METROPOLITAN SAINT LOUIS
EQUAL HOUSING AND OPPORTUNITY COUNCIL
MACE Training:
Fair Housing for Local
Governments
Zachary Schmook, Deputy Director
zschmook@ehoc-stl.org
(314) 534-5800 ext. 7013
Kalila Jackson, Staff Attorney
kjackson@ehoc-stl.org
(314) 534-5800 ext. 7007
What is EHOC?
• EHOC is a non-profit Fair Housing Organization assisting people who believe they
have been victims of housing discrimination through the Fair Housing Initiatives
Program (FHIP).
• EHOC’s mission is to work to ensure equal access to housing for all people
through education, counseling, investigation and enforcement.
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What does EHOC do?
• Counseling
• Investigation
• Enforcement
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Outline
Morning (Zachary Schmook)
Afternoon (Kalila Jackson)
▪ Legal Advice and Legal Ethics
▪ Fair Housing 101
▪ Missouri Landlord/Tenant Law
Basics
▪ Condemnation and Receivership
▪ Design and Construction
Requirements Under the Fair
Housing Act
▪ Right to Entry of Private Properties
▪ Fair Housing Lawsuits Against Cities
▪ Occupancy Permits and Residential
Licensing
▪ Affirmatively Furthering Fair Housing
(AFFH)
▪ ADA Basics
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Legal Ethics
Legal Information vs. Legal Advice
Legal Information
Legal Advice
▪ Can be given by anyone with
adequate knowledge
▪ Can only be given by an attorney
▪ Facts about the law and the legal
process
▪ Application of law to specific facts of
a case
▪ “How?” (usually)
▪ “Should I?”
▪ “What’s the best way to . . .?”
▪ “He can’t do that, can he?”
▪ EDUCATION
▪ GUIDANCE
▪ “Who? What? Where? When?”
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General Guidelines
▪ OK to provide information set forth in Self Help sections of city website (or
information that could be provided there as generalized statements about the law)
▪ How communication is framed matters
▪ You have until Oct. 30 to file an appeal BAD
▪ Property owners have ten days to file an appeal GOOD
▪ OK to explain rules and procedures
▪ Not OK to suggest which of several available procedures is best COA
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General Guidelines
▪ Can provided forms and instructions
▪ Can record information provided by users on forms
▪ Can check a user’s papers for completeness
▪ Can provide guidance about what kinds of information is required
▪ E.g. “You need a legal description of the property there, not just the address.”
▪ CANNOT draft specific wording to be used
▪ CANNOT tell someone that something is/isn’t legal
▪ CANNOT advise someone whether they should go to court or file appeal
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MO Landlord/Tenant Law
Tenant Responsibilities
• Pay rent on time
• Do not damage the property
• Do not allow others to move in without permission
• Do not rent the apartment to someone else (sublease)
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Landlord Responsibilities
• To provide habitable property
• To make reasonable repairs
• To give proper notices for rent increase
• Not to evict without following proper procedure (no “self-help” evictions)
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The Lease
Written Lease
Oral Lease
▪ May be for a set time or may renew
periodically
▪ By operation of law, all oral leases
are month-to-month
▪ Can set any rental period (monthly,
weekly, quarterly, etc.)
▪ Generally cannot establish late fees
or other obligations beyond basic
agreement
▪ May establish extra protections or
obligations for landlord and/or tenant
▪ Not all clauses are legally enforceable
▪ Courts infer contract obligations by
conduct of the parties
▪ E.g. Cannot waive warranty of
habitability
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Habitability
• Basic living standards required in all rental properties (non-waivable)
• Determined by reference to local code
• Tenant may be able to withhold rent if not habitable
• Includes lack of utilities, infestation, severe mold
• Does not include cosmetic deficiencies, appliances, or air conditioning
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Eviction Process
Notice/
Demand
LL must
demand
rent due or
give written
notice of
termination
Service
Can serve
person or
property
Court
Judgment
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30 days
until
judgment is
final
Execution
Oct. 27, 2015
Must be
overseen
by sheriff
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Appeals
• Taken in same manner as other civil actions (no more trial de novo)
• Filing appeal alone will not stay execution
• Tenant must pay court-set bond to stay execution
• In cases filed for nonpayment under Chapter 535, tenant can pay all rent due plus
court costs to avoid eviction from property
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Illegal Evictions
• Without a court order, a landlord cannot:
• Change the locks
• Remove a tenant’s belongings
• Shut off utilities
• Remove or board up doors or windows
• Holdover tenant who enters legally is not trespassing and cannot burgle property
that he legally is entitled to enter
• Remember the difference between legal advice and legal information
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Illegal Evictions
• Tenants should contact landlord directly or seek legal assistance
• Tenants can use reasonable force to re-enter property that they have been locked
out of but can be held responsible for repairs in some cases
• Emergency lock out situations may require police action
• Potential civil and criminal penalties for landlords
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Security Deposits
• “[A]ny deposit of money or property, however denominated, which is furnished by
a tenant to a landlord to secure the performance of any part of the rental
agreement, including damages to the dwelling unit.” § 535.300.7 RSMo.
• Does not include pet deposits
• Limited to 2 times the rental amount (no matter how its named)
• E.g. For $500/month property:
• $500 security deposit + last month’s rent OK
• $750 security deposit + last month’s rent NOT OK
• Must return full deposit or itemized list of deductions within 30 days of move out
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Abandonment
• A landlord can remove a tenant’s belongings without court order if:
• LL has reasonable belief that tenant has vacated; AND
• Rent is unpaid for more than 30 days AND
• LL posts a written notice on the premises of belief of abandonment AND
• LL mails notice, return receipt requested, to tenant’s last known address AND
• Tenant does not respond in 10 days
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Lead Paint
• Before 1978, 75% of all houses had lead-based paint
• Lead poisoning most common from lead dust (from paint) in older houses
• Children under 6 are most vulnerable
• More info by calling 800-424-LEAD (5323)
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Legal Obligations re: Lead Paint
• LL cannot deny housing to families with children bc of lead paint
• For homes built before 1978, LL must include notice re: lead in the lease
• MO Dept. of Health and Senior Services, or a representative of a unit of local
government or health department licensed by the department for this purpose,
determines that there is a lead hazard at a dwelling or child-occupied facility
which poses a risk of adverse health effects upon young children, notice to LL
• If property with lead hazard is occupied by a child, LL can be forced to make
repairs
• Cannot evict family for reporting lead or to make the property no longer childoccupied
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Questions?
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Condemnation/Receivership
Vacation, Repair, or Demolition of Dangerous
Buildings
▪ City entitled to correct nuisance that causes a hazard or some detriment to public
health, safety, and welfare § 67.450 RSMo
▪ Must be specific risks identified, and must be specifically connected to violator
▪ Requires:
▪ Written notice
▪ Opportunity for hearing (typically pre-deprivation, but may be post-deprivation in
emergency situations)
▪ Chance to fix by owner/possessor
▪ Findings and decision
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Abatement
▪ If owner fails to remove/abate nuisance within 7 days (or other longer time
specifically set by city), city can remove or abate nuisance directly § 67.398
RSMo
▪ City many issue special tax bill against property for nuisance abatement § 71.780
RSMo
▪ Creates lien on property
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Abatement
▪ If owner fails to remove/abate nuisance within 7 days (or other longer time
specifically set by city), city can remove or abate nuisance directly § 67.398
RSMo
▪ City many issue special tax bill against property for nuisance abatement § 71.780
RSMo
▪ Creates lien on property
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Receivership
▪ Where nuisance creates a threat to the public health, safety or welfare, property
can be taken over by local government
▪ Can be initiated by county, municipality, local housing corporation or
neighborhood association
▪ Filed in court after giving 60 days notice to interested parties
▪ Can collect rent and use to make repairs. Surplus goes back to owner, deficiency
becomes a lien on property
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Right to Entry
Landlord right to entry
▪ LL can enter for legitimate purposes with reasonable notice, including repairs,
inspections, and showing property to prospective renters or buyers
▪ MO law does not specify what notice is reasonable
▪ LL can clearly enter without notice in case of emergeny
▪ Remedy for tenants is violation of right to quiet enjoyment of property
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Warrant Required Unless Waived by Consent
▪ Occupant can give consent to entry
▪ Landlord can give consent to entry where there is an imminent risk
▪ Unclear whether landlord can consent to entry on request from local government
without imminent health or safety concern
▪ Inspectors must seek administrative warrant if they cannot obtain consent
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Warrant Requirements
▪ Probable cause
▪ Affidavit
▪ Application
▪ Definition of area covered
▪ Warrant
▪ Execution
▪ Return
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US Supreme Court Decision
▪ “The question is not . . . whether these inspections
may be made, but whether they may be made
without a warrant. . . . It has nowhere been urged
that fire, health, and housing code inspection
programs could not achieve their goals within the
confines of a reasonable search warrant
requirement.”
▪ Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523; 87
S.Ct. 1727, 18 L.Ed.2d 930 (1967)
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State Courts Agree
▪“Entries onto private property by
government officials, like searches
pursuant to a criminal investigation, are
governed by the warrant requirement of
the Fourth Amendment.”
▪ Bezayiff v. City of St. Louis, 963 S.W.2d 225, 232 (Mo. App. 1997).
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Pre-Move-In Inspection Requirements
▪ Some courts have held that cities cannot require inspections before issuing
permission to occupy
▪ “Aproperty owner cannot be regarded as having voluntarily given his consent to a
search where the price he must pay to enjoy his rights under the Constitution is
the effective deprivation of any economic benefit from his rental property.”
▪ Sokolov v. Village of Freeport, 52 N.Y.2d 341, 346 (N.Y. 1981) (invalidating an ordinance
requiring landlords to obtain a rental permit before letting or reletting their property);
▪ Recent federal court decision invalidated an ordinance requiring licenses and
annual inspections for all rental properties
▪ Baker v. City of Portsmouth, No. 1: 14CV5L2, 2015 WL 5822659, at *1 (S.D. Ohio Oct.
1, 2015) (slip op.).
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Pre-Move-In Inspection Requirements
▪ May be more able to withstand legal challenge when focused on rental properties
only (and not depriving all use of the property)
▪ See Ashworth v. City of Moberly, 53 S.W.3d 564, 580 (Mo. App. E.D. 2001)
▪ Some courts reason that rental property deserves special protection since owners
don’t live there and have less incentive to keep up
▪ Other ordinances have been upheld where they allow owner to select a licensed
architect or engineer to conduct inspection
▪ Platteville Area Apartment Ass’n v. City of Platteville, 179 F.3d 574, 578 (7th Cir. 1999)
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Occupancy Permits and
Landlord Licensing
Occupancy Permits
▪ Require each new occupant to obtain occupancy permits before they move in, as
long as property is occupied
▪ Typical in St. Louis area, but unusual in other areas of the country
▪ Most areas require occupancy permit only on first construction
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Residential Property Rental Licenses
▪ Require landlords to obtain license to rent out property
▪ More common throughout the country
▪ Many require landlords to go to trainings or provide contact information
▪ Some require inspections (potential warrantless search issues)
▪ Some require landlords to evict certain tenants (many legal issues)
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St. Louis County Occupancy Permits
Require Occupancy Permits
Require Certain forms of Identification
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St. Louis County Demographics
African Americans by Census Tract
Median Household Income by Census Tract
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Legal Issues with Occupancy Permits
▪ Constitutional Right to Travel
▪ Policies that tend to deter people from moving to an area evaluated using strict scrutiny
(Is there a compelling government interest at stake that cannot be pursued using other
methods?)
▪ ID Requirements raise issues
▪ MO Supreme Court overturned ID requirements for voting
▪ Weinschenk v. State, 203 SW 3d 201, 206 (Mo. banc 2006).
▪ Right to Travel is fundamental right, just like right to vote
▪ Best practice: focus on suitability of property, not suitability of tenants/occupants
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Legal Issues with Occupancy Permits
▪ New York courts have rejected an ordinance that “required the issuance of a new
certificate of occupancy prior to each new tenancy or occupancy” to be onerous
and unreasonable
▪ Sokolov v. Village of Freeport, 82 Misc.2d 1087, 1088 (N.Y. App. Term 1975); People v.
Spitz, 356 N.Y.S.2d 480 (N.Y. App. Term 1973)
▪ May raise due process concerns where no opportunity for appeal or hearing
▪ Fair Housing Issues
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State Law Issues with Landlord Licenses
▪ Hancock Amendment
▪ Limits ability of governments to raise taxes without public vote
▪ Whether a charge is a tax (requires vote) or user fee (doesn’t) is case-by-case analysis
▪ Determined by looking at five factors (When? Who? Scalable? Providing something?
Historical government responsibility?)
▪ Moberly landlord license ordinance was narrowly decided in favor of City, 3 factors to 2
▪ Ashworth v. City of Moberly, 53 S.W.3d 564, 580 (Mo. App. E.D. 2001)
▪ Smaller cities not authorized to issue licenses for rental properties
▪ Clifford Hindman RE v. City of Jennings, 283 S.W.3d 804, 808-809 (Mo. App. E.D. 2009)
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Americans with
Disabilities Act
ADA v. FHA
Americans with Disabilities Act
Fair Housing Act
▪ Covers places of public
accommodation and public entities
▪ Covers housing and related services
(insurance, banking, housing codes,
etc.)
▪ Requires cities to remove barriers to
provide alternative access to
programs and services for persons
with disabilities
▪ Includes requirements regarding
design and construction for
properties built since 1992
▪ No grandfathering clause
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Accessibility FAIL
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Accessibility FAIL
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ADA Title II (State/Local Government)
▪ Curb cuts and accessible routes
▪ Required for new constructions and alterations
▪ Resurfacing is an alteration
▪ Pothole repair is not
▪ Interpreters for blind, deaf, hard of hearing
▪ Simple transactions may not need an interpreter
▪ Required: Hearings, interviews by police, public meetings
▪ Reasonable accommodations/modifications
▪ E.g. zoning rules, parking, ramp installations, group homes
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Accessibility FAIL
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Accessibility FAIL
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ADA Title II (Public Accommodations)
▪ Includes
▪ Restaurants, hotels, recreation
▪ Education
▪ Transportation
▪ Stores, public displays, care providers
▪ Sets building standards for new construction and alterations
▪ Readily Achievable Barrier Removal
▪ Reasonable Modification/Accommodaton
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Accessibility FAIL
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Accessibility FAIL
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Section 504 of Rehabilitation Act
▪ Federal law designed to prohibit discrimination against persons with
disabilities
▪ in activities or programs receiving federal financial assistance (including state and
local governments) and
▪ programs, services and activities of the federal government.
▪ Basic requirements
▪ No discrimination in programs and activities
▪ Reasonable Accommodations/Modifications
▪ Physical accessibility
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Questions?
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