Transcript Basic Housing Rights for Patients* Rights Advocates

BASIC HOUSING RIGHTS
FOR PATIENTS’ RIGHTS
ADVOCATES
Patients’
Rights
Advocacy
Training
February 7,
2013
Presented by:
Kim Pederson,
Senior Attorney
Mental Health
Advocacy Project
Goals for this presentation:
 To provide a basic understanding of eviction protections that
people have in various types of housing:
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Conventional rental housing
Unlicensed room & board homes
Rented rooms
Licensed board & care homes
 To provide an overview of how the fair housing laws protect
people with disabilities and may allow them the opportunity to
stay in their housing.
 To help you issue spot in order to advocate that your client is
not gravely disabled!
Hypothetical #1:
Conventional Rental Housing/Eviction Process
You are at your local psychiatric unit interviewing
clients on 5250 holds. On the 5250 form, the doctor
wrote that your client “is being evicted from his
apartment and cannot provide housing for himself.”
During your interview of the patient, you learn that he
has lived in his one-bedroom apartment for over one
year and has always paid his rent on time. He pays his
full rent on his own and does not get help from the
government or a community agency. The patient
wants a hearing to leave the hospital and return to his
apartment.
Hypothetical #1:
Conventional Rental Housing/Eviction Process
 Has the patient received an eviction notice?
 In order to lawfully evict a tenant from a property, California law
requires a landlord to issue a notice first.
 If the tenant has NOT received an eviction notice, argue that he has
the legal right to return to his apartment. The mere threat of eviction
is not enough to make someone gravely disabled.
 Types of notices in California:
3-day notice to pay rent or quit;
3-day notice to cure lease violation or quit;
3-day notice to quit;
30-day notice to quit for month-to-month tenants who have lived in
the property for less than one year;
 60-day notice to quit for month-to-month tenants who have lived in
the property for over one year.
 You may hear of other types of notices unique to your jurisdiction.
 There are also other types of notices required for subsidized housing.
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Hypothetical #1:
Conventional Rental Housing/Eviction Process
 If the patient HAS received a notice, has the notice expired?
 Even if the patient has received a notice, he has the legal right to return
to the property and can fight the eviction  can still provide housing for
himself and is not gravely disabled.
 If the notice has not expired, the tenant usually has the
opportunity to “cure” or move out.
 The tenant can live in the property while going through the eviction
process  can still provide housing for himself and is not gravely
disabled.
 What happens after the notice expires and the tenant has not
done what it asks him to do?
 The landlord cannot simply lock the tenant out!
 The landlord has to file an eviction lawsuit, also known as an unlawful
detainer.
 Unless there is a court order authorizing the landlord to lock the tenant
out, the patient can still provide housing for himself  not gravely
disabled.
Hypothetical #1:
Conventional Rental Housing/Eviction Process
 THE UNLAWFUL DETAINER PROCESS
 If the notice to quit expires and the landlord still wants to evict the
tenant, the landlord must file an unlawful detainer, which is the
eviction lawsuit against the tenant. The lawsuit asks for a court order
authorizing the landlord to lock the tenant out and take possession of
the unit.
 After the lawsuit is filed, the landlord must personally serve the
tenant.
 If the landlord is unable to personally serve the tenant, he can ask for
an order from the court authorizing “nail & mail” service.
 From the date that the tenant is served, he has FIVE DAYS to file a
response (Answer) with the court. Unlawful detainers move VERY
FAST!
 If the tenant files the Answer, a trial date will be set within about 3 weeks
 If the tenant does not file an Answer, the landlord can take a default
judgment
Hypothetical #1:
Conventional Rental Housing/Eviction Process
 THE UNLAWFUL DETAINER PROCESS, continued
 If a default judgment is taken, the sheriff will immediately post a
notice of lock-out, which means that the tenant will be locked out in
about 5 days.
 If the tenant files his Answer and the trial date is set, the tenant will
have the opportunity to try to negotiate a resolution with the landlord,
or present his case to let the court decide who should have possession
of the unit.
 If the tenant wins his trial or negotiates a favorable resolution with the
landlord, jump for joy!
 If the tenant loses his trial (or does not show up to his court date), the
judge will issue a judgment saying that the sheriff can lock the tenant
out.
 The sheriff will post a notice of lock -out that gives the tenant around 5
days to vacate before the lock-out.
Hypothetical #2:
Unlicensed Room & Board Homes
You are at your local psychiatric hospital
interviewing people on 5250 holds. The
patient’s 5250 says that he cannot
provide housing for himself because he
was evicted from his rooming house
(unlicensed) when the landlord called the
police came to take him away on a 5150
because he was behaving in a “bizarre”
way.
Hypothetical #2:
Unlicensed Room & Board Homes
 The same eviction rules apply to unlicensed room & board
homes that apply to conventional rental housing.
 Unlike licensed board & care homes, there are no special rules
 All standard landlord-tenant laws apply to operators of unlicensed
room & board homes.
 In order to evict a tenant from an unlicensed room & board,
the landlord/operator must follow all of the same steps
outlined in the earlier slides.
 It is NEVER legal for a landlord in any type of housing to evict
someone by calling the police to have them put on a 5150.
 If the landlord wants to evict the person, he has to go through the
legal process
 If the reason for the eviction is disability -related behavior, the tenant
may be entitled to a reasonable accommodation
Hypothetical #3:
Rented Rooms
You are at your local psychiatric hospital
interviewing patients on 5250 holds. The
patient’s 5250 says that he cannot go back to
his rented room because he has been evicted.
The patient wants to have a hearing to be
released from the hospital and go back to his
rented room.
Hypothetical #3:
Rented Rooms
 Does the owner of the house also live in the home
where the patient rents a room?
 If NO, regular eviction rules apply
 If YES, see below…
 If the owner lives in the home…
 And rents out more than one room, regular eviction rules apply
 And rents out only one room to one person (your client), your
client is a “lodger” and special rules apply
Hypothetical #3:
Rented Rooms
 Special rules for lodgers
 The owner can evict the lodger without going through formal
eviction proceedings
 The owner must give the lodger a written notice that the lodger
cannot continue to use the room
 The amount of notice must be the same as the number of days
between rent payments
 Ex: 30 days’ notice is required if the lodger pays rent
monthly
 If the lodger overstays the notice, the owner can call the police
and have the lodger removed as a trespasser
 The lodger may be put on a 5150 during this process
Hypothetical #4:
Licensed Board & Care Homes
You are out at your local psychiatric hospital
interviewing patients on 5250s. On the 5250
form, the doctor wrote that your client, an
elderly gentleman, cannot return to his board
and care home, so is gravely disabled. Your
client wants to return to the board and care
home because it is close to his outpatient
providers.
Hypothetical #4:
Licensed Board & Care Homes
 Board & care facilities must follow basic landlord -tenant law.
 3/30/60 day notices required
 Look at admission agreement for other rules
 Is the home licensed?
 Through the Department of Social Services/Division of Community
Care Licensing, California licenses board & care homes to provide
non-medical care to people who need assistance with doing their
ADLs.
 Website:
https://secure.dss.cahwnet.gov/ccld/securenet/ccld_search/ccld_se
arch.aspx
 Two common types of licensed board & care homes:
 Residential Care Facilities for the Elderly (RCFE)
 Adult Residential Facilities (ARF)
Hypothetical #4:
Licensed Board & Care Homes
 Residential Care Facilities for the Elderly (RCFE)
 Generally, for people ages 60+
 With permission from the state, younger people can live in RCFEs if
their care needs are similar
 California regulations allow operators to evict with a 30/60
day notice in the following specific circumstances (good
cause):
 Non-payment of rent within ten days of the due date;
 Failure of the resident to comply with state or local law if they have
received written notice of the violation;
 Failure of the resident to comply with general rules of the facility;
 If the resident has care needs that the facility can no longer provide
for; or
 The operator is going to change the use of the facility, or sell it.
Hypothetical #4:
Licensed Board & Care Homes
 3-day notices to quit must be approved by DSS and may only
be given if the resident is engaging in behavior that is a threat
to the health or safety of himself or others.
 California law outlines specific special requirements for RCFE
eviction notices:
 Effective date of the eviction;
 Resources available to assist in identifying alternative housing;
 Information about a resident’s right to file a complaint about the
eviction with DSS, and the contact information for the local office of
DSS and ombudsman;
 Specific notice that the facility must evict the resident through the
court process if he stays beyond the expiration of the notice, and that
the resident may defend himself in court.
Hypothetical #4:
Licensed Board & Care Homes
 Adult Residential Facilities (ARF)
 Generally, for adults ages 59 and under
 Adults with mental illness are common residents
 Older people can live in ARFs with permission of the state, so long as
their care needs are similar (ex: person with mental illness and no
age-related care needs)
 Same good cause for eviction as RCFE.
 Same requirement for DSS to approve 3 -day notice.
 Court eviction process is not explicitly required by regulations,
but is implied by landlord -tenant law, and by analogy to
specificity of RCFE rules
Hypothetical #5:
Fair Housing/Reasonable Accommodation
Your client was put on a 5150 after he got agitated at his
apartment complex and started making threats against
management staf f and other tenants. In the lobby of the complex,
he raised his fists at other people and yelled at them. The police
came, placed him on a hold and took him to the psychiatric unit.
Now, your client is on a 5250 and willing to stay for treatment.
His neighbor came to visit him and brought him a notice that he
found posted on his door, which is a three -day notice to quit that
cites the behavior leading to the 5150. The notice expired
yesterday and your client was hoping to return there after his
hospitalization. Your client tells you that his medications hadn’t
been ef fective for him for some time, and he is getting help with
new medications in the hospital and feels that they will help him
control his behavior if he returns to the apartment complex.
Hypothetical #5:
Fair Housing/Reasonable Accommodation
 Federal and state fair housing laws prohibit discrimination in
housing.
 There are several protected categories, including disability.
 Through reasonable accommodations, the fair housing laws
allow people with disabilities to have special treatment so
that they can use and enjoy their housing to the same extent
as people without disabilities.
 A reasonable accommodation is:
 A change in a housing provider’s policies, practices, rules or services
 that is necessary to allow a person with a disability to equally use
and enjoy their housing
 and will not result in a fundamental alteration of their program or
create an undue financial or administrative burden
Hypothetical #5:
Fair Housing/Reasonable Accommodation
 Under reasonable accommodation law, people who have
engaged in disruptive behavior —even arguably dangerous
behavior—caused by their mental health disability are entitled
to second chances at their tenancies.
 These second chances are contingent on being able to put
forth a plan that will assure the landlord that the risk of
future behavior will be eliminated or minimized:
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Changes in medication;
Additional therapy services;
Regular monitoring & support by case manager;
Intervening hospitalization & stabilization;
Anything else that will help alleviate the symptoms of the person’s
disability that led to a notice to quit being issued.
Hypothetical #5:
Fair Housing/Reasonable Accommodation
 All types of housing providers must consider
reasonable accommodations.
 Reasonable accommodations can be requested at any
time, even after a notice to terminate has been
issued or an eviction has been filed.
 It is best to refer these cases to legal services ASAP,
especially if the notice has expired or the eviction has
been filed.
 Get to know your local providers of free legal services
so that you can refer your clients:
http://lawhelpca.org/find-legal-help/directory/area
In Conclusion…
 In most cases, tenants cannot be locked out WITHOUT A
COURT ORDER.
 Landlords must go through the legal process in order to evict tenants
 If there is no court order allowing a landlord to evict a tenant, the
tenant has the legal right to return to his housing, and this can be
used in support of an argument that the patient is not gravely
disabled.
 A mere threat of eviction from a landlord does not mean that
a tenant cannot legally return to his housing.
 It is up to us to educate doctors and discharge planners what
it actually means to be evicted.
 People with disabilities are entitled to extra protections under
the law that may allow them to stay in their housing.
Any questions?
My contact information:
Kim Pederson
[email protected]
408-280-2467