Patients’ Rights Advocacy Training February 7, 2013 Presented by: Kim Pederson, Senior Attorney Mental Health Advocacy Project BASIC HOUSING RIGHTS FOR PATIENTS’ RIGHTS ADVOCATES

 To provide a basic understanding of eviction protections that people have in various types of housing:  Conventional rental housing  Unlicensed room & board homes  Rented rooms  Licensed board & care homes  To provide an overview of how the fair housing laws protect people with disabilities and may allow them the opportunity to stay in their housing.  To help you issue spot in order to advocate that your client is not gravely disabled! Goals for this presentation:

You are at your local psychiatric unit interviewing clients on 5250 holds. On the 5250 form, the doctor wrote that your client “is being evicted from his apartment and cannot provide housing for himself.” During your interview of the patient, you learn that he has lived in his one-bedroom apartment for over one year and has always paid his rent on time. He pays his full rent on his own and does not get help from the government or a community agency. The patient wants a hearing to leave the hospital and return to his apartment. Hypothetical #1: Conventional Rental Housing/Eviction Process

 Has the patient received an eviction notice?  In order to lawfully evict a tenant from a property, California law requires a landlord to issue a notice first.  If the tenant has NOT received an eviction notice, argue that he has the legal right to return to his apartment. The mere threat of eviction is not enough to make someone gravely disabled.  Types of notices in California:  3-day notice to pay rent or quit;  3-day notice to cure lease violation or quit;  3-day notice to quit;  30-day notice to quit for month-to-month tenants who have lived in the property for less than one year;  60-day notice to quit for month-to-month tenants who have lived in the property for over one year.  You may hear of other types of notices unique to your jurisdiction.  There are also other types of notices required for subsidized housing. Hypothetical #1: Conventional Rental Housing/Eviction Process

 If the patient HAS received a notice, has the notice expired?  Even if the patient has received a notice, he has the legal right to return to the property and can fight the eviction  can still provide housing for himself and is not gravely disabled.  If the notice has not expired, the tenant usually has the opportunity to “cure” or move out.  The tenant can live in the property while going through the eviction process  can still provide housing for himself and is not gravely disabled.  What happens after the notice expires and the tenant has not done what it asks him to do?  The landlord cannot simply lock the tenant out!  The landlord has to file an eviction lawsuit, also known as an unlawful detainer.  Unless there is a court order authorizing the landlord to lock the tenant out, the patient can still provide housing for himself  not gravely disabled. Hypothetical #1: Conventional Rental Housing/Eviction Process

 THE UNLAWFUL DETAINER PROCESS  If the notice to quit expires and the landlord still wants to evict the tenant, the landlord must file an unlawful detainer, which is the eviction lawsuit against the tenant. The lawsuit asks for a court order authorizing the landlord to lock the tenant out and take possession of the unit.  After the lawsuit is filed, the landlord must personally serve the tenant.  If the landlord is unable to personally serve the tenant, he can ask for an order from the court authorizing “nail & mail” service.  From the date that the tenant is served, he has FIVE DAYS to file a response (Answer) with the court. Unlawful detainers move VERY FAST!  If the tenant files the Answer, a trial date will be set within about 3 weeks  If the tenant does not file an Answer, the landlord can take a default judgment Hypothetical #1: Conventional Rental Housing/Eviction Process

 THE UNLAWFUL DETAINER PROCESS, continued  If a default judgment is taken, the sheriff will immediately post a notice of lock-out, which means that the tenant will be locked out in about 5 days.  If the tenant files his Answer and the trial date is set, the tenant will have the opportunity to try to negotiate a resolution with the landlord, or present his case to let the court decide who should have possession of the unit.  If the tenant wins his trial or negotiates a favorable resolution with the landlord, jump for joy!  If the tenant loses his trial (or does not show up to his court date), the judge will issue a judgment saying that the sheriff can lock the tenant out.  The sheriff will post a notice of lock-out that gives the tenant around 5 days to vacate before the lock-out. Hypothetical #1: Conventional Rental Housing/Eviction Process

You are at your local psychiatric hospital interviewing people on 5250 holds. The patient’s 5250 says that he cannot provide housing for himself because he was evicted from his rooming house (unlicensed) when the landlord called the police came to take him away on a 5150 because he was behaving in a “bizarre” way. Hypothetical #2: Unlicensed Room & Board Homes

 The same eviction rules apply to unlicensed room & board homes that apply to conventional rental housing.  Unlike licensed board & care homes, there are no special rules  All standard landlord-tenant laws apply to operators of unlicensed room & board homes.  In order to evict a tenant from an unlicensed room & board, the landlord/operator must follow all of the same steps outlined in the earlier slides.  It is NEVER legal for a landlord in any type of housing to evict someone by calling the police to have them put on a  If the landlord wants to evict the person, he has to go through the legal process  If the reason for the eviction is disability-related behavior, the tenant may be entitled to a reasonable accommodation Hypothetical #2: Unlicensed Room & Board Homes

You are at your local psychiatric hospital interviewing patients on 5250 holds. The patient’s 5250 says that he cannot go back to his rented room because he has been evicted. The patient wants to have a hearing to be released from the hospital and go back to his rented room. Hypothetical #3: Rented Rooms

 Does the owner of the house also live in the home where the patient rents a room?  If NO, regular eviction rules apply  If YES, see below…  If the owner lives in the home…  And rents out more than one room, regular eviction rules apply  And rents out only one room to one person (your client), your client is a “lodger” and special rules apply Hypothetical #3: Rented Rooms

 Special rules for lodgers  The owner can evict the lodger without going through formal eviction proceedings  The owner must give the lodger a written notice that the lodger cannot continue to use the room  The amount of notice must be the same as the number of days between rent payments  Ex: 30 days’ notice is required if the lodger pays rent monthly  If the lodger overstays the notice, the owner can call the police and have the lodger removed as a trespasser  The lodger may be put on a 5150 during this process Hypothetical #3: Rented Rooms

You are out at your local psychiatric hospital interviewing patients on 5250s. On the 5250 form, the doctor wrote that your client, an elderly gentleman, cannot return to his board and care home, so is gravely disabled. Your client wants to return to the board and care home because it is close to his outpatient providers. Hypothetical #4: Licensed Board & Care Homes

 Board & care facilities must follow basic landlord-tenant law.  3/30/60 day notices required  Look at admission agreement for other rules  Is the home licensed?  Through the Department of Social Services/Division of Community Care Licensing, California licenses board & care homes to provide non-medical care to people who need assistance with doing their ADLs.  Website: arch.aspx arch.aspx  Two common types of licensed board & care homes:  Residential Care Facilities for the Elderly (RCFE)  Adult Residential Facilities (ARF) Hypothetical #4: Licensed Board & Care Homes

 Residential Care Facilities for the Elderly (RCFE)  Generally, for people ages 60+  With permission from the state, younger people can live in RCFEs if their care needs are similar  California regulations allow operators to evict with a 30/60 day notice in the following specific circumstances (good cause):  Non-payment of rent within ten days of the due date;  Failure of the resident to comply with state or local law if they have received written notice of the violation;  Failure of the resident to comply with general rules of the facility;  If the resident has care needs that the facility can no longer provide for; or  The operator is going to change the use of the facility, or sell it. Hypothetical #4: Licensed Board & Care Homes

 3-day notices to quit must be approved by DSS and may only be given if the resident is engaging in behavior that is a threat to the health or safety of himself or others.  California law outlines specific special requirements for RCFE eviction notices:  Effective date of the eviction;  Resources available to assist in identifying alternative housing;  Information about a resident’s right to file a complaint about the eviction with DSS, and the contact information for the local office of DSS and ombudsman;  Specific notice that the facility must evict the resident through the court process if he stays beyond the expiration of the notice, and that the resident may defend himself in court. Hypothetical #4: Licensed Board & Care Homes

 Adult Residential Facilities (ARF)  Generally, for adults ages 59 and under  Adults with mental illness are common residents  Older people can live in ARFs with permission of the state, so long as their care needs are similar (ex: person with mental illness and no age-related care needs)  Same good cause for eviction as RCFE.  Same requirement for DSS to approve 3-day notice.  Court eviction process is not explicitly required by regulations, but is implied by landlord-tenant law, and by analogy to specificity of RCFE rules Hypothetical #4: Licensed Board & Care Homes

Your client was put on a 5150 after he got agitated at his apartment complex and started making threats against management staff and other tenants. In the lobby of the complex, he raised his fists at other people and yelled at them. The police came, placed him on a hold and took him to the psychiatric unit. Now, your client is on a 5250 and willing to stay for treatment. His neighbor came to visit him and brought him a notice that he found posted on his door, which is a three-day notice to quit that cites the behavior leading to the The notice expired yesterday and your client was hoping to return there after his hospitalization. Your client tells you that his medications hadn’t been effective for him for some time, and he is getting help with new medications in the hospital and feels that they will help him control his behavior if he returns to the apartment complex. Hypothetical #5: Fair Housing/Reasonable Accommodation

 Federal and state fair housing laws prohibit discrimination in housing.  There are several protected categories, including disability.  Through reasonable accommodations, the fair housing laws allow people with disabilities to have special treatment so that they can use and enjoy their housing to the same extent as people without disabilities.  A reasonable accommodation is:  A change in a housing provider’s policies, practices, rules or services  that is necessary to allow a person with a disability to equally use and enjoy their housing  and will not result in a fundamental alteration of their program or create an undue financial or administrative burden Hypothetical #5: Fair Housing/Reasonable Accommodation

 Under reasonable accommodation law, people who have engaged in disruptive behavior—even arguably dangerous behavior—caused by their mental health disability are entitled to second chances at their tenancies.  These second chances are contingent on being able to put forth a plan that will assure the landlord that the risk of future behavior will be eliminated or minimized:  Changes in medication;  Additional therapy services;  Regular monitoring & support by case manager;  Intervening hospitalization & stabilization;  Anything else that will help alleviate the symptoms of the person’s disability that led to a notice to quit being issued. Hypothetical #5: Fair Housing/Reasonable Accommodation

 All types of housing providers must consider reasonable accommodations.  Reasonable accommodations can be requested at any time, even after a notice to terminate has been issued or an eviction has been filed.  It is best to refer these cases to legal services ASAP, especially if the notice has expired or the eviction has been filed.  Get to know your local providers of free legal services so that you can refer your clients: Hypothetical #5: Fair Housing/Reasonable Accommodation

 In most cases, tenants cannot be locked out WITHOUT A COURT ORDER.  Landlords must go through the legal process in order to evict tenants  If there is no court order allowing a landlord to evict a tenant, the tenant has the legal right to return to his housing, and this can be used in support of an argument that the patient is not gravely disabled.  A mere threat of eviction from a landlord does not mean that a tenant cannot legally return to his housing.  It is up to us to educate doctors and discharge planners what it actually means to be evicted.  People with disabilities are entitled to extra protections under the law that may allow them to stay in their housing. In Conclusion…

Any questions? My contact information: Kim Pederson