Escalating administrative fines: This approach is designed to incentivize compliance by making it financially painful for landlords to not comply. Anecdotal evidence from multiple communities has shown time and again that if fines are low, landlords will often choose non-compliance if the cost of the fine is less than the cost of compliance. Allowing these fines to be issued as administrative tickets bypasses the court system and streamlines enforcement.
- Detroit’s lead program sets escalating administrative tickets for non-compliance. While Detroit does not charge a registration fee, it will ticket a landlord $250 for not registering. Detroit issues landlords a $500 ticket for not having an inspection done; it then can issue landlords a $250 ticket for noncompliance with any city code. Detroit doubles the fines in a second round of tickets if the owner is found to be responsible for lack of compliance.
- San Diego, California’s law allows its code enforcement office to charge civil penalties up to $10,000 per day for a code violation for a total maximum fine of $400,000.
Making Compliance Information Easily Accessible Online: Communities are recognizing the benefits of making rental registration and lead compliance information easily available online. Providing the lead status of a rental unit online provides a tool that helps renters to make an informed choice when they have a choice between rental units. Making this information public may also work to increase visibility of “bad actor” landlords who refuse to comply with the law and ideally to change their behavior and bring them into compliance. Some examples of public databases include:
- Rochester, New York maintains a Property Information website that includes, among other things, Code Enforcement details. Where a lead inspection has taken place, the information for a rental property will include the date the property was cleared under the law safe laws. Rochester’s lead law specifically requires the city maintain a database:
The City shall maintain a database, accessible to the public, of all residential properties where lead hazards have been identified, reduced and controlled with funds received by the City from the United States Department of Housing and Urban Development which require that such a database be maintained. The City shall further maintain a database of all residential properties granted a Certificate of Occupancy after the effective date of this ordinance.
- Burlington, Vermont maintains a Rental Property Certificates of Compliance map-based database. For each rental dwelling, the database lists the number of units, the date a certificate of compliance was issued, and the date the certificate of compliance expires, as well as the date the information was last updated. Burlington uses a sliding-scale approach to the duration of the certificate of compliance, where a property with no violations gets a five-year certificate and a rental with 10 or more problems that are found and corrected would get a one-year certificate. The certificate of compliance inspection procedure requires compliance with Vermont’s Essential Lead Maintenance Practices.
- Lansing, Michigan makes information about rental units and their Certificate of Compliance status publicly available. However, the database, accessible through an Access-My-Gov website, is only searchable by entering a street address and not through a map view.
- Lewiston, Maine is in the process of creating a searchable rental database to operate as a type of “CarFax for rental units.” Carfax is a commercial website that provides the vehicle history to a prospective buyer. Lewiston is seeking to create an on-line registry for lead safe/lead free properties, which would be open to property owners who can provide certification that their property qualifies. The date on which the property was determined to be lead safe or lead free should also be recorded and available. This would provide a source of information to those seeking housing, particularly those with children, and for Lewiston’s general assistance clients.
Visual Markers of Compliance: While making rental compliance data available online is a good first step, not all renters have the time and means to search the internet for information about rental unit safety. Another approach that is gaining traction is using a visual sign on or in the unit to demonstrate compliance. Some experts are urging cities to require lead risk assessments and then to require those results to be posted prominently inside the unit. Others suggest an approach similar to car rental registration, where some states require cars to display registration status and expiration date on the car’s front windshield. Rental units could adopt a similar approach, with rental inspection stickers, color-coded by expiration date, posted in each unit’s window.
- Lansing, Michigan uses a “pink tag” system where the city will post on a rental unit’s window a “Notice to Vacate due to Lack of a Valid Certificate of Compliance.” The tags are intended to pressure landlords into bringing the units into compliance. While the pink tags serve as a warning to mark non-compliant buildings, Lansing uses red tags to indicate it is unsafe to enter a structure. The city will red-tag a unit if landlords fail to schedule inspections and pay fines within 30 days in order to obtain a valid rental certificate.
Tenants can sue for landlord noncompliance: A best practice for a lead ordinance is to create an express private cause of action for tenants whose landlords violate the law.
- Philadelphia allows tenants to sue landlords for failure to comply with inspection requirements, allowing them to get a court order directing the landlord to obtain an inspection and remediate hazards, plus damages for harm, exemplary damages of $2,000, abatement of rent and attorneys costs and fees.
Nonprofits can help tenants sue:
- Cleveland’s lead law not only creates a private right of action for tenants whose landlords violate the lead disclosure requirements, but it also allows a non-profit environmental health or housing rights organization to sue behalf of a tenant. If successful, the organization can recover its costs, including staff time. Also, any person damaged by a nuisance caused by a violation of the lead law may sue to prevent, terminate or otherwise remedy the violation. Here’s the language in Cleveland’s law allowing non-profits to help tenants sue:
A non-profit environmental health or housing rights organization is authorized to bring an action under division (b)(3) of this section on behalf of an aggrieved individual or individual(s) for violations of this section. Such organization may recover its costs under the remedies provided in divisions (b)(3) and (b)(4) of this section if the organization demonstrates that it has exerted organizational resources, including staff time, to investigate the alleged non-compliance with this section.
No eviction if landlord has code violation: Another best practice to incentivize landlord compliance is to prohibit evictions where a landlord has a code violation.
- Maryland’s “Clean Hands Law” allows landlords access to housing court only if there are no violations in the rental unit.
Lead court: A specialized “lead court” provides the opportunity for well-trained judges with specialized knowledge of the severity of lead issues and an understanding that low-income tenants rarely have the means to hire an attorney to represent them in housing matter to quickly mete out fair and just results that protect vulnerable children while recognizing a landlord’s financial realities. Unfortunately, some lead courts have been populated with judges who refuse to enforce the law or give lax landlords repeated continuances to make the needed improvements to the rental units.
- New York City’s Housing Court has some protections in place for tenants. Advocates report that Housing Court judges will order an inspection if one is needed. Also, rules of evidence in Housing Court mean that if the city has a computerized record of a lead violation, the court will take that record as prima facie evidence that a violation exists. This means the tenant does not then need to separately prove there are lead problems in the unit.
- Buffalo’s housing court has its share of enforcement challenges. According to reporting by the Buffalo News, Buffalo’s sole Housing Court judge “has a reputation for giving property owners time to fix up their houses before resorting to hefty fines, jail time or receivership.”