In This Issue

• Lead-Based Paint: New Developments
  • Landlord Liability
  • Class Actions
  • New Federal Regulations
• Landlord Liability
  • Limitations Period for Tenant Security Claims
  • Statutory Duties
• Accessible Housing
• Public Employee Union Representation

Lead-Based Paint: New Developments

Landlord Liability

Lawrence F.
Feheley

The Maryland Court of Appeals (the highest state court in Maryland) has issued a ruling which expands landlord liability for lead-based paint hazards. In Benik v. Hatcher, 358 Md. 507 (Ct. App. 2000), the court held that a landlord in Maryland can be liable for lead paint injury, even if the landlord had no knowledge that the lead was present in the apartment.

The court's rationale was that a landlord can be presumed to be aware of any housing code violations if they would be apparent during a reasonable inspection. Thus, since peeling and chipping paint is a violation, the landlord is presumed to know of the condition. The court ruled that a landlord makes an implied representation when entering into a lease, and so the landlord acts at its peril by a failure to inspect the premises to be aware of any code violations.

Back to top

Class Actions

A federal court in Illinois ruled that a lawsuit seeking to force the Chicago Housing Authority to comply with the federal leadbased paint regulations for Section 8 housing can proceed as a class action. Elliott v. Chicago Housing Authority, 2000 U.S. Dist. Lexis 2697 (N.D. Ill. 2000). The effect of the ruling is that the lawsuit will be maintained on behalf of all Section 8 tenants and their children.

The suit claims that the Housing Authority failed to perform the required lead-based paint inspections prior to approving a unit for Section 8 housing, and that it failed to perform annual inspections for lead-based paint. In addition, the suit claims that the Authority did not terminate owners' HAP contracts when they failed to comply with abatement orders. These violations allegedly caused injury to the children who were exposed to lead-based paint.

Back to top

New Federal Regulations

Federal regulations have existed since 1996 that require sellers and landlords of housing units that were built prior to 1978 to disclose the existence of known lead-based paint. Now HUD has issued new regulations on lead-based paint hazards. These new 2 requirements become effective September 15, 2000. The regulations affect public housing units, housing that receives federal subsidy (project-based), housing occupied by a family receiving a federal subsidy, multi-family housing with mortgage insurance, and housing that receives federal assistance for rehabilitation. 24 C.F.R. ß35.24.

The primary focus of the new regulation is on lead that exists in dust. The new requirement is that settled dust in the unit must be tested for lead when hazard control work is performed. The testing must be performed after any abatement activity occurs, and the testing must be performed by someone who is certified, but who was not involved in the abatement. The regulations also contain additional risk assessment, maintenance, and notice requirements.

Back to top

Landlord Liability

Limitations Period for Tenant Security Claims

Claims by tenants who are the victims of criminal activity against their landlords for failure to provide adequate security are on the rise. The question that was recently presented to an Ohio appellate court was what the statute of limitations is for such claims - in other words, how long does the tenant have to sue before the claim is barred by the passage of time?

In the case, Segal v. Zehman-Wolf Management, Inc., 2000 Ohio App. Lexis 2645 (Cuy Co. 2000), the tenant alleged that the landlord failed to maintain adequate security, leading to a rape by an intruder. The rape occurred in January, 1997. The tenant's suit was filed in March, 1999.

The tenant argued that the 6-year statute of limitations, for actions based upon a liability created by statute, should apply to the claim (the statute in point being the landlord's duty under Section 5321.04 of the Revised Code to make repairs). The appeals court rejected this argument, however, and ruled that the 2-year statute of limitations for bodily injury claims should control. As a result, the tenant's suit was dismissed.

Back to top

Statutory Duties

Section 5321.04(A)(1) of the Revised Code requires that landlords comply with building, housing, health, and safety codes. In Sikora v. Wenzel, 88 Ohio St. 3d (2000), a tenant argued that the violation of the statute created absolute liability - negligence per se - for injuries that resulted when a deck collapsed. The Ohio Supreme Court ruled that even if the violation did amount to negligence per se, the landlord was still permitted to raise defenses to the claim. In particular, the Supreme Court ruled that the landlord could be excused from liability if he did not know, and should reasonably have not known, of the factual circumstances that caused the injury.

The case arose after a deck attached to a condominium collapsed during a party held by the tenant, injuring the guests who were on the deck. An inspection revealed that the design and construction of the deck violated the building code and caused the collapse. The landlord, who had purchased the property from its original owner, had no knowledge of any defect or code violations. The appellate court held that the landlord was strictly liable because the property did not comply with the building code, as the statute requires.

Reversing that ruling, the Supreme Court held that the landlord had to have notice, either actual or constructive, before it could be held liable for the violative condition.

Back to top

Accessible Housing

HUD's Section 504 Regulations provide that alterations made to housing projects with at least 15 units give rise to the requirement to make at least 5% of the dwelling units accessible to handicapped tenants with mobility impairments. [24 C.F.R. ßß8.23(a) and 8.22(b).] A lawsuit based on this Regulation has resulted in a ruling that requires the Philadelphia Housing Authority to make more of its units accessible. ADAPT v. Philadelphia Housing Authority, 2000 U.S. Dist Lexis 11052 (E.D. Pa. 2000).

The suit was initiated by two tenant advocacy organizations and three individual tenants who claimed handicaps. The three tenants lived in scattered site units. The plaintiffs claimed that the Authority violated the regulations by failing to make a sufficient number of housing units accessible to the handicapped. Between 1993 and 1997 the Authority performed alterations on hundreds of its scattered site units, but only 22 of the units were made wheelchair accessible. According to the court, the 5% rule should have resulted in the installation of ramps or lifts in at least 300 of the units. The court's ruling will require the Authority to make a substantial number of its scattered site units wheelchair accessible.

Back to top

Public Employee Union Representation

An Ohio appellate court recently ruled on the question of the obligation of a public employer to permit a union to represent its members during an investigatory interview. Although the case did not involve a Housing Authority, the ruling has applicability to PHAs because they are public employers that are subject to the state collective bargaining law and the jurisdiction of SERB.

The case arose when the City of Cleveland conducted an investigation involving the interviews of a number of paramedics. Although the paramedics were union members, the union representative was not allowed to be present when the employees were interviewed or to communicate with the employees when they reported for the interview. As a result, an unfair labor practice charge was filed with SERB against the city.

The case went to the appellate court for resolution. Ass'n of Rescue Employees v. SERB, 134 Ohio App. 3d 100 (Cuy. Co. 1999). The court ruled that it is unlawful to deny employees the right to union representation at investigatory interviews when four factors exist: (1) the interview is investigatory in nature, (2) the employee requests the presence of a union representative and the request is denied, (3) the employee reasonably believes that the interview might result in disciplinary action, and (4) after the request for representation was denied, the employer compels the employee to continue the interview.

In short, the court ruled that a public employer cannot prevent an employee's union representative from communicating with the employee, even though the employer feels that the union representative might interfere with an investigation by apprising the employee of his rights.

Back to top