Ombuds Now!

 

The goal

Together, landlords, management, and tenants help to create a polity, a form of governance with accepted norms and rules that are enforced, and with a means to resolve disputes. Everyone shares responsibility and no person—housing provider/landlord, manager, staff, resident, or visitor either bullies or is bullied. The landlord acts to prevent and mitigate bullying and prevents mobbing from emerging. There are resources, incentives, and guides to enable a positive community, and there is oversight and accountability over the landlord.

The problem

“I can't believe how hard it is to get any accountability on the part of these directors of housing. They seem to have no one to answer to. This bullying, shunning, and harassment is so degrading, and our parents, grandparents, and sisters, who live in these state housing facilities are good people who just want to live out their lives independently and without the fear of being evicted. The Director has been extremely threatening to these tenants, with constant threats of eviction, accusing the ones she calls the ‘trouble makers.’”

Today, there is no way to maintain order in housing unless the landlord and management are competent and dedicated to the well-being of the tenants.

To prevent bullying and mobbing, we need ways to encourage positive community life and methods to resolve disputes. Methods to develop and support a positive community is needed and some are included in S900. These are necessary but not sufficient. To deal with toxic situations of bullying & mobbing, we need a system of justice with oversight and accountability plus sanctions.

Elements of a solution

What are the differences between a peaceful and healthy vs. a toxic community?

The most salient difference is in the policy and practice of the landlord and their agents, including management, staff, and service coordinators. Where the landlord does not act to prevent bullying—tenants have no protection and the community is toxic. Many interventions fail in such conditions.

S900/H1407 proposes compassionate management: establishing trust and improving communication and understanding. Another method is assertive: intervening to stop inappropriate behavior by warnings and sanctions. The assertive method is effective even against group bullying and mobbing, where compassion fails. An ombuds office can assure that landlords prevent and mitigate bullying by making them accountable for the results.

The HUD Office of Fair Housing asserts that the landlord and their agents are responsible for protecting the peaceful enjoyment of all tenants. FR–5248–F–02 Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices Under the Fair Housing Act, Final Rule published in the Federal Register on September 14, 2016, CFR Citation: 24 CFR 100, p. 63075

The failure of management and the landlord to assure peaceful/quiet enjoyment for all tenants is unlawful, according to the Attorney General of the Commonwealth of Massachusetts.

“State law further prohibits any person from using threats, intimidation, or coercion to interfere with the secured rights of any other person. See M.G.L. c. 12, §§ 11H-J (Massachusetts Civil Rights Act); M.G.L. c. 151B, § 4(4A).2 Secured rights include the right to quiet enjoyment of housing and the right to legal process.” Office of the Attorney General Advisory: All Tenants Have a Right to Be Free from Harassment and Intimidation, April 11, 2018.

Bullying acts may not always fit the definition of civil rights law because the target may not be a member of the protected class, or may be bullied for another characteristic; and because bullying uses any modes of aggressive harm short of physical assault or threat of assault. Peaceful/quiet enjoyment is universally incorporated in housing leases and is a secured right. This would seem to create an obligation for landlords to enforce the rights of all tenants, including protecting them from bullying and mobbing. To enforce their rights against a landlord, a tenant would have to initiate a civil suit, but the costs are beyond their means, and the settlements in case of success are not sufficient to motivate an attorney. One solution might be to provide free legal assistance where the AG does not step in.

We need investigation, judgment, and enforcement mechanisms.

The ombuds should accept complaints from any source. It would be helpful if there were mandated reporters. There must be protection from retaliation against any person making a good faith report.

An ombuds can respond to complaints; investigate them; and they should either have the power to enforce decisions over landlords as well as tenants or be able to refer cases to appropriate administrative or judicial action, including providing legal assistance to defend the rights of tenants.

Recommendations

The Stop Bullying Coalition proposes legislation and/or enforcement and administrative action to address the most egregious instances of mobbing and hostile environment harassment, holding the landlord to account. Existing statutes could be amended, or if there are deemed to be sufficient legal remedies, the Commonwealth should actively prosecute all such cases, because tenants do not have the resources to bring a civil suit.

We recommend the creation of an office or agency capable of rapid intervention to protect victims.

Protections must apply to all targets or victims, regardless of protected class status, and cover all who live in, work at, or visit the housing development.

Alternative methods for governance and management of multifamily housing should be considered and implemented, possibly in pilot programs. For example, greater reliance on the role of tenants in the governance of community life, as commissioners on local housing authority boards, as tenants’ associations, and up to and including the cooperative concept of tenant management, with accountability, of the property. Introduce additional, complementary methods for setting appropriate limits (other than lease violations and eviction) and for resolving disputes with fairness.