Tenant Claimed Medical Hardship as Defense to Eviction:

January 5, 2022

Did Landlord Rebut Presumption of Medical Hardship?

During the Covid pandemic, a residential tenant claiming a medical hardship is protected from eviction. The tenant's claim is presumed to be true. But, as a recent case illustrates, the presumption is rebuttable.

Douglas Mintz and Lloyd Cheu sought to evict Louise Elton from a rent-free, stand-alone cottage on their property. The Court conducted a hearing to address the rebuttable presumption of the medical hardship claimed by Elton as outlined in Option B to Tenant's Declaration of Hardship During the COVID-19 Pandemic.

At the beginning of the hearing, the parties stipulated that Elton lived alone, was not over the age of 65, and did not allege a disability, which pertained to the criteria set forth in Option B. Accordingly, the scope of the hearing was whether vacating the premises and moving into new permanent housing would pose a significant health risk because Elton had an increased risk for severe illness or death from COVID-19 due to an underlying medical condition which might include but was not limited to being immunocompromised.

In response to a document request, Elton supplied letters from Alyssa Freeman, LMSW, and Jennifer Lehman, MD.

Mintz/Cheu had the burden of proof by a preponderance of the evidence. They called Elton as a witness who testified that, in January 2021 and in April 2021, she underwent surgery. While Elton had monitoring from medical providers and had experienced the side effects of treatment, she had not undergone any additional medical procedures.

In connection with the claimed medical hardship, Elton testified that vacating the stand-alone cottage on the property and moving into new permanent housing would pose a significant health risk because of an increased risk for severe illness or death from COVID-19 due to an underlying medical condition, which might include but was not limited to being immunocompromised.

Elton testified that the cottage in which she resided rent-free did not afford any unique or specific protection that any other stand-alone residence could afford. Elton was concerned about exposure to other people and testified that she had food delivered to her doorstep.

Respondent had not contacted any realtor who could assist her with locating another similar residence. Her attorney claimed that she was unable to meet with realtors to look at other locations. But since Elton appeared virtually for the hearing, the Court found that she could well have virtually communicated with realtors in her pursuit for another residence.

And because Elton withdrew the claim for financial hardship, the Court determined that she had the means to hire people to assist her in moving to another stand-alone residence, which would insulate herself from exposure to people. A medical condition alone was insufficient to demonstrate a hardship. A hardship also required some connection between that medical condition and a danger to moving. Hardship did not include health conditions by themselves, but to vacate the premises would pose a significant risk of severe illness or death from COVID-19.

Despite the medical procedure nearly a year before and the continuing treatment, Elton did not articulate a medical hardship where she would experience danger in moving.

The Court determined that Elton's claim for the medical hardship was invalid. So a stay of the eviction proceeding was not warranted.