Pay to play?
until all of my concerns are addressed.”
But Jones, who represented herself, got nothing for her trouble.
A housing inspector testified at her first hearing that he found two code violations — both for mice — that were threats to life, health and safety. That’s the standard that allows a judge to open an escrow account.
The judge did not open an escrow account. Instead, he gave the landlord a month to repair problems that Jones had reported to him months earlier.
When a tenant tells a landlord of a problem, city law gives the landlord 30 days to make repairs. But judges routinely give landlords more time — 30 days from when the tenant files a complaint with the court.
Jones had been telling her landlord about the problems in her home for five months, according to records reviewed by The Sun. That would have enabled the judge to open an escrow account immediately, setting aside the rent money so that Jones could be compensated if the landlord failed to make repairs.
By the second hearing on Sept. 1, more than a month after the first, the violations remained unfixed. But a fed-up Jones had moved out a day earlier, without paying August rent.
Judge Devy Russell expressed confusion over how to proceed, an audio recording of the proceedings provided by the court makes clear.
Russell turned to the landlord’s representative for help.
That representative began to tell Russell that the home had been treated for rodents.
Jones broke in: “It was not —” she began. But Russell cut her off.
“Can you let her speak?” Russell told Jones. “I’ll give you an opportunity to speak. Please don’t interrupt her.”
Jones never got that opportunity. Instead, the judge asked the landlord to tell her how best to proceed. The landlord asked for a dismissal.
“Yeah, we’re just going to dismiss the escrow case,” Russell agreed immediately.
She further suggested that the landlord could pursue a civil action to collect rent for August. She did not determine whether the outstanding code violation entitled Jones to withhold August’s rent, or to the $11,370 in damages she had requested on her complaint petition. “It was very discouraging,” Jones said. A spokesman for the Maryland Judiciary said Jones did not “verbally” assert her request for damages, and said the judge could not do it for her.
Super, the Georgetown law professor, said tenants don’t have to raise an issue in court that they have already noted on the petition form in order to have it considered.
“That’s widely regarded as a bad thing, and was abandoned by most of the country in the 1930s,” he said. “And here we are, still using it.” In those cases, judges ultimately released 63 percent of the $2.16 million put in escrow to the landlords.
In the 54 cases in which inspectors found homes to be “illegal” or “unfit” for habitation, landlords won 89 percent of the money.
Judges reduced rent to reflect the diminished value of hazardous homes in just 344 cases, or 6 percent of the total, the records show. They terminated leases in 11 percent of cases.
“Judges are not maximizing the incentive for landlords to make these repairs,” said Matt Hill, an attorney with the legal advocacy group Public Justice Center. “That’s a huge issue. If they did reduce the rent going into escrow, you’d see landlords more eagerly make repairs.”
Scurti said it is an “oversimplification” to judge the court’s rulings based on how money is disbursed from the escrow accounts.
Each case has its own unique set of facts, he said. The sides have different ideas of how much they each deserve. In some cases, landlords make partial repairs; in some cases, tenants put their own money into repairs.
The law gives judges broad authority to make whatever calculations they think best when determining how the money should be disbursed.
“You can’t look at it and say it favors landlords,” Scurti said. “It would be difficult to draw summary conclusions looking at the distribution of the funds.” presence before eviction hearings begin.
The University of Maryland law school supports a landlord-tenant clinic that has provided legal help to about 15 clients each year. Most of the clients have been referred by staff at University of Maryland Medical Center, who learn of unsafe or unhealthy homes when tenants seek medical help.
Deborah Weimer, the law professor who leads the clinic, said, “The system isn’t working the way it should.”
“There are no consequences for the landlords, which drives me crazy,” Weimer said. “And they’ll go out and rent [their houses] to someone else.”
Scurti said “the purpose of rent escrow is not to punish a landlord.”
“It’s to ensure compliance and to make sure the landlord keeps the property up to code,” he said.
Scurti said he is aware of the concerns of tenants and their advocates. He said he is working to improve training for judges and procedures for participants.
The Maryland judiciary is planning to launch pilot programs this year to improve tenants’ access to lawyers at the courthouse. Navigators will explain the escrow process to tenants, and the judiciary has hired a nonprofit to train lawyers to represent tenants on a pro bono basis.
“It’s an evolving process for me,” Scurti said. “I see that we are making great strides to improve it.” Brown Property Management.
A contractor was sent to remediate the lead problem. But that wasn’t the end of it.
“The landlord failed to pay the certified lead contractor and ... he had initially stopped work at the property,” Dow’s lawyer, Syeetah Hampton-El of Green & Healthy Home Initiatives, wrote the Department of the Environment in August 2015.
Mentzer settled the case. He obtained a certificate in October 2015 and paid a penalty of $3,000. Brown was fined $25,000; as of this month, the Department of the Environment said, the fine has not been paid.
Dow complained about the lead abatement work. A Department of the Environment inspector found peeling and flaking paint in some areas of the house, documents show.
As the agency was working to resolve the problem, the Dows decided to move out. They left in April 2016, and the case was dismissed.
By then, the judge had waived rent multiple times. But there was still $3,400 in the escrow account. Dow was awarded the entire amount.
Brown said he was not the official property manager and that he was helping Mentzer obtain his lead certificate. He characterized Dow as a “professional tenant” who abused the process by filing over and over despite the good-faith efforts of Mentzer to make repairs. Mentzer declined to comment on the case.
Hampton-El said rent escrow court provides a venue for resolving disputes — “But you need everyone to participate.”
“We have an effective process here,” she said. “At the end of the day, it can only work if everyone is on board.” It helped that Dow had an attorney. Tia Hicks did not.
Tia Hicks complained to rent escrow court last year.
A city housing inspector found 13 violations in the rowhouse in the 2700 block of The Alameda where Hicks, 29, lived with her husband and her three children. Three of the violations were considered to be serious: a defective front porch, crumbling back steps and an upstairs pipe leaking into the kitchen ceiling.
The inspector also noted, with photos, rodent holes in the basement. The house is wedged between two vacant buildings; a Sun reporter observed a rat scurrying from one yard to the next.
Hicks’ complaint was dismissed, for one of the most common reasons: she refused to pay full rent for a property with multiple, proven violations.
Judges routinely require tenants to pay all back rent that landlords claim is due before they will hear the complaint. If the tenants don’t pay, the case is dismissed.
Tenant advocates have said this this amounts to a “pay-to-play” system that violates the due process rights of the tenants.
The law allows judges to reduce or waive rent in cases when code violations have diminished the value of a home. But judges typically don’t hear evidence to support such claims.
“It’s unconstitutional to basically require the tenant to pay an amount that hasn’t been shown to be due and owing to raise their defense,” said Zafar Shah, an attorney with the Public Justice Center. “They have to be able to raise a defense without paying to have their defense heard.”
Hicks filed a complaint against landlord Bolanle Famakin last summer. When Hicks failed to deposit her $1,200 monthly rent into the court account — she said she didn’t have the money a judge dismissed the action. Hicks showed the home to a Sun reporter. “We have the mice getting in our bed,” she said. Traps were tucked into every corner of her bedroom, where her youngest watched TV in front of a space heater — because, Hicks said, the boiler was broken.
A month after the complaint was dismissed, more problems arose. Hicks filed a new complaint.
At a November hearing, the inspector reported the same 13 problems as before, and three new ones, including mold.
Judge Jennifer Etheridge gave Hicks seven days to pay three months’ rent — $3,600 — that the landlord said was due.
“If you don’t fund the [escrow] account, the case will be dismissed,” the judge said.
Hicks countered that it was not fair to charge the full amount of rent for a home with so many violations.
Landlords often say they cannot afford to repair serious violations if tenants do not pay rent. Advocates for tenants point out that the law requires landlords to guarantee their homes are habitable before they rent them.
If violations are confirmed by inspectors, they say, judges should consider reducing the rent before dismissing a case.
When tenants decide on their own to stop paying, judges often side with landlords.
“If she had September and October rent,” Etheridge said, “she would have the $1,000 to fix those problems.”
Hicks didn’t deposit the $3,600. She said she didn’t have it. Etheridge dismissed the case.
Five days later, Hicks called 311 about the lack of heat. She sent her two older children to stay with relatives to escape the cold. A city inspector issued another citation against Famakin for insufficient heat.
Famakin dispatched repairmen to fix the problems, including the heat. But Hicks was already making plans to move.
“That’s the only outcome for us,” she said. “To pack up our stuff and leave.”