Landlords decry new ordinance for apartment inspectionsBy GRETYL MACALASTER
Sunday News Correspondent
March 09. 2013 9:21PM
DURHAM - The local landlords' association has filed a complaint with the town regarding a new housing standards ordinance it says unfairly targets residential rental property owners.
The ordinance, approved by the town council on Jan. 7, set this past Friday as a deadline for rental property owners to notify the fire chief that they were seeking an inspection. Many making the request did so under protest.
The ordinance was drafted more than six months ago and was discussed at length by the Rental Housing Commission, which includes two landlord representatives.
But Town Administrator Todd Selig said the representatives "disengaged" from the process and stopped attending meetings after sending a letter in June expressing concerns about how the commission was operating.
Perry Bryant, chairman of the Durham Landlord Association, said landlords feel their concerns were not being addressed.
Through an attorney, the association has asked the town to stay enforcement of the ordinance until the parties can come to an agreement.
"The ordinance, as enacted, places an unfair and disproportionate burden on all of the owners of residential rental properties in Durham in response to identified problems involving only a small handful of properties in Durham - some rental and some owner-occupied," according to the letter from attorney John Sokul on behalf of the association.
The letter further states that the ordinance is "illegal and inappropriate" for a variety of reasons, most notably for violating equal protection clauses of the New Hampshire and federal constitutions by singling out rental properties.
Sokul said it is the "strong preference" of the association to avoid litigation and to work cooperatively with the town to craft an ordinance that is more directly targeted to correcting or eliminating buildings that are unfit for habitation, but they reserve the right to go to court if they believe it necessary.
Durham's legal counsel is reviewing the association's complaint.
"If there is any aspect of the complaint that warrants additional conversation, by all means we would want to talk about that," Selig said.
Gone too far?
Bryant said the ordinance effectively creates a registry of rental properties in town, something the association has opposed since the mid-1990s. He said it also effectually creates a tax for rental property owners.
Under the ordinance, rental property owners must pay a $130 fee per property, plus $25 per dwelling unit per biannual inspection, and can face penalties for violations. A $200 reinspection fee would be charged if violations are found.
Bryant said if the program were voluntary and no fee were attached, he could agree, but with the town already not providing services for rental properties, including trash collection, it amounts to another monetary burden on a select population.
Selig said the fee is not a tax and only ensures that the cost of the program is covered, including the hiring of an additional inspector and a part-time secretary. He also argued that the ordinance does not create a registry, but does help the town identify where rental properties are, something they are not able to do now.
They estimate about 3,200 renters are living in about 700 properties in town.
He added that early feedback from landlords was incorporated in the ordinance, including an exemption for newly constructed buildings and a provision that allows for a $50 self-inspection with permission of the fire chief on alternating cycles if no violations were found on the first inspection.
Julian Smith was the only member of the town council to vote against passage of the ordinance after several landlords spoke out in opposition during a public hearing on Jan. 7.
Smith said he does not think the ordinance is designed to protect tenants from health and safety code issues, but to drive absentee landlords, as well as people who rent rooms in their homes, away from renting to students.
He also is concerned that the ordinance is a pretext for the town to get into homes or apartment buildings and ensure they are not violating other ordinances, including one that limits the number of unrelated people that can live in a single unit.
Despite his concerns, Smith said, he does not intend to bring the issue back before the town council, or to put forward a motion to revoke the ordinance because he doubts he would get a second to his motion.
"I think it is going to be difficult for the (Durham Landlord Association) to prevail, but I wish them luck," Smith said.
Other communities in the state are keeping an eye on the issue, particularly Hanover, home to Dartmouth College and about 500 off-campus students.
The Hanover Board of Selectmen will soon discuss a more simplified housing standards ordinance that would be strictly complaint-based.
"We have a relatively smaller problem here in Hanover than I think Durham deals with," Hanover Town Manager Julia Griffin said. "So we had a lot of property owners say 'why do we have to have a comprehensive ordinance when the problem is contained within certain properties?' This is a way to get at this (problem) without bringing every rental property under the same umbrella."
The ordinance being considered would enable the town to require annual inspections if they initially investigate a complaint concerning a rental unit and turn up significant problems.
The town will not charge rental property owners for the inspections, which will be conducted by the building inspector and fire chief.
"The bottom line is we know in Hanover there are a handful of landlords making a lot of money in renting these units, and we know these units are not what they should be, especially for what the students are paying for them," Griffin said.
Griffin said she expects to bring the ordinance to selectmen in late April with a goal of adopting an ordinance before students arrive for the fall term.
Pittsfield might have one of the oldest housing standard ordinances in the state. It was first established in 1964 and is overseen by an advisory board, an administrator and an inspector.
Every residential rental property gets inspected once every two years based on the International Property Maintenance Codes. The inspections include looking at mechanical and electrical systems, as well as life safety issues.
Even though the ordinance has been in place for years, housing standards administrator Fred Okrent said some landlords still have to be "dragged kicking and screaming into compliance."
Right now, there are between 625 and 700 rental units in Pittsfield, Okrent said, most of them in large, converted homes.
Okrent said he worries that without a housing standards ordinance, the town would end up with some slums.
"And I really mean slums. There are some people who really don't give a damn. They do not live in town, and their primary purpose is to take as much money out of this town as they can," Okrent said.
Okrent spent 40 years as a volunteer firefighter and works to prevent or alleviate some of the problems he encountered on the job as a result of poorly maintained homes.
He said he usually comes across at least one or two problems during each inspection, many of which are minor and can be resolved without requiring him to issue a citation.
The fee schedule for inspections has not changed since Okrent took the position and remains at $30 per unit for the inspection and $15 per unit if a reinspection is necessary.
The goal is safety
All three communities said their primary goal is the health and safety of renters, landlords and other residents.
Griffin said if the Durham ordinance is disputed in court, it will provide good experience for other communities considering such an ordinance, no matter the outcome.
"If, in fact, we are challenged and if the town prevails, it will be clear to every town and city across the state that they can implement (an inspection) program such as that and that might not be the outcome the landlords seek," Selig said.