Affordable, quality housing is a basic human need. But access to such housing eludes many families in Memphis and other American communities.
Even where affordable housing options are scarce or unavailable in a community, every family still must live somewhere. Families often “double up” in a more expensive house than either can afford alone. Others receive assistance through government or charitable programs, though the demand in Memphis and most other places far exceeds the supply of such programs. Ultimately, every family needs predictable, affordable housing that provides stability for all family members.
When the need for stable housing is exacerbated by a lack of affordable housing, a “take what you can get” mentality often prevails. Many may willingly accept an affordable option in a location that comes with proximity to work and school but without essential services like hot water or a dry roof. And with that trade-off may come the unspoken understanding that the tenant had better not complain about conditions because this is the best they can get or afford. It sounds extreme, but this is the kind of decision that families all around us are making every day in Memphis.
The law that generally establishes the rights of owners and renters of housing is known as the “Uniform Residential Landlord and Tenant Act” or “URLTA”. Many states, including Tennessee, have adopted the URLTA in some form (see Sections 66-28-101 to 521 of the Tennessee Code Annotated). Its provisions govern what rental agreements may and may not contain, the relative obligations of the landlord and the tenant in the rental relationship, and enforcement options and remedies available when disputes arise. Prevailing parties in lawsuits under URLTA can recover costs and attorney fees.
Landlords routinely use the URLTA as the basis of their court actions to evict tenants. But tenants, especially low-income tenants, very rarely file lawsuits against landlords pursuant to URLTA. Why?
Many speculate that it is because of the vast power imbalance between landlords and tenants. Landlords typically have the resources to file lawsuits and cover related attorney fees and court costs. Low-income tenants simply do not. So if the only remedy available to a low-income tenant facing a housing quality issue is practically unavailable to them, what is the tenant to do? The reality for many families is that they are forced to put up with lower quality housing until they are lucky enough to find something even marginally better.
It is our belief that enforcing quality housing standards should not be left to vulnerable, often powerless and stressed low-income families. It should be the role of local level code enforcement to help assure housing quality across the community. This is because it is the duty of local government to assure the health, safety and welfare of the population, and almost nothing is as fundamental to protecting those things as quality housing.
We have previously written about the importance of local code enforcement and the tools it has available to assure compliance with property maintenance standards. Beyond these standards, however, there are special local codes in many communities that help local code enforcement to safeguard tenants’ rights to quality housing.
Some communities offer enhanced protections through adoption of a rental property registration ordinance. A rental registration ordinance simply requires a property owner to register with the local government any property that is going to be leased for residential housing purposes. Rental registration ordinances may or may not additionally require payment of a fee to register. Often, there is an exception from registration for owners of just one rental property. The information that must be provided as part of the registry varies from city to city, but the main element required is usually current contact information for the owner or manager of the property being registered.
In addition or in the alternative, many communities have a rental licensing ordinance. A rental licensing ordinance requires an owner, before renting a property in that jurisdiction, to obtain a license to rent the property. Typically, the owner may obtain the license only after an inspection of some or all of the rental units owned by that landlord. Local code enforcement inspectors perform the mandatory inspections in some communities, while owner-retained contractors complete them in others. Owners in cities with a rental licensing program are typically required to post their license at the rental property. And like rental registration, there may or may not be a fee associated with the license.
Another local level ordinance adopted in some communities to aggressively address very problematic rental properties is a so-called “chronic nuisance ordinance.” The components of a chronic nuisance ordinance vary widely, but typically it authorizes the local government, acting administratively or through the courts, to designate a particular property or set of properties as a “chronic nuisance.” Ordinances typically define a chronic nuisance as an ongoing, severe criminal or property maintenance problem at a residential rental property. Once a property is designated a chronic nuisance, the local government is empowered to quickly take remedial steps at the property if the owner does not act promptly to do so.
Local governments enforcing property maintenance standards must understand and deal with the imbalance of power between landlords and tenants. It will never be enough to leave it to tenants to take their landlords to court. Consistent enforcement of a minimum housing quality standard, using whatever tools are at their disposal is the proper role, is indeed a vital duty of local code enforcement.
Barlow and Schaffzin co-direct the University of Memphis School of Law’s Neighborhood Preservation Clinic where they supervise law students handling Environmental Court lawsuits on behalf of the City of Memphis. Schaffzin is an associate professor of law and director of experiential learning and Barlow is adjunct faculty and part time staff attorney for the City. Barlow serves as President of Neighborhood Preservation, Inc. Together, Steve and Danny are proud to have launched a new law partnership this year, Barlow & Schaffzin PLC.
For more information please visit npimemphis.org