Re: 2020-2024 Consolidated Plan and 2021-2022 Annual Action Plan
Legal Services of the Hudson Valley (LSHV) is the sole provider in the Hudson Valley of free, comprehensive, legal services in civil matters for individuals and families who cannot afford an attorney when their basic human needs are at stake. This includes urgent legal needs such as: housing emergencies (eviction and foreclosure prevention); domestic violence (orders of protection, child custody, etc.), healthcare, children’s advocacy, disability and benefits, elder law, consumer fraud and more. LSHV would like to comment on how eviction prevention and tenant defense can play a critical role in achieving the Plan’s stated Priority Needs and Goals and thus funding should be directed for this purpose.
I. DUTCHESS COUNTY PRIORITY NEEDS 2 (Public Services) and 3 (Affordable Housing) and CITY PRIORITY NEEDS 3 (Public Services) Should Include Eviction Prevention Legal Services
The Hudson Valley and Dutchess County are in the midst of a housing crisis accelerated by the COVID-19 pandemic. We have anecdotally seen the impact on both the rental and home sales markets of many New York City residents moving into the County. The high infection rates in New York City drove people into the Hudson Valley in record numbers reducing available housing and fueling dramatic increases in home values and sales as well as rental prices. The County reports the median sales price for a single-family home has increased 27.4% in the last year. We have seen long-term tenants of homes receiving lease non-renewal notices because their landlords now want to sell to take advantage of this record-breaking seller’s market. Dutchess County’s 2020 annual rental housing survey confirmed our anecdotal experience and worst fears: the County’s vacancy rate was only 0.9%, the lowest it has been since the survey started in 1980 despite bringing an additional 560 newly-constructed affordable apartments to the rental market. With the exception of two-bedroom apartments, rental price increase rates doubled or tripled, even in tax credit and inclusionary apartments. The incomes needed for these high rents to be affordable are now 250-300 percent of the federal poverty limit. This is a housing crisis.
Evictions from rental housing in Dutchess County are a county-wide problem, now fueled and exacerbated by the COVID-19 pandemic. Data from the City Courts of Beacon and Poughkeepsie show that in 2018, there were 1,919 eviction petitions filed in the two City Courts (Poughkeepsie and Beacon) in Dutchess County. In 2019 1,647 eviction petitions filed which resulted in 920 eviction warrants and only 67 Orders to Show Cause to stay eviction were filed, meaning that 853 tenant households, mainly in the City of Poughkeepsie, were most likely evicted. The filings in those same courts were extremely limited in 2020 (603) and 2021 (126 so far as of July 13, 2021). Because evictions have largely been prevented since March 16, 2020, there will be an estimated backlog of several thousand cases from 2020 and 2021 as we would have seen in normal years plus any pandemic fueled evictions that will be allowed to proceed after August 31, 2021 when the moratorium lifts. Evictions will exacerbate the housing crisis adding to a burdened and costly homeless shelter system.
Based on 2019 Point-in-Time (PIT) data, Dutchess County reports that 1,187 persons enter homelessness each year and only 359 exit homelessness each year, leaving 828 in homelessness annually. The County further estimates the average length of homelessness to be 95 days. The cost of sheltering the homeless to the County is expensive as the number of homeless exceeds the number of beds in local shelters requiring use of hotels to house the overflow. In 2019, Dutchess County Department of Children and Family Services (DCFS) applied for an enhanced shelter supplement as a tool for single adults to leave shelter and access market rate apartments in the community. In justifying its request using 2017-2018 data of its top users of temporary housing assistance – childless couples, DCFS estimated their cost of 30 hotel rooms at $140 per night to be $4,200 per night, $126,000 per month or $1,512,000 annually. DCFS indicated that the County bears 71% of the cost and New York State bears the remaining 31%, meaning that 30 hotels rooms a night can cost the County $1,073,520 a year.
Yet hotel costs are not the only homeless shelter expense for the County. The calculations above do not include the cost to the County for existing homeless shelters which also costs about $140 per night for Hudson River Lodge and Community Housing Innovations Vanderbilt amongst other shelters. According to 2019 PIT data, if 1,187 Dutchess residents are entering homelessness in a year and staying 95 days at the cost of $140 per night, then the County is spending almost $16 million is homeless shelter costs per year, $11 million or 71% of which the County is directly responsible.
It is yet unseen how the low vacancy rate of 0.9% and the dramatic increase in rental prices will further exacerbate the Dutchess County homelessness problem and housing crisis. It could be anticipated that the length of stay in homelessness could dramatically increase since there are few affordable apartments to move out of shelter into, driving the shelter costs up dramatically. A housing crisis of this proportion will require that the County deploy every strategy to prevent homelessness within its arsenal, including eviction defense legal services. If a tenant can preserve his or her housing and prevent eviction, then they will not enter the shelter system. If a tenant can access rental arrears, often below $3,000, they could save the County the cost of shelter and the human costs of homelessness.
Homelessness due to eviction carries many costs beyond the cost of shelter. A recent study from New York University found that evictions cause a significant and persistent increase in the risk of homelessness, increase emergency room use and increase the risk of mental health hospitalizations1.After years of advocacy, New York City became the first city in the country to launch Right to Counsel (RTC) in late 2017. This law gives tenants with incomes below 200 percent of the federal poverty level who are facing an eviction in housing court access to an attorney. After a year of implementation, data showed that evictions declined more than five times faster in RTC zip codes than non-RTC zip codes2. For those New York City residents represented by an Office of Civil Justice-funded attorney in Fiscal Year 2018,
1 Robert Collinson and Davin Reed, The Effects of Evictions on Low-Income Households (Dec. 2018) at 30-31, available at: https://www.law.nyu.edu/sites/default/files/upload_documents/evictions_collinson_reed.pdf.
2 Oksana Mironova, NYC Right to Counsel: First year results and potential for expansion, (March 2019) available at: https://www.cssny.org/news/entry/nyc-right-to-counsel
84 percent were able to prevent eviction. RTC helped drive the consistent declines in eviction filings, warrants of eviction and executed evictions in New York City3.
Until CARES Act federal funding became available, both the City of Poughkeepsie and Dutchess County did not fund eviction defense legal services. Prior to the pandemic, this lack of funding impacted LHSV’s ability to represent as many families as require assistance. It has limited LSHV’s capacity to prevent evictions and hindered our ability to ensure Dutchess County tenants are residing in habitable and safe housing consistently. At times, LSHV was forced to turn away families or provide advice in lieu of court representation, due to lack of resources. When the moratoria expire, we anticipate the flood gates of eviction proceedings will open and without legal representation, the tenants will be defenseless.
It is important to highlight that eviction is not solely an issue of rental arrears; it is about a gross inequity in power between landlords and tenants, which can have catastrophic results for low income families. Unrepresented tenants unknowingly sign agreements that result in their families becoming homeless. This sometimes can happen in less than five minutes in court. Additionally, in the majority of the non-payment proceedings, there is almost always a defense including, the imposition of improper rent amounts and fees; warranty of habitability; improper recertifications, and violation of federal housing laws. Without representation, payment of rental arrears occurs with no oversight and verification.
LSHV attorneys can negotiate fair settlements with landlord attorneys and steer clients to financial resources to prevent eviction and homelessness while advocating for safe and habitable housing. We can assist the Department of Children and Family Services by determining the correct amount of rent arrears a tenant might owe, thus ensuring a good use of both City and County resources. Also, it is important to note that many evictions do not involve rental arrears at all. They are holdover proceedings that involve allegations of lease violations or expiration of leases. These cases involve complex and complicated legal issues that can only be handled with the assistance of an attorney. LSHV specializes in this type of litigation.
When envisioning the post COVID-19 landscape, we will undoubtedly have an influx of families that are facing eviction for the first time, who will be unable to navigate the court system or access eviction prevention services. We should be prepared to assist as many of these families as possible. Therefore, part of the Plan should include future funding for legal assistance to ensure that these families are represented and guided through the process and resources of eviction prevention. This assistance will go beyond landlord/tenant representation and extend to providing representation in the areas of unemployment insurance, public benefits including cash assistance and SNAP benefits, and disability benefits. We are the only agency in the County that provides these additional services in conjunction with landlord/tenant legal assistance.
Studies show that families who are evicted suffer permanent trauma, losing their independence and dignity. Children lag far behind their peers in educational outcomes and suffer serious health consequences. These effects are often irreversible. Therefore, the Plan should be expanded to include services for those who are not yet homeless but are facing imminent and certain homelessness without legal representation. With the economic effects of COVID-19, Dutchess County should be braced and prepared for the increased eviction filings and the impact they will have on the well-being of the unrepresented households.
The Plan has identified that we are seeing a dramatic growth in the number of senior citizens. The County’s elderly population increased significantly in the period of 2010-2018. During that time there
3 New York City Bar Report on Legislation by the Task Force on Civil Right to Counsel, (February 2020, available at: http://documents.nycbar.org/files/RTChearingWrittenTestimony_2.24.20.pdf
was a 25% increase in the number persons over 65 for Dutchess County, and a 30% increase in the number of persons over 85. The Plan states that advocates for seniors often point out the need for affordable assisted living where people are provided meals, transportation, and assistance with activities of daily living but there are few in the County and they are unaffordable to many households. This means that many seniors must remain in their homes, including rental apartments. There needs to be specific resources for preventing the eviction of seniors that also addresses their many unique needs.
Funding eviction defense legal services should be a part of this Plan as the reverberations of the pandemic are likely to be felt for years, much longer than the CARES Act CDBG-CV funding will last.
II. CITY OF POUGHKEEPSIE PRIORITY NEED 2 (Housing Quality) Should Include Improving Housing Quality through Legal Intervention
LSHV plays a critical role in improving Housing Quality for the tenants we assist but we could do more. The Plan identifies that 54% of County and 62% of City housing units have serious housing conditions, are overcrowded or where the tenants are cost-burdened. The Plan also identifies an aging housing stock in the City of Poughkeepsie. These problems have informed making Housing Quality one of the City of Poughkeepsie’s Priority Needs for the Plan. The Plan addresses the Housing Quality Need through Code Enforcement, Demolition and Rehabilitation of Owner-Occupied Housing. Missing however, is the role that legal intervention plays in maintaining and enforcing habitable housing.
As with many of the existing housing issues, Housing Quality problems have worsened during the pandemic. As record numbers of tenants have been unable to pay rent, landlords have been unable or unwilling to make essential repairs. In fact, as landlords have been unable to evict unwanted tenants during the various moratoria, landlords have begun refusing to make repairs or worse, turning off essential services such as electricity, hot water, and water as a means of driving the tenants out. LSHV has handled several cases where it is suspected that landlords called code enforcement on their own properties in order to have the property deemed unfit for human habitation and then having the building department issue an immediate vacate order to get the tenant out.
As the availability of quality housing becomes unattainable due to the low vacancy rate or rising rents, tenants are often forced to consider substandard housing from slumlords. The low-income tenants that LSHV serves regularly complain of vermin such as mice, rats, roaches, and bed bugs, electrical problems, heating problems, plumbing problems and holes is walls, floors and ceilings. Through our representation in eviction matters, we can also raise defenses and counterclaims of the breach of the warranty of habitability inherent in all leases in order to get repairs made to the apartments. We also protect tenants’ rights to a clean, safe apartments free of hazards and their good faith complaints to get repairs. We assert claims of retaliatory eviction when a landlord sues a tenant for eviction after making these kind of complaints to the building department or to the landlord themselves.
In November 2019, several months after the Housing Stability and Tenant Protection Act, the New York State legislature amended Multiple Residence Law §302-a. Under this law, if a landlord does not have a valid Certificate of Occupancy (C of O), they cannot maintain an action for non-payment of rent and the landlord is not entitled to rent. This law exists to curb slumlords from failing to maintain their properties in accordance with local building and safety codes.
However, these powerful tools to address Housing Quality are meaningless if the tenant does not have someone to help them assert it. Therefore, the Plan should include funding for legal assistance so that these defenses can be asserted and litigated if necessary, to address Housing Quality.
III. Addressing Impediments to Fair Housing Choice: Source of Income and Other Discrimination
LSHV is a local resource to address Fair Housing Impediments. While in the past, HUD’s Fair Market Rents (FMR) (the upper limit of rent where a Housing Choice Voucher or Section 8 voucher can be used) were in line with Area Median Rents. As the plan illustrates, due to the pandemic-impacted rental market with low vacancy and rising rents, the Housing Choice Vouchers administrators have sought exceptions to go over HUD FMR by 10-20%.
The Plan also identifies that there are limited local resources to address Fair Housing issues and to inform tenants of their rights regarding housing discrimination such as Source of Income Discrimination. It is frequently been the case in Dutchess County that landlords seeking to exclude Housing Choice Voucher tenants from their buildings have just raised rents just above the payment standards for the Section 8 Program. There are no local limits on the amount rent can be raised unless it is done for nefarious purposes such as retaliation for housing condition complaints or to discriminate against Section 8 tenants.
All the HCV administrators regularly refer tenants who reports the building has refused them because of their voucher to LSHV. LSHV has assisted tenants in filing Human Rights complaints with the NYS Human Rights Commission and we have made referrals to our Fair Housing partner agencies located in NYC or Westchester. LSHV has made strategic partnership with Westchester Residential Opportunities and the Fair Housing Justice Center to identify potential bad actors for testing. Our housing attorneys have been trained in Fair Housing law by the Fair Housing Justice Center and we could engage in more complaints and lawsuits if we had more resources to pursue this goal.
LSHV has been a partner with the County in educating the community about Fair Housing issues. We anticipate that the even tighter rental housing market will exacerbate the Source of Income Discrimination problem and could cause tenants to lose their voucher altogether after they exceed the timeframes in which to use them expires. LSHV is the only resource for tenants with HCV/Section 8 to challenge wrongful voucher terminations or to advocate when their transfer vouchers need a further extension of time.
I want to thank both Dutchess County and the City of Poughkeepsie for funding LSHV’s COVID-19 eviction prevention work this year. During this health crisis, it has been even more critical to keep Dutchess County residents in their homes and out of homeless shelters; ensure that low income residents who face unfair discrimination based on how they pay the rent or their race are given access to justice. Let LSHV help the County and City of Poughkeepsie achieve its vision of quality, safe housing by ridding the City of poorly maintained, substandard housing through advocacy and litigation in partnership with the City’s Building Department. The City and County’s partnership with LSHV will prevent homelessness and promote family and neighborhood stability and revitalization. Our goal is to continue to provide these vital legal services now and beyond the pandemic in ultimate service of the City and County’s stated goals in its Plan.
Respectfully Submitted By,
Legal Services of the Hudson Valley
Justin L. Haines, Esq.
Dutchess County Office