In February of 2010, Ms. Barker came to me to for help because I have a bit of a reputation for fixing things. Let's just say my hero is the character Winston Wolf from Pulp Fiction. "I solve problems," Mr. Wolf noted. I like a man who introduces his profession with a verb. After hearing the basics of the problem, I told her to call 311 and have the City's housing inspectors come out and write tickets. She showed me stacks of letters proving that she used 311 to no avail. Then, I told her the next best thing to do was to take her landlord to Housing Court. She told me that her landlord had been dragged into court repeatedly by other residents of the building, with nothing being done no matter if the tenant won or lost. The landlord simply ignored the summons, or ignored the housing court orders for repairs. Apparently it is more profitable to avoid repairs, gum up fines, and evict tenants. And when all else fails, the landlord simply accuses the tenant of causing the damage or says that the tenant failed to provide access to the apartment when repairmen arrive. She felt helpless and hopeless.

I didn't know a great deal about landlord/tenant law, but I knew enough to know that there is something called a warranty of habitability. It means a tenant is only obligated to pay rent for a place that is habitable and safe. The habitable part is the obligation of the landlord. I made an appointment with a Legal Aid lawyer I know who is an expert on these sorts of things. We were told, very directly in fact, that Ms. Barker was obligated to pay rent for the apartment even if it was unsafe for her children. Ms. Barker's Section 8 subsidy, paid directly to the landlord, would be terminated if inspectors found that the apartment fell below Federal Housing Quality Standards. The settled case law, we were informed, was that Section 8's termination of payment to the landlord was sufficient penalty for violating the warranty of habitability. Therefore, as long as the tenant continued to occupy the premises, Section 8 still obligated renters to pay their share of the rent. In summary: Section 8 will not pay a landlord for an uninhabitable apartment, but the person living there must pay their share anyway. I found this objectionable and ridiculous. I asked my friend a very simple question: "Why would she pay rent for an apartment that Section 8 refuses to pay for?" The answers were not satisfying.

Then it got worse. If a landlord refuses to make repairs after six months, the contract between the Section 8 and the landlord is terminated. Thereafter, the tenant is then responsible for the full amount of the rent. Under this set-up, a landlord can decide to violate a tenant's right to safe housing, Section 8 will require that tenant to pay for it, the landlord will then be able to jack up the rent when the contract expires after six months, and then be able to evict the tenant if they can't pay. These are the rules written by people who will never have to live in unsafe conditions.

So, I advised her to do something extremely risky: stop paying the rent.

In March of 2010, I investigated the hierarchy at the New York City Housing Authority (NYCHA), which administers the Section 8 program. We began writing letters demanding a formal inspection of the premises. Those letters led to a visit to her apartment by inspectors from NYCHA in April. NYCHA found exactly what other City agencies had found: Ms. Barker's apartment was seriously unsafe due to the lack of proper ventilation. The apartment was in direct violation of several Federal, State, and City regulations. The landlord was ordered to make the repairs within ten days. The landlord ignored those demands, as was his routine.

NYCHA stopped paying the landlord in May of 2010. In addition, Ms. Barker stopped paying her portion in June. Despite Ms. Barker being quite fearful of losing her home, we held hands and jumped in: this landlord was cut off form any income from this apartment and would remain so until repairs were made.

The landlord went to court for eviction last December, just after the termination of his contract with NYCHA, as we expected. In a conference with the attorneys for the landlord, we offered a very simple stipulation: make the repairs, pass the City inspection, and then we pay in full. This was rejected after the attorney called the landlord by cellular phone and presented our offer. They wanted the money and no discussion about repairs. We presented the Housing Court judge with a phonebook of code violations throughout the building, but this particular Housing Court judge heard none of it: "Are you going to pay or not? No? Eviction in five days."

We had a technical argument that earned us an adjournment, as I was prepared for just such an outcome. The landlord was also required to sue NYCHA as an undertenant to the lease, but NYCHA wasn't present. In the meantime, I continued my case law research. There was also a great deal of handholding because Ms. Barker was very, very nervous. She gets nervous around government officials.

At our next hearing a new attorney for the landlord, who was from a meat shop firm that handles evictions in a mass production sort of way, again insisted that we pay immediately. But this time there was also a representative from NYCHA present. The landlord still remained unseen at court. The NYCHA person wasn't a lawyer, but told us that we should either pay or be kicked from the program. Again we presented our case to the judge, but this time with a motion to dismiss the non-payment proceeding on a slew of technical violations. The judge was livid. She didn't want to consider any of the things we said and focused strictly on the issue that Ms. Barker was withholding rent unlawfully. When we asked the landlord's attorney why her client hadn't made the repairs, she went to the old tried and true: "We tried, but she refused entry to the apartment when the workmen arrived." This was patently false, of course. But the landlord produced letters from their preferred contractor saying they tried to fix the apartment but Ms. Barker wouldn't let them in. We informed the judge that we intended to subpoena every single name on every letter to cross-examine, under oath, their testimony of the veracity of those letters. Rather than immediately issue an order of eviction, the Housing Court judge finally considered the issue of the repairs and ordered a new trial date. She warned us, rudely, that Ms. Barker would be responsible for all rents plus legal fees within five days if we lost the trial. Evictions of the poor were so routine in her court, she couldn't fathom anyone mounting a vigorous defense. Pressure was mounting.

In the middle of all this, Ms. Barker was laid off from her job at a major department store. It couldn't have happened at a worse time for Ms. Barker. Not only was she facing eviction, but her income had been cut off. Furthermore, young Donald began to suffer severe ear infections and respiratory problems. There were times when I had to talk her into hanging in there, and even times when I simply wanted to pay to get her out of this mess. Little did she know I had my own doubts about the course I was following. I was putting this young lady at risk at my direction. Was I doing this for my own ego? Would I be willing to put her and her family up in my home if we lost? I knew I couldn't tell her of my feelings of doubt, considering all she faced in her life. I had to be confident and optimistic even when I was concerned and doubtful. I now had another whole family depending on me. It was a time of intense pressure.

Our next court date soon approached and I still hadn't found anything to overcome what was understood to be settled law. And then it hit me while reading her lease: this issue had nothing to do with Section 8's subsidy. Ms. Barker had every right to withhold rent due to the fact that she has a lease. Her lease doesn't say anything at all about Section 8. Her lease is between her and her landlord. The contract between NYCHA and the landlord did not in any way abrogate her warranty of habitability rights as a tenant. Therefore NYCHA could not compel her to pay if she was making the argument that the housing code violations breached her lease, not Section 8 rules. I decided that the Housing Court judge was biased. She didn't want to hear anything we had to say before, and I doubt she would now.

We filed a new lawsuit against the landlord and NYCHA in a higher court on different grounds. The City of New York never asked Ms. Barker to waive her rights, therefore they had no right to compel her pay on the grounds that she was a Section 8 tenant. The judge listened carefully to our oral argument and evidence presented. The landlord's attorneys complained about not being given enough time to respond because we used a special motion to force a hearing the same day the new lawsuit was filed. Sufficient notice constituted calling them in the morning and telling them to be in court at 3pm.

After dismissing their notice claims, the judge's logic was simple and straightforward: many of the issues brought forth in our new petition were outside the bounds of Housing Court, but have direct impact on the Housing Court issues. There were matters of law here. Needless to say, the attorney for the landlord had to pick his jaw up off the floor. The judge ordered that Housing Court proceeding be stayed until other matters were resolved in his court.

Then we began to strike gold. Using the power of discovery in our new case, we learned that both NYCHA and the landlord failed to follow a litany of procedures laid out in a broad federal consent decree that covers all Section 8 tenants in New York. This is known as the Williams Consent Decree. These discoveries had the effect of turning the NYCHA attorneys from being against us to being for us. The last thing they wanted was egg on their face for coming to the defense of a bad landlord. We met separately with lawyers from the City and came to settlement. We agreed to discontinue our lawsuit against them. The tide was turning.

We went back to court in April. The attorney from the City literally stood next us at the hearing, as if NYCHA was a co-plaintiff. The attorney for the landlord then made a huge blunder that worked dramatically in our favor. He said that the court, a higher court than Housing Court, didn't have jurisdiction over this matter and that it should be sent back to Housing Court. The judge was incredulous and dismissed this line of argument with a wave of the hand. "You are HERE now. I will resolve all the issues RIGHT HERE," he said. He then issued an order consolidating the Housing Court case into the one with Ms. Barker as the plaintiff.

Now we finally had the landlord on defense. In oral argument, we presented the basic facts, but the judge was already quite familiar with the details of our motions and affidavits. He simply told us to be quiet. The judge then tore into the landlord with detailed questioning. "Why didn't you make the repairs as ordered?" "Why aren't you arguing against Ms. Barker's warranty claims?" This judge, who had over twelve years on the Housing Court bench before being elevated, peppered the defense with tough questions. The landlord's attorney then tried to change the subject, only making it worse for his client. His next argument was simply that the ventilation problem was not that big a deal. This made the judge literally laugh on the bench. The judge then adjourned the matter as he had a busy calendar and ordered the landlord himself to appear at the next hearing. He made it clear by saying "I want your client here before me so that I can find out whats going on."



Ms. Barker's new electric kitchen vent!

New bathroom vent

Just two weeks ago we appeared at court again, this time the landlord brought another new attorney who was in the mood to settle. In conference, the landlord agreed to clear the apartment of all vermin, make specific repairs to the air vents and abate some of the past due rents. After passing an inspection by the City, the Section 8 subsidy will be restored. Ms. Barker will be able to keep her home and the landlord, importantly, will avoid a potentially precedent setting judgment against them. Just imagine if all the tenants in that building proceeded like Ms. Barker in a class action. Ms. Barker still has to come up with some of the past due rent, since she had to spend some of the rent she was withholding as a result of her job loss. That will be tough, but she will have a safe home to live in. The judge approved the settlement and informed us to come back to court next month because he wishes to make sure the stipulated terms are followed. Finally, Ms. Barker called me and said "wow...they're here and they're fixing everything!"

The challenges poor people encounter while just trying to survive are so alien to our political elites that they can't even begin to understand how it affects people. At the very top, there are people who write rules just like the ones that affected Ms. Barker. Rules they will never ever have to live under. Her landlord is a multimillionaire slumlord with properties all over New York, but he himself lives in a comfy mansion in Great Neck, Long Island. The politicians who wrote the rules will probably never see the inside of her building, ever. It is almost impossible to fight back against the crushing weight of all the forces arrayed against the middle class and those seeking to be middle class. But sometimes, just sometimes, we the people can fight back. And win.

(names have been changed to protect the identities of the parties)

Gavin and his brother Donald