Opinion
No. L-19-1263
09-11-2020
NORWICH APARTMENTS II, Appellee v. Jerquina SANDERS, Appellant
Milton E. Pommeranz, for appellee. Veronica L. Martinez, for appellant. George Thomas, for amicus curiae The Fair Housing Center; Katherine Hunt Thomas, for amicus curiae The Ability Center of Greater Toledo.
Milton E. Pommeranz, for appellee.
Veronica L. Martinez, for appellant.
George Thomas, for amicus curiae The Fair Housing Center; Katherine Hunt Thomas, for amicus curiae The Ability Center of Greater Toledo.
DECISION AND JUDGMENT
PIETRYKOWSKI, J.
{¶ 1} In this forcible entry and detainer action, defendant-appellant, Jerquina Sanders, appeals the October 8, 2019 judgment of the Toledo Municipal Court, Housing Division, overruling her objections to the August 19, 2019 magistrate's decision which, relevant to this appeal, affirmed appellee Norwich Apartments' denial of appellant's request for a reasonable accommodation relating to her inability to pay rent. For the reasons that follow, we affirm.
{¶ 2} The parties entered into a lease agreement in May 2018, for an apartment in a complex located on Norwich Road in Toledo, Lucas County, Ohio. Pursuant to the HUD-subsidized lease, appellant's portion of the rent was $27 and was due on the first of each month. On May 6, 2019, appellant was served with a ten-day notice to vacate the premises due to her failure to pay rent. On May 23, 2019, appellee commenced a forcible entry and detainer action seeking restitution of the premises and delinquent rent and late charges.
{¶ 3} During the proceedings, appellant obtained counsel who on June 12, 2019, sent Norwich a letter stating that appellant is a person with a disability and that her "disabilities have impacted her ability to comply with program rules." The following reasonable accommodations were then requested:
1. Revoke the 10-Day Notice to Vacate issued on or about May 6, 2019;
2. Accept all past due rent;
3. Provide a copy of any notices, letters or other such documents provided to Ms. Sanders to her A Renewed Mind caseworker; and
4. Dismiss the pending eviction in Toledo Municipal Court, CVG-19-09629.
{¶ 4} The eviction hearing initially set for June 13, was held before a magistrate on June 26, 2019, and the following evidence was presented. Norwich property manager, Andrea Fernbaugh, testified that appellant moved into the apartment complex on May 24, 2018. The lease at issue was signed on April 29, 2019, with a May 1, 2019 start date. Appellant's portion of the subsidized rent was $27 monthly.
{¶ 5} Fernbaugh testified that she served appellant a ten-day notice to vacate the premises on May 6, 2019, due to her non-payment of rent. Fernbaugh stated that a few days following the expiration of the ten days, appellant called her and said that she had had a busy month and had forgotten to pay her rent. Appellant did not attempt to deliver a check or money order. Fernbaugh stated that appellant's file had been forwarded to legal counsel to pursue an eviction.
{¶ 6} Fernbaugh summarized the apartment complex's written policy for the acceptance of late payments which appellant signed. Rent is due on the first of the month and late after the fifth. Once the ten-day letter is sent, the tenant has the ability to meet with management and discuss any issues impacting the ability to pay rent. Rent is not accepted after the expiration of the ten-day period, eviction proceedings are initiated. Fernbaugh stated that appellant did not contact her until after the expiration of the initial six-day (May 1st to May 6th) and ten-day periods, or after May 16th.
{¶ 7} During cross-examination, Fernbaugh was questioned about the federal housing regulations relating to a tenant's financial inability to pay rent. Fernbaugh was questioned about appellant's history of accruing and paying late fees.
{¶ 8} Fernbaugh was presented with a letter sent by appellant's attorney requesting a reasonable accommodation request. Fernbaugh acknowledged that she received appellant's request for a reasonable accommodation on June 12, 2019, following the June 7, 2019 initial continuance of the hearing and one day prior to the second scheduled hearing date. In the letter, appellant requested that her caseworker be sent all documents provided to her; Fernbaugh stated that they did not comply with the request because they did not know who appellant's caseworker was. Fernbaugh further indicated that at no time in appellant's 13-month residency did appellant request an accommodation or indicate that she may need help paying her rent. Further, Fernbaugh stated that she was neither contacted by A Renewed Mind (appellant's mental health service provider) nor did appellant indicate that she wanted someone at A Renewed Mind to receive notices or act as a payee on her behalf. Fernbaugh acknowledged that she was aware that appellant had some type of mental health disability.
{¶ 9} Appellant testified that she lives at the Norwich Apartments with her three-year-old daughter. Appellant stated that she does not work due to mental and physical disabilities and that she is being treated for the disabilities. She had a mental health diagnosis at the time of the hearing and was still undergoing diagnostic testing for gastrointestinal issues. Appellant stated that mental health issues prevented her from paying her May rent and that the medical testing had increased her anxiety.
{¶ 10} Appellant stated that she pays $27 per month in rent. Up until March 2019, an uncle helped her pay her rent. In April 2019, a church paid her rent. On May 20, 2019, she attempted to pay her May 2019 rent by money order in the amount of $40.00 (on that date the account balance was $34.50 due to late fees) but she was told they were now "going through the courts."
{¶ 11} Appellant stated that she told various family members that she was unable to pay her rent by May 16, but did not "directly" let Norwich know. Appellant stated that she authorized her attorney to send a letter requesting a reasonable accommodation. She requested that Norwich send all her paperwork to her caseworker and that they allow her to remain in the apartment. Appellant stated that the accommodation would allow her caseworker to help her handle her finances if she is experiencing depression or anxiety.
{¶ 12} Appellant was questioned about the money orders she stated were purchased to pay Norwich: $40 on May 20 and $35 on June 1. She agreed that her disability prevented her from paying rent before May 20, but that she was able to make two payments thereafter. Appellant also stated that the payees on the money orders were left blank because Norwich did not want the name filled in until they were physically tendered.
{¶ 13} Fernbaugh was recalled for follow-up questioning. Fernbaugh stated that she had never seen the money orders that appellant stated she tried to give to her. Fernbaugh stated that Norwich did not have a policy that money orders should be left in blank. Fernbaugh stressed that she would advise against this because they could easily be stolen.
{¶ 14} On July 1, 2019, the magistrate issued his decision granting possession of the property to Norwich. On July 15, 2019, appellant filed objections to the magistrate's decision. Relevantly, appellant argued that the magistrate failed to consider the course of conduct between the parties, i.e., that Norwich regularly accepted late payments from appellant, and that it unfairly "constructively" denied her request for a reasonable accommodation.
{¶ 15} On July 23, 2019, the trial court found appellant's objections well-taken and reversed the magistrate's decision. Norwich requested that the judgment be vacated and the court consider its response to the objections. The judgment was vacated and Norwich's opposition to the objections was filed on August 16, 2019.
{¶ 16} On October 8, 2019, the trial court denied appellant's objections and adopted the magistrate's July 1, 2019 decision.
{¶ 17} This appeal followed with appellant raising the following assignment of error:
Appellant originally submitted two assignments of error; the original first assignment of error related to the imposition of late fees. Appellant voluntarily withdrew the assignment of error based upon this court's recent decision in Byrneport Apartments II v. Williams , 6th Dist. Lucas No. L-19-1277, 2020-Ohio-3488, 2020 WL 3485726, where we held that a landlord's similar late fee provision was not unconscionable.
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The trial court erred in deciding Norwich did not wrongfully deny Ms. Sanders' request for a reasonable accommodation.
{¶ 18} In appellant's sole assignment of error she argues that her request for a reasonable accommodation was proper any time prior to her physical eviction. Further, appellant argues that Norwich erred in failing to even consider her request and that, without a request from Norwich, appellant was not required to provide additional documentation relating to her disability.
{¶ 19} In addition to the parties' briefs, this court allowed The Fair Housing Center and The Ability Center of Greater Toledo ("Ability Center") to file an amici curiae brief in support of appellant. Similar to appellant, amici argue that Norwich violated federal law in failing to grant or even evaluate appellant's reasonable accommodation request. Specifically, amici argues that Norwich's assertion that the request was properly denied because appellant failed to verify her disability by documentation is disingenuous in that it was incumbent upon the landlord to request documentation or engage in a dialogue regarding the request.
{¶ 20} Conversely, Norwich argues that even assuming the request was properly before it, appellant failed to demonstrate the causal nexus between her disability and her inability to pay rent. Norwich further contends that it did not wrongfully fail to consider the request; rather, the parties' failure to reach an agreement constitutes a de facto denial of the request.
{¶ 21} It is undisputed that Norwich, under the Fair Housing Act (FHA), is required to provide reasonable accommodations to a tenant with a disability when necessary. See 42 U.S.C. §§ 3601 - 3619. The parties agree that to demonstrate the right to a reasonable accommodation, a tenant must establish the following:
(1) she suffers from a disability within the meaning of FHA; (2) the defendant knew or reasonably should have known of the disability; (3) the requested accommodation may be necessary to afford "an equal opportunity to use and enjoy the dwelling;" (4) the accommodation is reasonable; and (5) the defendant refused to make the accommodation. DuBois [Dubois ] v. Ass'n. of Apartment Owners of 2987 Kalakaua , 453 F.3d 1175, 1179 (9th Cir. 2005).
Overlook Mut. Homes, Inc. v. Spencer , 415 F. App'x 617, 621 (6th Cir. 2011)
{¶ 22} Further, the HUD and DOJ Joint Statement regarding reasonable accommodations under the FHA relevantly states that where a reasonable accommodation request has been made and the disability is known or readily apparent to the provider "but the need for the accommodation is not readily apparent or known, the provider may request only information that is necessary to evaluate the disability-related need for the accommodation."
{¶ 23} Amici and appellant first argue that no additional verification was needed as Norwich was aware of appellant's disability and its relationship to the requested accommodation was readily apparent. Next, even assuming that appellant's claimed inability to pay her rent warranted further inquiry or documentation, appellant contends that Norwich, if it did not believe appellant's claim, could have then requested additional information.
{¶ 24} The only disputed element is whether appellant's disability was the cause of her inability to pay the May 2019 rent and that it was not due to economic circumstances (other than the ones already existing which qualified her for subsidized housing.) Upon our independent review of the proceedings below, although we are sensitive to appellant's difficulties in paying her rent, we cannot find a causal link between her disability and her failure to pay rent sufficient to warrant the accommodations requested. First, our review of the relevant case law has revealed that courts have been reluctant to grant accommodations relating to the payment of rent because
the payment of rent as consideration for the right to possess and use a property is the very basis and nature of the transaction between a lessor and lessee. The Fair Housing Act requires housing providers to make reasonable accommodations for renters' disabilities, but it does not undermine the nature of their transaction or so fundamentally alter their relationship that it removes eviction as a remedy for nonpayment of rent.
Dempsey v. Hous. Operations Mgt., Inc. , D. Conn. No. 3:15-CV-615 (SRU), 2016 WL 730702, *3 (Feb. 23, 2016).
{¶ 25} Next, at trial, Fernbaugh testified that appellant told her that she had simply forgotten to pay her May 2019 rent, not that depression or anxiety caused her inability to pay. Fernbaugh further stated that at no time during appellant's tenancy had there been any indication that she was having difficulty paying her rent due to a disability. Finally, according to her testimony appellant's failure to pay her rent directly correlated with the termination of family financial support. Thus, further evidencing the fact that appellant's financial status, not her disability, was the root cause of her failure to pay rent.
{¶ 26} Accordingly, we find that Norwich did not unlawfully deny appellant's request for an accommodation under the FHA. Appellant's assignment of error is not well-taken.
{¶ 27} On consideration whereof, we find that substantial justice was done the party complaining and the judgment of the Toledo Municipal Court, Housing Division, is affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal.
Judgment affirmed.
Gene A. Zmuda, P.J.
Thomas J. Osowik, J.
CONCUR.