Stop Subsidizing Bad Landlords
Posted by Paula Franzese on November 22, 2016
Esperanza Menendez-Jackson is a single working mother who lived with her three children in a government-subsidized apartment building in Newark, New Jersey. Early into the lease, she discovered that the apartment was infested with bed bugs and was without heat, hot water, and a working oven. The apartment’s one bathroom had a serious mold problem.
She and her children wore layers of heavy clothing and on the coldest nights, sought shelter with family and friends. To avoid the spread of bed bugs, the family endured the daily ritual of shedding, bagging, and changing their clothes in the hallway each time they left home.
Over the course of a year, the landlord did little to address the significant problems and health hazards on site. When Menendez-Jackson finally withheld rent in an attempt to correct the problems herself, the landlord moved to evict her. Throughout the protracted court proceedings that followed, she was ordered to deposit her portion of the rent with the court to show good faith.
Astonishingly, however, during those many months and thereafter, the landlord continued to receive the lion’s share of the $1,800 monthly rent payment from the NJ Department of Community Affairs.
In that way, Menendez-Jackson became voiceless. Though she could continue to protest the deplorable conditions in her home and even assert those claims in court, the landlord’s principal cash flow was not at risk.
For the past year, my colleague Abbott Gorin, Esq., law student David Guzik, and I have chronicled the experiences of low-income tenants like Menendez-Jackson in Essex County, New Jersey. Our study will be published this month in the Rutgers Law Review.
We looked at the 40,000 residential eviction proceedings for nonpayment of rent that were brought in 2014 in Essex County and found, remarkably, that only 80 of those cases—0.2 percent of all residential eviction actions—had tenants asserting the defense that the premises they inhabited were substandard. That figure is startling, particularly given the far greater statistical likelihood that serious housing code violations exist in rental units in Newark and its vicinity.
That defense to nonpayment of rent, known as breach of the implied warranty of habitability, is supposed to guarantee that residential tenants live in apartments that are livable and in good condition. It was created to give aggrieved tenants who are, for example, without heat or running water or who are suffering from rodent, bug, or mold infestation, the right to lawfully withhold rent until the landlord makes the necessary repairs. It is meant to be a defense to an eviction action. Yet in most cases that guarantee goes unheeded.
We teach our law students that a right without a means for its vindication is hollow. Much more must be done by the organized bar to assure the provision of effective access to counsel for low-income tenants. Even when tenants are represented by counsel, the system is stacked against them and the larger aim of improving stocks of affordable housing.
Today even the most egregiously derelict landlord is assured a steady and uninterrupted governmental cash flow in the form of substantial rent subsidies no matter the tenant's assertion in court that the premises are grossly substandard or worse, unlivable.
To add insult to injury, every residential tenant named in a nonpayment of rent action faces the very real likelihood that he or she will show up on a "tenant blacklist" or central registry maintained by private agencies that is the equivalent of a miserable credit rating. Tenants placed on that list find themselves denied future renting opportunities and worse.
It is time for significant statutory reform of the landlord-tenant laws. A mechanism must be established to allow coordination between housing courts, housing inspectors, and state and federal rent subsidizing agencies to stop government cash flow to derelict landlords and instead allow those sums to be applied to preserving and increasing stocks of inhabitable, affordable housing.
Judges need quick computerized access to the given apartment's rental history and housing inspection reports and the means to alert government subsidizing agencies to landlord noncompliance with housing code standards.
“Tenant blacklisting” must be hemmed in to at the least require reporting services to omit from their registries any court proceedings resolved in tenants' favor and include the full and accurate context for all information that they do provide. Tenants identified in reports should be also be afforded the opportunity to clear their names.
This is an important moment for needed reform, as the plight of the working poor and those left out of the promise of decent housing come into sharper focus. Our study and its findings hope to be part of the solution.
This essay was originally published as a feature op-ed in The Star Ledger.
Image credit: By Jennifer Powell, via flickr, CC BY-NC 2.0)
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Professor Paula Franzese is the Peter W. Rodino Professor of Law at Seton Hall Law and an expert in property law and government ethics. She has spearheaded ethics reform initiatives on behalf of three governors, and as ethics advisor to state and local governments across the country, including Mayor Cory Booker's administration in Newark, New Jersey.