Mother of 5 tests new Georgia law barring retaliatory evictions

The apartment complex said the Hernandez family of seven were leaving too many personal items outside their door. At the end of September, Hernandez, her husband Yair and their five children were told to move out.

She vowed to fight the eviction. Using a state law that was less than a year old, the young immigrant mother challenged the management at her complex and ultimately achieved a settlement, which she views as both a relief and a victory.

Though no judge ruled on the case and the apartment management company denies any wrongdoing, experts and tenant advocates hope the case will inspire more residents like her to challenge their landlords if they feel they were evicted unjustly.

‘United Residents’

In their 10 years at the Reserve at Brookhaven, the Hernandezes never missed a rent payment. Their attorney, Esther Graff-Radford, said during a recent court hearing that they were “model tenants” who lived a quiet and productive life, paying $1,065 a month in rent.

While Yair worked 60- to 70-hour weeks as a cook at a restaurant in Decatur, Alejandra mostly stayed home to look after their kids, ages 1 to 9. But as problems at the complex increased, she said, she also became a motherly figure for the community. When dozens of her neighbors were left homeless after the floor at a nearby building collapsed in November 2018, she organized to support the displaced families and make hot chocolate for them.

During the current coronavirus pandemic, Hernandez has continued to work with tenants at the complex, helping to write a letter to management asking for rent relief for residents who have been affected financially by the public health crisis.

Last June, she helped bring the community together to successfully protest $350 fines the apartment management levied against some residents for allegedly keeping prohibited items on their patios. Why was the complex worried about personal items left outside, the residents wondered, when there were more serious maintenance problems at the apartment?

That’s when Hernandez formed Residentes Unidos — Spanish for “United Residents” — through a WhatsApp group. The residents, most of whom are immigrants and only speak Spanish, used the chat to send pictures of issues with their apartments, including the mold, rodents and unsightly ceilings. In 2019, Residentes Unidos held several meetings to organize the tenants and discuss their living conditions, which they felt were unsafe and unsanitary.

Hernandez provided tips for reporting the issues to the city of Brookhaven. City records obtained by The Atlanta Journal-Constitution show code enforcement officers visited the complex multiple times over the course of last year. About 30 code violations were issued against the property owners in June alone, according to the code enforcement reports. Atlanta-based FifeCo Properties owns the Reserve, which has about 200 units. Records show the complex was forced to correct the issues.

At the same time — from about June to September — the Hernandezes began receiving warnings and formal notices from their landlord. Management at the complex said large items and bags of trash were being left outside their door, an apparent lease violation.

Mike Williams, the attorney representing FifeCo, said in court that Hernandez “thumbed her nose” at the notices telling her to clean up the patio, but according to Hernandez, nothing was left outside for more than a day.

In court, Graff-Radford painted the picture of a vengeful apartment management company: When Residentes Unidos held visible in-person gatherings, she said, warnings about the outdoor items were sent to her family.

“It’s like they were living on top of me,” Hernandez said on the stand during the hearing, through a court translator.

When the final eviction notice hit on Sept. 30, Hernandez was desperate.

“The day that (eviction) letter arrived, we were real fearful,” she said in court, growing visibly emotional. Hernandez, who describes herself as fiercely protective of her kids, remembers thinking: “Where are we going to take our children to live?”

Testing a new law

During last year's legislative session, lawmakers passed House Bill 346, giving tenants an avenue to challenge their landlords if they feel they were evicted for complaining about conditions or participating in a tenant's organization. Under the law, landlords who wrongfully try to evict tenants must pay them one month's rent, plus $500 and attorney's fees.

Georgia was one of just nine states that did not have a similar law against retaliatory evictions. Some apartment owners feared the bill would make it harder for them to pursue legitimate evictions against renters who fail to pay rent or broke other rules.

The new law went into effect in July, only one month before Hernandez received her first formal lease termination letter.

Hernandez said she turned to community contacts from groups like Los Vecinos de Buford Highway and the Housing Justice League for help. They formally challenged the eviction in DeKalb County Magistrate Court, relying on the new law against landlord retaliation.

The law granted Hernandez a court hearing where a judge was set to rule on whether the eviction was in fact an act of retaliation.

“I know this is new,” Judge Gary LeShaw said during the hearing, later adding that “there’s no case law on this.”

Attorneys for the apartment complex argued that the eviction was not retaliatory. Williams said during court that the property owners “couldn’t care less about the protest.”

In a later statement, he said the “former resident ignored the repeated warning letters advising them to keep the premises clean and free from personal property being left outside of their front door. Our client’s intent has always been to ensure they are in compliance with the Brookhaven Code.”

The case ended before the apartment company had a chance to fully present its side of the case in court. In early March it ultimately decided to settle with the Hernandez family for $5,000, some of which will go to Graff-Radford, who represented the family pro bono. She sees the outcome as a big victory.

The Reserve at Brookhaven let the Hernandezes stay until their lease ended. They moved out on Jan. 31 and into a new apartment on Buford Highway.

FifeCo’s attorney said the decision to settle “was a business decision so as to avoid appeals and further litigation costs.” The settlement states that the apartment complex denies any wrongdoing or liability, Williams pointed out.

Even though no formal legal opinion was issued, tenants’ rights advocates hope the outcome will inspire further cases.

Susan Reif, a housing attorney for the Georgia Legal Services Program, said her organization has begun using the new law as a defense to evictions around Georgia, though she said she was not aware of a case that achieved a precedent-setting ruling yet.

The law is helpful because it gives tenants some legal fallback if they speak out against — or even sue — their landlords or management companies, said Reif, who works in Georgia communities outside of metro Atlanta.

“In the past, tenants didn’t tend do anything like that because they were worried their tenancy would be terminated,” she said. “Now we can tell them … if your landlord does try to dispossess, you would have the protection of the law.”

Hernandez, who is originally from Mexico, said she knew close to nothing about Georgia’s legal system before taking her eviction case to court. She hopes the outcome will inspire other tenants who are in similar situations, though that was not her initial goal.

“It’s incredible to see that we came into this situation where someone has power over us,” she said through a translator, “but we can fight and we can win.”