Elderly individuals who live in apartment buildings strive to maintain the same level of autonomy as homeowners. Unfortunately, unlike homeowners, their decline in independence may affect other residents. Problems associated with Alzheimer's disease, dementia, diabetes, arthritis and depression, for example, can result in behavior that disturbs neighbors.
Should a senior who knocks on her neighbor's door in the middle of the night because she is afraid or disoriented be evicted? Should the elderly man who yells at the security guard who will not let him in because he forgot his keys also lose his home? Should the disabled tenant who requires 24-hour personal care attendants be prevented from renewing his lease because the landlord doesn't like so many nonresidents coming in and out of the building?
Where is the line between tolerance and breaching a lease?
A recent article in The New York Times (Feb. 15, 2004) reported that many leases contain a provision that conditions tenancy on the ability of the tenant to be 'independent.' Landlords are using a senior tenant's impaired mobility or need for personal care attendants as evidence of a lack of independence and a breach of the lease. These clauses permit landlords to require more than the usual obligations of a lease, which are to pay the rent, to not destroy the premises, and to be a good neighbor. These clauses, while little noticed by middle-aged and younger tenants, target senior and disabled tenants and threaten their housing.
Seniors are protected by the federal Fair Housing Act, not because of their age but as disabled individauls. The Act permits a landlord to evict a tenant who poses a direct threat to the safety and health of other tenants. Some landlords argue that a tenant's decline in independence creates such a threat. However, the Act prohibits discrimination against the disabled. Must an individaul's right to autonomy be compromised for the safety of the community? The federal Department of Housing and Urban Development estimates that there are as many as 2 million instances of housing discrimination each year, although only about 25,000 complaints are filed annually. In its review of complaints of violations of the Act, the Department held that a lease must not restrict a tenant from having a decent quality of life. In one review, the Department explained that a lease's requirement for independent living cannot prohibit a tenant from having a personal care attendant. Unfortunately, many elderly tenants, unaware of their rights and that the enforcement of independent living clauses violates the Act, leave once the notice of eviction is served.
But seniors are starting to fight back. It has taken class action suits and the hard work and perseverance of legal services and elder advocacy groups to make the public and courts aware of the elder eviction epidemic. For example, a suit in San Antonio has been initiated against an independent living facility (which, ironically, caters to seniors) because the property manager asked potential tenants if they used a wheelchair. The suit also claims that the facility deliberately uses a lease that seeks to exclude the disabled and less-active seniors from the residence. Another suit has been filed in Federal District Court by a senior whose application for an apartment was denied after she provided the landlord with information about her health.
Advocates for the elderly are also looking into why this discrimination is occurring and why it is being permitted. One explanation is that the elderly remind younger adults of their own aging, and therefore may want to keep them as far away as possible. It may also be the social stereotype of elderly dependence that make landlords anticipate seniors being burdensome. Additional costs involved, such as insurance or supportive services available on site, may be discouraging landlords from leasing to seniors.
Of course, if an elderly tenant is a threat to the health and safety of others, such as leaving the oven on and starting a fire or being physically or verbally abusive to neighbors, eviction is necessary -- as it would be for any resident. Unfortunately, landlords, property managers and neighbors are seeking to broaden the cause for eviction to conduct that is not harmful but that may indicate a need for some assistance in maintaining independent living.
Until supportive services are more comprehensive and available to all seniors, thus allowing them to age in place with dignity as a tenant, the temporary remedy will be to increase legal services available to seniors who are facing eviction and to advocate for their fair housing.
Jennifer Civitella is with the elder law firm of Margolis & Associates in Boston, Massachusetts. To visit the firm's Web site, click here.
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