A Better Outcome

Jerry Halberstadt Wed, 02/08/2023 - 20:41

We tenants hope for an understanding landlord and management so that issues can be resolved smoothly. But we’re not always so lucky. I report here on how I resolved a conflict with my landlord.

A tenant like me with a disability has the right to seek a reasonable accommodation from the landlord which may require them to make changes in policies and procedures to enable the tenant to have an equal opportunity to use and enjoy their home. The landlord is also required by law to meet certain standards of a clean and sanitary environment, including controlling insect pests such as bedbugs and cockroaches. The standard policies and procedures used by my landlord in pest control make it impossible for me to enjoy my home in safety because I can’t risk exposure to COVID by unmasked workers and I can’t tolerate chemicals used in pest control.

I am highly vulnerable to severe illness or death should I be infected with COVID, which can be transmitted through invisible aerosols (tiny droplets) from an infected person who may not even display or feel symptoms. If I share a space, like my small apartment, then the best practice is for the visitor (and I) to have tested negative for COVID that day, and for each of us to wear an N95 mask.

I also have chemical sensitivity reactions to numerous chemicals, including products used to control pests. If those chemicals were used, I would not be able to live in the apartment.

I had negotiated a reasonable accommodation with Fairweather Apartments management, an indirect subsidiary of Preservation of Affordable Housing (POAH), that they would not enter my apartment to inspect or treat bedbugs, provided that I would inform them should I become aware of a need for professional extermination services. Management came to believe that I was harboring bedbugs and worse, that I was treating the infestation myself, and without raising their concerns with me, they went to court to enforce their ability to enter my apartment to inspect and treat pests.

A sniffer dog that alerts when bedbugs are present found no bedbugs in my apartment; professional extermination services were not needed.

I received a court summons; the landlord's attorney, Patrick R. Gamelin, Esq., a Partner in the Flynn Law Group, was seeking a court order to force me to allow the landlord to inspect and treat for pests. This would expose me to chemicals harmful to me and to possible infection by COVID, and would strip me of my right to reasonable accommodation. This caused me some weeks of stress, and I worried that I would be forced out, disrupting all the personal and advocacy connections I had in the community, and become homeless.

I was able to assemble competent professional support. I was fortunate to have legal counsel from Blake Giosa, Staff Attorney of Northeast Legal Aid (NLA) and from Katie Chun, an NLA paralegal. I received advice on pest control procedures from a tenant with decades of professional experience. My primary care physician of over 10 years wrote a letter supporting the relationship between my health status and the risks from COVID and some chemicals. A professor of public health wrote a letter of support. I can present solid information about the ongoing risks of community transmission of COVID in and around Peabody.

Housing court is used by landlords to enforce laws and rules that favor the landlord. The court may not always be asked to resolve an issue of a tenant’s right to a reasonable accommodation.

I argued for my rights, understanding that the Fairweather Apartments, an agent of the landlord, has obligations both to deal with bedbugs in the building and also to respect the reasonable accommodations of a resident. I proposed that I could be protected and also permit the landlord and their agents, including their pest control company, to enter my apartment and do their work—provided that the landlord agreed to certain conditions. That proposal became the basis for a negotiated solution and a court order.

When my attorney and I answered the summons and met with the landlord’s attorney, Patrick R. Gamelin, Esq., a Partner in the Flynn Law Group, he immediately suggested he would ask the landlord and the pest control company if they would accept my proposal. Having my own attorney in the room (it was virtual via Zoom) made a difference.

It took several weeks as the attorneys went back on forth on details, and on the day of the next court appearance, we were prepared to go before the judge to argue for the last, unresolved item, namely that the landlord and their agents would be tested for COVID. The landlord claimed they were unable to require that of their staff or contractors. I didn’t want to risk having the whole agreement unravel, and posed that, with good communication and timing, I would leave the apartment during work so that I would not face a risk of infection.

The agreement became a court order that protects my reasonable accommodation and assures the landlord of being able to do essential work; and sets a standard for other situations that may come up. So far, the protections I sought have been respected. However, I have some concerns about the effective implementation of the careful application and isolation of the pesticide and will follow up as necessary.

I was impressed by the extreme courtesy and consideration that the lawyers extended to each other and to me.

Needed: remedies

The resolution of this issue through the court process is in sharp contrast with the lack of progress on another reasonable accommodation. Over a year ago, the landlord granted my request for a reasonable accommodation, namely to implement a rule for all persons in common areas of the apartment building to be masked for protection against COVID transmission. Since they never made this an effective accommodation (I am one of the few people to use a mask in the common areas of the building), I filed a complaint with Mass Commission Against Discrimination (MCAD). To this day, the complaint languishes without resolution. Masking has been shown to reduce the transmission of COVID.

Although our public health and elected leaders claim that the pandemic is over, the fact is that COVID is very much an ongoing threat, especially to elderly persons. Most residents of Fairweather Apartments are elderly and at relatively high risk for serious illness and death from COVID.

For older Americans, the pandemic still poses significant dangers. About three-quarters of Covid deaths have occurred in people over 65, with the greatest losses concentrated among those over 75. In January, the number of Covid-related deaths fell after a holiday spike but nevertheless numbered about 2,100 among those ages 65 to 74, more than 3,500 among 75- to 84-year-olds and nearly 5,000 among those over 85. Those three groups accounted for about 90 percent of the nation’s Covid deaths last month. Hospital admissions, which have also been dropping, remain more than five times as high among people over 70 as among those in their 50s.—Paula Span, For Older Americans, the Pandemic Is Not Over, February 13, 2023, New York Times

We need affordable, public, and subsidized housing that provides effective accommodations. Why is an elderly woman sleeping in her car? She can’t tolerate tobacco smoke but her landlord, Fairweather-POAH could not or would not enforce the no-smoking rule, so she was forced out of her subsidized apartment. I am unable to comprehend why Fairweather Apartments would publish a non-smoking rule but include a disclaimer in their lease that they are not responsible for enforcing the rule.

Legislators intervene

In response to a series of actions by management that threatened tenants with evictions, including erroneous claims of unpaid rent, and demands for tenants to relocate to enable several weeks of upgrades, several state legislators intervened in an attempt to have the landlord treat tenants with respect. See “How a landlord abuses and angers tenants.”

While there has been some progress, management continues to lecture tenants about what they must do, such as following a policy on bullying. Tenants are still receiving demands for alleged unpaid rent. Tenants are being traumatized, according to a report. More than one tenant said to management, “You are the bullies.” There is no serious attempt to engage tenants in a dialog where tenants have agency.

The root of the problem

The problem that led to my court summons is the lack of trust and respect between landlord and tenants and an apparent belief by management that, like the medieval lord of the manor, the tenants must do as they are told by the landlord. Communication is top-down, with hectoring, bullying, and mobbing.

Tenants as individuals or in a tenants’ association should be able to resolve most issues through discussion and negotiation with management. Landlords don’t have to be draconian. There are examples of effective managers that maintain good relations with tenants, and it really is not that hard, provided the leadership of the landlord supports policies and procedures that respect and work with tenants.

New legislation & policy

I applaud the efforts made by our legislators, but we cannot expect them to intervene personally to change management culture in what may be several hundred housing programs with mobbing in localities across the Commonwealth. Yes, a legislator can sometimes intervene to assist in resolving a specific problem. However, management culture is determined over time by top leadership. Some landlords will need guidance and resources, while some will need to be held accountable. We support legislation that will address both kinds of landlords. 

Policy solutions for bullying, hostile environment harassment (comparable to mobbing), and mobbing are these two complementary bills:

  • Oversight and accountability: Bill HD.2877 An Act to create the Office of the Tenant Advocate in the Office of the Attorney General.

  • Guidance, training, resources to establish policies and procedures for preventing bullying: SD.251 An Act to prevent and respond to bullying of elderly and disabled residents.

The Stop Bullying Coalition is seeking legislation to create the Office of the Tenant Advocate as part of the Office of the Attorney General. The Tenant Advocate would focus on holding landlords accountable for preventing mobbing and extensive bullying and thus address one of the most severe threats to tenants’ rights.

We are grateful that, at our request, a bill has been presented by Representative Sally P. Kerans and Senator Joan B. Lovely, cosponsored by Representative Thomas Walsh—Bill HD.2877 An Act to create the Office of the Tenant Advocate in the Office of the Attorney General.

Senator Lovely has presented Bill SD.251 An Act to prevent and respond to bullying of elderly and disabled residents to establish policies and procedures for preventing bullying.

Please contact your Senator and Representative to express your support and ask them to cosponsor both of these bills which together can greatly improve life in public and subsidized housing.

  • Some people cannot be accommodated within the usual housing frameworks and there need to be better options, such as special-purpose housing, and we have begun to advocate for that policy.
  • Legislation (SD1305 and HD 2598) to create vouchers to enable housing for disabled adults has been filed. We support a broader solution for all disabled and elderly. We need to build more housing and meet the specific needs of all people with unusual or unique needs.
  • Access to legal counsel makes a big difference for tenants in asserting their rights. We join with our partners to advocate for the creation of a right to counsel to protect tenants faced with eviction. An Act promoting access to counsel and housing stability in Massachusetts (HD.3657 & SD.1082) Sponsors: Representatives Dave Rogers & Michael Day & Senator Sal DiDomenico This legislation will create an Access to Counsel Program that provides legal representation for tenants and owner-occupants with low incomes in eviction proceedings. We believe that such counsel is needed, and there are many other situations where legal representations can provide protection for tenants' rights.

  • An Act ensuring continued rights for public housing residents (HD.2875 & SD.1980) Sponsors: Representative Kevin Honan & Senator Brendan Crighton When public housing undergoes redevelopment, there is often a change in ownership from the housing authority to a private entity. This legislation would ensure that tenants would retain all rights that they have in public housing if ownership changes in a redeveloped project. Residents would also have a clear path to enforce these rights and would receive technical assistance to allow for meaningful input into the redevelopment projects.

Stop Bullying Coalition to expand

We are working to strengthen and expand the mission and capabilities of the Stop Bullying Coalition, including raising funds to provide legal services to tenants. 

What do you think?

Please tell us what you experience, what you need, and what you can do to help. Nothing for you without you! 

 

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