BY KAREN TENENBAUM
Jennie Lin (3L, Housing) recently won a victory for a client who had been denied an apartment because of illegal discrimination.
In a handful of places in the U.S., it is illegal to discriminate against potential tenants based on their source of income. This means that landlords can’t turn away apartment-seekers because they’re receiving government assistance. Massachusetts law prohibits discriminating against potential tenants based on the receipt of public assistance. Most of the tenants who experience this kind of discrimination have Section 8 vouchers, a subsidy in which the federal government pays a portion of the rent for an apartment that the recipient finds herself on the open market. The amount of the tenant’s subsidy is the difference between the fair market value of the apartment and 30% of the tenant’s income.
Many of these Section 8 discrimination cases taken by the LSC are fairly obvious: a landlord will write “no Section 8” in a Craigslist ad (try searching for it in Boston Craigslist sometime!). Or a landlord will ask a potential tenant over the phone whether he has a voucher, and if he does, say that the apartment is no longer available. The landlord in Lin’s case, however (a large management company), was more sophisticated. It had devised a formula that it applied to applicants: it would not rent to a tenant unless that tenant’s income + the value of the tenant’s voucher ? 3X rent. Lin thought the case was “intellectually interesting, because it wasn’t clear cut.” Lin did a number of calculations and determined that this landlord’s formula excluded all or virtually all Section 8 recipients.
First, the Fair Housing Center of Greater Boston had a number of testers call the landlord – some who said they had Section 8 vouchers, some who said they didn’t – and verified that the landlord was discriminating.
Then Lin developed her position for the Massachusetts Superior Court. She argued that if you effectively exclude anyone holding a Section 8 voucher, that’s as discriminatory as explicitly excluding people with Section 8 vouchers. She also argued that “the entire purpose of the Section 8 program is to make sure low-income tenants can pay,” and that the landlord’s formula undermined that purpose.
Lin in her motion asked for a preliminary injunction – the tenant had really liked the apartment he saw and wanted to live there. It was a risky move; the LSC’s housing discrimination clients typically ask for money damages instead of the apartment itself, because often the client hasn’t seen the apartment yet. Also, a discrimination suit is an inauspicious beginning for a landlord/tenant relationship. Lin filed the motion for a preliminary injunction quickly on one snowy afternoon and pushed for a hearing the following week. The hearing was scheduled for Friday. On the Wednesday before, the landlord’s attorney called and demanded of Lin, “What do you want?” Lin told him that her client wanted the apartment at the price advertised, but the attorney responded that it had already been rented. Lin and the landlord’s attorney then began negotiating for an apartment that would satisfy Lin’s client. Despite the discrimination, the client had really liked the apartment complex. Ultimately, the parties settled that Lin’s client would get another apartment (that was similar enough to the original one), and that the landlord would waive the security deposit and first months rent.
Kevin Terrazas (3L, Admin/Disability) recently won $4,200 for a client in Social Security Administration (“SSA”) benefits refunded from the Massachusetts Department of Transitional Assistance (“DTA”). Terrazas’s client, who is disabled, had been rejected in his applications for Social Security Disability (“SSI”) benefits at least six times before he was approved. Pending the outcome of his applications, the client had been receiving interim assistance through DTA. DTA requires that if the SSA ultimately renders a positive decision and awards you SSI payments retroactively, you must pay back the DTA for any interim assistance you received that’s now covered by retroactive SSI benefits.
Terrazas’s client did finally receive retroactive benefits from the SSA. The agency paid the client some of the back benefits directly, and sent DTA some to cover the amount that the client would have to refund. The SSA, however, paid DTA too much money – $4,200 more than was necessary to cover the interim payments that the client needed to refund! This meant that $4,200 was lost to the client altogether, unless Terrazas could somehow recover it from the bureaucracy.
It looked like a hopeless situation, Terrazas explained. A Massachusetts federal district court case holds that even if SSA payment is in error to DTA, the claimant cannot recover from the SSA. Terrazas nevertheless tried to convince the SSA a number of times to pay the client the $4,200 that it had given to DTA by mistake, but predictably, he was not successful. Terrazas then tried another tactic: recovering the money directly from DTA. He wrote an extensive memo and prepared an Excel spreadsheet detailing what had happened. He shopped it around to a number of DTA offices for six weeks before DTA finally agreed to refund the $4,200. “We were really surprised to get this money because there’s caselaw that says that if we brought this to court, we’d lose,” commented Terrazas. Surprised? “I almost fell down when I found out,” said Terrazas’s supervisor Julie McCormack. “It’s never happened before.”