For the past week I have been fuming at the ears mad about the situation at the Serrano and the impossibly difficult situation any Virginia renter that lives in poor housing conditions lives with.
Even after appreciated commitments from local leaders, systemic failures in local code enforcement and bare minimum renters rights laws in Virginia continue as a result of systemic failures. A long-term assessment of the system that has allowed this situation to happen must be taken.
Policy action items laid out in this column include near-term code enforcement by Arlington County and long-term policy changes in the General Assembly such as bare minimum living standards being included in building code, strengthening of law for the prohibition against retaliatory eviction, warranty of habitability, and remedy when a premise is condemned.
Long Term — Changes in the General Assembly
Include Bare Minimum Livable Standards in Virginia Uniform Statewide Building Code
Livable building standards are currently included in the Virginia Residential Landlord and Tenant Act (“the Act”) instead of in Virginia Uniform Statewide Building Code (“Code”). Basic living standards that were broken at The Serrano include significant mold presence, rodent infestation, and other utility grievances. Not having these standards included in code is a problem for multiple reasons.
To prove a violation of the Act a tenant must hire a professional expert to attest to these standards being violated in court after attaining a lawyer. Hiring a professional expert is a significant expense even if you are a low income resident that would qualify for free legal counsel from Legal Services of Northern Virginia. If these basic standards were included in Code a county inspector would be able to require correction of the violation or issue an abatement order and/or write a letter of attestation for use in court. These options aren’t currently available since it is not required by code.
For example, DC Housing Code requires rental dwellings: be free of insects and rodents, have A/C that is 15 degrees less than outside, have heating equipment that heats to 68 degrees, water temperature that can reach 110 degrees, paint that is not flaking, removal of lead paint, mold removal, no plumbing leaks, among other things.
Strengthen Prohibition Against Retaliatory Eviction
One of the most heartbreaking stories we heard on the most recent Tenant-Landlord Commission call was the stories of retaliatory actions by AHC’s property management team. This made some scared to bring up problems in fear of retaliatory action that could lead them to being evicted.
Technically Virginia law has a prohibition against retaliatory eviction but proving it is next to impossible. Judges generally will not apply retaliatory eviction to the landlord’s refusal to renew a lease. Other states presume that an eviction brought within a certain period (e.g., 6 months) after the tenant asserts rights is retaliatory. This presumption should apply to a refusal to renew as well.
Warranty of Habitability
Many states have a warranty of habitability for items such as heat and running water. To enforce the warranty of habitability, a tenant need not be current in rent nor have provided written notice to the landlord. In a non-payment of rent case, if the tenant proves the housing conditions entitle them to a rent abatement (a rent credit) equal to or greater than the unpaid rent, the tenant gets to stay.
Remedy When Premises are Condemned
Under existing law, if the rental premises are condemned, the tenant must vacate immediately. The tenant is entitled only to the return of unearned rent and the security deposit. The premises did not fall into such disrepair overnight. Instead, the premises must have been deteriorating for months. There should be a rebuttable presumption that the tenant is entitled to a refund of the last three months of rent.
Near Term — Arlington Code Enforcement at the Serrano
In the past week on the Tenant-Landlord Commission and NAACP Housing Committee we have heard from both Serrano residents and AHC leadership. What is apparent is that a shot clock on time has not started and residents are unsure when their homes will be habitable.
Residents alerted us that after direction from the County Board, the Housing Director and a code enforcement individual came to inspect units. Residents then followed up with staff and they evidently lost the notes they had taken including the apartment numbers that they had visited and residents were not given any written attestations to residents confirming what the code enforcement officer was saying out loud — that there were numerous code violations throughout the building. This is an essential correspondence if residents want to take AHC to court, which they should.
If an owner breaks code they have 14 days to fix the problem. Many issues should have been fixed by now if county code enforcement was doing their job by giving AHC formal notice of code violations, reinspecting after 14 days, and then taking AHC to court if still not in compliance.
The fact that this is a priority for county leaders, everyone was sent to look at the situation, but real actionable follow through still isn’t happening by code enforcement is unacceptable. All of this is time sensitive. Residents are being given hotels for a month but if code enforcement and AHC don’t fix this problem in days, not months or years, residents will be out of luck due to our lack of multi-bedroom committed affordable units available.
In addition to laws and code being broken and still little actionable items to help residents, culture at the Serrano has been unacceptable.
In the recent Tenant-Landlord Commission meeting and NAACP Housing Commission meetings we heard accounts including: cops being called on residents trying to organize a meeting on housing conditions in the common area, and Serrano staff making fun of an autistic child of a parent who has spoken out about living conditions.
This is not the first and it will not be the last time that a rental building or unit falls into disrepair and we must put systems in place to make rental dwelling units habitable. The Serrano building should have never gotten to this point and we must learn from this situation. I would encourage the Virginia Legislature and Arlington County to consider these recommendations.
Nicole Merlene grew up in Arlington County and has been a civic leader in both policy and political arenas. She has been an Economic Development and Tenant-Landlord Commissioner; Community Development Citizens Advisory Committee, Pentagon City Planning Study, Rosslyn Transportation Study, and Vision Zero member; Arlington County Civic Federation and Rosslyn Civic Association Board Member. In 2019 she sought the Democratic nomination for the 31st District of the Virginia State Senate. Professionally Nicole is an Economic Development Specialist where she works to attract businesses to the region. She lives in an apartment with her dog Riley and enjoys running and painting.