Author Archives: James A. Bacon

Use the Tenant’s Money to Cure the Tenant’s Rent Shortfall

by Martin Wegbreit

Recently, Virginia drew national attention for reportedly high eviction rates, especially in central Virginia and Hampton Roads. This has inspired many efforts to address the issue. These include a Campaign to Reduce Evictions, an evictions workgroup at the Virginia Housing Commission, and a possible Eviction Diversion Program in Richmond and elsewhere. These initiatives may result in changes that decrease the number of evictions and benefit both tenants and landlords.

One partial solution requires no change at all: Use the tenant’s money to cure the tenant’s rent shortfall. The Sunday April 8, 2018, New York Times article about evictions reported that the median amount owed in a non-payment of rent eviction in Richmond was $686. By contrast, a Virginia landlord may hold a security deposit of up to two months’ rent. With an average monthly rent in Richmond of $1,269, a typical landlord may hold around $2,000 of the tenant’s money.

And the security deposit is the tenant’s money. It is not the landlord’s money. The landlord is a fiduciary, or a trustee, holding the tenant’s money and using it only for a permissible purpose.

In most cases, the tenant’s security deposit is not an issue until the tenant has moved and been gone for 45 days. During that time, the landlord either must refund the security deposit or provide a written accounting for how the funds were used, or some combination of the two.

A Virginia landlord also may use the security deposit during the tenancy for any permissible purpose. This includes payment of rent owed. The law, part of Code of Virginia §55-248.15:1, is clear: “The landlord shall notify the tenant in writing of any deductions provided by this subsection to be made from the tenant’s security deposit during the course of the tenancy. Such notification shall be made within 30 days of the date of the determination of the deduction and shall itemize the reasons.”

In 38 years of legal aid practice in Virginia, I never have seen or heard of a landlord deducting a rent shortfall from the security deposit, and seeking a repayment plan to replenish the funds, rather than undergo the time and expense of filing a non-payment of rent eviction. Unquestionably, tenants who intentionally or habitually fail to pay their rent deserve an eviction lawsuit, a judgment of possession, and eviction by the sheriff. But true hardship cases ought to be treated more humanely. Use the tenant’s money to cure the tenant’s rent shortfall.

A tenant’s non-payment of rent should not be subject to a “one size fits all” solution of an eviction lawsuit. Landlords have in their own hands a partial solution to lower eviction rates. Treat tenants like customers, not like a commodity to be disposed of whenever a problem arises.

Martin Wegbreit is director of litigation for the Virginia Legal Aid Society.

Hurricanes, Solar Panels and Construction Standards

The 2017 hurricane season wrought immense destruction to the electricity grid across the West Indies, most visibly in Puerto Rico, the U.S. Virgin Islands and Barbuda. Not only did high winds knock down power lines, they tore away solar panels that otherwise could have provided power after the storm clouds parted. In contrast, finds the Rocky Mountain Institute (RMI), solar facilities in the British Virgin Islands, the Turks & Caicos, and St. Eustatius, survived winds reaching 180 miles per hour.

What was the difference? Installation standards.

RMI sent structural engineering teams to the Caribbean to find out why some solar structures survived nearly unscathed while others disintegrated.

The teams noted similarities between the failed systems, including module clamp failures, undersized racks, undersized and under-torqued bolts, a lack of bolt locking solutions, and a lack of lateral racking support. On the flip side, the systems that survived had the modules through bolted (no clamps), bolts with locking solutions, and lateral racking supports.

Making solar arrays more resilient in the face of natural disaster in the Caribbean would add only 5% in engineering, procurement, and construction, PMI estimates.

The Caribbean is far more exposed to hurricanes than Virginia is, but the questions PMI raises are certainly relevant here as the Commonwealth embarks upon an unprecedented build-up of solar capacity. Virginia could be getting as much as a quarter of its electric power from solar within 20 or 30 years. We want to make sure that power comes back on after a natural disaster.

What construction standards would be required to ensure that solar panels held up to a hurricane? Would the same standards need to apply across the state, or could they be relaxed for solar capacity farther from high-speed winds along the coast? How resilient would Virginia’s electric grid be if a hurricane knocked out 10% or 20% of the state’s solar capacity? Could we import enough power from elsewhere in the PJM Interconnection grid? How much would it cost to protect against a worst-case scenario?

As Virginia moves towards a solar future, I would think that these questions are worth asking.

Maps that Should Terrify Republicans

Building on Don’s post from earlier this morning (“Does the RPV have the guts to scuttle the GA?”), I would add to the list of fundamental changes Republicans should seek to enact before they lose control of the General Assembly  — redistricting reform.

Here’s what Virginia’s congressional districts look like now after Republican gerrymandering, according to the FiveThirtyEight blog Atlas of Redistricting: Five Republican-leaning districts, four Democratic-leaning districts, and two swing districts.

Here’s what the congressional map would look like after the districts are gerrymandered to favor Democrats: Seven Democrat-leaning districts and four Republican-leaning districts.


And here’s what the districts would look like if drawn to be geographically compact without favoring either party: three Republican-leaning districts, three Democratic-leaning districts, and five competitive districts.


What are the chances of seeing something resembling the third map? About zero. Republicans will cling to the hope that they can miraculously hold on to a General Assembly majority and control of the redistricting process. Democrats smell blood in the water, and they will be satisfied with nothing less than the second map.

As always, Virginia will remain a state where politicians pick their voters, not a state where voters pick their politicians.

No Excuse for Immigrant Child Abuse

From the outside, the Shenandoah Valley Juvenile Center in Staunton doesn’t look like a hellhole. What goes on inside?

Governor Ralph Northam has ordered state authorities to investigate allegations that guards at the Shenandoah Valley Juvenile Center beat and otherwise abused children held at the immigration detention facility. The claims, if true, are shocking and must be addressed immediately.

Allegedly, teenagers were restrained, handcuffed, and made to sit with bags over their heads. Some were stripped of their clothes. Some were locked in solitary confinement, some beaten, left with bruises and broken bones and kept shivering in concrete cells. Frankly, I find the accusations, included in a federal civil rights lawsuit, hard to believe. But Northam is surely right to look into the charges. If they are accurate, such treatment cannot be tolerated, and someone needs to be held accountable.

According to the Associated Press, U.S. immigration authorities accused the children of belonging to violent gangs, including MS-13. But a top manager at the Shenandoah center said in recent congressional testimony that they did not appear to be gang members, and that they were suffering from trauma suffered in their home countries — problems the facility is ill-equipped to deal with.

That observation suggests that if the charges are true, critical context may be missing from the lawsuit and sworn statements. Perhaps these teens are prone to outbursts of anger and violence. Perhaps the detainment center lacks appropriate facilities for handling such behavior. Perhaps staff was at wit’s end on how to maintain order. Whatever the case and whatever the mitigating circumstances, we need to find out what’s happening and fix it.

Permit me a philosophical observation: The United States is a sovereign state and a nation of laws. We decide through the political system who is allowed to enter the country and who cannot, and then we enforce the laws. We may or may not like the laws, but we don’t get to pick and choose which ones we enforce. (Got that, sanctuary cities?) The principle of enforcing the law applies both to immigrants who enter the country illegally and to the law enforcement authorities themselves. There is no excuse for beating and abusing detained immigrants.

I would feel much more comfortable with hard-line immigration-control policies if the people who espoused them didn’t also demonize the would-be immigrants. I don’t blame Central Americans for wanting to escape the horrors of their home countries or even to make a better living by entering the U.S. any way they can. If I were in their shoes, I might well do the same thing. Their predicament warrants sympathy and compassion. But that doesn’t give them the right to enter the country illegally. The world is full of miserable, abused and suffering people. We can’t take them all. If we catch people entering the country illegally, we treat them humanely… and then send them back. If we don’t like the laws on the books, we change them.

A Partial Defense of RRHA Eviction Policies

Creighton Court, a public housing project run by the Richmond Redevelopment and Housing Authority. Photo credit: Richmond Magazine.

I never thought I’d find myself defending the Richmond Redevelopment and Housing Authority (RRHA), which I criticized last year for running up a $150 million maintenance backlog on its 4,000 public housing units. But the wheel of public policy debate turns in unexpected ways. Now, RRHA is being dinged for its high eviction rates.

Here’s the background courtesy of the Richmond Times-Dispatch:

Evictions in Virginia drew national attention earlier this year after a New York Times report on a nationwide study done by Princeton University’s Eviction Lab showing Richmond as having the second-highest eviction rate in the country, with Hampton, Newport News, Norfolk and Chesapeake also in the top 10.

How the agency chooses to pursue those who do not pay rent on time was the subject of a Richmond Times-Dispatch analysis, which determined no landlord in Virginia threatened to kick out more of their tenants last year than RRHA.

Needless to say, many if not most residents of Richmond’s public housing projects are living on the edge. They’re the poorest of the poor, subsisting on minimum wage jobs if they work at all. Sure, some may qualify for food stamps, earned income tax credits, Medicaid, the Children’s Health Insurance Program, Temporary Assistance for Needy Families, energy assistance, free cell phones, housing subsidies, legal aid, and other government-welfare benefits, not to mention soup kitchens, toys for tots, private-school scholarships, and a panoply of charitable programs, but their lives tend to be chaotic and they live paycheck to paycheck. All it takes is one financial setback, and they can’t find money for rent.

As the housing provider of last resort, RRHA arguably has the least credit-worthy customer base of any landlord in Virginia. I’m not the least bit surprised that it has the highest eviction rate.

Let’s ask ourselves, what would happen if RRHA adopted practices, either voluntarily or under compulsion of state law, to curtail evictions by means advocated by tenant-rights groups? What if RRHA extended the length of time for tenants to come up with the cash?

First, would late payments and eviction rates noticeably decline, or would tenants just adjust expectations push up against the new limits like they pushed up against the old?

Second, would RRHA suffer a diminution of cash flow?

And, third, if it did, what would be the consequences? Would RRHA have less money to pay for desperately-needed repairs? Put another way, to what extent would showing clemency to those who fail to pay their rent on time impact negatively those who do?

My problem with social justice warriors is not that they have compassion for poor people (some of whom deserve compassion and some of whom don’t), but that they propose remedies without taking into account the unintended consequences. No one knows the answers to the questions raised here. Some unintended consequences are entirely foreseeable, but no one seems to care.

What Now for Separation of American Women from their Children?

Growth in U.S. female incarceration. Image credit: Prison Policy Initiative

Some 25 years ago I was living in Church Hill, then a sketchy Richmond neighborhood in the early stages of gentrification. One night police lights were flashing in my front window, so I stepped outside to see what was happening. Halfway down the block, a woman on the sidewalk was clutching an infant and bawling as police were confronting her. The police, it transpired, were arresting her on a charge relating to activities in her abode, a notorious crack house, and they had to haul her downtown. “Please don’t take my baby!” she wailed. “Please don’t take my baby!”

Curious, I inspected the premises. Other than a mattress on the floor, the house was bereft of furniture. The stink of dirty diapers permeated every room. I shuddered to think what kind of care the baby was receiving from a crack-addict mother. And I kept thinking, lady, if you don’t want to be separated from your baby, you should have thought about that before you started smoking cocaine. Even so, it was impossible not to feel compassion. The woman’s addiction had not smothered her maternal instinct. She was truly piteous.

I fully confess my ignorance of the inner workings of the U.S. criminal justice system, but it is my impression is that there was nothing unusual about the scene I witnessed, and that nothing significant has changed in the administration of justice since. If a woman is arrested for breaking the law, she is charged with a crime and taken to jail, where she may or may not get bail. She is held there until her trial. If found guilty, she goes to prison. As an inevitable part of the process, the mother is separated from her children, often for a considerable length of time. 

In 2015 the Virginia prison system incarcerated 3,236 female inmates. (A roughly equal number were held in local jails.) The most frequent offenses, according to the Richmond Times-Dispatch, were larceny/fraud (38%); drug sales (14%); robbery (8%); and drug possession (6%). The racial breakdown: 62% white and 37% black. The average age was almost 38. Sixty-two percent were separated from minor children.

The criminal justice system has been separating women from their children pretty much forever. The system has procedures for providing care for the children — handing them over to relatives, holding them in orphanages, placing them in foster homes. There may be other options I’m not familiar with. While that system has been subject to criticism from time to time — sometimes children fall between the institutional cracks — I don’t recall anyone objecting to the underlying necessity of removing children from women who are charged and convicted of crimes.

Even a recent study by the leftist Prison Policy Initiative, which absurdly manages to find injustice in the treatment of women in a prison population in which 90% of the inmates are men, mentioned the issue of children only in passing, and mainly in the context that female inmates should be allowed more face-to-face time with them.

Now, over the course of a two or three weeks, the nation has totally flipped on the issue — not out of concern for American citizens caught in the criminal justice system, but for families seeking to enter the country illegally. All of a sudden, it’s an affront to the country’s moral conscience that children are separated from mothers being held in detention while awaiting adjudication. My point is not to criticize or defend the behavior of either President Trump or his enemies in the media, but to explore the implications of this new way of thinking for the administration of criminal justice here in Virginia.

If it is a shocking violation of American values to remove children from parents entering the country illegally, is it a shocking violation of American values to do the same with American citizens breaking state laws? If justice requires ending the practice for Guatemalans and Salvadorans entering California, does logic now impel us to do the same for Americans here in Virginia? If so, are we morally obligated to overhaul Virginia’s criminal justice system so mothers are never again separated from their young children before they are convicted of a crime and sent to prison?

Taking President Trump out of the equation so we can think calmly and rationally, not viscerally, what criteria do we apply? What is the proper balance between having a humane criminal justice system and one that expeditiously carries out the laws of Virginia? Do we apply one set of rules to immigrants and a harsher set of rules to native-born Americans? Or do we overhaul criminal justice across the board, not just at the border? I don’t see how we avoid asking these questions now.

Tenant-Rights Activists, Meet the Housing Shortage

Source: Joint Center for Housing Studies

The debate over tenant evictions is gaining traction now that the Virginia Housing Commission has taken up the issue. Two concrete proposals were put before the Commission during a Tuesday hearing. One would extend the time from five days to two weeks before rent is declared to be late. A second would give tenants more time to pay late rent before they are evicted.

Advocates for tenants rights and landlords differed over the wisdom of these proposals, and discussion bogged down when it became evident that there was insufficient data to determine what impact the proposals would have, reports the Daily Press.

Apparently, a critical question was never asked — why are rents rising and making housing so unaffordable for the poor and near poor?

Hopefully, members of the Virginia Housing Commission will pay heed to a new report issued by the Joint Center for Housing Studies at Harvard University, which illuminates how supply and demand are driving up housing prices and making rent increasingly unaffordable for lower-income Americans across the country. While the housing crisis is most acute on the West Coast and in the Northeast, the problem is getting worse almost everywhere, including Virginia.

As can be seen (if you squint) in the map above, the ratio of housing prices to incomes in the Hampton Roads, Richmond, Lynchburg, Roanoke, Blacksburg and Bristol metropolitan areas is between 3.0 and 3.9 — less oppressive than in many other metros. But in the Washington (Northern Virginia), Winchester, Charlottesville, and Staunton MSAs, the ratio is between 4.0 and 4.9 — on the high side.

Digging deeper, the Harvard study shows that the percentage of renting households experience a significant “cost burden.” Virginia metros aren’t the worst in the country by this measure, but they’re far from the best, as can be eyeballed below.


The root cause of unaffordability is that home building is not keeping up with population growth. Given widespread zoning barriers to new construction, developers focus their efforts on projects with the highest profit margins — housing that can be sold for higher prices to higher-income households. But the problem runs even deeper. Most localities have zoned entire categories of affordable housing out of existence. Single Room Occupancy buildings are outlawed almost everywhere. Boarding houses are illegal. Granny flats and garage apartments are discouraged in many localities. It is exceedingly difficult to get permission to build new trailer parks. Middle-class voters don’t want poor people living near them, and they wield the power of the state to protect their property values.

Tenant-rights activists are targeting the wrong problem. If they make it more difficult for landlords to collect their rent, landlords will convert their rental properties to more profitable uses — thus aggravating the housing shortage for the poor. Activists moved by the plight of the poor need to stop attacking symptoms and address the root problem: zoning restrictions that cause the housing shortage. Otherwise, they’re really helping no one.

Transparency Coming for College Financial Aid

Last week I blogged about the confusion engendered by many colleges and universities when they send students details of their financial aid packages along with their acceptance letters. The terms and conditions spelled out are often opaque and sometimes deceptive. “If Congress doesn’t act,” I suggested, “the Commonwealth of Virginia could require a standardized letter for all state institutions.”

It turns out that Virginia is moving in that very direction. Beverly Covington, SCHEV’s legislative liaison, informs me that the General Assembly has instructed SCHEV in its budget language to review their financial-aid award letters.

“During this review,” reads the budget, “the Council shall identify opportunities for improvement as well as best practices for … clarity and completeness of the information provided on gift aid as well as students’ responsibility regarding student loans or work study.” 

SCHEV will develop policies to make the following information  available to the student: (1) a breakdown of the components of the institution’s cost of attendance, designating billable charges; (2) a clear identification of each award, indicating the type of aid; (3) the use of standardized terminology consistent with the National Association of Student Financial Aid Administrators; and (4) whether awards are condition and what the criteria are for renewal.

The Council shall report findings to the House Appropriations and Senate Finance Committees by Dec. 1, 2018.

Also, notes Covington, the General Assembly authorized SCHEV to create an office of the student loan ombudsman. The Council is currently working to fill the position.

Bacon’s bottom line: Needless to say, this is all very positive. Higher-ed institutions need to provide students the information they need to make informed choices. I’m delighted to see Virginia taking the lead in consumer transparency.

The cost of attendance at Virginia institutions of higher education is still way too high, and there is no substitute for bringing soaring tuition, fees, room, and board under control. But at least students will have a clearer idea now of the financial commitments they are making. We should see fewer young people finding themselves over their heads financially, dropping out, and floundering in thousands of dollars in debt they can never repay.

Remembering Tim Kaine’s Caribbean Vacation

by D.R. Rippert

Rolexes in Paradise. Ask most people about former Virginia Governor Bob McDonnell and the first thing you’re likely to hear is, “You mean Governor Rolex?” or some other reference to his trial and conviction on bribery charges. The fact that the U.S. Supreme Court unanimously overturned the conviction doesn’t matter. McDonnell’s once promising political career was left in ruins by the Obama Administration’s DoJ and a conflicted trial judge who erroneously instructed the jury on the definition of “official acts.” In McDonnell v. the United States the U.S. Supreme Court rules that “official acts” within the context of federal bribery statutes do not include such things as merely setting up meetings, calling another public official or hosting an event. The U.S. Supreme Court never ruled as to whether an “official act” would be the appointment of a gift donor to a prestigious state position because McDonnell never did that. Governor Tim Kaine, however, did.

The Virginia Way. First things first, the Old Dominion has mastered the art of legalized corruption. Politicians can pocket extravagant gifts from favor seekers, campaign contributions are unlimited and can be spent on virtually anything, the list goes on. So it was certainly legal for former Governor Kaine to accept  $160,000 worth of gifts during his single four year term. He took $5,500 in free clothes from a now bankrupt menswear company. A global pharmaceuticals company paid $12,000 for him to attend a meeting in Aspen. He even got over $45,000 in travel and lodging from Obama for America to help campaign for Obama while still pretending to be Virginia’s Governor. However, there was one gift in particular that should have landed him in the same hot water as McDonnell … a Caribbean vacation on a private island.

Warm your bones in the Sun, Tim my boy. After a long campaign Tim Kaine won the governorship in 2005 and was looking for a bit of a rest before assuming office. He didn’t have to look far. One of Kaine’s benefactors, Charlottesville tech investor James B Murray Jr, had just the solution – his home on the private island of Mustique. Mustique is owned by a company that, in turn, is owned by the home owners of Mustique. Frequented by Princess Margaret, Tommy Hilfiger, Mick Jagger and David Bowie Mustique was the perfect getaway for the Kaine family. And best of all, it wasn’t going to cost them anything to stay there. Off they went.

Tim has an appointment to keep, err … make. So far this story about former Governor Kaine is pretty tame by Virginia standards. Kaine won the election, the world is his oyster, gift givers are lining up to bless the “king” with tokens of their endearment and affection. Business as usual in America’s most corrupt state. But on April 10, 2006 in one of his first acts as governor Tim Kaine decides to re-appoint James B Murray Jr (of Mustique fame) to the Board of the Virginia Commission on Higher Education. This commission reviews potential appointees to the governing bodies of Virginia’s public higher education institutions. One can only imagine how socially popular these commissioners must be among the hoi palloi of Virginia’s horsey set as they vie for a seat on this or that board of visitors. Today, James B Murray Jr is the Vice Rector of the University of Virginia and helpfully told the Cavalier Daily, “It might be desirable if the process were entirely apolitical, but it is highly politicized and always has been.” My translation? Send the Kaine family on a nice vacay and you get appointed to play kingmaker.

Militarizing the DoJ. Nobody accused Gov Bob McDonnell of appointing donor Jonnie Williams to anything. What he was accused of doing was unanimously rejected as an “official act” in the context of federal bribery statutes by the U.S. Supreme Court. Gov Kaine took a lovely gift and then quickly re-appointed the gift-giver to a prestigious state board. Isn’t that more of an “official act” than anything McDonnell did? So, why the disparate treatment? The answer has become increasingly clear in recent months as the Obama Administration’s use of various federal agencies for partisan political purposes has come to light. The IRS, The DoJ, The FBI, even the FISA Court – all tools of political persecution in hands of an unscrupulous president. Did anybody do anything illegal? Maybe, maybe not. But does it seem right that one governor has his political career destroyed for seemingly less of an offense than the prior governor / U.S. Senator /  Vice Presidential candidate committed? Let’s hope somebody asks Tim Kaine that question as the U.S. Senate race unfolds.

Virginia Is for Psychos

I don’t know how good the social science is, but this is too good to pass up. A study by Ryan H. Murphy, an economics professor at Southern Methodist University, has ranked the 48 contiguous U.S. states by “psychopathy,” or anti-social behavior.

It is disconcerting to see the Old Dominion ranking No. 10 on the list. Are Virginians that whacko? Perhaps so — and I have a theory to explain it. Murphy eliminated Washington, D.C., from the ranking because its standardized score was off the carts — almost twice as high as the highest-ranking state, Connecticut. My theory is that psychopathic behavior in D.C. spills over into the Maryland and Virginia suburbs. Please note that Maryland is ranked No. 11, right behind Virginia. I hypothesize that the Old Dominion’s score was diluted by regions of state that are sociologically similar to neighboring North Carolina, West Virginia, and Tennessee, among the least psycho states in the country. If we could isolate Northern Virginia, we would find that it is almost as loco as D.C.

Treading where Murphy dared not go, I have correlated each state’s psychopathology “Z score” with its vote for Hillary Clinton in the 2016 presidential election.

Clearly, there is correlation between psychopathy and voting for Hillary! The R² suggests that 27% of the variability between states can be explained by the relationship between the two variables. Haha!

Hey, don’t look at me. It’s not my data. I’m just plotting the correlation.

OK, OK, I’m peddling junk science. There may be other explanations. Except for the outlier of Wyoming, there appears to be a strong correlation between urban states and the presence of anti-social traits in the population. Urban centers are more transient than small towns and rural areas. People are more anonymous and have weaker social bonds. For entirely distinct reasons, urban areas also lean left politically. The correlation is between psychopathy and urbanism, not psychopathy and liberalism.

If we could show that the psychopaths, not the urban populations where they live, vote for Democrats, we might on to something. Until then, I’m just playfully engaging in the same kind of nonsense as social scientists who purport to show that liberals are smarter, better informed or otherwise more virtuous than conservatives.