December 15, 2020
When the Public Justice Center and allies successfully advocated to strengthen Baltimore’s rental licensing and inspection law a few years ago, the message was clear: landlords who do not get their property licensed or inspected cannot charge rent or use the eviction court. The purpose of this provision? To remove the financial incentive for landlords to rent properties that are unlicensed and potentially unsafe. Yet we continue to see landlords using “creative” tactics to make money from unlicensed properties and evict tenants. And when tenants try to defend themselves in the speedy summary ejectment process, there’s not enough time to get a fair trial or request another chance to be heard after a judgment. In a recent amicus brief, the Public Justice Center, Homeless Persons Representation Project, and Pro Bono Resource Center of Maryland urged the Court of Appeals of Maryland to ensure that tenants can use Baltimore’s licensing and inspection law to hold their landlords accountable and that tenants receive due process in the courts. We filed this brief in support of Larry Lee, a tenant represented by Maryland Legal Aid in Lee v. WinnCompanies LLC. Sadly, Mr. Lee passed away in October, but the case continues in order to get justice for tenants in situations like his.
Authored by PJC attorneys Olivia Sedwick (2020-21 Murnaghan Fellow) and Zafar Shah, the brief begins by describing the economic and racial inequities in housing in Baltimore and the impact of COVID-19 in exacerbating the city’s eviction crisis. Black and Latinx renters in Baltimore are more likely to have to pay 50% or more of their income on rent than white or Asian renters. Black renters also make up the majority of people in eviction court, with landlords and the court evicting them at a much higher rate. These disparities are the result of exploitation in the housing market, with the government supporting landlords in charging high rents, subsidizing unaffordable housing developments, carrying out evictions with police, and facilitating debt collection. Tenants are also at a disadvantage in eviction court – in a recent study, 99% of tenant defendants were unrepresented in Baltimore City eviction actions compared to just four percent of landlord plaintiffs. As the economic effects of COVID-19 makes it harder to pay the rent, the eviction rate is likely to rise. Since people often move in with other family members when evicted, the increase in household size also increases the chance for COVID-19 to spread.
With that context in mind, the brief detailed how landlords try to get around the licensing and inspection law and the need for judges to hold landlords accountable consistently. Landlords often collect rent while unlicensed, but then get licensed when they want to evict the tenant. Landlords have also used the eviction court to claim that they are owed rent from the time period when they were unlicensed. Describing the scale of the problem, the brief states, “Nearly half of PJC’s clients have been sued for possession by landlords who operated illegally for months without a rental license only to later gain their Golden Ticket to summary ejectment via belated licensure.”
When legal services providers like the PJC, HPRP, PBRC, and Maryland Legal Aid represent tenants in cases like these, we may raise what is called a recoupment defense, arguing that the tenant should be allowed to apply rent paid while the property was unlicensed to claims for unpaid rent after the landlord got a license. This way, the landlord would be held accountable for charging rent while unlicensed. Judges accept this defense at times and not at others. Our brief argued that the recoupment defense is necessary to making sure that landlords do not continue to profit from unlicensed properties.
The brief also called on the Court to ensure that tenants have opportunities to be heard after a judgment, including setting clear rules that provide sufficient time to request a new trial or file an appeal. The summary ejectment process is fast, and judges often do not provide the time or space for tenants to raise a defense against eviction. While tenants can request a new trial or appeal the court’s ruling, the decision of which step to take next is not straightforward. The period to file an appeal is currently four days, not nearly enough time to gather records, get legal advice, and assess the merits of an appeal, especially if the tenant does not have a lawyer. It also requires expensive fees, and the prospect of a drawn-out appeals process at a time when the relationship between the tenant and landlord is deteriorating. Tenants’ other option is filing a motion for a new trial, but if they choose to take that route first, it is unclear from court rules how much time they would have to file an appeal as a back-up strategy (one rule says under four days, while another says 30 days). The Court should clarify such rules and ensure that judges use their discretion to uphold tenants’ right to due process.
We hope that the Court will issue a strong ruling safeguarding the opportunity for tenants to hold landlords accountable for violating Baltimore’s rental license law and to facilitate use of post-judgment procedures to overcome the denial of a full and fair trial.
