By: Carly Morrison, Spring 2018 HeLP Legal Services Clinic Intern
What is unhealthy housing?
Unhealthy housing is related to exposure to toxins and other environmental factors. The CDC has defined unhealthy housing as the presence of any characteristics that might negatively affect the health of its occupants, including evidence of rodents, water leaks, peeling paint in homes built before 1978, the absence of a working smoke detector, and poor air quality from mold or radon.
Why is unhealthy housing a problem for children?
Children living in unhealthy housing conditions suffer far higher rates of poor physical and mental health, declining life opportunities and educational achievement than those living in satisfactory housing. Children who are continuously exposed to unhealthy housing conditions are between 1.5 and 3.5 times more likely to develop a cough and have a 25% higher risk of severe ill health and disability during childhood and early adulthood than children with limited or no exposure to such conditions.
What can attorneys do to help alleviate the effects of unhealthy housing for children?
Just a bit of time and effort on the part of a pro bono attorney can go a long way in helping a family with children living in unhealthy housing conditions navigate the complex process of repair or relocation.
Notice is the first critical issue in unhealthy housing cases. As early as during the initial meeting, an attorney should advise the client facing such conditions to provide specific, written notice of conditions and repair requests to his or her landlord and to keep copies of all of communication with and documentation provided to the landlord. Attorneys should let families know it is never too late to start, and that just because they haven’t been diligent in notifying the landlord or keeping records in the past doesn’t mean they don’t have a case if they start now. A landlord who has been notified has a duty to inspect and repair, but lack of documentation can be fatal to a client’s claims. If a client indicates they’ve discussed the unhealthy conditions with the landlord, the attorney should let the client know that while verbal notice still triggers a landlord’s duties, it will present proof issues later.
Clients who wish to remain in their homes
If a client wishes to remain in a property with health concerns, an attorney can help the client secure needed repairs. Even landlords who repeatedly fail to acknowledge tenant requests often respond to a phone call and/or demand letter from an attorney. An attorney may want to first call the landlord and simply request the needed repairs. If that doesn’t work, the attorney can send a demand letter citing the landlord’s duties under the law and providing notice that the client may either exercise his or her right to “repair and deduct” if repairs are not made or pursue damages against the landlord for failure to repair. These simple steps can often expedite the repair process and avoid costly litigation.
Clients who wish to relocate
If a family wishes to leave the property but still has a significant amount of time left before their lease is up, and if the conditions are severe enough that they’re affecting the child’s health, an attorney may contact the landlord and introduce a “constructive eviction” argument. The bar for “constructive eviction” in Georgia is extremely high, requiring a grave act of a permanent character by the landlord with the intention of depriving the tenant of the enjoyment of the premises. However, a simple letter from an attorney outlining his or her plan to pursue a constructive eviction argument can incentivize the landlord to negotiate an early release with the tenant. The most effective of these communications first assertively demand repairs and compensation for damages and then propose a mutual lease rescission as an alternative. The desire to avoid expensive repairs and potential liability can often lead to a settlement in the family’s best interest. Additionally, even if the landlord will not agree to a mutual rescission or make repairs and the tenant feels the family must leave, an attorney can reduce the chances that the landlord will ever come after the tenant for breaking the lease. A careless or callous landlord is less likely to come after a former tenant with strong pro bono counsel.