Author Archive for Jonathan LuriePage 2 of 24

California Sues to Stop Trump’s Border Wall

In the last couple days, a lawsuit has been filed in a San Diego area District Court, seeking to stop the construction of President Trump’s border wall. The lawsuit is a 53-page behemoth of a complaint with separate claims for relief. However, it contains some very interesting arguments. Some arguments with a real chance of delaying or even halting construction of Trump’s wall, and some less likely to succeed.

In a time where politically grandstanding lawsuits and orders with little actual impact are common, it’s easy to quickly dismiss this lawsuit as another example of this. However, the lawsuit has some arguments that carry weight. It has real potential to throw a wrench in the works of Trump’s wall. But, it is still very early going for this lawsuit and it will face immense hurdles before it can hope to succeed. For now, let’s look at the situation and the arguments the suit makes.

California’s Lawsuit

It’s significant that this lawsuit is being brought around San Diego because that is the site of one of the preliminary construction sites for a prototype section of Trump’s wall. In pursuing this project, and the entirety of the walls eventual construction, the Secretary of the Department of Homeland Security (DHS) John Kelly published a “waiver” notice in the Federal Register in August of this year. This waiver essentially says that the wall’s construction does not need to follow over 30 federal laws and all state or local laws which might relate to the construction of the wall.

This probably sounds ludicrous on its face. However, the DHS has been granted this power to waive laws to some degree for decades under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA ). The IIRIRA contains a provision that allows the Secretary of DHS to waive any law he or she deems necessary to expeditiously construct reinforced fencing authorized under that section.

California’s lawsuit hinges primarily on challenging the validity of this waiver and its authority, along with challenging the sufficiency of the environmental studies done in the lead up to building the wall and the wall prototypes.

border wallThe Lawsuit’s Claims

The lawsuit being 53 pages makes discussing its claims in full a bit of a challenge. However, we can hit the highlights of its challenges.

The lawsuit starts by challenging the federal governments steps in regards to environmental law. The National Environmental Policy Act (NEPA) requires several procedures before the government can undertake a project-such as Trump’s wall-which has a significant effect on the quality of the human environment. This includes preparing a report known as an Environmental Impact Statement (EIS). The steps taken on the wall have made no such report. They’ve also ignored the requirements of laws such as the Coastal Zone Management Act and the Clean Water Act. The lawsuit challenges the wall based on this failure to follow environmental procedures for federal construction projects.

Next, the lawsuit alleges that the IIRIRA doesn’t grant authority for the waivers Secretary Kelly made for the wall. It argues that the breadth of the IIRIRA covers waiving to create walls, not replace existing walls as is happening in San Diego. The lawsuit further argues that the provisions of the IIRIRA also limit the waivers to construction in areas with high instances of illegal entry-something that is not the case in San Diego and in many places along where the wall may eventually be made. If there is no IIRIRA waiver authority, the federal government is in violation of the laundry list of over 30 laws it has waived to expedite construction of Trump’s wall. Even if the waiver authority exists, the federal government has produced no studies or evidence that supports these elements in order to establish that they should be able to use that waiver.

The waivers are also challenged on due process grounds-the requirement that the government provide a reasonable ability to a fair judicial process. However, according to California’s lawsuit, the federal government’s legal waivers are so broad (potentially covering essentially the whole southern border of the country for an essentially indefinite time) that they cannot provide reasonable notice of where the waivers are going to apply and when.

The power of Congress to pass the law in the first place is also challenged. The lawsuit cites a separation of powers issue. Congress generally can’t delegate it’s powers to another branch without clear delineation of the limits of what is delegated. Here, Congress has given power to waive laws to an agent of the Executive branch. The lawsuit argues that this vests the power of the legislature in the Executive branch-impermissibly violating separation of powers. The gist of the argument is essentially that by giving total fiat to waive all laws for this purpose, Congress has removed the power of law in this circumstance. Instead, the lawsuit argues that Congress must individually delineate what laws may be waived. It’s noting here, that while delegation of the legislative powers of Congress are theoretically unconstitutional, in practice extremely broad grants of power have been allowed in the past by the courts. However, a totally unchecked delegation may still be unconstitutional.

Finally, the lawsuit turns to the 10th Amendment. The 10th amendment, among other things, provides states the right to create and enforce their own legal code. The lawsuit argues that, as written, the waiver provisions grant the ability to indefinitely waive any and all laws of any state. The lawsuit argues that this makes the waiver provisions unconstitutional because the law exceeds the power of Congress and violates the 10th amendment

Case is Very Early Stages, But It Does Have a Chance

Nearly all of these claims require an intensely complicated bit of administrative and constitutional law for the courts to come to a final conclusion. However, as stated, the lawsuit already makes arguments that hold water. Each one has a real chance of success and any one of them could put a stop to or substantially delay Trump’s wall.

But, the lawsuit has a very long way to go from complaint to actually achieving its goal. However, it is without question that the suit will face an uphill battle. The waiver provisions in question have been used for decades and a challenge to them will face this precedent. For now, we’ll just have to wait and see how the federal government responds.

DACA On a Limited Lifespan, What Should You Expect? Part 2: Implications of Losing DACA

President Trump has declared the upcoming death knell of the Deferred Action for Children Act (DACA)-an Obama era program allowing immigrants who’ve been here most of their life to receive deferred deportation, get drivers licenses, social security numbers, and get work permits. Yesterday, we discussed whether and how you can extend the protections before the program disappears. However, that unfortunately won’t be an option for everybody.

Only those whose DACA protections expire on or before March 5, 2018 can apply for a renewal of protection and the United States Citizenship and Immigration Services office is not accepting any new applications for protection as of Trump’s announcement on September 5th of this year. While 800,000 or so people have received the protections and benefits of DACA, despite restrictive requirements limiting the program’s applicants to people who-among other things-spent nearly their entire life in the U.S., the reality is many are going to lose protections in the coming months. So what will this loss of protections mean in practical terms?

DACAWhat Does the End of DACA Mean?

First and foremost, there is a real potential of deportation. Part of applying for DACA involves giving an enormous amount of information-where you live, where you go to school, etc. This information was protected by privacy rules under the Obama administration but Trump removed those protections this January.

While the stated deportation priorities of the Trump administration are immigrants with criminal records, the U.S. Immigration and Customs Enforcement Agency (ICE) has a bit of a history in recent times of going for people they know about. This makes former DACA recipients, who have provided their address and whereabouts, potential targets. This is surely a terrifying fact for DACA recipients-many of whom have spent their whole lives in the U.S., have no ties or life outside the country, and were babies or children when their parents entered the U.S. The prospect of being forced to start over in a place where you have no roots is a scary one.

However, there’s a lot of ground to cover-in the courts and in Congress-before there is a final word on how DACA Dreamers are going to be treated. For now, we can focus on the things in your control and the more certain and immediate effects of the end of DACA.

Leaving the Country-Advanced Parole

DACA protections require recipients to continuously live in the U.S. This means no leaving the country, except with earlier permission known as advance parole. This was generally provided for emergencies and family situations. While it was initially generously granted, it’s become harder to get as the program continued. However, it’s never been harder to get than now-advance parole is no longer available whatsoever. This means that DACA dreamers will not be allowed to leave the country and keep their protections from now on. Honestly, with the situation as uncertain as it is, it may be advisable to not take an advance parole trip you have received approval for if it is coming up in the near future. If you’re already abroad on advance parole, it may be worth coming back.

Work Permits: Will You Keep Your Job?

DACA isn’t gone just yet, and won’t be until March 5, 2018. Even still, Congress and the courts may still act before that date one way or another. Either way, your work permits will be valid until DACA goes away completely. You can continue to work until then. What’s more, your employer does not have the right to ask you whether you are a DACA recipient or how you got your work permit. If you are an at-will employee (the most common type of employment) you can be fired for any legal reason. However, you cannot be fired, demoted, or put on leave simply because the expiration date on your work permit is coming up. You also are under no requirement to inform your employer that DACA has ended. As DACA ends they can ask for an updated work permit. If you don’t have a valid work permit, they will likely fire you. One potential option to help mitigate this-although it has no guarantee of success-would be to ask to placed on a leave of absence until you can figure out your work permit. Then you’d at least have a job waiting if Congress or the courts work out something with DACA.

Driver’s Licenses: Staying on the Road

One of the other great benefits of DACA was that it helped many immigrants get driver’s licenses-opening up any number of job and life opportunities. Once DACA’s gone, whether you can have a license will mostly depend on which state you live in.  Twelve states-California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, New Mexico, Utah, Vermont, and Washington-will give otherwise eligible residents a drivers license no matter what their immigration status is. If you live in one of these states, you’ll likely still have a valid license once DACA goes away. Otherwise you’ll need to look to the rules of your state’s Department of Motor Vehicles to determine what your options are.

How Will This Affect Your Health Insurance?

While DACA offered several advantages-access to federal healthcare plans under the Affordable Care Act was not one of them. Thus, for the most part, healthcare will be unaffected. However, if you have insurance through your work, you should anticipate losing that coverage once DACA disappears. If you have coverage through your spouse or partner, coverage will not be effected. However, you should know that your spouse or partner may offer you an additional means of becoming a legal citizen-it is likely worth consulting and attorney.

In some states and districts-California, Massachusetts, Minnesota, New York and the District of Columbia-there are state health care plans which are available to low income households-including DACA households. Washington has a similar program which may be available to DACA recipients who have disabilities.

In California, Massachusetts, Minnesota, and New York, low-income DACA recipients may be eligible for comprehensive health coverage through a state program (e.g., Medi-Cal). In Washington, DACA grantees with disabilities may be eligible for medical coverage. After your DACA expires, you may still be eligible for state health programs. Check back here for updates, or check with a trusted advocacy organization in your state. Different states will have different approaches once DACA disappears and it’s worth considering the approach of your state.

Some states offer some limited coverage based on certain diseases or populations, low-income families can often get help for pregnancy-related issues and some emergency care. A lot of these programs will be available to non-citizens even after the end of DACA.

In California, Illinois, Massachusetts, New York, Oregon, and Washington, there is also full medical coverage available to all low-income persons under the age of 19-regardless of immigration status.

Impact on Education?

Many DACA dreamers are pursuing higher education in the many colleges and universities within the U.S. Most states-with the exception of Alabama and South Carolina-allow for undocumented immigrants to attend universities. Georgia is notable for having a few colleges that specifically deny access to DACA Dreamers.

What’s more, even as it stands, DACA Dreamers can’t get federal financial aid-although some states offer aid regardless of immigration status.  For the most part, the disappearance of DACA should have a limited effect on Dreamers seeking higher

The Fate of Your Social Security Number

The Social Security Number (SSN) you received through DACA should continue to be valid even after the end of DACA and should remain valid for life. You should continue to use the SSN for tax purposes, education, banking, and any other purpose under the sun. However, it’s worth noting that it won’t be useful for employment without a work permit.

If you are a DACA recipient and haven’t yet received a SSN it is worth applying for one now while your DACA benefits are still valid.

Knowing Your Rights When Dealing With ICE

We’ve talked about deportation as a possibility, and that means dealing with ICE. There have already been reports of ICE agents targeting DACA recipients. It’s important to know your rights regarding ICE-even as an undocumented immigrant you have constitutional rights. However, if you have any real questions or legal issues it is crucial that you speak to an immigration attorney. But, there are a few things worth keeping in mind for dealing with ICE:

  • You are not required to answer any questions asked by an ICE agent. It is generally better not to answer until you consult an attorney.
  • You do not have to, and generally should not, answer the door to an ICE agent who is knocking.
  • You are not required to and should not, before consulting an attorney, sign anything given to you by an ICE agent.
  • If an ICE agent stops you outside your home, it is worth asking if you are free to leave. If the answer is yes, you can and should leave.

The Future

The rights we’ve talked about above are just guidelines. It cannot be said enough that if you have any issues at all it is worth speaking to an immigration attorney. At a minimum, it can be worth speaking to an attorney to determine if you have any non-DACA immigration options. The future is uncertain, and the best you can do is be prepared. Save money for emergencies, make sure somebody else has authorization to access bank accounts and the like, potentially add somebody else to your mortgage, car lease, or home lease, etc. Once again, consult an attorney to know exactly what steps you may need to take-or at least try and attend one of the many free legal clinics which will be available throughout the month at locations across the nation.

DACA isn’t gone until March 5, 2018. Until then, DACA protections and work permits should remain valid. However, it is worth noting that USCIS has the power to revoke DACA status on pure discretion-basically for any reason. This underscores the biggest problem with how DACA has been treated-the uncertainty. People who’ve never lived anywhere else have been forced to live with a rug beneath their feet which may be pulled away at any moment-forcing them to live in a place they have no ties. The way DACA has been treated, it may even leave some more vulnerable than they were before it. However, there are still tools available. For now, the best that DACA Dreamers can do is be prepared and seek legal help.

DACA is on a Limited Lifespan, What Should You Do? Part 1: Renewing DACA Status

As of September 5th, it is official, President Trump has announced an end to the Deferred Action for Childhood Arrivals (DACA) program. The program, created by executive order from former-President Obama, has provided protection to around 800,000 people within the United States. These people are often referred to as Dreamers due to the similarities between DACA and the failed 2001 DREAM Act. The program allowed some immigrants who fulfilled a strict set of requirements to qualify for deferred deportation proceedings, as well as receive work permits, social security numbers, and drivers’ licenses. All things can be crucial to anything from holding a job to starting a business to receiving higher education to getting a house.

Since its origin, DACA has helped many immigrants achieve these dreams. However, as of Trump’s September 5th decision, the program is off the table for new applicants and those who applied and received protection under the program-a process that requires providing an enormous amount of personal information-on a timer with an uncertain end.

The people receiving the benefits of DACA are almost entirely people who have little or no ties outside the U.S.-living most of their formative years here. Many DACA recipients have never lived outside the U.S. whatsoever-being born and raised within the country. To qualify for protection, you needed to fulfill several requirements. A DACA applicant must:

  • Be under 36 years old (as of today);
  • Have been under 16 years old when they came to this country,
  • Have lived in the U.S. non-stop from June 15, 2007 to today;
  • Have entered the country illegally or had their legal status expire before June 15, 2012;
  • Not have been convicted of a felony, a significant misdemeanor (domestic violence, sexual abuse, burglary, and the like), any three misdemeanors;
  • Have graduated from high school, be in school, received a GED, or have been honorably discharged from the U.S. Armed Forces; and
  • Not be considered a threat U.S. national security.

DACA doesn’t provide citizenship, it instead offers “lawfully present status,” an important distinction. However, even with such substantial restrictions on the program and no citizenship on offer, hundreds of thousands-nearing a million-people have relied on the protections DACA offered.

DACAAfter the September 5th order, no further DACA applications will be considered. Any new applications received at this point will be rejected. However, this does not mean a complete and immediate end to DACA protections. For those who have made applications before September 5th it is unclear how these applications will be handled. At a minimum, there has been no statement that these applications will be rejected out of hand. Those who’ve received DACA protections will also not immediately lose what they have. The protections will last until they would naturally expire, in some circumstances they can even be renewed. No matter the situation, if you’re a DACA Dreamer Trump has put you in a tough spot and it’s important to know your rights and how to proceed. To help with this, we’ll look at the steps you can take to potentially extend your DACA protections if you’ve already signed up. What’s more, in case you won’t be able to renew your stats, later this week we’ll have an article on the implications of losing DACA protections-some of the steps you can take and what you can expect.

How to Renew Your DACA Status

First and foremost, no matter what your situation, you shouldn’t go about trying to renew your DACA status on your own. If you have any questions, or even if you don’t, seeking the help of an experienced immigration lawyer to help you with your application process is more important than ever. As we’ll discuss, time to renew is short and a mistake on an application may leave you without recourse. Fortunately, in the coming weeks there will be free legal clinics across the nation willing to help you with your application. Look online to search for these clinics, either at a home computer or at a library.

As we mentioned earlier, no new applications are being accepted anymore. So at this point if your aren’t renewing your DACA status, it will be best to look to other alternatives in seeking legal status. The final deadline for all renewal applications is October 5th, 2017, applications must have arrived at the United States Citizenship and Immigration Services Office by this date. So you basically have less than a month to get your renewal application in-thus the importance of seeking help from an attorney or a free clinic. You’ll only be able to renew for 2 more years if your DACA expiration date is March 5, 2018 or earlier. All expiration dates after this will maintain protection until they expire, but cannot seek a renewal at this point. Obviously you’ll need to still fulfill the original requirements discussed above for DACA if you seek to renew. If you’ve been convicted of a crime (DUIs are especially known as the DACA-killer) or left the education program you were in when you first applied it could seriously impact your chances of a DACA renewal and seeking an attorney’s help becomes even more important. Another potential roadblock could be if you’ve left the country without advanced parole. You must live in the U.S. continuously to receive DACA protections. The exception to this is where you receive advanced parole-basically get pre-approval to leave the U.S. These are generally granted for emergency reasons or family reasons and used to be generously granted, although that has changed in recent times. If you’ve left the country without such parole, that’s another reason to seek an attorney.

If you have advanced parole coming up, it may be best not to take it in such uncertain times. If you’re abroad on advanced parole, it’s probably worth coming home as soon as possible.

As for the documents you will need to fill out for renewal, there are two big ones with an additional worksheet tacked on-an I-821D, an I-765, and a worksheet accompanying the I-765 called the I-765W. These can be easily obtained online and will likely be available at the legal clinics in the coming month.

It sounds like a broken record, but it’s worth getting an attorney help with these forms. There is too much on the line to risk potentially losing renewal over clerical issues or mistakes on your form. For the I-821D some common mistakes include providing a physical address instead of a mailing address or providing an address that doesn’t match your I-765. You should generally apply with your most commonly used name. However, as much as possible these forms should mirror the information on your initial application and your birth certificate. As a renewal, you will only need to provide an address if you have moved since your initial application. If you have moved, it’s important that you reported this change of address soon (within 10 days) after the move. If you did not, you may need an attorney to help you clear up this issue.

The I-765 will ask for, among other things, financial information. This area often trips people up, but generally you can answer with a good faith estimate which is as accurate as possible. Annual income can take a month and multiply it by 12 or just be based of income tax. Expenses can similarly be done as your average month times twelve plus incidentals like back to school costs. Assets is simply a list of what you have, house, business, car, etc. Another thing to take note of on this form is the explanation of economic state section.  This is a good opportunity to add a personal touch to an application-focus on how DACA has effected your family and financial state. DACA renewals can occasionally be denied purely on discretion-basically for nearly no reason at all-immigration experts feel that adding a personal touch can sometimes help with this.

Similarly, it can be worth including a handwritten letter of what DACA has done for you personally with your I-821D. Once again, to try and help avoid potential discretion-based refusals.

If you’ve recently been married or had a child, this may change what you need to write on your form. However, it also may open new avenues to full citizenship. Make sure you fully explore all your options if you speak with an attorney or attend a free clinic.

The Uncertainty Can Be Terrifying

DACA was life changing for many people, suddenly losing its protection can be terrifying and devastating. This is especially true because of the enormous amount of information provided through these forms, information that could potentially be used as tools by an agency like ICE given Trump’s weakened privacy protections for immigrants. However, if you can get a renewal it could be huge. Two years is a long time and the full history of DACA has not played out. DACA will not be gone for around 6 months and where the law goes from there will be a battle played out in the courts and in how Congress chooses to address the issue. If it hasn’t been said enough already, seek the help of an attorney and find out if you are eligible for renewal.

If you aren’t eligible, you need to know your rights and what to expect as DACA disappears. While DACA is not yet gone and the battle is not yet over, it is important to plan for the worst and know what DACAs disappearance may mean for you. Later this week, we’ll have an article on just this issue. For now, consider legal support in your immediate area; chances are very good that free legal help may be available.

Transgender Military Ban Still In Effect, Despite Defense Secretary Mattis’ Freeze

After President Trump’s impromptu tweet, declaring a ban on transgender persons in the military, the Pentagon made it clear that they would not act until a more official statement was made than a tweet that caught even them by surprise. In the wake of the tweet, and the Pentagon’s refusal to execute Trump’s wishes without more clarity, Trump released a Presidential Memorandum placing the exact terms of his ban in effect on August 25th. Around a week after that, Defense Secretary Mattis declared that transgender persons could continue serving in the military until a study on the issue had been completed determining the impact transgender persons had on the readiness and efficiency of the military.

Some in the media have mistakenly hailed this as a strike back against Trump, describing the study as a freeze on Trump’s order and Mattis as a hero standing up for transgender persons. The study is, unfortunately, nothing of the sort. Instead, Defense Secretary Mattis is simply following the terms of Trump’s order on the issue-including when and how it will take effect. This doesn’t mean that there is no chance the final order will be tempered slightly from its original version. However, the study is far from fighting back against Trump’s most recent memorandum. Let’s take a look at the contents of this presidential memorandum and figure out exactly what it does, and how Secretary Mattis’ study impacts its effect.

transgenderTrump’s Presidential Memorandum Explained

The memorandum, titled as a message to the Secretary of Defense and Secretary of Homeland security, has a simple subject line of “Military Service by Transgender Individuals.” It’s effects are essentially a rollback of the June 2016 order from the Obama administration which allowed transgender persons into the military in the first place.

Citing a lack of faith in the extensive research done prior to the 2016 order, determining the costs and negative readiness impact of allowing transgender persons to enter the military to be minimal, the order has a number of effects-some immediate and some delayed. The directive refuses all Department of Defense resources to transgender persons seeking sex reassignment surgery-excluding situations where it is necessary to protect the health of the person. This basically puts health related resources out of reach for reassignment treatments and surgeries unless a transgender person has already begun the reassignment process. Other than that, the primary effect of the order is order Secretary Mattis and the Secretary of Homeland Security to begin a study of whether and how the transgender military ban should take effect for both those already enrolled and those seeking to join. The study and recommendations would be due by February 21st, 2018 and all the provisions of the ban itself-including the bar on resources for reassignment treatments-will take effect on March 23rd, 2018.

Secretary Mattis’ Study is Not a Delaying Tactic or a Step For Transgender Individuals

While Mattis’ study has been reported as a defiant step to slow down President Trump’s order, it’s simply an act following the very terms of the order. What’s more, considering the Department of Defense already did a similar study concluding that transgender persons should be allowed to enter the military, a new study is unlikely to be anything other than a step backward for transgender people in the military.

Secretary Mattis does not exactly have the strongest background on social issues. He has expressed great concern in the past over women being in combat roles, never mind transgender women. He has cited a fear that women and men would interfere with each other on the battle field, as well as a belief that women can’t perform “intimate killing.” However, it can’t be denied that-regardless of his less than stellar history on social issues-Mattis wants as strong of a military as possible.

The study begun by Secretary Mattis is not a step forward for transgender persons in the military. However, there is still a real potential that if the study reconfirms the previous study he could recommend either postponing or eliminating Trump’s ban altogether. However, we’ve got several months to wait until we know whether this is the case. What’s more, we’re very unlikely to get much indication as to what the study will recommend-or if President Trump will even care-until that time. There’s a very real possibility that the recommendation is made and Trump simply ignores it.

The over 15,000 transgender people who chose to sign up to serve their country in the last year are, once again, left with no idea how their fate will be handled. Even beyond withholding health services from these people, there’s still the question of if or how they will be discharged. As mentioned in a previous article, Don’t Ask Don’t Tell led to dishonorable discharges which publically outed many as homosexual on the very form discharging them. These transgender persons may well face a similar fate. This uncertainty, more than admitting transgender persons to the military, has the potential to undermine the military itself. The sooner a resolution on this can come, the better. For now, thousands will be left to question their fate.

Are Tenants Displaced by a Hurricane Still Stuck with Rent?

The U.S has suffered two serious hurricanes in two weeks-Hurricane Harvey in Texas and Hurricane Irma in Florida. There have been deaths and injuries. Many have lost all they own, over 200,000 homes were destroyed in Texas alone. The victims of these hurricanes are in the thoughts of people around the country as they take steps towards rebuilding what they have lost. However, at least one victim of Hurricane Harvey, Rocio Fuentes, has faced another type of problem–late rent on her uninhabitable home.

Rocio Fuentes has reported to the media that her landlord has been seeking both rent and late fees on the rent for her home. This is coming at a time when Fuentes is struggling to find alternative accommodation and replace lost furniture and belongings. In speaking to the media, she has said that she and her family simply cannot afford this rent-they have nothing left.

The very idea that a landlord might demand rent could seem ludicrous at first glance. However, there are some legal situations where a landlord maintains the right to rent-however heartless this situation is-even where the property is seriously damaged. Let’s look at the rights of tenants and landlords in these sorts of situations. If you yourself are in a similar situation, or even facing a smaller issue than a hurricane flooding your house, knowing your rights as a tenant is extremely important.

hurricaneThe Rights of a Tenant

First and foremost, your rights are largely governed by you lease agreement. As you might imagine, when you sign a contract you are bound to its terms and a lease is no different. Make sure you read through any agreement before signing. Obviously, a tenant often has little to no negotiating power on the terms of a lease agreement. This means that many lease agreements are extremely unfavorable to tenants in terms of rights. However, you should know the terms of your own lease to know exactly what you may be on the hook for. What’s more, depending on where you live. There are often laws which expand or guarantee rights to a tenant regardless of the terms of a lease agreement.

For instance, in Texas where Ms. Fuentes lives, a landlord or tenant can terminate a lease immediately with a written notice where the property has been made totally unusable. Unfortunately for Ms. Fuentes, this doesn’t help much with rent she is already considered to owe under her lease. The truth is, if somebody is bound under a lease, then they are required to pay rent. Even in a circumstance as terrible as Ms. Fuentes. What’s more, Texas law only reduces rent where a disaster renders a property partially unusable. Determining whether a property is partially or totally unusable is not the simplest of determinations, and one a determined landlord could often bring to court.

There is one other legal doctrine which can be of use to those struck by these recent hurricanes, or even those with smaller issues rendering their property unlivable-the implied warranty of habitability. The implied warrant of habitability is a bit different depending on the state. However, it is essentially what it sounds like. No matter the lease agreement-verbal or written-courts will imply into the agreement a term assuring the tenant that the property they are going to live in is habitable. Where you let your landlord know a property isn’t habitable (often best done by an email with photo evidence), have evidence they know, and they do not fix the property within a reasonable time frame (often 30 days but the time varies depending on the problem), you have a number of options opened to you. First, you can simply move out and terminate the lease without punishment. If you make the repairs yourself, you can deduct the cost of the repairs-although usually not in an amount more than one month’s rent. You can also often, depending on where you live, withhold rent in an amount equal to the reduction in value caused by the issue effecting However, this last option is often quite risky. It is generally safer to pay rent, then sue for either the return of your rent or demanding your landlord make repairs. If you’re suing, it’s worth knowing that courts are much happier refunding rent than ordering repairs that they will have to supervise.

These options hinge on the fact that a court would consider the place you live to actually be inhabitable. If you withheld rent and a court thought differently, you’d be up a creek and likely facing down an eviction. So, what exactly constitutes inhabitable? This varies depending on where you live. Some states simply say that a building must be up to building codes to satisfy the requirement. Some use more nebulous terms such as “fit for human habitation” or “conditions which would be dangerous, hazardous, or detrimental, to life health or safety.” Some states, like California, have a number of specific requirements such as water and weather proofing, working plumbing, gas, heating, electrics, clean and sanitary grounds, a working shower, sink and toilet, etc. Each state has its own approach and the consequences of acting too soon can be great, so it’s always worth consulting a lawyer on issues such as this.

The Rights of the Hurricane Victims

A lot of this information may simply have come too late to be useful to those such as Ms. Fuentes. While state law may be able to help if her home is considered uninhabitable, both this and the warranty of habitability will be of little use for rent already owed. However, depending on the extent of the damages, she may be able to sue for an abatement in rent. From a practical standpoint, if the matter ends up in court the landlord certainly won’t look favorable before either a judge or a jury.

This is the tip of the iceberg when it comes to the legal issues that will spring out of a disaster like Hurricanes Harvey and Irma, even when it comes to landlord tenant law. Just think about all the security deposits on apartments that have been flooded. Will the tenants get those deposits back? What about situations where somebody breaks a lease by letting hurricane victims stay at their place? There’s a lot of rebuilding to be done here, but along with that will come a lot of legal conflict. Hopefully, this advice will be helpful to some facing these sorts of legal challenges. However, for now, the best we can do is keep these victims in our thoughts and reach out with support however we can.