Bennington Housing
Authority v. Lake, 2012 VT
82.
In the practice of law there are cases that come to your
doorstep mid-process. That is the client
has done things a certain way for a long enough time that whether you agree
with the steps they have taken or not, you are going to have to defend it in
court.
This is why lawyers make the big bucks and what infuriates
the public so much. How can you defend
your client’s actions, they ask? The
answer is we have no choice. The client
did what he or she did. Our job is to
just put the best face on it and go forward.
I am not sure if today’s case was such a situation, but the
rapidity with which the SCOV disposes of the legal issues suggests that the
Plaintiffs had it wrong long before the attorney stepped in to prosecute.
Here is the lowdown. Plaintiff
is a public housing authority. That is
it is an agency that provides low-income housing in the Bennington area to
needy individuals and families through either housing subsidies or through the
administration of its own government subsidized housing.
Today’s case involves the latter and is essentially an
eviction case for the non-payment of rent.
Or at least, it started that way.
When fuel rates started going up, Plaintiff instituted a
policy that would fine tenants if they were caught with their windows open on
days where the temperature was below 40 degrees.
Why would a person open a window in the middle of
winter? The SCOV does not explain, but
one suspects one of two things: negligence or an older heating system. If you have ever lived on the second floor of
house with steam heat, you know that it can get sub-tropical on a regular
basis. Poor insulation combined with a
heating system that has two settings (off and full bore) can make even the most
dedicated hothouse flower open the window for a little relief.
Of course, the heat escaping is essentially money out the
window, and to a landlord squeezed by reduced resources, it is an insult and a
cost the landlord will not bear.
So someone, somewhere in Plaintiff’s organization came up
with the brilliant idea to police the property and begin fining tenants caught
with their windows up. The fines were
quite harsh: $50 for the first two days and $75 every day thereafter. Make no mistake the SCOV notes later that the
potential fines for leaving a window up for the entire month ($2,200) greatly
exceeds cost of the potential heating lost ($965).
As might be expected, several tenants were caught, and as is
common in low-income households, they were unable to make rent and the
additional fine payments.
This led to a meeting between the individual tenants and Plaintiff’s
executive director. The parties achieved
no resolution. Plaintiff sent a follow
up letter, but Tenants still were unable to pay. An action for Defendants’ ejectment from the
apartments followed shortly thereafter.
The main problem with Plaintiff’s case stems from the fact
that it is a public housing authority and subject to federal housing authority
regulations. Despite Plaintiff’s
arguments that the regulations do not apply, the SCOV rules at the beginning of
the case that the rules apply.
This ruling is fatal to Plaintiff’s case. There are three glaring issues with Plaintiff’s
process that make its ejectment action improper. All three stem from the federal regulations
and bring a tart response from the SCOV.
The SCOV begins with the final meeting between the executive
director and the Defendant tenants. This
meeting was ostensibly to warn the tenants that they needed to pay back rent
and fines or face eviction. Such a
meeting, though, had to come with notice that tenants were entitled to grieve
the executive director’s decision and how to do it. As you can imagine, neither the meeting nor
the follow up letter contained any such information. Plaintiff did make an oblique reference to
the lease language on grievances, but it is couched in such technical terms
that it does not meet the federal regulation in either letter or spirit.
Moving backward, the SCOV finds the same defect in the
Plaintiff’s notice of fines and repairs that charged tenants for violations of
the open window policy (not to be confused with the early 20th century open door policy by which
various western powers exploited China).
The notice of fines and violations did not include any information about
the tenants’ grievance rights or even notification of the grievance
process.
As with the notice of eviction, the lack of notice of the
tenants’ right to grieve is fatal, and the SCOV affirms the dismissal of these
bills.
Finally, the SCOV goes back to the beginning and finds that
the open window penalties were excessive and exceeded the Plaintiff’s authority
as a public housing authority. Federal
law allows a housing authority to impose two charges beyond rent: for repairs
to excess wear and tear; and for excess utility usage. Open windows do not fall into either category.
As you can tell, the tone of the SCOV decision is somewhat curt,
bordering on harsh. When an agency is
subject to federal regulations and by extension an administrative grievance
process, the purpose is usually two-fold.
First, the clients or tenants of the agency are low-income/high-need
groups to whom the agency should be serving.
After all if a housing authority will not house these individuals, who
is likely to? The rules discourage the
type of summary process that stacks the deck against these individuals and
removes the benefit upon which they rely.
Second, the administrative grievance process is intended as
an in-house conflict resolution system.
If there are problems, the grievance process is the best way for the
housing authority and tenant to work things out. In this case, there needed to be a serious
conversation with tenants about their open windows. The SCOV suggests that a proper regulation
coupled with a grievance process could have resolved this well short of court
action. Ignoring the grievance process
brought things to a head but not in a permissible manner, and the Plaintiff is
dinged three times as a result.
And with that, Defendants are entitled to resume their
tenancy in what is likely the happiest rental property on earth. Plaintiff, meanwhile, will no doubt be
settling in with a copy of Volume 24 of the Code of Federal Regulations for
what should be a bracing read.
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