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Tenants, Thugs and CDOs

Tenants, Thugs and CDOs

Tenants, Thugs and CDOs

Tenants, Thugs, CDOs

San Francisco Magazine’s “War of Values” is certainly a local tale of unmitigated greed and the criminal enterprise of one family to corner the residential real estate market in San Francisco, buying large rent controlled buildings and ousting long-term tenants by any means possible. When my good friend Danelle Morton began to work on this article more than a year and half ago, the story seemed to be just that.  But as she dug deeper, Danelle’s investigation led her to the shady world of collateralized debt obligations, derivatives and the real villains without whose free-wheeled lending, the Lembis’ crimes against tenants could not have been financed.

“It’s a cascade of connections that’s almost impossible to believe: that the agony of one old lady on Leavenworth Street, who couldn’t get downstairs for three days because her elevator had been shut off, could have anything to do with the annual bonus of a banker in Switzerland. Or that a sudden edict forbidding tenants in a building near Union Square from using the lobby for Friday-night happy hour might be even remotely connected to the same Wall Street financial instruments that have pushed the world economy to the brink.”

Landlord thugs.

It turns out that this just isn’t a San Francisco problem. As Robin Shulman reports in The Washington Post, November 23, “A new wave of foreclosures stands to hurt people who may have never taken out a mortgage: renters. In cities such as New York, Chicago and Los Angeles, where many investors are carrying upside-down mortgages on large rental buildings, some tenants are watching their homes fall apart along with the financing.”

Or as Amanda Fung writes in Crain’s New York Business, December 7, “Nearly 10%, or 100,000 units, of the city’s affordable housing stock were overleveraged by predatory equity investors, and several of them are heading toward financial default, according to a recent report from a housing advocacy group.” The report, “Predatory Equity: Evolution of a Crisis,” by The Association for Neighborhood and Housing Development,” should be read as a companion piece to Ms. Morton’s article. It’s the same story in New York. Investors “used tenant harassment as a business model to drive out rent-regulated tenants on a wholesale level by evicting and replacing them with market-rate renters.”

Banker thugs.

Credit Suisse was promoting the Lembis’ relocation practices as a savvy business plan while simultaneously misleading their own investors.

A driving force behind the financing in of some of the buildings analyzed in the ANHD Report is Credit Suisse Bank, a major financial backer of subprime lenders according to The Center for Public Integrity in its article, “Who’s Behind the Financial Meltdown?” Ms. Morton uncovered a prospectus prepared by Credit Suisse, dated Winter 2008, to offer the best piece of a collateralized debt obligation to investors. “CitiApartments has a successful track record of relocating units upon acquisition. Since the program’s inception, Lembi has relocated over 2,500 units. In 2007 the Lembis relocated 899 units. In conjunction with an aggressive relocation ramp-up, Borrower recently added a fourth team, bringing the number of employees dedicated to this effort to 18.” Credit Suisse never mentions the lawsuit filed by the San Francisco City Attorney for unfair business practices. Clearly, Credit Suisse was promoting the Lembis’ relocation practices as a savvy business plan while simultaneously misleading their own investors.

David Jones, President and CEO, Community Service Society of New York, in his Huffington Post article, “Predatory Equity,” writes about the Stuyvesant Town mess and tepidly concludes, “The individual real estate firms and banks that set up these deals can’t be allowed to walk away, particularly when even cursory due diligence on many if not most of these deals indicate they weren’t sustainable even in good times. They have to be examined legally, by investors, regulators, and legislators, to make sure that tenants are protected, prosecutions are brought if necessary, and taxpayers aren’t left holding the bag for the excessive greed of speculators.”

If this is a war of values, it is a war that has not yet begun. A cadre of unscrupulous landlords and financial terrorists claiming they’re doing God’s work—those with no values—have declared war. But those charged with the legal and moral responsibility to prosecute and imprison these crooks have capitulated. It is no accident that the financial meltdown has been blamed on homeowners rather than the rich landlords, real estate speculators like Tishman Speyer and Walter Lembi and banks like Chase and Credit Suisse who only borrow from and lend to one another. Then when they can’t sell their toxic shit to unsuspecting investors, they turn to us for a bailout and blame us for their messes.

Bailout is just another name for a get-out-of-jail-free card. The banks and speculators are out on bail alright, released on their own recognizance with a little spending money to continue business as usual. To read that President Obama has to suck up and implore banks to loan money that they get for free from us (taxpayers) back to us is to understand that hope is powerless.

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Time To Get Medieval?

Time To Get Medieval?

Time To Get Medieval?

A few weeks ago, in one of my usual internet searches for local tenant news stories, I ran across an article that saddened and enraged me.

A three-month old baby in Louisiana died in her home from blood loss due to rat bites. There were holes in the walls and holes in the floor. Evidently, the landlord spent FEMA money earmarked to repair the house on something else, but the authorities were still trying to determine if they should file criminal charges against the parents! Judging by the comments I found on various websites, most people want to blame the tenants for this tragedy. “They should have been watching their kid.” Or this particularly vile response from an especially moronic Examiner reader: “It’s always someone else fault, isn’t it? Why not blame the landlord …? Yes, he may be a slumlord. His rental house is probably a dump. But it’s a matter of common sense and personal responsibility. Natalie’s parents must have had the option of moving out and finding a better place. Or taking it upon themselves to fix up the home.”

William Randolph Hearst would have been pleased with this commentator—another dupe so mired in her own petty, vindictive, little world that she will buy anything and crap on anyone less fortunate to make herself feel better. How about a little compassion?

I mentioned last week that many tenants opt to live in these hovels because they’re afraid they’ll be evicted if they complain or that they can’t afford to move.

Why not blame the landlord? It’s a good place to start. I don’t know if Natalie’s parents informed the landlord about the conditions in the house. I don’t know where his culpability began. All I know is that he must have known something. He freakin’ applied for FEMA money to repair the house! The news article notes that the landlord was unavailable for comment. If he won’t comment I will.

We don’t live in the middle ages. Or do we? As I have already noted, it wasn’t until 1970 that California codified what constituted a “tenantable” dwelling and finally in 1986 the California legislature passed the law allowing a tenant to avoid eviction for nonpayment of rent on an uninhabitable dwelling.

We do not live in the New York City tenements in 1881 when the New York Times graphically reported that a baby died from rat bites. Or do we? Note that the report stated that the family was “poor but cleanly” but the landlord who rented the dwelling to them was not mentioned at all.

What happens to landlords who are convicted of habitability crimes? Not much, it seems, just like medieval times. I did a quick search of the web to find articles about landlords who have been punished criminally in the United States.There a few instances when landlords have been sentenced to jail for code violations, but it is interesting to note that most of the articles that chronicle criminal sentences for landlords come from Great Britain and Canada, not here. Is there a health care comment in that? This example while rare is, unfortunately, typical: An Ohio landlord was sentenced to ninety days in jail for renting a trailer that he knew had faulty wiring. Five tenants died in a fire caused by that faulty wiring.

Or the Bronx landlord who was was finally sentenced to nine days in jail and fined $156,000 for failing to address 2,268 open violations at this building. Ninety days in jail when five people are dead? Nine days in jail for endangering the lives of hundreds of tenants? There are plenty of pot smokers in the United States spending far more time in jail. “Oh, Dave,” some of you more legal-minded folk out there are saying. “You’re a lawyer, you should know that you can’t charge people with crimes if you can’t prove their intent. That slumlord in Ohio didn’t intend to kill five people.”

Bad Landlord

Well, I say, that’s the problem when you apply medieval legal doctrine to modern problems—a conundrum unique to landlord tenant law.

In other words, we must change our core assumptions about the landlord tenant dynamic. Rather than relying on thousand year old common law to assess a landlord’s intent when he takes a tenant’s money, only to put the tenant in peril, we should pass laws to define that transaction as theft.

If a tenant dies during the commission of that theft, the landlord is guilty of murder, pure and simple. It is only a matter of writing laws to define the crime, just like we did when we mistakenly defined smoking marijuana as a crime. When tenants can get sick or die due to a landlord’s fraud, it is no mistake to define that as a crime.

Tenants need legislative protection from unscrupulous landlords and should be demanding it every minute of every day. Oh, you say, it will cost too much money to enforce new laws to curb murderous landlords. In California we spend $170,000,000 a year to to enforce marijuana laws. Don’t tell me we ain’t got the dough.

Finally if we, as a society, are going to insist upon maintaining our medieval, status quo assumptions about how landlords and tenants should interact, maybe we should consider bringing back medieval punishment for bad landlords—pillories.

Call the Tenant Lawyers now for a free consultation.
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Time To Get Medieval?

Every Tenant Has One–An Implied Warranty of Habitability

Every Tenant Has One–An Implied Warranty of Habitability

No, not a rat or a rat-like landlord (although you may have both). Every tenant has an implied warranty of habitability. In last week’s post I listed several conditions in a unit that constitute breaches of the implied warranty of habitability. If you find an electrocuted rat in your kitchen stove, odds are that your landlord has breached the implied warranty of habitability in your lease. What if he won’t fix the problem? What can you do?

Believe or not, one of the most common strategies for tenants is to do nothing. Many tenants are willing to put up with significant breaches of the warranty of habitability like no heat or mice partying in the kitchen all night because the rent is cheap and they don’t want to make waves with the landlord. Besides, the Cheese Ball landlord won’t fix the problem correctly anyway. “Here’s a space heater and some rat traps and some buckets.” Or worse, the landlord’s “contractor” who will tear the place up for weeks on end only to leave a gaping hole in the bathroom. So tenants do nothing or repair some conditions themselves.

I understand the dilemma. As an ex-house painter, handyman, there are many repairs I can make myself. In a former tenancy I did that, until the back stairs separated from the house and raw sewage filled the garage twice in one week. I had to communicate more effectively. That tenants are still afraid of reprisal because they ask a landlord to do his job is a disgusting state of affairs, indicative of a system of law and enforcement hasn’t improved much over a thousand years. If you are a tenant you are still a villain.

Inform the landlord in writing.

If you are starting to feel raw at the backside from taking it from the landlord, start by complaining to the landlord in a letter. No phone calls. If you ever have to enforce your rights, the landlord will lie and say he was never informed. You can’t prove that you informed him with a phone call. Include photos of the offense if you can. You’re being helpful by including photos and you’re also implying that you are documenting the offenses and that he better get his ass over there pronto. Be polite. Nobody will read a letter that is over a page long so make it short and sweet. Remember to ask the landlord for a reduction in your rent for the time you had to put up the sewage, rats, leaks, mold, etc. Also ask for the value of any personal property that was damaged by the sewage, rats, leaks, mold, etc.

Don’t make any threats in the first letter unless you have been calling the landlord about the same problem. If you have already informed the landlord or if you are writing your second letter, tell the landlord that you will be calling the appropriate authorities if he doesn’t fix the problem immediately.

Call a housing inspector.

In San Francisco you can call a housing inspector from the Department of Building Inspection (DBI) or the Department of Public Health to report substandard conditions in your unit. You can arrange for a housing inspector to visit your unit. If they find violations of the housing or building codes they will issue a Notice of Violation (NOV). Usually the landlord will have 30 days to correct the defective conditions. NOVs are public records and copies are available at the DBI. You can also view complaint and permit details online.

In other counties, code enforcement is usually the purview of city government. You can find out how to request an inspection by checking your city’s website and searching for “code enforcement.” I have provided a list of links for selected cities on this site. NOVs make great evidence if you need to file a Rent Board petition or sue later.

Childhood Lead Poisoning Prevention Programs

If you have a small child and you have peeling paint and paint chips call your local Childhood Lead Poisoning Prevention Program overseen by the California Department of Public Health. Don’t wait for the landlord to perform shoddy and unsafe repairs.

File a petition at the Rent Board.

If the landlord will not decrease your rent or replace your damaged belongings, gather your letters, photos and NOVs and, if you have one, file a petition at the Rent Board for decreases in services. You should check with your local Rent Board to find out what you need to do to file a petition. I will also be writing about that in a future post.

Repair and deduct from rent?

If the landlord refuses to correct the problem after receiving an NOV (believe me, many of them refuse despite the threat of fines) should you repair the problem yourself and deduct the cost from the rent? In fact Civil Code §1942 only requires that you notice the landlord of the substandard conditions and that you are presumed to have given the landlord sufficient notice after 30 days. However, you can only deduct an amount up to the value of one month’s rent. I rarely recommend this course of action because you could find yourself in an eviction action for nonpayment of rent which could be very expensive to defend. Never, ever just stop paying rent without consulting an attorney or discussing it with your local tenants union.

Move out?

If you or your loved ones are truly endangered by conditions in your unit, and you can prove it, sometimes the only alternative is to get out. This is called constructive eviction—even though the landlord hasn’t given you a notice to quit (move out) his negligence has forced you to move. The obvious example of constructive eviction is when the roof caves in after you warned the landlord about the leaks. You have no choice but to move. It is likely you will have to sue the landlord for your damages, so you must be certain that the landlord’s failure to repair caused the unsafe conditions that forced you to move. Consult an attorney about this, if it’s not obvious to you and everybody else that you simply must move.

Sue the landlord for breach of the implied warranty of habitability.

If your damages are $7,500 or less (California) you can try to sue in small claims court. Marshall all of your evidence, then before you file check out Everybody’s Guide to Small Claims Court in California, by Ralph Warner for Nolo Press.

If you feel your case is worth more than $7,500 and that it will be worth the time and effort to sue the landlord in superior court, consult a lawyer. Sometimes it’s a good idea to join with other tenants in the building to make the case attractive to an attorney who will consider representing you all on a contingency basis. If you live in San Francisco join the San Francisco Tenants Union and get a copy of their list of lawyers who only represent tenants.

Call the district attorney?

Only if the conditions in your unit are bad, I mean criminally bad—violations up the wazoo with serious, life threatening injuries and rats the size of cows. Usually you have to be dead to warrant any attention from district attorneys because they have real criminals to catch, you know, like pot smokers.

Call the Tenant Lawyers now for a free consultation.
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They Don’t Call ‘Em Landlords for Nothing

They Don’t Call ‘Em Landlords for Nothing

They Don’t Call ‘Em Landlords for Nothing

How many times have you heard your landlord say, “This is my property and I can do anything I want?” Before you tell him to stick his anything where the sun don’t shine (I will tell you how and when to make this suggestion in subsequent issues) understand that your landlord is simply a romantic. He should be wearing a cod piece and tights.

For over one thousand years dating back to the days of ye olde English estate, a landed lord could literally do anything he desired to his tenants because he owned them. Indeed a thousand years ago, according to medieval rumor, the lord had the right of jus primae noctis—the right to bed virgins on their wedding night. Did you see Braveheart? Of course, the virgins were the lord’s tenants. That is, their husbands or fathers lived on the lord’s land. (Women were the property of husbands and fathers back then.)

The word “tenant” comes from the French word tenir, “to hold.” Many medieval tenants were “villains.” Villain. Vil”lain\, n. [OE. vilein, F. vilain, LL. villanus, from villa a village, L. villa a farm. See Villa.] 1. (Feudal Law) One who holds lands by a base, or servile, tenure, or in villenage; a feudal tenant of the lowest class, a bondman or servant. “If any of my ancestors was a tenant, and a servant, and held his lands as a villain to his lord, his posterity also must do so, though accidentally they become noble.”—Jeremy Taylor. Webster’s Revised Unabridged Dictionary, © 1996, 1998 MICRA, Inc.

It is generally accepted that the winners in wars, the conquerors, write history. The losers are always relegated to bad guy status. That the rich and powerful, especially in pre-literate societies with emerging language, imparted the meaning of words is no stretch. Do you think that a lord might have become angry if refused his right of jus primae noctis? Or that the early rebellions of Scottish and Irish tenants protesting their abuse on the lords’ lands may have embittered the powerful? Is that how the current meaning of “villain” came into use? Certainly “Robin Hood” became a British term for criminal, not the mythological hero who stole from the rich and gave to the poor. Think “hood” as used in West Side Story.

Anglo-American culture has never been kind to tenants. In the United States only property owners (always white, always male) could vote. It wasn’t until 1850 when the last property ownership requirements for voting were abolished. As time passed, the power exchange between landlords and tenants became more abstract, more “civilized” with the concept of payment of rent (although there are still a few sharecroppers in the United States today). Slavery was eventually abolished. Contracts and leases evolved, but they were usually one-sided and non-negotiable. Ring a bell? It was still the landlord’s property and he could do, for the most part, whatever he wanted, including evicting a tenant at will…with whatever force necessary.

Modern law regulating the eviction of tenants only began to develop less than 140 years ago. For example, California passed its first laws regulating lockout and forcible removal of tenants (forcible detainer) in 1872. The statutes regulating eviction (unlawful detainer) came later in 1905. The California law regulating habitability in dwellings was enacted in 1970 and it wasn’t until 1974 when the California Supreme Court recognized the right of a tenant to defend a nonpayment eviction action because the landlord refused to maintain the unit in a habitable condition. In other words until about 35 or 40 years ago, the landlord could legally toss your ass out if you refused to pay for an apartment that didn’t have heat or if the roof was so rotten you could see the stars through it at night! The California legislature finally got around to thinking that there should be a law about that in 1986.

When you ponder your paltry rights as a tenant know that they are very newly won given the long history and custom of the landlord/tenant “relationship.” If etymology (the study of the origins of words) demonstrates the DNA of culture, then the words “landlord” and “tenant” are embedded in our psyches. No wonder that we dutifully pay our rent for our overpriced hovels. No wonder that our legislature balks at protecting tenants. No wonder that the landlord says, “This is my property and I can do anything I want.” Though you may have accidentally become noble…well, at least, you can vote…the next time you’re writing your rent check remember this: You’re still paying the lord to live on his land and you’re still the villain.

Call the Tenant Lawyers now for a free consultation.
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