Avoiding Condemnation of Rental Housing: Alternative Strategies to Prevent Displacement of Tenants While Protecting Health
May 16, 2022
Overview
In most U.S. jurisdictions, legal protections for tenants include the right to habitable conditions, meaning that landlords are required to maintain rental properties in safe conditions and in good repair. Yet habitability standards are too often not met, most often in low-cost housing occupied by tenants with insufficient means to address hazards or relocate. Conditions may ultimately deteriorate to a point where the only apparent solution seems to be condemnation—a “solution” which brings with it several other problems, especially for displaced tenants.
In most U.S. jurisdictions, legal protections for tenants include the right to habitable conditions, meaning that landlords are required to maintain rental properties in safe conditions and good repair, including properly functioning utilities, intact roofing, working smoke and carbon monoxide detectors, and pest control. Yet habitability standards are too often not met, most often in low-cost housing occupied by tenants with insufficient means to address hazards or relocate. Substandard housing causes tremendous health problems for affected tenants, but the many potential causes of this multi-faceted issue—ranging from financial barriers and knowledge gaps to blatant disregard for tenants’ health—make it challenging to address. Given the complexity of solving the root causes of hazardous housing, conditions may ultimately deteriorate to a point where the only apparent solution seems to be condemnation—a “solution” which brings with it several other problems, especially for displaced tenants.
Condemnation occurs when a government entity declares a property unfit for habitation and rescinds the certificate of occupancy, ordering any residents to vacate. Condemnation is a blunt tool to address many of the habitability issues that arise at tenant-occupied properties because it pushes vulnerable tenants out of their homes in response to a property owner’s failure to comply with housing laws—in effect punishing renters who themselves have no control over compliance.
Moreover, although intended as a protective measure, condemning properties can lead to harmful health and economic outcomes because it forces tenants out of their homes, whether temporarily or permanently. Condemnation often occurs with little to no notice because potentially acute health hazards are present; as a result, tenants may be left with nowhere to go. Since habitability issues arise more frequently in older, lower cost units typically rented to low-income renters, the individuals and families who are forced out of their homes are generally not in a position to quickly and easily secure alternative stable housing. Sudden housing instability can also precipitate increased levels of stress, depression, anxiety, and substance use.
There are several legal mechanisms through which housing standards can be enforced. In some jurisdictions, city inspections are required for landlords to operate rental housing, and city housing code enforcement agencies are responsible for conducting these inspections and enforcing ongoing compliance with habitability requirements. An enforcement agency generally has a range of legal tools at its disposal to deal with habitability issues, such as imposing fines, revoking rental permits, or imposing liens on noncompliant properties. Housing code enforcement functions may be provided by a dedicated agency, or they may be fulfilled by an agency with broader functions, such as a buildings department or health department.
In addition to housing code enforcement agencies, other state or local agencies, such as public housing authorities, licensing agencies (e.g., for mobile home parks or congregate living facilities), or funding agencies may possess legal authority to enforce habitability standards in specific types of homes. Local health departments may also have a role in enforcing habitability requirements, either as the designated housing code enforcement agency or based on their general legal authority to protect the public’s health. If the local health department is not the primary housing code enforcement agency in a community, it may be forced into action if the designated enforcement agency is understaffed, underfunded, or otherwise unwilling or unable to fulfill its responsibilities, or if a gap in housing laws leaves certain types of homes unprotected by other agencies. In either case, the local health department may lack specific authority to address hazardous housing, leaving public health officials with only their general authority and limited options for addressing the problem.
The patchwork of agencies with overlapping or interrelated legal authority to address substandard housing can complicate coordination and action, leading to gaps in enforcement. But even when enforcement agencies and systems are aligned, the available legal tools may still be inadequate to protect tenants. One reason these legal tools may fall short is because many jurisdictions rely on complaint-based enforcement systems, which require vulnerable tenants to file complaints to trigger inspections and remedial actions. Multiple barriers may impede tenant complaints, including a lack of knowledge about the complaint process or an unwillingness to report for fear of losing their home; as a result, by the time the issue reaches an enforcement agency, it may have multiplied into a far less manageable hazard. Another reason is that financial incentives for property owners may be poorly aligned to achieve optimal compliance. For example, a property owner may perform cheap “repairs,” such as painting over mold instead of remediating it or fumigating only a single unit in a multi-unit dwelling that is experiencing an infestation. Unfortunately, the temporary illusion of compliance may be sufficient to pass cursory inspections while leaving tenants’ health at risk.
When initial enforcement measures fail, condemnation may be the only remaining option to protect renters’ health after a property owner’s neglect of their properties and ongoing lack of compliance with housing code enforcement. Condemnation may seem like the only available tool after years of noncompliance ultimately result in urgent risks to tenants. Though condemnation laws generally afford discretion to health and housing officials to decide whether condemning a property is appropriate, this discretion is only meaningful if officials feel empowered to address a known health hazard in an alternative manner. Potential reasons for condemnation include a lack of utilities, structural deficiencies, pest infestations, fire dangers, and other health and safety hazards. Enforcement officials report feeling put “between a rock and a hard place, because on one end, we want something done, but you have to look at the families that could potentially be displaced because of that type of action.”
Though the use of a housing or public health agency’s condemnation authority is generally intended to protect public health and safety, it is also a tool that landlords can exploit at the expense of vulnerable tenants. For example, during eviction moratoriums in response to the COVID-19 pandemic, some landlords sought to force out tenants who fell behind on rent payments by shutting off utilities to purposely make apartments uninhabitable. More broadly, if housing laws are poorly enforced, unscrupulous landlords may buy up cheap, dilapidated properties with no intention of making them habitable, instead renting them out to poor tenants for a profit until the property is condemned. At that point, the property owner may either allow the property to sit vacant, contributing to declining property values in the neighborhood, or may use the opportunity to restore the home and re-rent it at a higher rate, contributing to gentrification.
Some states have enacted laws to deal with noncompliant property owners more proactively by providing enhanced statutory protections for tenants. In Massachusetts, for example, if a housing inspector recommends to the Board of Health that it should order a building to be condemned, the occupants have procedural rights to notice and an opportunity to challenge the order in court, including requesting that a judge appoint a receiver (a court-appointed third-party) to manage and repair the property. The Minnesota Tenants Remedies Act provides tenants with the right to file a claim against their landlord when the landlord refuses to make repairs and the tenant does not want to move or have the building condemned. And in Illinois, when a landlord pays for utility services, the landlord may not cause utility services to be interrupted or terminated in an occupied building either by failing to pay utility bills or tampering with equipment. Improper termination of utilities entitles tenants to damages including rent abatement and statutory damages.
Another approach is to disincentivize landlords from letting their properties fall into disrepair. In Washington, for example, if a city, county, or governmental agency issues a condemnation notice and the landlord knew or should have known about the conditions, the landlord must pay for relocation assistance and return the full security deposit to the tenants. Jurisdictions might also consider making the process for registering and removing a property’s vacant status more expensive and burdensome for property owners to disincentivize unnecessary use of this process, or they could impose higher taxes on vacant or blighted properties. As an additional strategy, where property owners are repeatedly allowing tenant-occupied properties to fall into disrepair, a jurisdiction may consider taking more targeted action like the City of Detroit, which filed lawsuits against three landlords who collectively own more than 1,000 rental properties with unsafe conditions—the City deemed this the “invest and neglect business model.”
Whether or not a jurisdiction has strong statutory protections for renters, legal services attorneys are key partners in protecting tenants from substandard housing and housing loss. Health and housing agencies may wish to connect tenants to legal aid organizations to explore options such as compelling the property owner to pay for transitional housing or appointing a receiver to manage the property. Yet, a shortage of legal services attorneys and resources prevents every tenant from having access to individual legal assistance, further highlighting the need for community-level solutions to housing problems that affect public health and wellbeing.
Statutory approaches, while beneficial on the population level, take longer to pass into law. In the meantime, housing and health departments may try to give as much advance notice to vacate as possible, when it is safe to do so, to reduce the risk of homelessness. Implementing a proactive inspection scheme with universal periodic inspections rather than a reactive model that relies only on tenant complaints may identify repair issues sooner. Some jurisdictions have found success employing “cooperative compliance” models through which code enforcement officers educate property owners and help connect them to financial resources to remediate problems. Critically important to any code enforcement strategy is cross-agency coordination to fill gaps in enforcement and mitigate the health-harming effects of both substandard housing conditions and condemnation.
This post was developed by Susan Fleurant, J.D., M.P.H., Senior Legal Researcher, Network for Public Health Law – Mid-States Region Office, and reviewed by Colleen Healy Boufides, J.D., Deputy Director, Network for Public Health Law – Mid-States Region Office.
The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document do not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.
Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not represent the views of (and should not be attributed to) RWJF.