The community integration movement, and resulting closure of large hospitals, has shifted significant responsibilities to community service providers to assist, promote, and sometimes provide, housing for the individual that they serve. The pressure to respect and protect the rights of individuals to housing and services, and to establish and maintain relationships with landlords and property managers has often been a challenge to the providers. One of the first questions to be answered is whether a provider is a landlord. The first rule a provider must understand is that simply calling a housing arrangement a “program” does not make it one.
Application of Landlord-Tenant/Summary Process
The summary process statutes (Sec. 47a-2) do not apply to -
- 1) Residence at an institution, public or private, IF INCIDENTAL TO detention or the provision of medical, geriatric, educational, counseling or religious service, or any similar service;
- 2) Occupancy under a contract or sale of a dwelling unit or the property of which such unit is apart, if the occupant is the purchaser or a person who succeeds to his interest;
- 3) Occupancy by a member of a fraternal or social organization in the portion of a structure operated for the benefit of such organization;
- 4) Transient occupancy in a hotel or motel or similar lodging;
- 5) Occupancy by an owner of a condominium unit; and
- 6) Occupancy by a personal care assistant or other person who is employed by a person with a disability to assist and support such disabled person with daily living activities or housekeeping chores and is provided dwelling space in the personal resident of such disabled person as a benefit or condition of such employment.
- (1) Occupancy in a hotel, motel or similar lodging for less than thirty days is transient, except that such occupancy is not transient if the dwelling unit or room in such hotel, motel or lodging is occupied as the primary resident of the occupancy from the beginning of such occupancy; and
- 2) Occupancy in a hotel, motel, or similar lodging for thirty days or more is not transient, except that such occupancy is transient if the dwelling unit or room in such hotel, motel or lodging is not occupied as the primary resident of the occupancy and the occupancy is for less than ninety days.
Due Process Procedure
Even if a provider is not a landlord, this does not means they have the right to act unilaterally or impose arbitrary restrictions on their clients. They are subject to the Patients’ Bill of Rights, and to the extent they are provided DMHAS or other government benefits and/or services, the due process protections afforded under the Federal and State Constitutions.
The provision of government benefits and services must be done in a consistent manner which respect the due process rights of applicants and recipients. The DMHAS grievance procedure meets the requirement for a review. However, each provider is also responsible for assuring that the program (assuming it really is one!) eligibility criteria and rules are provided to participants and the participants are provided with reasonable notice and rationale for decisions or potential adverse action. They should also be informed of the right to advocacy services. It is also important to assure that program services comply with the Patients’ Bill of Rights, Recover Initiative, and other DMHAS policies.
Residential Care Homes (“Board & Care”)
State statutes (Sec. 19a-535a - See Appendix) establish procedures that must be followed to protect personal who reside in residential care homes from involuntary discharges. Generally, thirty days written notice is required for such a discharge and the resident has the right to request a hearing by the Department of Public Health before the discharge.
Individual Housing Arrangements
There are various arrangements that involve a mental health agency with an individual’s housing arrangements and each of them can raise questions about the provider’s role and legal responsibilities. The following are examples of some of the situation most frequently encountered by persons with psychiatric disabilities:
Scenario #1: The tenant pays rent and receives mental health services from a provider, and the provider also is an owner and landlord of the client’s apartment/home/room.
When agencies own property and rent out units, they are supplying a “dwelling” for an individual and they are legally “landlords”. In these situations, tenants can be legally evicted only by the following the procedures set forth in the state’s landlord tenant statutes, and they cannot force tenants to waive those rights through a provision in the lease/sub-lease.
Despite good intentions, many providers either don’t understand or ignore their roles and responsibilities as landlords. Because of the focus on therapeutic services, providers may believe that conditioning occupancy on the acceptance of services is an appropriate incentive to ensure treatment compliance. Even when providers have accepted the role of landlord, many have incorporated highly detailed “house rules” concerning the daily behavior of tenants into their leases, such as curfews, restrictions on guests, mandatory attendance at day programs or prohibitions on marriage or childbirth. These provisions are in and of themselves, not directly related to the individual’s ability to fulfill the core obligations of tenancy and therefore are not enforceable. The tenant is responsible for the consequences of his or her decisions, and if the behavior that results from those decisions violates the person’s responsibilities as a tenant, eviction proceedings can be initiated. Note, however, that the landlord still has a responsibility to provide reasonable accommodation if it is requested.
If the “landlord” chooses, in its role as mental health provider, to impose housing-related restrictions on the individual, the provider is likely to be violating the individual’s rights under the Connecticut Patient’s Bill of Rights. That statute, among other things, mandates that the individual participate in treatment planning and be free from coercion. There may also be liability under the ADA to the extent that their services are unduly restrictive.
Scenario #2: The provider holds the lease from the landlord and sublets the apartment to clients of their program.
When a provider leases an apartment from a landlord and subsequently subleases the apartment to an individual that the provider serves, the client is a sublessee. The client, as a sublessee, is not personally liable to the landlord for rent or for the performance of any other provisions in the main lease. The provider, as the original lessee, is responsible for complying with the terms of the lease, and enforcing the landlord’s responsibilities tot he tenant/sublessee to repair, etc. While the sublessee is not personally liable to the landlord, the landlord can still terminate the main lease for nonpayment of rent or breach of other tenant responsibilities pursuant to the lease.
This arrangement does not give the provider the right to impose unreasonable requirements on the tenant, or to waive the individual’s due process rights.
While this may be convenient for the provider, it raises potential legal problems, particularly when a landlord has a “problem” with one of the tenants served by the provider, and threatens to evict all of the other tenants who are clients of the provider. Providers frequently respond to such a threat by moving the individual who the landlord wants to evict to another apartment in a different complex, or to a shelter. However, treating a client in such a manner violates their fundamental right to due process. An individual residing in an apartment has a right to defend himself against the landlord’s allegations. A summary process eviction action must be filed and processed before an individual can be moved from his apartment. By taking this action, the provider is acting on behalf of the landlord and ignoring the fundamental rights of the tenant.
Scenario #3: The provider rents space from a landlord in order to have residential support staff available for the clients that reside in that apartment complex.
There are two legal issues that arise in these situations. First, questions may be raised about the legality of using an apartment as an “office” in an area that is zoned exclusively for residential use. However, it has been successfully argued in some cases that such use is not within the definition of an office as it is customarily defined in zoning regulations. Rather, the apartment and staff represent an extension of residential use of the building, providing residential services (assistance with appointments, transportation, etc.) essential for the tenants with disabilities to have the opportunities to use the premises the same way as other tenants. In this way it can be compared to concierge services in upscale apartments.
Second, conflicts sometime arise because the on-site residential support staff may encourage a tenant to move because the landlord doesn’t like the tenant and threatens to evict other tenants. In these cases, the mental health provider’s on-site staff have a responsibility to advocate on behalf of the tenant and assure his/her rights are protected. This should include pursuing legal assistance if necessary. Failure to support the individual violates the Bill of Rights and could result in other actions against the provider.
Scenario #4: The mental health provider includes housing as part of a “treatment program” and there is no separate rental payment. There may be a program fee.
It is not clear whether this arrangement falls squarely within the purview of the Fair Housing Act. There are decisions indicating that “transitional living programs” that fall within these parameters are not subject to the landlord-tenant statutes. However, this does not mean that providers can act arbitrarily or impose unreasonable or coercive requirements. Mental health providers are still subject to the provisions of the patient’s bill of rights and fundamental due process protections. Therefore, the provider must assure that the individual has participated in developing his or her treatment plan, that the right to refuse medications is respected, and that he or she is not coerced to comply with the services that the provider determine are appropriate. Furthermore, the client has the right to notice and an opportunity to present his or her position before the provider can simply move him or her out of the premises.
Scenario #5: The mental health provider assists the client to find housing and provides support services, but the client holds his or her own lease.
In this situation, the provider is not a landlord and has no right to exercise control over the individual’s housing - either directly or through coercion. In addition, the provider can be liable for violating the client’s rights if the provider fails to provide appropriate support services for the individual. Providers must recognize that even if housing services did constitute a program, the client is entitled to due process protections (notice, etc) and treatment with dignity and respect under the Bill of Rights. Furthermore, as the service provider assisting the individual, the provider may be responsible for the failure to provide the individualized services that the person needs to meet his or her responsibilities as a tenant, including advocacy services if the tenant needs assistance protecting his or her right to a housing voucher or access to other housing.
Connecticut has been in the forefront of creating supportive housing for persons with mental illness to provide a stable living environment which supports the individual’s recovery and self-sufficiency. Supportive housing is NOT just housing with some services. It is permanent affordable , usually subsidized, rental housing in which all members of the tenant household have access to flexible and comprehensive range of services. Tenants usually hold their own leases, and services are voluntary. There is no model supportive housing project; it can be a number of apartments or a two or three family home, and includes a mix of tenants, not just persons with disabilities.
A three-year evaluation of supportive housing in Connecticut showed a 71% reduction of inpatient medical care by tenants; an increase in the tenants’ participation in education and employment, and an increase in neighborhood property values.
The Reaching Home Campaign is an initiative to promote the creation of 10,000 new units of supportive housing by 2014. In 2010, there are approximately 4400 units in Connecticut.
For more information about supportive housing or the Reaching Home Campaign, go to the campaign’s web site at www.ctreachinghome.org.