Guilt by accommodation?

December 21, 2012 | Apartments, Boston, Discrimination, Fair Housing, Landlords, Law, Leases, Real estate taxes, Rental, US News

By:David A. Smith


Of course we are always judged by the company we keep, but can we be fined for the company we rent to – not for anything they are observed to have done or allowed to be done, but simply because we don’t like the look of the renters?


The not-quite-scarlet letters?


One would think not, and yet, to judge by this appropriately skeptical Boston Herald (November 19, 2012) article, complying with Fair Housing and anti-discrimination laws can get you sent an invoice – by your local police force:


A is for anti-social?


Pay up for extra patrols


Boston city officials, in an unprecedented, controversial bid to dun an absentee landlord for policing costs linked to a so-called “problem property,” are demanding that a New Hampshire woman pay $23,809 for the cruiser that sat outside her Dorchester apartment complex for 45 days to shield neighbors from a plague of drug deals, overdoses, violence and burglaries.


The tab runs to about $520 per day – but on what basis can the city claim, even in equity (much less in law), that this property is responsible?  


Wendy Rist, 63, of Lisbon, N.H., is due to appear today [November 19, 2012 – Ed.] before the Mayor’s Problem Properties Task Force appeals board to fight the bill, as well as the city’s designation of her two-building property on Bakersfield Street as a “problem property.”


Wendy Rist, 63, of Lisbon, N.H., appears today with her lawyer, before the Mayor’s Problem Properties Task Force appeals board.


For convenience, let’s take as a given that the crime rate in the area dropped dramatically, and let’s further accept that the police cruiser’s presence caused the drop in crime, and it wasn’t merely a lucky accident.  Does the City have any solid evidence:


  1. That crime emanated from this property, as opposed to elsewhere in the neighborhood?
  2. That any of Ms. Rist’s tenants were the source of crime?
  3. That the owner was in some way responsible (as a tacit accessory) to the crime, because somehow she failed in an essential responsibility of being a landlord?


It will take three Yes answers for the city to have a good claim – in equity if not in law.  Here, according to the Problem Properties annual report covering its first year (ending 1 Sep 12), is a discussion of Ms. Rist’s principal tenant, Sober House, a substance-rehabilitation service that arranged to rent seven of her apartments.


The alleged source of the problem: Ms. Rist’s Bakersfield apartments


Sober House [operates] without consistent oversight , which has prompted a large number of concerns from the neighborhood. Drug dealing happening on the premises, multiple overdoses resulting in multiple deaths. Many family trouble calls and several removals. Several incidents at surrounding properties may be related to residents of this property. e.g. cars being broken into, housebreaks, street overdoses, etc.


Notice the conditional – ‘may’ be related. 


We may be related


By inference, this means the city hasn’t got indictable or chargeable evidence, and that it’s piling on the supposition to create a penumbra of guilt without the necessity of actually accusing the owner of anything, much less proving it.


Overcrowding and code violations also of concern.


The Police Department and Neighborhood Services have held two meetings with landlord and sober home operator. Owner installed exterior video cameras but there have been over a dozen incidents since the first meeting in May 2012 including drug arrest 8-8-12, two deaths (one fatal OD, one non-drug related) and a stabbing. A third meeting was held on 8/15/12 to review the installation of security cameras, and a VMS board was positioned outside on the property on 8/17/12 to identify the property as a problem property.

Clearly this is a tough street, though the owner and the sober home operator seem to be acting responsibly: meeting with the police, installing security cameras. 


Uphams Corner, in Dorchester


Uphams Corner is in the heart of Dorchester, a lower-income section of Boston, with a large Cape Verdean population, that has seen better days.


Uphams Corner around 1900


As of the writing of this report, although the landlord of 27-37 Bakersfield Street has been involved in at least three (3) meetings with the District Captain and Mayor’s Office of Neighborhood Services, further incidents at the address have occurred since these meetings, and as such, the District Captain will be pursuing the criminal complaint. The Boston Police will file the complaint for a number of counts of “keeping a noisy and disorderly house” in accordance with M. G. L. c. 272, § 53(a).


I can find no evidence of the complaint actually being filed; instead, the city just decided that Ms. Rist, who appears to be both a landlord and a realtor, had failed in some way, and that it was therefore entitled – and not just entitled, legally able – to stick her with a bill for its costs, costs that the city incurred without asking Ms. Rist’s permission, securing her consent, or informing her she would be invoiced for them.


In fact, as we’ll see in a later post, the actual neighborhood story is much more complicated, which makes the city’s actions more of a bludgeon than an attempt at justice.


“The message really is that the city is going to hold problem-property owners’ feet to the fire, and to really make them accountable and responsible for what’s going on at their properties,” said Chris English, Mayor Thomas M. Menino’s neighborhood liaison to Dorchester.


Now go fix my problems


Is that the message?  Or is the message that the City of Boston feels like bullying an out-of-state owner, just because it can?


[Mr. English] who said this is the first time the city has tried to recover police costs under the problem property ordinance.


Why this property?  Why Ms. Rist?  Is the connection no greater than ‘we thought some of her tenants were involved but we couldn’t catch anybody doing anything.’ 


Talk about public condemnation


A bit more Googling reveals this:


In this small section of Uphams Corner, Wendy Rist is known only as the “owner of 27-37 Bakersfield Street” otherwise known as Bakersfield Arms.

Wendy Rist introduced herself to the Annapolis neighborhood residents on October 25th. She presented herself as contrite and humble, wanting to do good for the community and she cited a long list of her efforts, apparently to demonstrate that she is not a “slumlord.”

(See article: Annapolis Neighborhood Meeting Breaks Down in Shouting and Anger.)


In a later post I expect to return to the neighborhood meeting, whose transcript, at least as reported in the Uphams Corner News, is both revealing about this property and a microcosm of the complexities of operating in an urban very-low-income neighborhood.  For now I’ll quote only this:

“I just want to get this behind me,” Ms. Rist stated in her prepared [remarks and letter] to the Annapolis Neighborhood meeting – humble, apologetic – even embarrassed .


Slumlord or neophyte?  Wendy Rist and her lawyer


The 17-month-old task force branded Rist’s complex a problem property in May, after a month-long investigation.  


You’re a problem


After a series of meetings with the owner, English said, the city put a cruiser with two cops out front on Sept. 11 and kept one there around the clock until Oct. 26, along with an electronic message board broadcasting the “problem property” status.


All right, let’s suppose, just to give the police some due, that one of more of their prime suspects for the drug deals, overdoses, or violence was a resident in Ms. Rist’s property. 


There had previously been 45 calls this year for drug dealing, domestic violence, overdoses and a stabbing, according to police records.


Obviously the police lacked evidence sufficient to arrest and charge any suspects – how then is Ms. Rist supposed to evict said suspects, merely on the police’s say-so?  If any of those suspects were a minority group or protected class, Ms. Rist would have a civil-liberties lawsuit before you could say Greater Boston Legal Services – and she would lose it.


Calls to police from the area subsequently plummeted.


Naturally – that is the value of police being seen. 


“It’s been a bit distressing to see that type of activity in a neighborhood where people have worked so hard,” said a homeowner on adjoining Morrill Street said. “This is a wonderful, very family-friendly neighborhood.”


If I were a neighbor, I too would be pleased to have free security service parked on my corner – but how does one leap from that to blaming Ms. Rist for the previous situation?


Rist declined to comment. But her attorney, Robert Russo, said he’ll fight the fine.


“Is it reasonable and necessary for a police car to be stationed outside a property for 24 hours a day? I think the answer is no,” he said.


Even if it is, where is the causal or evidentiary link to make Ms. Rist responsible for paying this cost?


Well, we’re working on them


“I can appreciate how the police are trying to recoup some costs. A city, like everyone else, is looking to save some money. But this is not the way to do it.” 

“In the event I lose this case, I will appeal to the courts. This is a case of first impression, and it’s ripe for appeal,” Russo said.

A ‘case of first impression’ means there is no precedent for it, and if Mr. Russo has to go to court, I should think people like the ACLU would file amicus briefs in his support.  The problem properties ordinance says that the task force may “notify a property owner of the intention to impose charges to recover the cost of public safety expenses related to that property.”  But that presupposes the city has the right to impose those charges; it doesn’t grant them via bootstrap.


He said the city already has tacked the cost onto Rist’s property tax bill.

 Sure, why not?

There’s a second outrage – since the tax bill is a lien, senior to any indebtedness, if Ms. Rist fails to pay, the city can take her property.  Where is the due process?  Where is the legal basis for the city to decide that a discretionary expenditure on the city’s part, one having nothing to do with the building’s safety or habitability, can be attached to her property?  Why not just bill Ms. Rist every time someone is mugged within one hundred yards of her location, and be done with the enforcement?


Fire departments charge for false alarms, and states bill wayward hikers for their rescue.

In both cases, somebody did something which triggered the intervention.  Here nobody has made any finding that the landlord did anything wrong.  It cannot be presumed to be the landlord’s fault the drug dealing, overdoses, or violence happened.  Try not renting to those people, absent an event at your property, and you’re in trouble


Boston-area real estate lawyer Alan Seagal <sp?> said he believes the city is on shaky ground by retroactively billing a landlord for police costs.


We’ve got plenty of grounds

Shaky?  As far as I can envision it, the police have no legal grounds, the more so when one reads this companion story, from the same day’s Boston Herald (November 19, 2012) (orange font):


PROBLEM? Peter McCarthy, director of Steps to Solutions, stands outside the center, which is located in a Bakersfield Street complex that the city has deemed a ‘problem property.’

The man who runs a sober house in a Dorchester apartment complex that the city calls a drug-plagued “problem property” says his recovering-addict residents are not the problem.


“We run a tight ship here,” said Peter McCarthy, whose company, Steps to Solutions, leases eight of the 24 apartments in landlord Wendy Rist’s Bakersfield Street complex.


In the property!  Even assuming for the sake of argument that drug dealing can be shown to have occurred in proximity to this property (had it occurred on the property, then there would have been arrests, wouldn’t there?), why is this Ms. Rist’s responsibility, not Steps to Solutions’?


I think we can all agree to blame the photographer


The task force, in its annual report, describes the property as a “sober house operating without consistent oversight, which has prompted a large number of concerns from the neighborhood.”


Concerns … or fears?


But McCarthy, whose house rules include mandatory urine testing three times a week, said he believes it may be other people who aren’t part of his program that are causing problems. “Go in these units, go in the tenants’ units, and tell me who’s doing right here,” he said.


He showed a Herald reporter and photographer several units — all of which appeared clean and even handsomely furnished. Some had large-screen TVs and hardwood floors, and all had posted copies of the house rules — the first of which says anybody caught using drugs gets kicked out. “Does this look like a crack den or a shooting gallery?” McCarthy asked.


If Mr. McCarthy is running a drug haven instead of a sober house, then cite him for that. 


If Ms. Rist is running an unsafe or unsanitary property, or failing to evict tenants who have violated their leases, then cite her for that.  Don’t simply slap a lien on the owner’s property simply because it’s the easiest way of making a splash.


Don’t make me do it


“What they could have done and should have done,” said Seagal, “was go to court, get an injunction and get permission from the court to affirmatively make the landlord do what has to be done to make it safe,” he said.


Presumably the city would have failed at this approach, or they wouldn’t have tried this strong-arming shortcut.


“You can’t do it ex post facto — put the police officers out there and say, ‘Now you have to pay.’ There’s no authority for that.”


Who needs law when you have authority?


Let’s see if the appeals board agrees.