Hb 346 - Tenant Retaliation Protection

• Jurisdiction: Georgia,United States
• Citation: Vol. 36 No. 1
• Publication year: 2019
• topic: Civil Procedure,Real Estate

HB 346 - Tenant Retaliation Protection

Joseph N. Guardino

Georgia State University College of Law, jguardino1@student.gsu.edu

Megan A. Kirk

Georgia State University College of Law, mkirk9@student.gsu.edu

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PROPERTY

Landlord and Tenant: Amend Article 1 of Chapter 7 of Title 44 of the Official Code of Georgia Annotated, Relating to Landlord and Tenant Generally, so as to Prohibit Retaliation by a Landlord Against a Tenant for Taking Certain Actions; Provide for Circumstances that are not Considered Retaliation; Provide for Remedies; Provide for a Defense; Provide for Related Matters; Repeal Conflicting Laws; and for Other Purposes

Code Sections: O.C.G.A. § 44-7-24 (new)

Bill Number: HB 346

Act Number: 311

Georgia Laws: 2019 Ga. Laws 1026

Summary: The Act prohibits landlords from taking retaliatory action when tenants exercise their rights or express habitability concerns. The Act provides for several authorized tenant actions that notify and hold landlords responsible for fixable property defects. if the landlord attempts to deprive the tenant of the use or enjoyment of the premises because the tenant expressed habitability concerns, the Act finds a prima facie case of retaliation. The Act specifically protects landlord action when a tenant damages property or is delinquent in rent. The Act provides for civil penalties against landlords who have retaliated under the statute.

Effective Date: July 1, 2019

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History

Georgia consumers have long been concerned about the disparity in landlord and tenant power.¹ Among the top complaints throughout the state are unhealthy and unsafe conditions, failure to make repairs, and illegal eviction tactics.² In addition, Atlanta has the third-highest rate of evictions in the country with the largest number affecting low-income renters.³ Housing instability affects nearly every facet of an individual's life including educational outcomes, uncertainty for families, homelessness, and health.⁴ Low-income communities, like Thomasville Heights in Southeast Atlanta, frequently experience conditions like leaking roofs, lack of security, rat infestations, and mold.⁵ When tenants complain about these issues, property owners often evict them in retaliation to avoid dealing with both the property issues and the tenant's exercise of his or her rights.⁶

Proponents of House Bill (HB) 346, including its sponsor, Representative Sharon Cooper (R-43rd), highlight the relationship between poor housing conditions and subsequent health issues.⁷ Poor housing conditions can be detrimental to children.⁸ Mold found in deplorable housing conditions is often responsible for childhood asthma.⁹ Children with asthma return to emergency rooms for additional treatment more than children with any other disease.¹⁰ Because children need multiple instances of medical treatment due to mold and asthma, they continue to miss school.¹¹ If a child misses

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fifteen days of school, excused or unexcused, their chance of graduating high school decreases by 50%.¹² In addition, unlivable conditions force families to move more often.¹³ When a family moves, their children may be forced to change schools.¹⁴ Elementary schools in Georgia have transient rates as high as 40%, effectively destroying a child's early education.¹⁵ The Atlanta Volunteer Lawyers Foundation cites high turnover at Atlanta Public Schools as a direct consequence of highly dilapidated conditions in apartment complexes.¹⁶ Chief Justice Harold Melton of the Supreme Court of Georgia focused on housing issues in his State of the Judiciary Address to the House and the Senate.¹⁷ Chief Justice Melton described how mold accumulation in Section 8 apartments has been directly linked to an epidemic of childhood asthma and school absenteeism.¹⁸

In Georgia, renters have the right to report issues to enforcement agencies and notify landlords about unlivable conditions, and landlords have legal duties to perform repairs.¹⁹ However, tenants often do not have the necessary finances to hire an attorney, and many tenants fear they will be evicted if they report poor living conditions.²⁰ Often, tenants must weigh the risk of reporting their landlord to a code enforcement agency against being evicted as a result.²¹ To further exacerbate the problem, if a tenant sends a report to a code enforcement agency, and is then subsequently evicted, code enforcement suspends the investigation.²² After the investigation has been suspended, landlords are then free to move another family into

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the unlivable space without making any of the necessary repairs, and the cycle continues.²³

Before 2019, forty-one other states had laws banning retaliatory action by landlords.²⁴ Elizabeth Appley, representing the Georgia Appleseed Center for Law and Justice, notes that Georgia remains the only state that does not provide a warranty of habitability for renters.²⁵ As a result, tenants have difficulty compelling landlords to make necessary repairs.²⁶ HB 346 seeks to strengthen tenant protections by shielding tenants from dispossessory proceedings when they rightfully report unlivable conditions to enforcement agencies.

Bill Tracking of HB 346

Consideration and Passage by the House

Representative Sharon Cooper (R-43rd) primarily wrote HB 346 and served as its sponsor in the House.²⁷ Her cosponsors included Representatives Houston Gaines (R-117th), Jan Jones (R-47th), and Deborah Silcox (R-52nd).²⁸ The House read the bill for the first time on February 19, 2019, and for the second time on February 20, 2019.²⁹ On March 1, 2019, the House Judiciary Committee amended the bill in part and favorably reported the bill by Committee substitute.³⁰

In its amendment, the Committee changed the progression of the elements by reordering the contents of subsections (a), (b), and (c) of Section 1.³¹ Representative Cooper's initial version of the bill had the protected tenant actions in subsection (a), and the prohibited landlord

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actions in subsection (b).³² The Committee altered subsection (a) by removing any additional elements from the subsection and establishing that if tenants meet the elements set forth in subsection (b) and (c), they have established a prima facie case of retaliation.³³ The elements of subsection (a) in the original bill were moved to subsection (b).³⁴ Elements originally in subsection (b) of the initial version were moved to subsection (c), which describes retaliatory landlord action.³⁵ Throughout the entire bill, the Committee added language to include "rentals" anytime the provisions mentioned "leases" or "leaseholds."³⁶

During the Committee meeting, Representative Andrew Welch (R-110th) expressed concern that paragraph (4) of subsection (b) was not sufficiently related to habitability issues.³⁷ After some discussion, the Committee agreed to add the words "relative to the conditions of the property" to paragraph (a)(4).³⁸ Subsection (c) of Representative Cooper's initial version became subsection (d) of the revised version.³⁹ The Committee also removed paragraph (c)(1) of the initial version, which contained redundant language already present in the subsection.⁴⁰ it also added the words "the tenant" to subparagraph (d)(2)(D) for clarification.⁴¹ Language referencing subsection (a) was also removed from subparagraph (d)(2)(E) as redundant.⁴²

Finally, the Committee changed subsection (e) in a number of meaningful ways. First, it changed "under this Code section" to "pursuant to this Code section," and added language that "such retaliation shall be a defense to a dispossessory action" not present in

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Representative Cooper's initial version.⁴³ The Committee removed language concerning different causes of action for recovery, and instead framed subsection (e) as a valid defense to a dispossessory action accompanied by the mandated civil penalty for the landlord.⁴⁴ On March 5, 2019, the House read the bill for the third time.⁴⁵ After this final reading, the House passed and adopted the Committee substitute of HB 346 by a vote of 131 to 25.⁴⁶

Consideration and Passage by the Senate

Senator Jesse Stone (R-23rd) sponsored HB 346 in the Senate.⁴⁷ On March 7, 2019, the Senate read the bill for the first time and referred it to the Senate Committee on Judiciary.⁴⁸ On March 20, 2019, the Senate Committee on Judiciary met to discuss the bill.⁴⁹ Representative Cooper spoke on the bill's behalf.⁵⁰ Rusi Patel, from the Georgia Municipal Association, made remarks from a community improvement perspective in support of the bill.⁵¹ Cole Thaler, an attorney with the Atlanta Volunteer Lawyers Foundation, made supporting remarks from a legal perspective detailing the fear that tenants feel from unsafe conditions and from retaliatory action by landlords.⁵² Dana Thompson, of Children's Healthcare of Atlanta, made remarks in support of the bill from a pediatric healthcare perspective.⁵³ Pamela Kraidler, an attorney employed by Atlanta Legal Aid Society, made remarks from a code enforcement

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perspective in support of the bill.⁵⁴ Polly McKinney, of Voices for Georgia's Children, gave healthcare statistics connecting childhood asthma and low-income housing in support of the bill.⁵⁵ With minor amendments and additions, the Committee voted in favor of a motion to pass the bill.⁵⁶

On the Senate Floor, Senator Stone offered an amendment to insert the word "rebuttable" before the word "defense" in subsection (f).⁵⁷ On March 22, 2019, the Senate read the bill for the second time.⁵⁸ On March 28, 2019, the Senate read the bill for the third time, and voted to adopt the lone amendment by Senator Stone by a vote of 42 to 4.⁵⁹ On the same day, the Senate passed the bill by a vote of 34 to 16.⁶⁰ On March 29, 2019, the House agreed to the Senate amendments by a vote of 125 to 28.⁶¹ The House sent the bill to Governor Brian Kemp (R) on April 4, 2019.⁶² Governor Kemp signed the bill into law more than a month later on May 8, 2019, transmitting it into Act 311.⁶³...