The Underenforcement of Disabled Tenants’ Rights in Virginia’s Eviction Process
/ Blog Post
By Brandon Ballard, a 2022 Equal Justice Works Fellow who serves in the Housing Justice Program. Brandon is hosted by Legal Aid Society of Eastern Virginia.
This April, we celebrate the anniversary of the Federal Fair Housing Act of 1968. The Fair Housing Act, as amended, protects everyone from discrimination when they’re renting or buying homes, procuring a mortgage, or participating in other housing-related activities. Simply put, discrimination in housing on the basis of race, color, national origin, religion, sex, familial status, and disability is prohibited.
This month is a time to recognize how far as a nation we’ve come. Yet equally as important is taking stock of how we can continue to improve upon the radical—but obtainable—promises underlying the Fair Housing Act.
Much ink will undoubtedly be spilt this month on the countless ways we as a society can, and should, do better. I wish to draw attention to one phenomenon that I, as a legal aid attorney, have witnessed on several occasions in the general district courts of Virginia: the underenforcement of disabled tenants’ rights, especially those with mental disabilities.
Consider the story of one tenant who I represented. My client resided at a federally subsidized property, that is, although the property was privately managed, it received assistance from the federal government to provide affordable housing to low-income residents. The property owner sought to evict my client because it was undisputed she tore out the moldings, drywall, and fascia boards in her kitchen. My client, it turns out, was diagnosed with dissociative identity disorder, amongst other disorders, which upon further investigation contributed to the incident that caused the property destruction.
With the help of her psychologist and social worker, I mounted a fair housing defense to the eviction and requested a reasonable accommodation. Under the Fair Housing Act, making a reasonable accommodation to rules, policies, practices, or services is necessary where doing so would afford a person with a disability an equal opportunity to use and enjoy their home.
In my client’s case, the request for an accommodation was twofold: First, we asked the owner to give her a second chance. Second, we asked for permission to enter a reasonable payment plan. These accommodations, we argued, were reasonable in part because my client had gone without incident for months after a medication change. The owner refused to accommodate our client. Ultimately, at trial we convinced the court that a reasonable accommodation was appropriate.
Three lessons and observations can be derived from my client’s story. First, before filing for eviction, the owner never meaningfully considered whether the client’s conduct was traceable to her disabilities, even though they knew of her disabilities. That itself is problematic under the Fair Housing Act, but it happens more often than not.
All too often, I am dismayed to see affordable housing providers’ first knee-jerk reaction be eviction.
Brandon Ballard /
2022 Housing Justice Program Fellow
Second, in theory, public and subsidized housing providers exist to house not just low-income people, but also those who are, frankly, difficult to house. All too often, I am dismayed to see affordable housing providers’ first knee-jerk reaction be eviction. In those moments, their supposed commitment to providing affordable housing to our most marginalized and vulnerable populations is nowhere to be found.
Third, while this client was fortunate, most of my similarly situated clients are not so fortunate for a variety of reasons. Many judges in general district court, despite regularly presiding over eviction cases, lack a basic understanding of fair housing law. For example, one common misconception is that an owner could not have discriminated against someone on the basis of disability, if the owner treated that person the same as everyone else. But as previously discussed, the Fair Housing Act requires differential treatment where a reasonable accommodation is necessary.
It is beyond dispute that tenants with representation, on average, fare far better than those without representation.
Brandon Ballard /
2022 Housing Justice Program Fellow
General district court judges, to be fair, are generalists and can’t be expected to be well-versed in every area of law. For that reason, they rely on the adversarial system, where both sides present well-reasoned arguments through their attorneys. But that observation reveals yet another hurdle for tenants who may be entitled to a reasonable accommodation: most tenants in Virginia go through the eviction process without an attorney. It is beyond dispute that tenants with representation, on average, fare far better than those without representation.
Another reason that tenants with disabilities don’t fare well in general district courts is the expedited nature of the eviction process. This fact is common throughout the country and has caused many advocates and scholars to lament the substantial underenforcement of poor tenants’ rights in evictions generally.
Moving forward, let’s all commit to seriously thinking of how we can ensure the Fair Housing Act is not a dead letter in Virginia’s eviction process.
This story is retold with my client’s permission, and aspects of the account are modified or omitted to protect her identity.
To be clear, private owners generally have the same fair housing obligations as public and subsidized housing providers.
It is revealing that the District Court Judges’ Benchbook, which judges across Virginia regularly refer to, contains no reference to, or discussion of, the Fair Housing Act.
The Housing Justice Program is creating a pipeline of passionate public service leaders who are advancing the ideals of fair housing. Visit here to read more stories about the work of our Fellows and how they are advocating for policies and practices that protect the rights of all tenants.
The Housing Justice Program is made possible thanks to the generosity of The JPB Foundation, JPMorgan Chase & Co., Abell Foundation, Maryland Legal Services Corporation, and Sisters of Charity Foundation of South Carolina.