Memorandum
TO: George Randall

FROM: Applicant

RE: Phoenix Towers v. Porter

DATE: 1/23/2014
________________________________________________________________

Question Presented

The Porters have sought representation regarding eviction from their current residence due to the birth of their baby. They would like to know what their options are; they do not necessarily want to move from their current location, they like the community, they have been there for 10 years. Additionally, they have been looking for a place that is within their budget and have not been successful. An additional concern to them is the cost associated with this matter.

You have asked that I research and analyze the Porters’ options and consequences of each option. Specifically:

1) Defense of an unlawful detainer action against the Porters for eviction based on their alleged violation of a lease term

2) Filing of a State Action for discrimination against Phoenix Towers

3) Filing of an Administrative Complaint based on the discriminatory actions of Phoenix Towers

This memorandum addresses these issues below.

In the jurisdiction of Columbia, mandatory authority exists through the Supreme Court of Columbia cases as well as binding/persuasive Columbia Court of Appeals decisions.

Discussion

I. Defense of an Unlawful Detainer Action

One of the concerns of the Porters is their ability to remain in their home right now as they have not been able to locate any other apartments that are within their budget. An unlawful detainer action is typically used to determine the right of possession of real property. This process is expedited often taking only a month or two.

A. Does the Porters having a Baby put them in a position of breach?

Unlawful detainer actions often occur when the tenant has breached the lease.

Here the lease agreement states that that occupancy in a one bedroom is limited to “two permanent occupants at all time.” The Porter’s have resided at this location for 10 years and are aware of this clause. They have recently had a baby, which puts them at 3 persons in a one bedroom apartment. This would appear to violate the clause of the lease. A successful defense of this action would depend on any defenses that the Porters may have.

B. Do the Porters have a Defense that Would Preclude Eviction?

In an unlawful detainer action, defenses, legal or equitable, are permitted only if the would, provided they are successful, preclude removal of the tenant from the premises. This can include a showing that the landlord had improper motive in serving the notice of termination and bringing the unlawful detainer action, for example the tenant’s exercise of right under the law.

In Lavelle v. Hodges, Lavalle appealed a court decision where she was unsuccessful in defending an unlawful detainer claim. She and Hodges were engaged in an intimate relationship during which she conveyed title to her home Hodges. During a quarrel, she demanded reconveyance and Hodges denied her demand. Hodges filed suit for an unlawful detainer action, and Lavelle asserted a defense of fraud. The courts found for Hodges and Lavelle was evicted.

Here, the Porters have had a baby which is in violation of their lease. Their case is distinguishable from Lavelle in that here the Porters are not engaged in an intimate relationship with their landlord, and they are not alleging a defense of Fraud. Fraud is not an exercise of right under the law. In order for the Porters to have a successful defense of the unlawful detainer actions, they must present a defense that shows that they are exercising their rights under the law. One of the rights would be the right to not be discriminated against. In this case the Porters are living in an apartment complex with 200 units, and less than five families. As the expert has indicated, this cannot occur due to chance. Therefore an affirmative defense of discrimination could be presented to the court on the basis of discrimination and likely be successful.

A successful defense would allow the Porters to remain where they are. It is also an expedited process, and the cost to the Porters would be between $1,000.00- $4,000.00. Defense of the unlawful detainer action would allow for the Porters to remain in their home, however it does not provide for any additional damages such as emotional distress, nor attorneys fees. The Porters would not be able to recover anything for the stress of this ordeal, nor would they recover any monies expended on defense of the action.

II. Filing State Action for Discrimination

Another option for the Porters is the filing of a State Action for discrimination.

A. Does Eviction for Violation of Lease Term restricting Occupancy Meet the Definition of Discrimination

Discrimination is defined as refusal to rent or negotiated based on familial status. Discrimination may be established where familial status was any part of the motivation for the conduct of the defendant.

In the case of Rowan v. Brisas the Rowans resided in an apartment complex that had occupancy restrictions. The Rowans became pregnant and were asked to leave because they were in violation of the occupancy restrictions. Using census information to show that the occupancy restriction excluded a large percentage of tenants with families, the Rowans were successful in bringing suit against the apartment complex for discrimination.

The Courts held that the census information showed that the discrimination against families had a disparate impact on the Rowans, and the Defendant’s defense did not show that they were using the least restrictive means to achieve their goals.

Here, the Porters have similarly been residing in an apartment complex with residency restrictions. They have built up a community and made several friends. They have become pregnant and recently gave birth to a child, and they are now being evicted.

The Porters have indicated that there are no playgrounds or equipment for children in their complex, and that the complex has no parks, and they have not seen children at their pool. Based on the census information provided by the expert, there are only five families residing in the tower with 200 apartments. Three of the families reside in two bedrooms and two families reside in 1 bedroom. Based on the area, and the number of apartments, the expert has opined that families should make up at least 50% of the population in the complex. He has further opined that this proportion of families is not likely to be due to chance, that there should be a higher ration.

This is a good indication of discrimination based on familial status, and the Porters have a stand a good chance of prevailing in a discrimination suit.

B. Can the Porters Establish Discrimination Based on the Landlord’s Actions

Discrimination may be established where familial status was any part of the motivation for the conduct of the defendant.

In Carter v. Brea, the Caters were a childless couple when the moved into their “adult only” complex. They became pregnant and were served with an unlawful detainer action immediately after the birth of their son. Their situation caused stress on Luanne Cater and she suffered difficulty in sleeping and humiliation due to the demand made by Brea. The Carters brought suit against Brea for discrimination seeking also an award of emotional damages.

The Court in Carter held that discrimination was established by a preponderance of the evidence that there was a causal relationship between the familial status and being asked to leave. They found in favor of the Carter and awarded damages including the stress and attorney fees. The also held that the Defendant’s goal did not show that the restriction was sufficiently narrowly tailored to meet their goals.

Here the Porters were also childless when they moved into their apartment complex. Although Phoenix did not come right out and say they were an adult only complex, they imposed occupancy restrictions. The Porters became pregnant and pressure was put on them to move. There were no suitable apartments available at Phoenix (due to the small number of two bedroom apartments given the number of apartments (only 20 out of 200 apartments). Additionally, the Porters were not in a financial position to move into bigger, costlier apartments (Mrs. Porter has taken a leave from work to stay home with their son). The porters suffered from stress, anxiety, and difficulty sleeping.

It is unknown what Phoenix claims their purpose for the occupancy restriction is, however, based on Rowan and Cater, the Porters claim of discrimination is supported by the census information provided by the Expert. The residency occupation has a disparate impact on the Porters. They have not been able to find appropriate housing, and the residency restrictions are discrimination against families. The apartment complex had not provided any equipment or playgrounds for children, and they only have 5 families total residing in their complex. As opined by the Expert, this is not by chance.

The Porter’s claim for discrimination is a strong one, and filing suit, would provide for emotional damages and attorneys fees, which are not recoverable under the unlawful detainer action.

This process does take longer, and it is likely that the Porter will have to reside someplace else during this process. That may present a problem for the Porters as they have already looked for suitable housing and have been unsuccessful in finding anything they are able to afford on their limited budget.

III. Filing Administrative Complaint

A third option is filing an administrative complaint. This process does not start in the court system. A complaint is filed with the Department of Fair Housing (DFH) who then determines whether there are enough facts to warrant an investigation. The DFH if they chose to accept the complaint for investigation drafts a formal complaint and then serves is on the Respondent. The respondent is given an opportunity to resolve the matter. And reconciliation conferences are scheduled once their findings show a violation of the law. If this fails, then formal litigation ensues.

DFH may order remedies that include out of pocket expenses such as relocation, injunctive relief, access to housing previously denied emotional damages, civil penalties, and attorney’s fees.

This process would provide the most relief to the Porters. If injunctive relief is granted, they may remain in their current residence, they may recover emotional damages. If they chose to move to another location, they may recover those expenses. Additionally attorney’s fees can be awarded and civil penalties as well. The firm has agreed not to charge hourly for this course of action, rather they attorneys fees would be recoverable at the end of the action if successful. This means that if the firm is not successful, they would not be paid on this.

Although this process provides more possible remedies than the other options, the process can take up to a year from when the complaint is filed. Additionally, research has led to the findings that the DFH rarely grants injunctive relief. So it is likely that that the Porters would have to find alternative living arrangements during this process.

Also, during this process no other claims (such as state court) may be filed, but the statute of limitations is tolled during this process, so that a state court action may be brought after this process is finalized if relief was not granted.

IV. Conclusion

The Porters are on a limited budget, and have not been able to find alternative housing. They have several options that are available to them. Both the State Actions and Administrative Claims have damages available for emotional distress and attorneys fees, so these options are likely to provide the most monetary compensations to the Porters. Defense of an unlawful detainer action if successful would allow the Porters to remain in their current housing which is a big consideration as they have not been able to locate alternate housing. Filing an administrative claim also has this injunctive relief, but that is rarely granted.