A Citizen, Pro Se

MCS – Small Claims Court Emergency Possessory Order

CAUSE NO. 53C040811SC05172

[Anne E. Citizen],



Verified Motion for Emergency Possessory Order

·········Plaintiff, [Anne E. Citizen], acting pro se, moves the Small Claims Court, pursuant to Indiana Code 32-31-6-3, to issue an emergency possessory order to protect her from severe and lasting physical injury that she will suffer unless the Court recognizes her disability-related need for a Reasonable Accommodation and enjoins the Landlord from introducing toxic fumes into her dwelling. In support, Plaintiff states:

·········1. [Anne E. Citizen] (Tenant) has been a tenant at 2490 Winslow Ct, an apartment located in Building #1, Henderson Court Apartments (2475 Winslow Court, Bloomington, Indiana) since August 2000. Henderson Court is a HUD Project-based Section 8 property, and the indigent Tenant relies on her HUD subsidy for the entire amount of her rent. Tenant lives in one of four single-bedroom apartments that share an unventilated stairwell, and is largely homebound due to her disabling conditions.

·········2. SY Henderson Court Investors, LP, (Yarco) is a subsidiary of The Yarco Companies, with headquarters 7920 Ward Parkway, Kansas City MO 64114.

·········3. Yarco took possession of Henderson Court Apartments on June 16, 2008, after receiving approximately $10 million in government funding to acquire and renovate all apartments on the property.

·········4. Yarco’s planned renovations to Building #1 threaten the disabled Tenant with exposure to numerous and unknown construction chemicals, including toxic solvent fumes, which are recognized by the Federal government as causing immediate, severe, and lasting damage to the brain, kidney, liver, and multiple organ systems (see attached excerpts from Inhalant Abuse section of the National Institute for Drug Abuse -www.drugabuse.gov ).

·········5. Indiana Code 32-31-6-3 allows the Tenant to petition the Court for an Emergency Possessory Order if the landlord has violated Indiana Code 32-31-5-6, which governs access and possession’ of the rental unit. Indiana Code 32-31-6-4 states that such a petition must include an allegation specifying (1) the violation, act, or omission “caused or threatened” by the landlord and (2) the nature of the specific immediate and serious nature of the injury, loss, or damage that the tenant “has suffered or will suffer if the violation, act, or omission is not enjoined” by the Court. Indiana Code 32-31-5-6(c) states that “[e]xcept as authorized by judicial order, a landlord may not deny or interfere with a tenant’s access to or possession of the tenant’s dwelling unit by commission of any act including . . . causing termination of . . . essential services.” Yarco’s breach of Fair Housing law, the Indiana criminal code, and the HUD model lease has caused the ‘termination of essential services’ by removing the Tenant’s civil rights protections, including the right to Reasonable Accommodations. Deprived of her civil rights protections, the Tenant is threatened with serious and lasting physical harm unless the Court enjoins Yarco from introducing airborne toxic fumes into her dwelling.

·········6. By denying the Tenant’s repeated requests for Reasonable Accommodation, Yarco (1) has violated the civil rights which protect the Tenant’s full access to and possession of the dwelling and (2) has breached the lease by causing a’ termination of essential services’. Renovations in any of the apartments in Building #1, and in their shared stairwell, will introduce airborne toxic fumes into the area promised for [the Tenants] use by the lease. Yarcos use of construction chemicals in the apartments in Building #1s shared stairwell will unavoidably expose the Tenant to airborne toxic fumes which are known to cause severe and lasting multiple-organ damage even to non-MCS-handicapped people. Unless Yarco is enjoined from introducing these airborne toxic fumes into the Tenant’s ‘area’ (i.e., into the air she breathes), the Tenant’s ‘access to and possession of’ the dwelling will be seriously impaired, and she will suffer severe and lasting physical harm, up to and including a realistic possibility of death from Central Nervous System failure.

·········7. The Tenant meets the civil-rights definition of ‘disability’ found in all Fair Housing laws. Tenant also meets the terms established by HUDs 1992 Directive GME-0009, ‘Multiple Chemical Sensitivity Disorder and Environmental Illness as Handicaps’. HUD’s 1992 MCS Directive recognizes MCS as a ‘handicap’ warranting Reasonable Accommodation in housing, stating that “[s]ince it is critical that people with MCS and EI minimize their exposure to common substances found in or near most housing facilities, they generally face a significantly limited choice of housing.” (see attached HUD 1992 MCS Directive GME-0009)

·········8. Due to Tenant’s MCS, the construction chemicals used in Yarco’s renovation (1) will cause the Tenant severe and lasting physical harm (including brain damage, kidney and liver damage, and a realistic risk of death from solvent exposure) and (2) will interfere with her access to, and possession of, her dwelling. Tenant asks the Court to enjoin Yarco from introducing construction-related chemicals into the apartments in Henderson Courts Building #1 (and Building #1’s unventilated stairwell) in order to protect the Tenant from severe physical injury and allow her full and safe access to and possession of her dwelling.

·········9. Tenant has tried to protect her life, health, and safety by asserting her right under the Fair Housing Act to request a ‘Reasonable Accommodation’ that would protect her from exposure to construction chemicals. Yarco has ignored or denied repeated requests by the Tenant for Reasonable Accommodations to her MCS (see attached correspondence).

·········10. Yarco has been informed on several occasions that Tenant suffers from both Chronic Fatigue Syndrome (CFS) and Multiple Chemical Sensitivity (MCS), and that the Tenant meets the Fair Housing Act’s civil rights definition of ‘disabled’ (or ‘handicapped’) for both these conditions. Yarco has repeatedly denied the Tenant’s written and verbal requests for Reasonable Accommodation to her disability (MCS).

·········11. As a HUD Project-based Section 8 housing provider, Yarco has reason to know that the Fair Housing Act (FHA) requires landlords to provide Reasonable Accommodations to tenants who meet the Acts civil rights definition of disability. Yarco’s legal obligation to provide Reasonable Accommodations is repeated in FHA-based laws at the state and local level, as well as the regulations in HUD Handbook 4350.3 and in the HUD model lease. Yarco’s violation of Fair Housing laws and its breach of the HUD model lease place the Tenant’s life and physical safety at risk.

·········12. Yarco is obligated by law to provide ‘Reasonable Accommodations’ to disabled tenants by the Fair Housing Act (24 CFR), Section 504 (8 CFR), the Indiana Fair Housing Act (Indiana Code 22-9.5). The language of these Federal and State laws is echoed in Bloomington’s City Ordinance prohibiting housing discrimination, which, in 2.21.095(4)(D), defines “[r]efusing to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a tenant with a disability . . . equal opportunity to use and enjoy a dwelling,” as a ‘discriminatory action,’ and therefore as a violation of civil rights (Bloomington 2.21.020). ‘Discriminatory actions’ under FHA-based laws are deemed civil rights violations, and the Indiana Code recognizes the violation of civil rights by government-subsidized landlords as a Class B misdemeanor:

IC 35-46-2-1 Violation of Civil Rights:A person who knowingly or intentionally denies to another person, because of . . . disability . . . the full and equal use of the services, facilities, or goods in . . . (2) a housing project owned or subsidized by a governmental entity; commits a civil rights violation, a Class B misdemeanor.

·········13. Under Fair Housing laws, Reasonable Accommodations (and Reasonable Modifications) are intended to ensure that dwellings remain accessible, safe and useable by disabled individuals, and that tenants access and possession are not impaired because of their disability. The standard legal term of ‘access’ to a dwelling is expanded by Fair Housing laws to ensure that a disabled person has the same level of access and use as a non-disabled person has. Because each disabled persons’ needs are different, the definition of ‘accessible’ will vary depending on the specific disability-related needs of the individual. Indications on the intended meaning of ‘access’ and ‘accessible’ in relation to disabled people can be found in the Glossary of HUD Handbook 4350.3:

Accessible (FH Act) When used with respect to the public and common use areas of a building containing covered multifamily dwellings, means that the public or common use areas of the building can be approached, entered, and used by individuals with physical impairments (handicaps). The phrase readily accessible to, and usable by, is
synonymous with accessible. . . . [24 CFR 100.201]

(Section 504)
When used with respect to the design, construction, or alteration of a facility or a portion of a facility other than an individual dwelling unit, means that the facility or portion of the facility, when designed, constructed, or altered, can be approached, entered, and used by individuals with a physical impairment (handicaps).1 The phrase accessible to, and usable by, is synonymous with accessible. [24 CFR
. . . When a unit in an existing facility . . . is intended for use by a specific
qualified person with a disability (handicaps) (e.g., a current occupant
of such unit . . . ),
the unit will be deemed accessible if it meets the requirements of applicable standards that address the particular disability or impairment of such person. [24 CFR 8.3]

Accessible Route
(FH Act)
A continuous unobstructed path connecting accessible elements and spaces in a building or within a site that can be negotiated by a person with a severe disability using a wheelchair and that is also safe for and usable by people with other disabilities. . . .

·········14. An apartment infiltrated by airborne toxic fumes from nearby renovations is neither ‘safe’ nor ‘useable’ for a person handicapped by Multiple Chemical Sensitivity. An apartment and stairwell that is not safely useable by an MCS-handicapped tenant is ‘inaccessible’ under Federal standards for disability civil rights protections. Yarco’s proposed renovations put the homebound, disabled Tenant at risk for irretrievable brain damage, multiple organ damage, and possible death if she does nothing more that stay in her apartment and breathe.

·········15. Indiana Code 32-31-3-8(2) defines a ‘rental unit’ as “any grounds, facilities, or area promised for the use of a residential tenant . . .. ” The phrase ‘area promised for use’ would logically include the air enclosed in the area promised for use — in this case, in the Tenant’s apartment and the stairwell she shares with three other apartments. Thus, air that can be safely breathed, without inducing physical harm, can be seen as a vital essential service for a tenant with MCS. The Tenant’s repeated requests for Reasonable Accommodation have been attempts to ensure that the air she breathes does not contain toxic fumes that are especially dangerous to her because of her disability of MCS.

·········16. The HUD model lease between Yarco and the Tenant contains specific civil rights protections. Lease Item 21 states “. . . The Landlord agrees to provide reasonable accommodation to an otherwise eligible tenant’s disability, including making changes to rules, policies, or procedures, and making and paying for structural alterations to a unit or common areas. . . ..”

·········17. Lease Item 21 makes it plain that HUD intends that Reasonable Accommodations are to be considered a standard and essential service that will allow disabled tenants to have full access to, and full enjoyment of the possession of, their HUD-subsidized dwellings. In denying the Tenants requests for Reasonable Accommodation, Yarco has ‘terminated’ an ‘essential service,’ thus interfering with the Tenant’s access to and possession of her dwelling.

·········18. As a HUD Project-based Section 8 housing provider, Yarco is also obligated to comply with the regulations regarding ‘Reasonable Accommodations’ set forth in HUD Handbook 4350.3, and in the HUD model lease required by the Handbook for all Project-based Section 8 properties.

·········19. By denying the Tenant the requested Reasonable Accommodations, Yarco has performed discriminatory actions and has breached the terms of the HUD model lease (see Lease, attached). Yarcs actions are in breach of Lease Items 12, 21, 22 and 26:

HUD model lease terms breached by Yarco:

12. Restrictions on Alterations: […] The Landlord agrees to provide reasonable accommodation to an otherwise eligible tenant’s disability, including making changes to rules, policies, or procedures, and making and paying for structural alterations to a unit or common areas. […]
21. Discrimination Prohibited: The Landlord agrees not to discriminate based upon . . . disability.
22. Change in Rental Agreement: The Landlord may, with the prior approval of HUD, change the terms and conditions of this Agreement. […. Note that proposed lease changes must be submitted to a lengthy approval process, and that (per Handbook 4350.3) HUD is not permitted to approve changes to civil rights protections. Note also that HUDs notification requirements regarding changes to the lease are more stringent that those found in the Indiana Code.]
26. Contents of this Agreement: This Agreement and its Attachments make up the entire agreement between the Landlord and the Tenant regarding the unit.

·········20. By denying the Tenant’s requests for Reasonable Accommodation, Yarco has performed discriminatory acts, thus breaching Lease Items 12 and 21 and removing the Lease’s specific disability-related civil rights protections. Yarco’s breach of Items 12 and 21 has created a de facto change in the rental agreement, thus (1) violating IC 32-31-5-4 (which requires a 30-day written notice before changing the Lease) and (2) breaching Lease Item 22. HUD intends its model lease, including its civil rights protections, to be the ‘entire agreement’ between Project-based Section 8 landlords and tenants. By its de facto alteration of the HUD model lease, Yarco has effectively substituted a lease which does not contain civil rights protections for disabled tenants (or, at least for this MCS-handicapped tenant). Yarco’s termination of the essential service of civil right protections for the disabled Tenant interferes with the Tenant’s access to and possession of the dwelling.

·········21. As a HUD Project-based Section 8 housing provider, Yarco processes ‘certifications’ of each tenant’s eligibility for ongoing HUD subsidization, based on income and expenses. This information is summarized on HUD Form 50059 (see attached), which is transmitted to HUD along with other relevant material. HUD then commits one year’s worth of funds to the housing provider. Those funds are then disbursed on a month-by-month basis by HUD to the housing provider. Yarco is currently receiving $622 per month to subsidize the Tenant’s apartment. HUD assumes that its Section 8 housing providers will comply fully with Fair Housing laws, with HUD Handbook 4350.3, and with the terms of the HUD model lease — all of which require Yarco to provide Reasonable Accommodations to disabled tenants. Yarco took possession of Henderson Court Apartments on June 16 2008, and within the week had ‘terminated’ the Lease’s civil rights protections. Yarco nevertheless continues to receive Federal funds even while out of compliance with Federal requirements.

·········22. ‘Constructive eviction’ is considered a remedy for tenants when a landlord has either breached the lease or has created unsafe, uninhabitable living conditions. ‘Constructive eviction’ is not a possibility for the Tenant, due to her extreme poverty. Henderson Court’s records on the Tenant will show that she has lived without reportable income (i.e., no regular income of any sort, depending on small, sporadic gifts for day-to-day needs) for the entire eight years of her residency. HUD subsidizes the entire amount of her rent and allows her a $50/month utility allotment (currently $572/month rent, plus $50 utility allotment = $622/month HUD subsidy — see attached HUD form 50059).
·········23. Tenant is unable to find comparable housing. During July-August 2008, the Tenant made diligent search for other subsidized housing in Bloomington and Monroe County. Bloomington’s Public Housing Authority, the only other potentially available housing with a similar subsidy, had a minimum six-to -nine-month waiting list for single-bedroom apartments — meaning that no housing would become available until after Yarco’s planned renovations had been completed, and after the Tenant had already been exposed to construction chemicals. Landlords in Bloomington would not be likely to accept a tenant with no income and no chance of future income. Section 8 vouchers (which attach the HUD subsidy to a person, rather than to an apartment complex) are not available due to funding cutbacks. The Tenant has no possibility of finding housing if her HUD-subsidized housing is lost, and the Tenant would not survive long as a homeless person.

·········24. Unless ordered and enjoined by this Court, Yarco will knowingly and recklessly introduce airborne toxic fumes into the dwelling of a person known to be handicapped with Multiple Chemical Sensitivity, thus interfering with her rights of access to and possession of the dwelling and exposing her to serious bodily harm.

·········25. An emergency possessory order is absolutely necessary to preserve the Tenant’s life, health, safety, housing and rights under the HUD model lease, given Yarco’s baseless and illegal denial of her civil rights protections and its violations of the law and the Lease.

·········26. The harm to the Tenant, as described above, if an emergency possessory order is not granted, far outweighs the harm to Yarco if this Motion is granted.

·········27. The interests of the public will not be disserved by the granting of Plaintiff’s Motion.

WHEREFORE, Plaintiff requests that:

A) Yarco be restrained from breaching the Lease agreement;
B) Yarco be restrained from introducing construction-related chemicals into any of the four units in the shared stairwell, or into the stairwell itself, in Henderson Court Apartments Building #1, until adequate provisions have been made for the Tenant’s protection from airborne fumes;
C) Yarco be ordered to comply with the Reasonable Accommodation requirements of both Fair Housing laws and of the HUD model lease;
D) Yarco be ordered to enter into negotiations with the Tenant, those negotiations to be mediated by Bloomington’s Community Justice and Mediation Center (CJAM), regarding the terms of a Reasonable Accommodation which will meet the conditions established in the Fair Housing Act, HUD Handbook 4350.3, and the HUD/DOJ 2004 Joint Resolution on Reasonable Accommodations Under the Fair Housing Act (attached).
D) If no mediated agreement can be reached, that Yarco shall pay to the Tenant damages in the amount of $6000 to compensate for the mental and emotional anguish caused by Yarco’s denial of her civil rights, and to allow her to search for comparable housing;
E) The Court set a hearing on this Motion no later than three business days as required under Indiana Code 32-31-6-5;
F) The Court award attorney’s fees and costs in accordance with Indiana Code 32-31-8-6(d)(1); and
G) And for all other relief the Court finds appropriate in the premises.

AFFIRMED UNDER PENALTIES FOR PERJURY this 31st day of October, 2008

[Anne E. Citizen], Plaintiff, Pro Se


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