What is wrong with this picture? There is a rental suitability law in Philly, that largely protects low-income people from slumlords. (The bill was pushed through by Rick Mariano, right before he resigned to go to prison, so that he could have a legitimate legacy before he left.) It was a nice gesture, and was passed over opposition from landlord groups.
However, now the Nutter administration has decided that amidst a lawsuit from landlord groups, it is not going to enforce the law, until those lobbying groups approve of changes to the bill. Fox, meet henhouse. Please lock the door on the way out, and don't choke on too many feathers.
Given what is actually in the bill, that there is even a mild controversy over this is pretty strange. Because what controversial things did the rental suitability law actually say?
- That the landlord has completed all requirements from L and I, and has no violations. (Crazy!)
- That the unit has working smoke detectors and fire extinguishers. (No!)
- That the unit doesn’t have problems- like lead paint- that can cause health problems in tenants. (Bastards!)
- That these requirements will be maintained while the tenant is renting the property. (How could they!)
If you were renting a property from someone, wouldn’t you expect/demand that anyway? Of course you would- because if you are reading this blog you are likely reasonably well-educated, more likely than not middle-class, and have a basic understanding that you are entitled to certain crazy things, like a home free of lead paint.
The 'controversy,' in theory, is because landlord groups are complaining that the bill gives tenants too many rights and is too vague. They allege this:
Lawrence Fischer, an attorney for the Apartment Association of Greater Philadelphia, counters that the law is too vague, citing "health and safety" without defining those terms. And Fischer said it lets a tenant manipulate the law to avoid being evicted.
"That's just not right," he said. "Any person who is about to get evicted, all they have to do is concoct an allegation of a violation and it stops the process."
This is frankly laughable. Maybe things have greatly changed from a year ago, but I have actually sat in on Landlord-Tenant Court, at least a year after the bill was passed. To say that the Court or law was in any way stacked towards tenants is a total joke. And, to imply tenants can win by simply inventing violations is a flat out lie.
Landlord-Tenant Court is a piece of Municipal Court that is- as the name suggests- a place where tenants and landlords are supposed to be able to bring and settle disputes. However, tenants almost never actually use their rights, and LT court could more aptly be described as eviction court. What you generally have are low-income tenants, almost never with counsel and almost never with an understanding of their rights, facing landlords, often represented by counsel, who have been through this process before. The power dynamic is dramatically tilted to the landlord. And, while I am sure the tenant must win sometime, I never saw it, on a daily docket with about 30 cases.
Basically, Philly landlords got used to a court that quickly served their needs. Then this law passed, and despite the fact that the overall power dynamic hasn’t changed (because most tenants still don't have counsel and don't know their rights) - landlords got pissed. Now, despite his vote for the bill as a City Councilman, landlords appear to have an ally in Mayor Nutter and the City Solicitor. We have reached bizarro world when the City Solicitor states she is suspending a law protecting low-income people because she doesn't know if it is enforceable, and because... it might not be consistent with the Mayor's goals.
First, what goals are those? And second, I must have missed the lesson in civics class where the Mayor can stop enforcing laws he doesn't care for.
I challenge anyone- for example, the Mayor or the City Solicitor- to sit in on a few sessions of LT court, and then tell us with a straight face that tenants in this city have too much power in the eviction process. As tenant after tenant either doesn’t show up, or has no understanding of their rights nor any comfort level defending themselves, and are then evicted or pressured into a behind-closed-doors mediation process, the reality of the situation will become quite clear.
If the problem here is vagueness- then take the issue to City Council, and let them modify the bill. Because, when low-income advocates get City Council to pass a good bill, and the Mayor simply decides to stop enforcing it, there are some pretty crappy implications that can be drawn.
The Mayor should go back to actually enforcing the law that is on the books, and City Council can- out in the open- hold hearings on possible changes. A situation where the City simply cuts a deal with landlord groups is a shameful joke.
On the off chance that anyone is as much of a dork as me or Dan
Here's an upload of a 400-some page master's thesis study of Philadelphia Landlord-Tenant Court from 2001. Light spring reading.
Among other surprises, the study shows that outcomes in Landlord-Tenant Court bear no statistical correlation to legal arguments used. Also, most tenants are unrepresented, most cases settle, and all settlements are unappealable.
There's absolutely no problem, in theory, with reviewing laws to make sure they work well and achieve their valid purposes. But giving veto power over changes to property owners, when--as the article concludes--they are completely benefitted by the new status quo of the bill being suspended altogether...
The landlords really hold almost all the cards, and suggestions that they are systemically disadvantaged really are as ridiculous as Dan says.
Bogus
Raise your hands, folks: who here has rented an apartment that didn't meet one or more of the suitability conditions above? Who's rented one that didn't meet any of them? (My hand is still raised.)
Renting is already a crapshoot. Some minimal certification of rental properties is sorely needed. What really rubs me raw is this:
If Nutter's admin is willing to take on the state in court to fight for our gun laws, they should be willing to take on landlords in the Court of Common Pleas. Yeesh.
Yeah, and those of us in Mt.
Yeah, and those of us in Mt. Airy and Germantown know how likely it is to find a building without lead paint. I remember joking with my RE agent before I bought my house. He was like, do you want to spend 80 bucks to find out if you have lead paint. I was like, hmm, spend 80 bucks when I already know the answer to that question.
Lead paint
As Charles implies, just about any house other than brand new (the US banned lead from paints in 1978) is going to have lead paint somewhere. The key is, in a word, encapsulation. Just as asbestos isn't a threat, provided it's properly encapsulated in some sort of wrapping, lead paint isn't a threat, provided it's been covered by enough lead-free paint.
The problem, for both lead + asbestos, is that encapsulation can fail. This may be more troublesome with paint, which tends to chip. But truly remediating lead paint is expensive: it requires sealing off a small are, stripping the paint (using a lead-free solvent), and then safely removing it. It's almost always easier to make sure that any paint over the old stuff doesn't chip.
-Z
Yes
It's true that most homes and rentals in Philadelphia contain lead paint, but there are also federal disclosure and hazard standards for pre-1978 buildings. When you rent or buy a non-remediated property built prior to 1978, you're supposed to get a lead paint disclosure form. If you don't, or if the building is a hazard, then you may have a legitimate problem with warranty of habitability. I see this a dodge for the landlords rather than a real issue.
I am going to go out on a limb
and say that there has probably never been a case where an eviction that would otherwise go forward was blocked solely because of lack of lead disclosure. Maybe lack of lead disclosure, affirmative evidence of lead, peeling paint, AND like three other unresolved violations... But even then, there's no guarantee that the tenant prevails. The system just does not work like that.
Sometimes, when a tenant is lucky enough to have a lawyer or legal advice, outstanding violations or lack of rental license can be used as leverage by the tenant in settlement negotiations. These situations are probably relatively uncommon since the vast majority of tenants don't have lawyers, but when they occur, usually the facts of the case are that the tenant does owe rent but the rent should be abated at least in part because of violations (that is, the landlord is not in compliance with legal requirements) or lack of license (again, the landlord is not in compliance).
That is, it's used in situations where the ordinance is working in the way it is meant to work, for the goals it is meant to achieve.
My point is that the
My point is that the existing regulations on lead provide sufficient guidance on how to handle pre-1978 buildings. So the argument that the ordinance somehow mandates expensive lead abatement is spurious.
I'll bite
It often seems in discussions of gun-control there is one poster who chimes in "even though I'm a screaming lefty I'm a gun owner, etc., etc." and it seems like I'm forced to play that role in this discussion.
I live in a very small apartment building I own and rent a couple of one-bedroom apartments in it to help cover the mortgage. That makes me an "evil landlord" in case you didn't follow and I am in fact a dues paying member of one of the two landlord groups in this case HAPCO, which is of the two organizations mentioned in the article, the one more oriented to small-scale rental providers. As I live in the same building with my tenants, I'm far and away from being an "absentee landlord" and the fixtures and maintenance in my apartments are exactly the same ones I live with.
I don't agree with every stand HAPCO takes but on many I feel it is fairly reasonable. For example the horrible proposal a few years back to make landlords liable for PGW bills that tenants run up and ditch on in the form of liens against the rental property HAPCO took a leading role on what I think was actually the "progressive" side of the issue. The bill was just awful policy, unfair and implicitly anti-affordable housing (if a tenant can leave you with lien on your property beyond your control why ever rent to a tenant with less than stellar credit rating - ever). Many people tend to wrongly assume that being blanketly anti-landlord is somehow pro-affordable housing, which if anything is the opposite of the truth more often than not.
That said I agree completely the stipulations in this law sound entirely reasonable, though to be fair it must admitted somewhat vague. Beyond that all of the things that landlord can be hit for in order to get the "rental suitability certificate" are in fact already part of the building code anyway. If your building is multi-unit you are required to do all of those things (hard-wired alarm, fire extinguishers, etc) regardless. Which begs a question. If the building code already requires all of these things anyway, what exactly is the purpose of this legislation? Why if L&I already explicitly requires all of this stuff and the tenant or merely someone who just doesn't like the building owner can call L&I at any time to report a violation do we need this law?
To be clear I'm playing devil's advocate here, in part to draw attention to the elephant in the corner in this thread which is coming up shortly.
I'll be blunt. There are some awful, awful commercial landlords in this city. People who should rightly be run out of business. L&I often does an awful, awful, awful job of enforcement against bad landlords, individual homeowners, small business owners, nuisance bars, owners of abandonned houses that used to belong to deceased relatives, etc., etc. At times L&I enforcement can be used as a tool for blatant political punishment as this article about the Dive pointed out. More recently I'm thinking of some very, very well publicized tickets for not shoveling snow that State Rep. Tony Payton Jr. was given and had then had plastered all over the internet during the primary that just ended.
The problem with this law is not that it makes unreasonable demands. Quite the opposite. As pointed out all of the things it details and much, much more are already on the books as part of the building code and could be enforced if L&I took a hankering to anyway. The problem is L&I is at best undermanned and arbitrary in enforcement, at worst beset by political patronage and abuse. Back in 2001 12 of the 14 plumbing inspectors employed by L&I to cover the entire city were busted by the FBI for demanding bribes and to make matters worse in most of the cases besides demanding the "tip" never actually inspected the work anyway. We are a little bit better off now than in 2001, you can get forms from L&I online these days, but in terms of L&I, Philadelphia still has a long, long way to go.
When PhillyStat finally rolls out, I'm looking forward to lots and lots of exciting popcorn-worthy hearings on L&I's performance (or lack thereof) - guaranteed.
My point again is that everything about this certificate is indeed totally reasonable but that if progressives don't want to come across as "shouting at the wind" - its silly to get all in a huff about a basically redundent law and not mention at all the crappy, arbitrary building code enforcement and byzantine burfeacracy that is far to often the rule and not the exception in terms of L&I in Philadelphia.
One other point - putting a redundant law on the books without dealing with the continuing problems of enforceability may have given Mariano some "cred" before his trip to prison - it still did not do anything with the other half of the problem that Dan's post points to - Landlord-Tenant Court.
Landlord-Tenant Court is perhaps the textbook example of how our lower level judicial appointment process is broken. Basically if you want to be a judge you need a lot of political money to pay the ward system. Specifically if you aspire to work in Landlord-Tenant Court and you need that money to pay the ward system, where are you likely to turn for political contributions? Oh yeah, right, to large commercial landlords. Since this is pretty well traveled territory in terms of the argument over judicial reform in PA, I will leave it at that - except to point out there is no level at which the potential for conflict of interest is so blatant and obvious as at the lowly level of Tenant-Landlord Court. Its not just lack of council for the tenants - its that the judges themselves are often directly beholden to the large landlords.
Anyway, thats my stab at the "minority viewpoint" in this thread.
-Sean
MrLuigi, my cat, actually only types half as badly as I do.
It's a good question but unfortunately
The key is in how enforcement works. As far as I understand, L&I can give fines, based on their inspections and on tenant complaints (followed by inspection). Even if L&I was working well (ha) this would not likely cover all the instances in which landlords are in violation of the building code.
Where the issue really gets raised is in the eviction context, typically in a conflict over outstanding rent. The lease says the tenant must pay X per month, so the landlord claims all that as rent due. But the apartment isn't up to code: there are problems with heat, plumbing, windows, leaks, whatever. So the proper legal result is that the outstanding rent is reduced by some proportion and the landlord is mandated to make the apartment habitable if the tenant wants to stay and is willing and able to pay the rent that is legally due after abatement. That's just under state landlord-tenant law.
But it doesn't work that way. Tenants frequently get pulled into landlord-tenant court with a valid legal claim to rent abatements or even affirmative money damages for actions by the landlord. But they typically (overwhelmingly) don't have lawyers. They don't know their rights and can't assert them. Most cases don't see a judge at all, who would theoretically be an impartial party and could balance the rights and interests in the case. In theory.
Anyway, in the absense of affirmative enforcement of the code, either by L&I itself or by the courts, the ordinance makes sense. It's literally an enforcement mechanism. It puts the leverage where it matters: eviction. If you want to evict, you have to satisfy X, Y, and Z prerequistes. Really, like you say, these prerequisites are basic to legally renting out property. But the eviction context is really the only time landlords will consistently be forced to account for compliance with the code, and they wouldn't dependably have to without the Rental Suitability ordinance.
The (really long) article I linked in my first response has a really interesting historical account for some aspects of the status quo. L&I court and landlord-tenant court were literally separate, and landlord-tenant court saw its objective as facilitating landlords' rights under lease contracts. And doing that efficiently, through as many settlements and as few actual trials as possible. The code enforcement wasn't their business. After PA renters gained the right to an implied warranty of habitability, enforcing rental contracts and enforcing building laws became intertwined.
NB the court needs a help desk staffed by volunteer lawyers providing limited legal advice. I am working on this.
Redundancy/non-redundancy
I tutor high-school age children. Because of this, I have a child abuse clearance from the state of Pennsylvania certifying that I have never abused children. I also have submitted to a criminal background check. Now, it would still be highly illegal if I were to abuse a children or commit a criminal act in the course of my work. But the certification gives my employer and my clients assurance that I am not a danger to them or their families. The need for my certification does not make those laws redundant. Instead, it verifies that I am a person suitable to enter into a contract with before the contract is enacted and well before any future violation could possibly occur.
That's what a rental suitability certificate does. It signals that the property is legally suitable to rent before any contract is enacted. Not only does this help me to choose where and from whom I rent, but it also saves me the trouble of fighting with my landlord when serious, dangerous problems are discovered.
I have been a renter and I have been a landlord and frankly I have disliked being both.
Parallell thread
http://www.phillyblog.com/philly/politics/56217-city-suspends-landlords-...
One poster, as she states in the thread, is a lawyer who has represented tenants pro-bono Landlord-Tenant Court, but also questions enforcability. Another poster, "sharkbait", is a medium-to-small scale landlord who has rehabbed a number of formerly bombed out buildings around so-called "Temple-town" in North Philly, if memory serves me correctly. Just to give a little diversity of opinions.
-Sean
MrLuigi, my cat, actually only types half as badly as I do.
Your phillyblog thread provides examples
The issue there is being framed as "how can you effectively ensure that all people renting property have licenses and follow the building code," given that L&I (again, even if it were working perfectly) has limited resources and can't identify all the violations.
Well, at the very least, noncompliant properties are captured when their owners attempt to use the eviction process. There may well be aspects of the law that need to be refined, but I think there absolutely needs to be some clear mechanism that connects code violations with attempted evictions, since, well, they should be linked. The issue in at least nonpayment evictions is the landlord's right to get money for the tenant under a contract, and his own performance under that contract (providing a habitable apartment) needs to be ensured. But it would not be without something like that ordinance.
am i oversimplifying?
I have only ever been a renter and luckily never had any landlord trouble. And Sean, your questions seem fair. But I think the issue of landlords and tenants, and lead paint, and L & I is all beyond the point.
As I have mentioned before, I am no lawyer, but I did not know that the Mayor's appointed City Solicitor could choose not to enforce laws passed by Council.
Doubly troubling is that this suspension is at the behest of a group of property owners. While some members of the association may be small-time landlords like Sean, it's still not a practice or a message I feel very good about.
Isn't that the point, or subject of debate here?
Yeah, exactly. There is a
Yeah, exactly. There is a law designed generally to protect low income renters (forgetting for a minute whether it works.) And now at the behest of lobbying, the Mayor has decided he isn't going to enforce it, with odd talk about it not meeting his goals.
There are obviously deeper issues that can be debated. But I find the argument that the law should be abolished because L and I doesn't inspect most properties as a a little nonsensical. There are a lot of things that we don't always enforce- but they are laws because they are a statement about someone's responsibilities that both signal a set of priorities, and then can be used in different circumstances. So, on the rare occasion when a low-income person is actually represented at a hearing, and there are obvious violations- and the landlord has self-certified that there are not- the renter all of a sudden has leverage.
And yes, L-T court is an incredibly effed up process. But, again, it is mostly eviction court, where people have no idea of their rights. So, how about we ask the landlord groups for this trade: Get rid of this law, and then come up with a funding stream so that every low-income person has counsel when they get a notice of eviction. Think they will agree to that? (That is, of course, a rhetorical question.)
forget asking for a trade lawyer boy
Dan I agree with you above, but answer my question: the Mayor's solicitor can just suspend laws and/or not enforce them?
That's ok to do? Did I miss something?
I mean if trade associations want to change a law, don't they have to get a council member to introduce the bill to change it, not ask the Mayor? Again, not a lawyer here, so maybe I am wrong...
No, it is not OK. And it is
No, it is not OK. And it is something I suspect a certain good-government City Councilman of a few years ago would be really pissed off about.
Frequent practice but that doesn't make it right
Remember when the Street Administration decided it wasn't going to enforce a more stringent billboard law and instead cut a deal with billboard owners "legitimating" a number of billboards that were illegal under the law?
Mary Tracey and others complained bitterly about this. If I'm not mistaken Councilman Nutter was on our side.
Look at the history of political thought and constitutional practice that starts with Locke and you will see that a political official acting without legal justification or failing to carry out certain laws is the very definition of tyranny. (You can find complaints about this in the Declaration of Independence.) Political officials do have some discretion about enforcing laws since they sometimes have to make choices about where to deploy the limited resources at their disposal. But a blanket decision not to enforce a law is wrong. If the Mayor doesn't want to enforce the law, he should seek to repeal it.
Our Mayor is strong enough under the home rule charter to get want he wants without resorting to this.
Isn't there a legal writ one can file under the common law to force a goverment official to enforce a law?
settling
I'm not 100% certain, but it's possible that the fact that the landlords won an appeal in their court case changes the logic a little bit. It sounds like they're suspending enforcement as part of negotiating a settlement. Still, I don't know what the legal issues may be, and it's certainly possible (as I mentioned above) that the city could continue to fight the case in court if they wanted to. I don't think Commonwealth court mandated that the city suspend enforcement.
A couple of clarifications / questions
1. First off the way the Nutter administration is handling this seems to me also as ridiculous. If there is a problem with the law, you don't arbitrarily not enforce it. You issue a legal position and try and bring it back to Council ASAP. If your contention is that a law won't stand up in court, you spell out clearly why and you put it on the courts to suspend action, not arbitrary executive whim.
2. I'm still not really getting the extra protection for tenants the certificate brings. If getting the certificate does not involve actual L&I inspections (which L&I does not possibly have the man power to do) and if under existing law code violations (at least in theory) put a screeching halt to evictions anyway, what does the certificate accomplish for tenants anyway? I'm not being rhetorical. I'm not seeing the actual extra protection for tenants. Maybe I'm dense but its already illegal to rent property that isn't up to code and code violations are already basically the one thing in the tenants favor in Landlord-Tenant Court. How is the certificate more than a piece of paper restating whats already the law? Or conversely how does it give the tenant a leg up in eviction proceedings? What am I missing?
Without the capcity to enforce the certificate before eviction proceedings start its an empty piece of paper and after they start the code violations are hypothetically the tenants trump card anyway. Please show me where I am missing it.
3. If it wasn't clear, I don't actually agree with the landlords in this case except that I am suggesting the bigger problem is L&I generally first and Landlord-Tenant Court second and I still don't see how the certificate fixes either problem. Not that the idea of the law is bad (it isn't) but it was my understanding the landlord can't evict with code violations anyway.
-Sean
MrLuigi, my cat, actually only types half as badly as I do.
It's not the certificate that does the work
It is part of the ordinance that lack of violations and proof of licensing is a prerequisite to an eviction.
Though those are otherwise legal requirements, without the ordinance they wouldn't bring evictions 'to a screeching halt.'
Here's the law
for the record.
(Oh. Of course Dan already linked it, he is steps ahead of me.)
OK but I'm still confused
Seperate and distinct from the "Rental Suitability Certificate" there is still the business of rental licenses which is part of the pre-existing law as I understand it. A landlord can't evict without a rental license and I believe can't apply for new rental licenses with outstanding violations, completely seperate and distinct from the "Rental Suitability Certificate". Correct me if I am wrong but that was my understanding of the law separate and distinct from the "Rental Suitability Certificate". In addition the the law separate and distinct from the "Rental Suitability Certificate" also says the landlord can't go ahead with convictions if they have unresolved L&I violations.
Those two "teeth" are already part of the law independent of the "rental Suitability Certificate" and they are unfortunately, just about the only thing tenants really have going for them in landlord-tenant disputes typically. In other words if you are anticipating being evicted, file some L&I complaints against your landlord ASAP or you may be out of luck. Since the the "Rental Suitability Certificate" bill linked to above doesn't really spell out how it would aim to prescreen landlords L&I violations and L&I couldn't actually prescreen every rental property in the city anyway, I'm still not getting what the Certificate actually accomplishes other than make another form for landlords to file.
Anyhoo
-Sean
MrLuigi, my cat, actually only types half as badly as I do.