Troubled properties, frustrated renters
Back in court in December, Famakin’s request to start the eviction process was approved in a few minutes. Hicks did not show up — a common occurrence among tenants.
The landlord said she had little sympathy for Hicks, the third tenant she evicted in the past five years. They lived free in her property for three months, she said.
“She is gaming the system,” Famakin said. “I can’t wait to get them out of there.”
Small landlords such as Famakin are the most common property owners in the city. Two or three months without rent can affect their ability to pay off their mortgages, forcing them into foreclosure and putting them out of a business. Landlords in low-income neighborhoods say such outcomes further imperil an already low supply of affordable homes.
Famakin does not employ a property manager. She drives in from Gaithersburg to deal with tenants in a house in which she has invested $80,000 since 2006.
“They were causing me to spend money that I didn’t have to,” she said. the legal concept of “implied warranty of habitability,” a guarantee that the house is livable. Put simply: If leases oblige tenants to pay rent, they also oblige landlords to provide livable homes. It they don’t, tenants are justified in withholding rent.
The concept began to emerge in state court decisions in the late 1960s that gave tenants recourse when landlords failed to make repairs and prohibited retaliatory evictions.
“These measures, eventually adopted in almost every state, seemed to reverse the landlord’s historical dominance of the landlord-tenant relationship,” Super wrote in a research paper.
But nearly 50 years later, he and others say, housing courts have become less rigorous about following standard procedures of evidence.
That was Cotton’s conclusion after analyzing 59 complaints selected at random from across the city. In each one, she said, the “findings of fact” space on court forms were blank.
The Sun found similar results sitting in court and reviewing transcripts and records of dozens of cases.
The Maryland Judiciary has approved new instructions for judges to ensure consistency. They are “in the process of being introduced across the state,” a court spokesman said.
Tenants have the right to ask judges to consider awarding them cash damages for a landlord’s violation of the warranty of habitability. The request can be made on the same form tenants use to file their rent escrow complaints.
But judges, landlords and tenant advocates all agree that the language on the form is clear only to people who know the law.
The document offers several boxes tenants may check to request certain rulings from the court. They include requesting that the judge correct the conditions at the house, reduce the rent, establish the escrow account, terminate the lease and dismiss a landlord’s eviction filing, if one exists.
The last box is not so plainly written: “The Tenant requests the Court to order that damages be awarded for breach of the covenant of quiet enjoyment or warranty of habitability in the amount of __.”
A committee of the Maryland Judiciary has been working since last year on a proposal to make the language on the form clearer.
Even when tenants know enough to make that request for cash damages, judges often do not address the matter in court. The Sun’s analysis of court records show that cash damages came up in just 26 cases — less than one-half of 1 percent of complaints — and were awarded in fewer than 20.
Anthony Johnson rented a rowhouse in the 3700 block of Gelston Drive last February for $950 a month. He didn’t know that city inspectors had deemed the home “unfit for human habitation.” The property did not have a city occupancy permit, and would receive its lead paint certification six months late — after Johnson moved in.
The city had ordered the property owner, Waz Properties, to board up the home, rehabilitate it or tear it down. Instead, Waz put it up for rent. Johnson learned of the citation when a housing official placed a “vacate” order on the property.
Johnson and Waz filed dueling complaints.
Johnson said the property had a “roof leak, basement door not opening, mold, possibility of lead.”
Waz said Johnson owed $2,849 in back rent for three months.
Johnson asked the court to terminate the lease and order Waz to pay him $10,500 for violating the warranty of habitability by renting the property for the 10 months he lived there.
Judge Etheridge vacillated over what to do, a recording of the hearing indicates.
She began to order Johnson to pay some amount, and said she would terminate the lease.
Then Waz’s representative, Sal Catalfano, who handles hundreds of cases for landlords each year, contested the allegation the property was uninhabitable.
An inspector told the judge the house lacked a proper permit and had been declared vacant. Catalfano blamed bureaucratic red tape.
The judge then began to order Johnson to pay $950 for one month’s rent and said she was going to dismiss Waz’s claim for the other two. Catalfano protested.
The judge ordered Catalfano and Johnson to try to negotiate a settlement in the hallway. When they could not, the judge began again to consider how much Johnson should pay.
“It looks like you’ve been behind for quite a while,” she said.
Johnson disputed Waz’s total. Then he asked a question that no one else had asked that day.
“How can they be renting the house if it’s supposed to be vacant?”
Etheridge paused, and then replied with a comment that Johnson considered odd, given that he was representing himself.
“Today was your trial date,” the judge said. “If you wanted to have an attorney here you could have had an attorney present to ask those questions.
“You don’t get to live rent-free, which you’ve been doing for a couple months now. Right?”
Not right, advocates for tenants say. Under the law, Johnson’s request for $10,500 damages entitled him to make a case for being reimbursed for having paid rent at an uninhabitable home.
Johnson had checked the box on his complaint form to request damages. But he didn’t raise the request in court, and Etheridge didn’t consider it. She terminated the lease, dismissed the case and gave Johnson 11 days to move.
“You don’t have a lot of time to get out, sir,” she said. “You haven’t paid for quite a while. You can take that money and move.”
Requests for comment from Etheridge were returned by court spokesman Kevin Kane.
“The fact that a box was checked saying that relief was sought as to the Warranty of Habitability or covenant of quiet enjoyment is not the same as offering proof at trial,” Kane wrote in an email. “A judge must remain neutral and cannot raise issues on his or her own.”
He said the judge waived all of Johnson’s allegedly unpaid back rent — $4,790.
Johnson left town for a week to work in Pennsylvania. When he returned a day before the deadline to move, he says all of his electronics were missing and his two dogs had been impounded.
He climbed through a window to retrieve work clothes and some of his pregnant girlfriend’s possessions.
“We’re out of a whole household of things,” Johnson said. “We have a baby on the way.
“It seems like the judges and lawyers are all on the landlords’ side.”