent - owner goes bankrupt.
This Dorchester homeowner was bankrupted by one tenant
The tenant, advised by a free lawyer, lived rent-free for 11 months
You would not know that Vera Bartolo is a landlady. She lives alone. She rents from her sister. She works 60 hours a week as a hospital lab technician for less than $400 a week. She doesn't own a car. She's always worked hard, never had much.
But Vera is also a landlady, ever since she bought a "triple decker" on Levant Street in Dorchester in 1979. Vera charges just $600 a month for her two-bedroom apartments.
But Vera was declared bankrupt in January. Because a tenant, with free legal advice, did not pay rent for 11 months. That was all that did it. Vera almost lost her house.
Now Vera's life has changed. She buys all her clothes at a thrift store. She depends on her sister for food. A few months ago, she had to hock all her traditional Trinidad jewelry at a pawn shop to get $500 to pay her bills.
Vera got her no-rent tenant from Joseph Johnson, a welfare worker in the Massachusetts Transitional Assistance program. Johnson told Vera the tenant was "a good tenant" and promised he would relocate the tenant if there was any trouble. Johnson inspected Vera's apartment and said it was fine.
The tenant, a mother with five children between one and 12 years old, paid rent for two months, paid late the third month, and then stopped paying altogether.
Then the tenant started complaining. "Rats are peeping at my children from holes in the bedroom ceiling," the tenant said on the phone. Vera came over immediately. "Where are the holes?" Vera asked. There were no holes. The complaint was a fake.
But the tenant pulled open a drawer full of children's clothes and showed Vera what appeared to be rat droppings on top of the clothes. Vera was not sure they were real droppings. And with five children, Vera thought to herself, this tenant must be pulling clothes out of that drawer several times a day. How could a bunch of rat droppings accumulate in that one spot? "Either she is crazy or I am crazy," Vera said to herself.
Vera always exterminated two or three times a year. The last time was just two months before this complaint. Vera ordered another extermination.
Shortly after the rent stopped and the complaints began, Vera's handyman went into the apartment to do repairs and suddenly noticed: all brand new furniture. Out on the back porch was all the old furniture.
The handyman couldn't figure it out. How could the tenant buy all new furniture if she wasn't able to pay the rent?
Vera knew. The tenant had bought it with her unpaid rent.
So the tenant had one complaint after another, all used to justify not paying the rent, all used to stop the eviction that Vera filed for in court. It all stretched out for 11 months, until Vera went bankrupt.
Some of the complaints were phony, like the rats. Another phony complaint was lead paint. Vera had already deleaded the apartment, but just complaining put another month's free rent into the tenant's pocket. Other complaints resulted from deliberate damage: a missing doorknob, a piece from a brand new tub enclosure put out in the back hall - to keep the violations going. Or repairs of repairs, because the tenant was not satisfied with the "quality" of the work. The eviction case went "back and forth in court," Vera's lawyer said. There were rounds of inspections, repairs, and reinspections.
"Things get fixed, and they keep breaking," Vera said. "Seemed like the tenant had done this before." It didn't matter. What the tenant got was advice from someone who had done it before: a free "legal aid" attorney from the Legal Services Center in nearby Jamaica Plain. "They just stall," said Vera's attorney. "Eviction hearings get delayed with new code violations or some other reason. But when push came to shove, the tenant just skipped out, never showed up when, at long last, the real hearing came."
Remember Joe Johnson's promise to relocate the tenant if there was trouble? Vera called him and told him about her non-paying tenant. He didn't lift a finger to helpher. He did spend an hour and a half on the phone recently arguing with Skip Schloming that rent escrowing is wrong. "This is going to be fun," he said at the start of the conversation. His "fun" was paid for by taxpayers. His agency helped bankrupt Vera Bartolo, a little landlady.
Sumner Street, Revere, Massachusetts
There is no doubt that the three 6-family houses on Sumner Street in Revere were in bad shape - after years of drug dealers.
The question is: once the drug dealers were gone, did the housing have to go from bad to worse? Massachusetts' rent withholding law was a death sentence.
When the housing was sold at auction several years back, the druggies were gone and a new owner thought he had a chance. Only six of the 18 units were occupied, but the owner planned to invest all the rents and gradually improve the property.
What could be better? But the six remaining tenants had a different idea. They just refused to pay any rent at all - for over a year. With a zero rent stream, the owner could do nothing. Finally, the heating systems began breaking down and the city condemned the property.
The tenants were happy. Besides all the free rent, they got placed on the top of the list for public housing. But the private housing died - it's been boarded up for the past three years - because Massachusetts law does not make sure that, when there are code violations, the rent money goes into the housing, not into the tenants' pockets.
Source: a city official who preferred to be unnamed.
A tenant's home is their 'castle'. . .
. . . so there are no witnesses when a tenant damages their own apartment to create code violations, get free rent and stop eviction. It's a crime that's impossible to prove - and thus very easy to do. The only way to stop it: stop giving free rent to tenants for doing damage.
We're calling a proposed rent escrow law for Massachusetts the Lucy Panian Rent Withholding Reform Bill to save owners, save housing and save neighborhoods. Lucy is the Waltham homeowner featured in our April newsletter who went bankrupt when her tenant delayed eviction two and a half years with endless code violations.
What residents say about this tenant tactic
I wanted some community opinion.
So I walked around a little bit of Dorchester, Massachusetts, one Sunday in May. At my side was Vera Bartolo, the immigrant from Trinidad 20 years ago who went bankrupt this January when her tenant didn't pay rent for 11 months.
We walked up and down her lower-income minority neighborhood, Olney and Bowdoin Streets. We talked to every person we met on the streets this warm, sunny day.
It's a neighborhood of two- and three-family houses mainly. But there are a lot of single-family houses mixed in, and here and there are some bigger buildings, too.
A few houses are boarded up. But the drug dealers are gone. Vera thanks Boston Mayor Thomas Menino for that. And people think the neighborhood is improving.
Both of us were wondering about her neighborhood - just exactly how typical or unusual her treatment at the hands of her tenants had been.
"Could I ask you a question?" I said to everyone we met. Four persons owned rental property. One was a single-family homeowner. The rest were tenants.
"Have you ever heard of the situation," I asked each one, "where a tenant deliberately damages their apartment so they don't have to pay rent?"
Almost everyone said "yes" or nodded their head with a knowing smile. "People do it." "I see it all the time." "The tenant below me is doing it." "I've known a few people that have done that." "My uncle has that problem." Out of 15 people, only one - a 16-year-old girl and the youngest person we spoke to - didn't know what we were talking about.
"What do you think about it?" I asked them all directly, as I kept writing down notes.
"It's wrong." "They should be thrown out." "I hear you - it's wrong." "It's all messed up." "I think it's bogus." "It's not a nice thing to do." "I think it's lousy."
Everyone had a negative opinion of the practice. No one refused to answer the question or suggested that this practice of deliberate damage might be okay.
"What should be done about it?" I asked them.
"They should be thrown out." "They should be made to pay for everything they did." "They need to get out, damage or no damage." "If you can't pay, you should be evicted immediately, not even three months of free rent." "There should be a legal procedure to stop the damage."
Some saw the neighborhood consequences very clearly. "It hurts the property - no one wants to move into an area like that." "We're working hard to make our properties nice, and they are tearing it down."
What about rent escrowing? I explained a proposed law that, if the tenant thinks the landlord is not fixing up the property and they want to withhold rent, they have to put the rent in an escrow account in the bank, they can't keep the rent to themselves. "That's good." "That's fair." "Don't they have to do that already?" (No, they don't.)
Skip explained that landlords could take the money out of the escrow account only if they used it to fix up the property. No one - not one single person - disagreed with the idea of rent escrowing.
Vera Bartolo was really surprised. "I didn't think you would get that response," she said. "I thought people just wouldn't talk about it."
Norfolk Street, Cambridge, Massachusetts
A coordinated effort to force
A "radical" approach in the East Coast hotbed of tenant activism
At 59 Norfolk Street, a six-unit building just one block from desirable Central Square in Cambridge, all the windows have signs saying "Resist Eviction." No rent has been paid by any of the tenants for two months.
It's a well-coordinated effort. It's not about better housing. In fact, the tenants have asked that all repairs on the property cease. In a letter they declared they want to "negotiate" with the new owner to sell to a nonprofit "affordable housing" organization. They are expecting their rent strike will force the owner to sell.
Can the owner evict them for nonpayment? Nope. Because of code violations. There's a file two inches thick in the Cambridge inspectional services office, a history of complaint after complaint in every apartment stretching back four years.
It was the same old story - stall and delay on repairs - while the tenants snubbed their noses at rent increases. Current rents before the rent strike averaged about $450 for 5-room apartments, well below market. Then, a few months ago, the old owner (his family had owned the house for a hundred years) finally sold at a severe loss. A new owner came charging in and did a slew of repairs in three weeks. He even got citations against the tenants for refusing to let workmen in to repair.
The tenants were in danger. If the housing became code perfect, they could be evicted. That's when they asked the city to halt code enforcement. That's when they stopped paying any rent at all.
So rent withholding and code violations are being used to give tenants virtual control of someone else's property.
Iffley Road, Jamaica Plain, Massachusetts
The tenant in this triple-decker was evicted seven times before, now owed five months rent, and forced the owners to pay $1,400 to move and store her furniture. Of course, she called the city health inspector about minor code violations - like the tub not draining. The inspector took the tenant's word for it and didn't check that the tenant had simply lifted the stop lever on the drain.
The Lucy Panian and Vera Bartolo bankruptcy stories were featured on a recent NBC-affiliated TV station in Boston. The reporter was news anchor Sean Mooney.
Code violations take a toll on the soul
Hi. I'm a Code Saboteur.
-Submitted by ace reporter Jon Claflin, taped from his hidden mike at a recent Saboteurs Anonymous meeting (names have been changed to protect the guilty):
Meeting Leader: Who would like to share tonight?
Dan: I'll start. Hi, my name's Dan and I'm a Code Saboteur.
Gang: Hi, Dan!
Dan: It started one month when I'd had some trouble scraping rent together, I guess I'd been foolish with my money. Well, my brother suggested breaking a refrigerator tray and then calling the Health Inspector. I knew that it was wrong, but I... ah, I... ah... I'd never done anything like that before, so I was scared, but it was so easy! The Health Inspector came over, I showed him the broken refrigerator tray and I was hooked. Within a year, I had become so accustomed to my new rent-free environment that I was spending all of my money on whatever I wanted. I knew it was wrong, but I couldn't stop. I broke windows, sash cords, I pulled down light fixtures, removed door knobs, it was awful. Before I knew it, I was into the system like a comfortable pair of shoes. All of my legal representation was free, so that's how I started to justify this whole mess. I would tell myself that I'd make it up later, but I knew deep down that I had no intention of stopping.
Meeting Leader: Is that when you joined Saboteurs Anonymous?
Dan: Hell, no! I was still in denial. I went on like this for about a year. Friends and family knew that I had a problem, but they didn't want to admit it either. It got so bad that I was removing smoke detectors and hiding them in my car, exposing wires and even scraping paint onto the floor. I'd hit rock bottom I guess. Finally what woke me up was reading the Small Property Owners NEWS. I picked it up and realized that I wasn't alone, others were out there doing the same thing. I was filled with shame. It was a vicious cycle of lying and cheating and I didn't know how to stop.
Meeting Leader: Boy! That newsletter's an eye opener!
Dan: Yeah, I thought no one knew about my scam until I read it. I knew then I'd have to get help.
She cried days, she didn't sleep nights. Lucy Panian feared she would lose her two-family house in Waltham and everything she and her husband worked so hard for.
Two and a half years of hell
No rent + high repair bills = bankruptcy for small owners
"Don't call here," Lucy almost shouted into the phone. "We don't own that store any more. We lost everything. I'm not giving anything." And she hung up.
"Every day I get a call," she said.
We sat in Lucy Panian's immaculate kitchen on the second floor of their two-family house in Waltham, Massachusetts. The apartment below was empty. Two months ago, the tenants who forced her and her husband into bankruptcy had finally moved out.
For two and a half years, those tenants were enemies in her own home, driving Lucy through endless days of worry and tears, though endless, sleepless nights.
The nightmare starts
Lucy and her husband have owned the house for 12 years. They had had a number of tenants. One family didn't pay for three months, but they survived. This would be different.
Lucy's fellow volunteer Pat from a local help-the-poor agency came to her with tenants who needed housing urgently.
"But it's not ready yet," Lucy said. Paint equipment and her daughter's "stuff" were still in the apartment. It would be ready August 1, Lucy said. This was mid-July.
"But it's better than my in-laws' basement," the tenant said, and he asked to stay "for one night." Lucy agreed.
The next day, Lucy saw a truck out front and furniture being moved in.
"What's going on?" she asked. "The apartment's not ready."
"Don't worry," said the tenant. "I'll finish the painting."
Lucy didn't like it and went to Pat. Pat got the local agency to pay $800 to Lucy for the tenants' last month's rent. After two weeks of free rent in July, the tenants paid just $400 on August 1. They didn't pay the remaining $400 for August until the end of the month. Pat wrote on a piece of paper a tenancy agreement calling for three months' probation, to see if the tenants could work out their financial problems. They all signed it.
The tenants did pay - for three months. During that time, the tenant-wife gave birth to their fourth child. Lucy gave her a present. And then, after the three months were over, Lucy saw the tenant in the supermarket and said "hello." The tenant stiffly turned a cold shoulder. Something had changed.
From this point on, Lucy's tenants began a pattern of seldom paying the full rent, claiming deductions for things wrong with the apartment. They were using a loophole in Massachusetts law that allows tenants to block eviction by turning unpaid rent into "withheld rent" for supposed defects in their apartment. By the time these tenants are finally evicted, small owners can go bankrupt.
Their first deduction was for mice. In 16 years, Lucy had never had mice, and the tenants never told her directly. Instead, Lucy got a letter from the health department. There were mice, the letter said, and three other minor violations - one "a draft under the front door."
Lucy offered immediately to exterminate. The tenant objected. She didn't want poison. After some discussion, they agreed on a different extermination. It cost $120. The day after the extermination, the tenant told Lucy she was not satisfied, and Lucy ordered a second round of extermination. Another $110. Total cost to Lucy - $230.
Next month's complaint was about the broiler on the stove. Lucy's daughter, who had just moved out of the apartment, had had no problem with it, but Lucy said she would call the repairman. Lucy paid an appliance company $150 for the repair. Two days later, the stove was "not working again." So Lucy bought a new stove for $400.
Lucy knew her tenants were having trouble paying the rent and finding excuses not to pay. So Lucy gave them an eviction notice in February 1996 for nonpayment of rent and to take the apartment back for her own son.
Soon Lucy received a letter from a "student attorney" at the Boston College Legal Assistance Bureau, part of Greater Boston Legal Services, saying that the tenants had informed Lucy about their stove's "deficiency" way back in July when they moved in. The letter warned Lucy that her tenants "had a right to withhold rent from you until repairs were complete." That's the loophole in the law that allows tenants to "find" defects in an apartment and never pay rent while the owners go bankrupt.
From this point forward, Lucy's tenants would have free legal advice from Boston College on how to play the "free rent" game under Massachusetts law. Eviction would always be called "retaliation" for her tenants' "just" complaints.
At first, Lucy's tenants said, "We're gonna move." But then they said they couldn't find an apartment. Lucy knew why. No one would rent to them. They had played these same tricks on other landlords. The Waltham Health Department told Lucy: "They have done this before. We know how she is. We don't want to see them any more. We want them out of Waltham."
The tenants stayed on, complaining and never paying the full rent.
But Lucy was not vindictive. Seeing they now had a car, she wrote them a note saying: "There is a parking space for you for free. Please use it." Lucy kept a copy of the note. But the tenants would not use the parking space. They parked on the street. And then deducted another chunk of rent, complaining they had been denied an off-street parking space.
Four months later, Lucy gave her tenants another eviction notice. The tenants' response? Call in a lead inspection company. Lucy had deleaded the apartment in 1987, to qualify for a section 8 tenant. The scrape marks on the door and window frames were obvious. But the inspection company noted that the scrape marks only went up to 4 feet 11 inches. The official requirement is 5 feet. What had happened? Wall-to-wall carpeting with a pad under it had lifted the floor level one inch.
Would Lucy have to re-delead her apartment over that one inch? The district attorney in the eviction trial said there was no lead violation. So the tenants called in an inspector from the state's lead agency. After looking at the apartment, the state inspector said to Lucy: "I understand. These are all excuses (to not pay the rent). But there is nothing we can do. We are with the state." Yes, Lucy would have to re-delead. It cost her $3,200, plus $500 for the inspection.
Lucy would also have to pay to house her tenants elsewhere during the hazardous deleading. Lucy paid $352.34 for two nights that her tenants spent at the Home Suites Inn in Waltham, including half a dozen phone calls. Then her tenants demanded to stay in the presidential suite at the Double Tree Guest Suite. That cost Lucy $320.15 for one more night. Total cost: $679.24, almost a whole month's rent. While Lucy wasn't getting any rent at all.
Lucy's tenants had not paid rent for seven months, and she was in serious financial trouble.
Talking in her kitchen about her bankruptcy, Lucy pulled out a white plastic bag full of envelopes neatly rubber-banded in stacks and papers stuffed in large envelopes.
"Everything was an excuse not to pay rent," Lucy said. And it didn't need to be a good excuse. Remember the parking space? The judge ruled that failure to provide a parking space was not a valid claim to rent reduction. There were many invalid claims. But it was too late for Lucy.
Lucy lost $4,000 in unpaid rent. And was forced to spend $5,230 on repairs. This added up to a net loss of $10,000 for Lucy. At the very same time that they were not paying rent, Lucy's tenants forced her to spend heavily. The lethal combination of unpaid rent and expensive repairs sank her and her husband.
Lucy and her husband had barely enough money for food and fuel, and not enough for her mortgage. Nevertheless, Lucy was shocked when one day, without warning, a foreclosure and auction notice on her home appeared in the local newspaper.
Suddenly, Lucy realized she could become homeless. She cried constantly, thinking "I know we are going to lose everything." She could not sleep. When people called, she would tell them desperately: "Don't call, don't ask, don't talk to me, change the subject, I'm going through hell, I'm waiting for the justice to come."
"There is no justice," a law professor had told their son, who gave up his goal of being a lawyer after his parents' experience.
Lucy and her husband had to cut their spending to the bone. "Some days I didn't have food on my table," she explained, "and my tenants were bringing free food home from the Salvation Army. With food stamps, they were buying ice cream and chocolate. I just could barely get basic food. There were days when there wasn't a penny in my purse."
Lucy got fuel assistance for one year, but was turned down for food stamps, because "the house was an asset." (An asset? With nonpaying and demanding tenants?) When the bank attorney came to look at the house for foreclosure, he told Lucy: "I know it's very bad. I've been a landlord, too. Why don't you file for a Chapter 13 bankruptcy? That's the only thing you can do now."
Lucy now had to get an attorney. "I was calling many attorneys from the Yellow Pages, and they all wanted money." Finally, an attorney came along who didn't ask for money up front. He put his bill into the bankruptcy claim, which meant he might not get paid at all. "It's like God sent an angel to me," Lucy said.
So Lucy and her husband filed for bankruptcy. They had to sell his jewelry store to save their home. But it was devastating. They lost their principal source of income. Lucy's husband had to commute to New Hampshire or New Bedford daily, now as an employee. That lasted for less than a year. He got laid off this past January and has been searching for work ever since. At age 55, he is in one of the most difficult positions to find work or start a new career.
Lucy had gone bankrupt - and still no rent. By December 1997, after two and a half years of continuous problems, the tenants were $3,971 behind in their rent. After yet another eviction notice, a judge finally ordered them to leave on December 31.
On December 31, Lucy waited painfully for her tenants from hell to leave. Finally, at 2:30 a.m. on January 8, 1998, Lucy's son saw two little children and their father carrying things out of the house, not in boxes but one by one, to a van.
But Lucy was afraid to enter the apartment. She waited another week. And then her bankruptcy attorney called the Boston College Legal Assistance program and asked them to allow the owner to open the door. Their attorney finally called them back and said: "Go in, the keys are on the counter."
The tenants still owe Lucy $3,971. But Lucy will never get that money. The tenants cannot be found. The car plate is the same, but it's registered under a different name. They left no forwarding address and pick up their mail at the post office instead. The Boston College Legal Assistance Bureau does know where they live, but won't tell Lucy.
What Lucy's lawyer said:
"The tenants badly abused the system. They had a myriad of complaints. They figured, 'We don't have any money, we've got to make things up.' The lies were just beautiful to listen to."
"The biggest joke of the case was the eviction. The tenants were ordered to pay the rent, and they kept not doing it. The court would keep giving them another chance. Finally, the court ordered them to pay in three days. They did. Then they'd deduct it again unilaterally the following month and claim some phantom new violation."
"The free student attorneys for the tenants filed motion after motion regardless of merit or veracity, I guess to learn about litigation. That doesn't happen with regular attorneys."
Bankruptcy lawyers on tenants
The following comments came from less than a dozen calls to bankruptcy lawyers in the Boston Yellow Pages.
"I get at least a call a week from owners of two- and three-family homes."
"It's a big problem."
"Sure. Quite often."
"Happens all the time."
"All too frequent. It's tough."
"Generally they just walk away from their properties. There's not much you can do."
"It's an extensive burden on small property owners."
"It's particularly the small person who can't survive the loss of rent. They're at a great disadvantage. They're less sophisticated. They don't dot all the I's and cross all the T's."
"It's a definite loophole in the law."
"I see it all the time."
"It's out there and people are suffering from it."
A Crisis in Our Housing
When tenants can't pay their rent, they often don't turn to social help agencies. They turn to free lawyers who tell them how to attack their landlords and use the laws to extort free rent.
The social cost: bankrupt small owners and abandoned housing.
The loophole: Turning housing code violations into free rent
The loophole is right where two laws meet - eviction and rent withholding.
It's simple. Tenants who can't pay the rent and face eviction call in the health inspector, get the apartment cited for a myriad of trivial code violations, and then claim they are not "not paying" the rent - they're "withholding" the rent because of code violations.
The law says a tenant cannot be evicted for "withholding" rent. So tenants under financial stress can easily delay eviction, even stop it altogether, by sabotaging repair of the violations. Change the locks so the landlord can't get in unless the tenant is home. Then don't return calls. Insist on 24-hour written notice before the landlord can get in to make repairs. Say appointments are "not convenient." Don't keep appointments. Obviously, this can go on and on.
Once the landlord has finally gotten in to correct the violations, all is not lost. Tenants can make it hard for the inspector to get back in to document that the violations are corrected. And, even worse, they can undo some of the repairs before reinspection or deliberately damage and create new violations.
The law does not prevent this abuse. In fact, it actually encourages it, because each code violation entitles the tenant to a rebate or reduction in rent - depending on how bad the violation is and how long it existed. The tenant's unpaid rent can be partially or completely wiped out. This, of course, adds further incentive to delay repairs and damage property.
This abuse is unethical and fraudulent, pitting tenants in financial trouble against innocent owners and perverting the purpose of health inspections.
Small owners are devastated by this abuse, deprived of all income from a unit exactly when their expenses go up sharply.
Whenever tenants abuse owners with this legal loophole, it strikes small owners terribly hard. Small owners have few reserves, almost no financial elasticity. One non-paying tenant is a huge chunk of their income. Month after month of no rent - extorted unfairly - combined with burdensome, often totally unnecessary and trivial repairs plus extensive litigation costs add up to a lethal combination.
Small owners are severely emotionally traumatized when their hard-earned assets are suddenly jeopardized. Some go into bankruptcy and lose their properties, some lose the very homes they live in.
Because this tenant abuse forces banks to foreclose on properties, the Massachusetts Bankers Association has already told us informally that they would cooperate with rent escrowing accounts in their banks - precisely as a measure to control this tenant abuse.
Who gets hurt most? Small owners. And poor tenants.
In poorer neighborhoods, tenants are poor and owners cannot charge high rents. Yet the cost to maintain housing is the same. Precisely here, the tenant abuse we are fighting can break a property owner and push housing into abandonment. Everyone loses - tenant, owner and the community.
National housing specialist Cushing Dolbeare underscored how vulnerable this housing is at a recent conference in Springfield, Massachusetts. "There is no way," Dolbeare said, "that an owner of marginal and distressed housing can bring that housing up to code if tenants are poor." Dolbeare chairs a federal task force on lead hazards in housing.
"I've seen a lot of abandoned housing on my trips," Dolbeare pointed out, "and the stock was pretty darn good when it was abandoned." Dolbeare's comments applied, she said, to as much as one-third of all rental housing, which is classified as either severely or moderately distressed.
Massachusetts Senator John O'Brien declared at a hearing on rent escrowing last year: "The landlord-tenant laws in this state are destroying the housing in my city." He was referring, no doubt, to the legal-loophole effect of no rent coming in and crushing repair expenses at the same time.
Present law punishes property owners for having code-imperfect housing by taking away the very thing they absolutely need to maintain that housing the rent money!
The only way property owners can protect themselves from this legal abuse is to gentrify their properties and raise rents. But this is possible only in high-end neighborhoods. Meanwhile, the abuse loophole in present law just pushes private "affordable" housing into distress and abandonment.
Turning litigation into mediation
Some tenants do need help . Will stopping the abuse that bankrupts small owners, damages property and causes abandoned housing leave truly needy tenants without a safety net? Not at all. In fact, a lot more can be done to help these people than is done now.
An extensive network already exists to help tenants: local legal aid agencies. Tenants do not use legal loopholes on their own. Almost all tenants who use the delay-and-obstruct strategy with code violations are, in fact, coached by these publicly funded attorneys.
The safety network exists right now. But it needs to be turned away from destructive litigation towards constructive mediation. A proper rent escrowing bill would automatically change the priorities of legal aid agencies toward mediation. But in addition, a mediate-before-litigate requirement can be added to the law. State funding of legal services can be restricted to mediation use.
The way of mediation
Mediation in landlord-tenant relations is not a new idea. Public housing projects, where low-income tenants are prone to financial instability, have started introducing mediation programs. Private owners and their tenants have been served for years by the successful programs such as Mediation for Results at Cambridge's nonprofit Just-A-Start Corporation.
Instead of destructive litigation, tenants get their evictions stopped, a payment agreement is typically worked out, and owners often avoid the cost and unpleasantness of eviction proceedings. It's a win-win solution.
Ending wasted government resources
Behind every tenant abuse of this loophole is a trail of wasted government resources and money.
Litigation involves high-cost attorneys in time-consuming work. In contrast, mediation is faster and can be handled by less costly paralegals and non-attorneys. The cost-savings of mediation means that local legal services agencies with the same budgets could serve many more tenants.
Litigation also wastes other public resources. Local health inspectors get dragged into unnecessary inspections and call-backs. The courts also get dragged into sorting out the proliferation of fraudulent claims. Mediation would reduce the demand on these officials and allow the resources they represent to be directed to more productive uses.
Mediation is the way of the future.
Another small owner going under
This single older woman was denied food stamps and fuel assistance. She was finally given food by a private charity - St. Vincent de Paul Food Pantry - which also paid her long distance phone bill and her fuel bill. As we go to press, this woman is facing foreclosure and homelessness because, with months of no rent from her tenant, she has not been able to pay her mortgage. The following are excerpts from a letter she sent to us.
From Bankrupt on Cape Cod:
Legal aid has empowered my non-rent-paying tenant to threaten me with arrest and fines in my effort to be paid my monthly rent.
My one and only agenda is to collect rent for property given. No where did I agree to have a total stranger manipulate my life, deny me my income, and reduce me to a street person.
I have no funds. Creditors and collection agencies call daily with threats and further harassment. I have to screen my calls. I go to my neighbors for essentials. My long distance service has been suspended, denying me my ability to generate income.
My well-kept cottage is my only income producing asset. My credit is destroyed.
I've sent baked goods to this tenant. I've made holiday wreaths to give to my tenant that I was selling to buy holiday gifts.
I have been forced to put my home, my children's legacy, up for sale as I now am in default, unable to meet my monthly expenses.
Has anyone addressed the archaic law that lets this happen? Everyone I've approached agrees the law is outrageous. Tenants can always run to legal aid to arm them with enough ammunition to gain control of the landlord's property. YUP, that's the way the system works, folks.
The state allows tenants to rule and intimidate landlords who have given them lovely, clean and safe surroundings to live in, while the landlord goes belly up and cannot even get food stamps because that agency declares "the property is an asset" while legal aid and the courts deny the landlord the very income needed to survive, as in my particular case.
For four months I have been following the doctrine of sacrifice and suffering. Guess I missed the clause in the lease where it dictates that in the case of a tenant blatantly responsible for cruel and abusive treatment toward a landlord, that tenant shall prevail and reign supreme.
There is something radically wrong with this "INJUSTICE SYSTEM" running rampant. What 'educated' group proposed this bizarre law that forces property owners to be threatened with utility shut-off, along with other unbelievable issues directly resulting from not being paid income to have the basic necessities of life?!
How long am I supposed to endure this cruelty and abuse? I've become physically and emotionally distraught and totally debt-ridden, help is non-existent. I am formerly a peaceful, life-loving individual, now embittered, totally frustrated and about to snap. Thanks to this state, I now qualify for a [welfare] benefit to restore my life to the standard that I worked 40 years to achieve.
"This tenant rights law needs serious re-vamping . . . in this lifetime!"
Tenant petition flops
Official count: 19 signatures
Support could have been expected for the recent initiative petition in Massachusetts to establish "just cause" eviction and court-administered rent control across the state. After all, rent control's demise four years ago here might have spurred a grassroots tenant reaction. And all the "crisis" stories about evictions and rent increases in the Boston area media suggested discontent.
But it didn't happen. The Secretary of State's office received exactly 19 certified signatures on the petition.
To be fair, more signatures were certified locally than made it to the state level. But not a whole lot more. Cambridge, where the petition originated among tenant activists, certified 299 signatures. Boston certified 40. Brookline certified 0 (zero). These are the three Massachusetts cities that lost rent control four years ago.
Said a Boston election clerk: "It was way less than all the other petitions" trying for the 1998 statewide ballot.
A pro-tenant petition two years ago to bring back rent control by referendum actually got more signatures (under 2,000).
Paid activists are all they got
The tenant petition's dismal flop suggests very little interest - even in the tenant hotbed city of Cambridge - in stiffening eviction protections. If evictions and rent increases are indeed so rampant and outrageous, many more people would have flocked to sign the petition against it all. Even with the end of rent control to capitalize on, there is no grassroots tenant movement.
What makes up the "tenant movement" today and generates all the pro-tenant coverage in the media is simply government-paid activists and legal services advocates who have the time and resources to lobby the media. The Boston Globe, the Cambridge Chronicle and the Cambridge TAB, for example, gave generous coverage to the latest petition's first announcement, but reported nothing about the failed outcome. The Globe reported the fate of other initiative petitions, but no mention of the tenant one.
Instead, the Cambridge Chronicle in mid-December printed two front-page stories and a photo all based on a single manufactured event, a "rally against Real Estate Scrooge" protesting evictions and "greedy landlords" (none of whom were interviewed). The Chronicle claimed 100 participants at the rally. The Boston Globe also reported the event, but said 50 participants. The event being reported was engineered by paid activists trying to create an image of crisis.
And the real grassroots...
The real grassroots movement, however, was four years ago, when small property owners mainly from the three rent-controlled cities of Boston, Cambridge and Brookline collected over 100,000 signatures. Every bit as much "working families" as any tenants depicted in the media, these owners had been truly mistreated for 25 years and turned their mistreatment into political action.
The failed tenant petition shows there is no such movement afoot amongst the tenants.
Using code violations
Owner pays tenants to live in her apartment
Two grad students who shared an apartment near Boston had one more year of school and lots of debt. They called the health inspector, got 17 code violations cited, and stopped paying rent. They never complained about the code violations before. Some weren't even code violations. A hallway light had a pull chain and a wall switch. When the pull chain didn't turn on the light, the inspector cited it, not checking the wall switch, which was turned off.
A ceiling light fixture - called "defective" because it shocked one roommate when she was changing the bulb - was perfectly fine, the electrician said. The roommate had just stuck her finger in the socket.
One tiny room was cited for no electrical outlet, except the state sanitary code doesn't require outlets in such small rooms. But these nonviolations got counted as landlord negligence, and added to what the owner finally had to pay.
Many of the violations were simply items that showed long-time wear and tear: a loose electrical outlet, a broken refrigerator shelf, loose windows, missing sash cords. But all these minor items that kept the rent low could now be turned into money in the roommates' pockets.
The roommates sued for $20,000 for being forced to live in such "unhealthy" conditions. They agreed to move out after they got a year's free rent plus $2,000 apiece, while the owner, a single mom, had to pay them plus her own lawyer. Her total cost: $8,000!
Damage the apartment, create code violations
A Somerville housing inspector inspected this apartment and wrote the landlord: "Upon a reinspection of the above referred address, I did find the specific violations cited by this department on December 14, 1995, have been corrected."
On the same day as the reinspection, the tenants sent the owner a rent check - for exactly half the rent - along with a letter: "Many of the code violations which led to our recent litigation remain unresolved. I am withholding half of the rent due for the month."
This was the fifth time that new code violations appeared right after an inspection declared all violations corrected. These tenants had paid no rent in a year, had got a judge to stop their eviction, and were now continuing their free-rent strategy. Would it ever end?
The pattern stayed the same. The tenants called the health inspector, the inspector cited code violations, the tenants stopped paying rent, the landlord fixed the violations, the health inspector declared all the violations corrected - and then, just when the tenants had to start paying rent again, a slew of new violations showed up identical to the old ones. It happened four times in a row for a year, all while the tenants claimed they were "withholding rent."
The tenants had to be deliberately damaging their apartment. The eviction trial judge ruled that this Somerville apartment was "newly painted and in good condition" when the tenants moved in. Less than two years later, the health inspector found many code violations easily caused by deliberate hands: missing electric outlet cover plates, missing shower nozzle, missing smoke detectors, missing screens, broken windows and sash cords, holes in the walls, dirty walls, a broken shelf, mice and rates. How did the rodents get there? The tenants admitted they kept a pet rabbit in a cage with open food "that spilled out sometimes" and was cleaned up "once every eight days."
No matter! The owner had to exterminate repeatedly, fix the same violations repeatedly, and would pay the tenants for all the violations.
At the eviction trial, the tenants owed $3,800 in rent. But after their free legal services lawyer recited the rent refunds due his clients because of all the code violations, the judge found that the landlord owed his tenants $85! The tenants owed nothing and could not be evicted. Triumphant in their apartment, the tenants began another round of code violations. And the landlords' nightmare never ends.
'When is the law going to be
on no one's particular side,
but rather impartial and fair
to both sides?' An owner
Stop the owner's repairs:
The longer the violation lasts, the more rent the tenant saves
Mr. Moro has several tenants refusing to pay rent increases who have learned the strategy: don't let him fix the code violations within the required 30 days. They "drag it to death," Mr. Moro says.
Mr. Moro's tenants don't return his phone calls, he says. They don't answer notes on the door. They don't answer certified letters. They won't leave the key. They insist on being home while the repair is done. Even when Mr. Moro has caught a tenant home and asked face to face to get in to repair, the tenant says "I cannot let you in."
Once he finally gets in, the tenants have gone as far as stopping the repair right in the middle. One tenant kicked a worker out and refused to let the worker retrieve his notebook. Another tenant locked a worker out, leaving the worker's winter coat, keys and wallet locked in the apartment. The worker walked home in the cold.
Denying access violates the state sanitary code, but health inspectors never cited Mr. Moro's tenants. "Let's give it one more try," says the inspector, looking like he's trying to help. And when the next time comes, the inspector just says "let's give it one more try". . . .
Mr. Moro also tried to get an inspector to "witness us in" - to be present at the appointed repair time (after 24-hour written notice). "It took ten trips and ten refusals with one tenant," Mr. Moro said, "before I got the inspector there." Finally, with inspector present, the tenant let them in. But the inspector could not stay for the whole repair, and once he left, the tenant kicked them out.
By delaying repairs, tenants pile up rent refunds for each day of delay and make landlords look negligent.
The professional tenant
"Pete seemed like a decent guy, worked as a youth counselor. Boy, did he fool me! The same week he moved in, a neighbor called me saying all the wall-to-wall carpeting in Pete's apartment was out in the trash! I ran there. Pete claimed the carpeting was 'no good.' The next morning the Board of Health calls to tell me I cannot rent an apartment with bare wood floors. The inspector later told me this Pete guy was not new to him, that Pete knew the laws and had done this same thing to other landlords in the city. So while I was going crazy trying to fix all the 'sudden violations,' my lawyer was negotiating with Pete to leave. We had to give him 'money to move' and he voluntarily left. My lawyer had to just about force me to do it as it was completely unfair. But he convinced me it was cheaper in the long run because again the law was on the side of the tenant. When is the law going to be on no one's particular side, but rather impartial and fair to both sides???
Owner's trauma: does the punishment fit the crime?
[Transcribed verbatim from a SPOA voicemail message]
"I have a terrible problem. I can't get rid of this tenant. He burnt himself in the shower, he fell down the stairs. He's paying me $168.03 a month for 20 years. I couldn't raise his rent because he falls down the stairs or calls the building inspector every time I raised his rent and I'm a woman alone and I have no husband and I have no one to support me and I couldn't afford a lawyer. Right now, the man is still living in the building. Rent control is over but he's refusing to leave. I have had to hire an expensive lawyer who costs me an hour what this man pays me per month. The man is abusive, calling me dirty names, and I can't get rid of him. He owns the building. He threatened me if I don't sign his Section 8 form [accepting him as a tenant with federal assistance] that he would live here for the rest of his life for nothing. He also threatened me if I called him or sent him an eviction notice myself, he would sue me for harassment and abuse. There's nothing I can do. I need help. I've got chest pains, anxiety attacks, I can't breath and I've got headaches. I can't live anymore like this. If I don't get rid of this property, I'm afraid I'll end up broke. I'm older and this was my retirement."
This owner's attorney had worked out a compromise: the tenant would stay at a higher rent, hostilities would end, and at the end of a year, the owner could start eviction again on better footing. A bull-headed acquaintance, however, told the owner she should keep on fighting. Desperate and angered, she chose to fight. Unfortunately, the laws are not balanced, and this owner, now wishing she had compromised, is deeply embroiled in litigation that has no end in sight.
The best code violation of all: lead paint
[Recently received on SPOA's e-mail]
"I have a tenant who is threatening to take me to court because his one-year-old son has lead poisoning. The three-level house has lead paint in the windows and in the stairway. What can I do at this point? I am retired and am afraid that they are going to take everything I have worked so hard for all my life. They never pay their rent ($400) on time and right now they owe me two months' rent and still refuse to pay. It is interesting to note, now that they do not have money to pay the rent at all, they have decided to threaten me with bringing in the public health department. I am very distraught and don't know what to do. Thank you in advance for any and all help."
Couldn't move Mom and Sis in
[Transcribed exactly from an original letter]
"Two years ago I bought a house in Cambridge. I live in my house 17 years before I bought it. I had some savings and now I'm a happy guy. Rite? Sort of!!
"I needed two apartments, one for my mom whom by the way is blind, crippled, wears a pacemaker for her heart and has a kidney missing. The other for my sister in the apartment above my mom so she could keep a close eye and ear on our mom.
"Well, you might guess who didn't think it was a great idea. The tenants in those apartments I needed.
"I tried to negotiate with them but they wanted none of it. The short of it is they both got lawyers, who went the route of interrogatories, fact findings, code violations, court, etc.
"So I had to get a lawyer. My lawyer cost me plenty while their lawyers cost those tenants nothing.
"So now I have tenant phobia, because I'm a working man who wanted to take care of his family in his own house.
"Lets just have a level playing field, huh? I'm out almost $5,000 dollars over this."
Ten years, and still can't move in
"Ten years ago, I condoed my building and gave one unit to my daughter. She asked the tenant to leave. The tenant used legal aid representation and fought every move and has not yet moved. It's 1997, ten years later! The onerous costs of taking this case to Housing Court have stopped my daughter from ever gaining possession even now. She is now through college and grad school, married and had a baby! Ten years . . . and never once has she been able to pass through her own door."
Can't move back to his old home
He bought it 44 years ago. Moved in with his new wife. Raised his family there. Now, at 70 years of age, he wants to move back to his family home. But he can't. One year and eight months after starting eviction proceedings, his tenants are still there.
The tenants (a childless couple in their 30's) didn't even look at the comparable apartment he offered them next door at the same rent. It wasn't on the first floor, no garden outside, no view of their BMW, and an address change would be inconvenient for the thriving graphic arts business they operated illegally out of their apartment.
They called a free legal services lawyer and they called a health inspector, who sent the owner a list of minor code violations never mentioned before. The tenants denied the owner access without written 24-hour notice each and every time a worker needed to get in.
In court, they said the owner was cruel, retaliating against them solely because they had asked for repairs - not because he wanted to move back to his home. They said he "threatened" them and they were "fearful for their lives."
The judge didn't buy it and ordered their eviction. But the tenants appealed: another long delay, and in a quirk of the law applied only to landlords, a costly, complete retrial of the facts, not just a review for legal errors. The owner lost the appeal. Now what? Another long, uncertain eviction fight? Or just give up? Whose house is it, anyway?
Current law in Massachusetts and most other states is an invitation to abuse, to destroy property, to steal from owners. Sophisticated big owners can handle the law and take the losses. Small owners can't. One case can ruin them.
Most tenants are decent. They don't use the law this way. If they don't get along, if they can't pay, if they are asked to, they move out. If they need more time to move, the law gives it. If they need help, family, friends and public funds are there. That's all that's needed.
When small owners can't get rid of a tenant, the property is not theirs. When small owners can't control their property, they become slaves - or they go out of business. Big government, big corporations take over. Individual freedom is lost.
The law is already abusive, yet tenant advocates push for even harsher eviction laws, to support their legal services bureaucracy and anti-property agenda. Changing the laws won't be enough. We must stop the tax-funded advocates.
Media blitz on evictions
Smoke, mirrors & lies
Gouging landlords! Skyrocketing evictions! Out in the streets! Those were the headlines and slogans recently in a Boston newspaper and on a Boston radio station, a recent media blitz from tenant advocates timed to support the recently failed "just cause" eviction petition filed last year by tenant advocates.
But even as reporters blatantly slanted the stories, they also spoke the hidden truth: Evictions have slowed down since rent control ended! And landlords have been compassionate!
The Boston Herald proudly printed statistics showing a rise in evictions in Boston Housing Court. But look carefully. During rent control, evictions rose much faster than after rent control. In fact, since 1995, evictions have only risen by 1% a year. Early in the 1990's, before rent control's end, evictions rose as much as 26% a year, averaging 16% annually over three years. It's just amazing how a newspaper turns an eviction slow-down into "skyrocketing evictions."
Meanwhile, stories intended to elicit pity for hapless tenants suffering from Simon Legree landlords contain surprising truths. Just read between the lines.
One elderly tenant faced a rent increase from $400 a month up closer to market level for his desirable Fenway area apartment. Sounds unconscionable. But note: his landlord offered him two other apartments that would be affordable for him. He refused. The landlord offered to pay his moving expenses. He refused. Enough said?
A formerly rent-controlled Brighton tenant claimed she just couldn't afford the new rent her landlord wanted, so she convinced him to accept $300 a month less than he asked for. Then, the reporter tells us, she said: "Why should I just throw my rent money away?" and went out and bought a condominium for less in monthly payments than she would have paid in rent. Living close to the bone all those years? Or just saving up her bucks on her landlord?
Finally, another elderly tenant, facing a rent increase after decontrol, is portrayed as the picture of sympathy. "Long ago," she said, "I promised my family and myself that I would never, never take any kind of handouts. It would make me too uncomfortable. I would make my own way. It's why I haven't looked into any subsidized housing." But not too proud to take a handout from her landlord?
FACTOID: In Cambridge, out of 700 eviction filings, 300 were from the Cambridge Housing Authority, not private owners.
FACTOID: Last year, Banker and Tradesman reported a five-year low in evictions, based on a report directly from the Boston Housing Court's own administrator.
FACTOID: Evictions in Cambridge District Court stayed level in the aftermath of decontrol. Remember: the Cambridge Rent Board stopped processing evictions after Question 9's passage. So, add the Rent Board's average of 26 evictions a month to the court's monthly average of 55. That's 81. But during 1995 and 1996, evictions in that court averaged 71 a month, down from the total being processed prior to decontrol.
Average Change BEFORE Rent Control ended
Average Change AFTER Rent Control ended
Summary figures exclude the overlapping 1994-95 fiscal year.
Defenses and counterclaims
Throwing the book at landlords trying to evict
Evictions take only 28 days on average, a top Boston-area legal services lawyer told the Judiciary Committee of the Massachusetts Legislature.
But nine months is the current average for this attorney's own eviction cases, cases still pending before Boston Housing Court's Judge Daher.
He is attorney Jeffrey Purcell, who testified against SPOA's eviction reform bills recently and urged the Judiciary Committee not to limit tenant counterclaims to eviction.
Those counterclaims, SPOA contends, slow down eviction and encourage tenants to sabotage repairs, even damage their apartments.
Purcell knows, however, what a good lawyer can do with counterclaims. In the six weeks from February 13 to March 20, Purcell had seven eviction cases come before Judge Daher. Since only one case got a decision and the rest were "continued," that nine-month average is still "counting on the ticker" and rising.
Every one of Purcell's cases denied that the landlord had the right to evict the tenant, asserted five to seven defenses against eviction and asserted three to seven counterclaims against the landlord. At the end, each case asked the judge to deny the eviction and make the landlord pay the tenant thousands of dollars in damages.
What were the most common defenses? That the landlord failed to "properly terminate." That the eviction is retaliation. That the disrepaired condition of the premises ended the tenant's legal obligation to pay rent.
What were the most common counterclaims? Breach of the warranty of habitability. Interference with quiet enjoyment of the premises. Retaliation. Unfair and deceptive practices.
The rents, when stated, ranged from $172 to $738. The unpaid rent, when stated, ranged from $695 to $4,335. The claimed damages owed to the tenant, when stated, ranged from $460 to $8,856, but additional damages for unspecified amounts were always also claimed. Plus attorney's fees. Always attorney's fees.
If the amount owed the tenant exceeds the amount owed the landlord even by 50 cents, the tenant is not evicted. Even if the judge lowers the tenant's claim for damages and orders eviction, any amount allowed reduces the tenant's arrears in rent. The landlord's costs to repair a unit, even if damaged by the tenant, never get into the courtroom equations.
In making counterclaims for his clients, Purcell used the same condition in the apartment over and over again to jack up the "damages" the tenant is entitled to. A "sink in poor condition" not only entitles the tenant to a reduction in rent as a "breach of the warranty of habitability," but also to compensation for "loss of quiet enjoyment of the premises" and to compensation as an "unfair and deceptive practice" (because the landlord rented the apartment deceptively claiming it was habitable when it wasn't). Each legal claim against the list of conditions entitles the tenant to actual damages or three months' rent (whichever is greater) or triple damages. Added together, claims easily zoom into the thousands.
A typical list of "conditions of the premises" is vague and general. Here's one list: "Inadequate ventilation in bathroom (window stuck); stove in poor working condition; peeling paint; water is of very poor quality; inadequate heat; doors, windows not weather tight; cracked ceiling in bedroom; no sign with absentee landlord's name, address, and phone number in building; many doors and windows do not have screens; clothes dryer not functioning; inadequate locks for entry doors; kitchen, bathroom sinks in poor condition; floors are corrosive, dirty, and poorly maintained; and exits are not cleared of ice and snow." A repairman could not easily figure out what was wrong in many of these items.
Many of the same "conditions" appear in all of the cases: water quality or pressure; inadequate heat; windows not weather tight; inadequate locks; "poor" sinks. No case said that the premises had been inspected by a public official.
This strategy of counterclaims pressures owners to fix up apartments and raise rents. But tenant incomes often prevent it. So those owners who remain to do the critical job of housing lower-income tenants become sitting ducks for a non-paying tenant with a free lawyer. Public policy on housing conditions should be determined by legislators and citizens, not lawyers.