from The Land: City takes a tougher approach with Shaker Blvd. apartment buildings, but will it work? Legal experts weigh in

By Lee Chilcote

Last month, the city of Cleveland sued the owners of several run-down apartment buildings near Shaker Square, citing concerns over code violations including lack of heat, plumbing leaks, non-working elevators, and other issues. According to the filing, living conditions at 12500, 12600, and 12701 Shaker Boulevard are “intolerable” and are both a threat to public safety and a public nuisance. As several have noted, the case marks a new chapter in the city’s fight against neglectful owners, and city officials are calling it a tougher, more proactive approach.

For now, though, the case has stalled as the owners petitioned to move it from Cleveland Housing Court to federal court, a move which the city says is a delay tactic and has challenged.

The building owners say they’ve invested millions in the property and are committed to repairing the building to meet city code. However, with more than 100 open violations and some tenants having gone without heat for more than two years, the city wants repairs to move faster and believes it has a good case.

What are the chances that the lawsuit will result in the building being declared a public nuisance? The Land recently caught up with several legal professionals to find out their opinions, which were mixed, with one lawyer saying that the property likely doesn’t meet the statute for a public nuisance and another arguing that the city has a good case and should be filing more lawsuits. We also reached out to the city to find out more about the case and why they decided to bring it, but law director Mark Griffin said the city doesn’t comment on pending cases and referred The Land to the court’s docket.

What happens in a nuisance lawsuit?

Catherine Donnelly, senior attorney with The Legal Aid Society of Cleveland, explained that under state law (3767.41 of the Ohio Revised Code), a complainant can bring a nuisance lawsuit against a property owner. The complainant (plaintiff) can be an interested party such as a neighbor within 500 feet, a tenant, or a city. A lender can also bring a claim for receivership (a receiver can take charge of a property to safeguard it if the owner is not caring for it).

Typically a nuisance lawsuit is filed when the “property is substandard and that has an impact on health and safety,” Donnelly said, saying that the problem can be either crime or property conditions, but it’s mostly cities that can successfully sue for crime conditions. Cleveland’s lawsuit against the owners of the Shaker Blvd. apartment buildings cites numerous open building code violations along with a handful of public safety complaints.

Typically, when an entity like the city files a nuisance lawsuit, the housing court orders the property owner to “abate the nuisance by fixing the crime issue or fixing the code violations,” Donnelly said. A court will typically give an owner a time period to correct the deficiency (for example, 30 days). The lawsuit typically identifies a receiver for the property, and “if a nuisance is declared, and the owners fail to abate the nuisance in the time ordered, then the plaintiff can petition for a receiver,” said Donnelly.

In other words, if the court orders the building to be fixed up and the owner doesn’t do it, then the court can put the property in the hands of someone who will. The receiver, which could be an individual, a for-profit company, a nonprofit organization, or an attorney, has the right to collect rent and manage the property to abate the problems. The court can also reject the plaintiff’s receiver and appoint their own. The receiver can use the rents collected to make repairs, and if the receiver spends money, then the owner has to pay it back when they regain control.

If the receiver makes repairs and the owner doesn’t pay, then the receiver will place a first position lien on the property. This means that if unpaid, the receiver can foreclose and the owner can lose the property. In this way, a nuisance complaint that leads to receivership can result in transfer of a property by an owner who can’t or won’t fix the health and safety problems.

Nuisance buildings are usually vacant

The attorneys The Land spoke with disagreed about whether or not the city’s case against the property owner has merit. Alan Weinstein, an emeritus professor in both the College of Law and College of Public Affairs & Education at Cleveland State University, said the lawsuit may not meet the statute for a public nuisance but it could still be useful. He said nuisance actions are relatively common but are more often used when a building is vacant and being broken into or attracting other criminal activity, which isn’t happening right now at the Shaker buildings, and isn’t cited in the city’s lawsuit.

“The kinds of issues here do not really match what either the statute or the ordinance talk about,” Weinstein said. “The idea that tenants in building A not having heat is a public nuisance, that’s stretching things a lot.”

He said the main purpose of the lawsuit may simply be to instead put heat on the owners to fix the building, and that the city may be doing so to shortcut the often lengthy process of abating violations through housing court. “It’s possible to do this just to focus attention and put a spotlight on things,” he said. “It affects their reputation. They’re just trying to get them to move, to hold them up to public censure even if they’re ultimately unsuccessful (with the lawsuit).”

Weinstein said there could be a benefit to the city if the lawsuit resulted in the property transferring into a different set of hands. Code enforcement can take a really long time, and in the meantime, the property can enter a downward spiral and deteriorate. He downplayed the notion that lax code enforcement helped create the problems, saying that even if the city had cited the property earlier or more aggressively, the owners wouldn’t necessarily have complied.

The goal of a nuisance lawsuit in a case like this, he said, shouldn’t necessarily be to take over management of the property unless absolutely necessary. Instead, he said, the city would benefit from enticing the owners to work with them to make repairs and resolve the issues. “They need to find a negotiated or mediated agreement for how things move forward,” he said.

Nuisance suits have worked elsewhere

Matt Yourkvitch, a partner with Yourkvitch and Dibo in Cleveland, views the efficacy of the city’s nuisance lawsuit differently. Yourkvitch has brought dozens of nuisance lawsuits to court on behalf of community development corporations and other entities and has seen some success. He said the city’s lawsuit could bear fruit, and he believes the lawsuit meets the Ohio statute.

“I’m glad the city of Cleveland has finally brought a civil public nuisance action,” Yourkvitch said, citing the fact that the city hasn’t brought one since 2005. “It can be much more effective than criminal code enforcement. In criminal, you only have jurisdiction over the person, and you can only fine them or put them in jail.”

“With a nuisance,” Yourkvitch continued, “you can get a court order to fix up the property. Being able to control the property is what’s unique.”

Yourkvitch cited similar successful actions in the Detroit Shoreway neighborhood and other neighborhoods. For example, Detroit Shoreway Community Development Organization brought a nuisance lawsuit against the property owners of the Sylvia on Franklin Blvd. when there were residents living there without heat, and as a result, they were able to get control, relocate tenants, and fix the building. DSCDO ended up owning the property after fixing it, and they rehabilitated it as affordable housing.

“Nuisance lawsuits can be very effective and powerful,” said Yourkvitch. “Other cities like Cincinnati and Columbus have been very aggressive with them. The city of Cleveland is kind of late and hasn’t brought any civil actions in a long time. The city uses criminal code enforcement and hasn’t done any civil lawsuits since 2005.”

The downsides, Yourkvitch stated, is that it can take a long time and can be costly. The receiver will likely have to spend some of their own money to fix the property. There are also legal fees, title work, and filing fees. The upside is that it can force an owner to fix up a property or sell or transfer it to a new owner who has the ability to do so.

Yourkvitch said the nuisance lawsuit doesn’t always result in receivership or a new owner. “A lot of times it forces the building owner to show up,” he said. “If they show up, they get the first opportunity to fix the property. But if they refuse, then a receiver can be appointed.”

Yourkvitch also stated that a nuisance lawsuit is not a taking of property and that it can’t be brought against owner-occupied properties. “There’s always the fear that it will be brought against little old ladies,” he said. “But it’s not a cause of action to go against the poor, but landlords who do not maintain their property.”

He said that he’s excited to see the city stepping up to take action against a problem landlord, and cited Building and Housing director Sally Martin’s role in making this happen. “She’s always been on the front lines of what the city can do to hold property owners accountable,” he said. “The willingness to try something else is a fresh perspective. It’s something other cities have been doing for years.”

Read The Land’s previous coverage of Shaker Blvd. apartment residents protesting poor conditions in their apartments and meeting with owners to ask for action. To learn more about The Morelands Group, a grassroots organization that is an offshoot of Shaker Square Alliance and seeks to improve housing conditions in and around the square, contact Meg Weingart at morelandsgroup@gmail.com. To contact Building and Housing, visit their website or call 216/664-2282. Cleveland tenants worried about their rights can call the Tenant Information Line at Legal Aid. For Cuyahoga County tenants, call 216/861-5955. For Ashtabula, Lake, Geauga and Lorain Counties, call 440/210-4533. 

Source: The Land - City takes a tougher approach with Shaker Blvd. apartment buildings, but will it work? Legal experts weigh in