from cleveland.com: Cleveland Housing Court judge’s requirement that landlords attest to lead-free status brings legal challenge, praise

By Eric Heisig

CLEVELAND, Ohio — Cleveland’s Housing Court judge is frustrating landlords with a requirement that they certify that their properties are in compliance with the city’s lead-safe law before pursuing eviction cases.

Now, another Ohio court is being asked to decide whether she has that right.

The local court rule implemented by Judge W. Moná Scott nearly a year ago may be the first time locally a city housing court judge has imposed such a requirement for an eviction case to proceed. Attorneys and housing advocates said they were not familiar with such a rule in other courts.

The rule has the potential to substantially increase the number of properties that comply with the city’s efforts to remediate lead paint in an aging housing stock, especially as a deadline for all landlords to comply with the city’s separate lead regulations draws nearer. The Housing Court hears about half of the roughly 20,000 eviction cases filed on average countywide each year.

But the requirement has drawn ire from at least one property owner and a powerful landlords association, which say Ohio law does not specifically mention lead-free status as a prerequisite to proceed with an eviction.

And the fact that it appears to be a unique and legally unchallenged local rule means that the association sees a chance for a higher court to declare it unenforceable.

A test case of sorts – brought by the owner of a 164-unit apartment complex near the Cleveland-Shaker Heights border – is pending before the 8th Ohio District Court of Appeals.

There are ways the city can enforce its lead-safe law, but this is not one of them, an executive with the Northern Ohio Apartment Association said. The judge, he said, is misusing the power that comes with her position.

“The reason that you need to stop this type of nonethical or nonlegal behavior by a judge is because they were elected to do a job. Not this job,” said Ralph McGreevy, executive vice president and chief operating officer of the apartment association, said. “That would be the Cleveland housing department.”

But housing advocates, many of which were not familiar with the challenge to Scott’s rule, praised the requirement as a good way to ensure renters live in safer, lead-free spaces.

Ward 12 City Councilwoman Rebecca Maurer, who was involved in an organization pushing the city to enact the legislation passed in 2019, said in an email that the way the judge is using the law in eviction cases was envisioned by its supporters.

And an official with a nonprofit that regularly represents renters in eviction cases thinks the judge absolutely has the authority to require a property to be lead-free before a case proceeds. Even if a place presents lead-related risks, the alternative could be a person not having a place to live, said Abigail Staudt, managing attorney for the Legal Aid Society of Cleveland.

“It’s perfectly acceptable for the court to pass a local rule supporting our local community and the city’s efforts to alleviate the lead poisoning problem,” Staudt said. “It’s good public policy.”

Scott, through a spokesman, declined comment, saying it would be improper for a judge to comment on a pending case.

Safety of children

The lead-safe law requires the owners of rental properties built before 1978 – the year lead paint was banned for residential use – to obtain an inspection and obtain a certificate from the city that says the home is lead-free. That affects 90% of the housing stock in the city, which requires all residential units to be certified by March 1, 2023.

The law aims to prevent brain damage and other health hazards, especially to children, from lead poisoning. Cleveland Clinic CEO Tom Mihaljevic, at a January news conference to announce tens of millions of dollars being put toward remediation efforts, noted that some 1,000 children in the city suffer from lead poisoning each year.

If a property is out of compliance with the city law, or any other law regarding the structure, the city’s Building and Housing Department can pursue a case in front of the Housing Court.

But Scott, who took office in January 2020 after working in the Cuyahoga County Prosecutor’s Office, took the law a step further when she crafted the lead-free requirement for landlords bringing an eviction case.

Her rule became effective March 1, 2021. Advocates and lawyers said they were not aware of a similar rule in other municipal courts in the Cleveland area, in part because Cleveland is the only city with lead-safe legislation. But other judges have gotten at similar issues in other ways.

For example, Garfield Heights Municipal Court Judge Deborah Nicastro said landlords in Garfield Heights and Maple Heights are affected by their respective city laws requiring rental unit registrations. If a landlord has not complied, that could affect their ability to collect back rent, something many seek in eviction cases. Not complying with a local law could make a contract (lease) illegal and therefore unenforceable, she said.

Maurer, who pushed for the law as part of the group Cleveland Lead Advocates for Safe Housing prior to her election in November, said advocates “were aware that the local housing court rules could be very powerful.” She cited another rule that required landlords to comply with the city’s rental registration program, something put into effect by Scott’s predecessor Ron O’Leary, as a similar measure.

“Certainly I had always hoped that the housing court would use this tool,” the councilwoman wrote.

The legal challenge

Others felt differently.

The owner of Shaker House Apartments, part of a larger complex near Shaker Square, asked the Housing Court to evict a tenant they said had not paid rent for several months. The case came after officials at the Northern Ohio Apartment Association, which had opposed the lead law before its passage, heard from attorneys who had cases that tried to address the judge’s power to enact such a rule but ended up settling.

That meant no case got far enough for a higher court to weigh in. This time, though, the tenant intends to stay.

During a virtual hearing in front of Magistrate John Mills on Sept. 10, it appeared the property owner showed up prepared to challenge Scott’s rule. Lawyers for apartment building owner Capital Properties Management attended with a court reporter to prepare a transcript, a step often taken when an appeal is expected.

Before the magistrate asked, Capital Properties Management lawyer Grant Keating brought up the fact that his client did not affirm in court filings that the property was free of lead. (City records show that the certificate was issued three days after the hearing.)

“Respectfully the Court’s procedural rulemaking authority does not permit it to impose this precondition before my client can obtain an eviction of a tenant who’s in default of his lease,” Keating told Mills, according to the transcript. He told the magistrate that the lead-safe certification is not specifically named in state law as a requirement a landlord must follow before filing an eviction case, and therefore Scott’s rule could not be enforced.

Patrick Perotti, an attorney and partner with the Dworken & Bernstein law firm in Painesville also representing Shaker House Apartments’ owner, echoed the position of the Northern Ohio Apartment Association in an interview, saying that such enforcement must be done by the city’s Building and Housing Department.

David Goodman, Capital Properties Management’s manager, did not respond to a phone call or email.

Not a rubber stamp

The case wound its way up and down the ladder of the state legal system after the September hearing, including two trips to the Ohio Supreme Court. But the justices did not take up the question the property owner wants answered.

Scott on Dec. 13 issued an eight-page order noting that the situation is one of “first impression,” meaning it appeared the issue had not been specifically ruled on in the past.

She rejected the landlord’s arguments and argued that state law “is clear and unambiguous in this Court’s unique role in enforcing health, safety, and building codes” and that state law does not prohibit the type of rule she created. Like Maurer, she pointed to other unchallenged rules she has created, like the rental registration requirement.

“The Court does not accept Plaintiff’s proposed interpretation of (Ohio law) to reduce this Court’s rule to that of a rubber stamp,” Scott wrote. She dismissed the eviction claim, saying the landlord could not try and evict a client because it was not in compliance with city building laws. A request for backrent the landlord said the tenant owed was also rejected last month.

The landlord asked the 8th District appeals court to review her decision. The court indicated Feb. 2 that it would do so.

Perotti differentiated the rental registration from the lead-free requirement, saying the former does not get at the issue of whether a property is livable. He argued that is directly under the purview of city inspectors.

He also said he felt the rule was a bit backwards, as it does not prevent landlords from renting to tenants if the property is not lead-free. Instead, it allows tenants to stay in a property that potentially has harmful substances, Perotti said.

Now, “they’ve got a property for which they’ve not gotten rent for going on a year,” Perotti said. “(The tenant is) sitting free, thumbing his nose at us and we’re without a remedy? No, that’s not how the law in Ohio works.”

Advocates praise the rule

Despite the legal pushback, Scott’s rule has drawn praise from housing advocates, many of whom have pushed the city for years to pass a lead-safe law.

“Cleveland has one of the worst childhood lead poisoning epidemics in the country. The Housing Court has a long tradition of being proactive when protecting the safety of residents,” said Frank Ford, senior policy advisor at the Western Reserve Land Conservancy’s Thriving Communities institute.

“I applaud Judge Scott for continuing that tradition with her ʻclean hands’ approach to eviction. If a landlord wants equitable relief – eviction – they should demonstrate they’ve complied in good faith with lead safe ordinances.”

Staudt said Legal Aid officials may file a “friend of the court” brief to back Scott’s rule should the case continue through the courts.

But the landlords association sees this as a righteous fight, one that will affect more than just one property owner.

“So many landlords come into the Cleveland Housing Court,” McGreevy said. “The fact that Shaker House is doing this will benefit many landlords, including many small landlords who couldn’t do something like this on their own. They just have to kowtow.”

Still, at least one legal expert said he thought the rule has a good chance of surviving a review.

Jonathan Entin, a professor emeritus of law at Case Western Reserve University, said Ohio case law does not give judges carte blanche to do whatever they want to run their courtroom, but it does give a lot of discretion to create rules.

“Let’s put it this way: I don’t have a lot of confidence that the landlord’s argument is right, but it’s not like I can say it’s wrongheaded,” Entin said.

-

Read the story at cleveland.com: Cleveland Housing Court judge’s requirement that landlords attest to lead-free status brings legal challenge, praise - cleveland.com