Using code violations to live rent-free

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.

EVICTIONS: based on Boston Herald statistics

Summary:

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, 1999, Purcell had seven eviction cases come before Boston’s then top housing court judge, 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.