A couple threatened with eviction from a Brookhaven apartment is fighting back in court, saying the landlord wanted to punish the wife for organizing other tenants to complain to management and to city officials about poor living conditions.

Alejandra and Yair Hernandez, the parents of five children, were notified in October they were being evicted from their home at the Reserve at Brookhaven apartments. Property managers allege the family repeatedly violated rules, such as leaving trash bags outside their front door and putting bikes and toys on their balcony. The apartments are at 1750 Briarwood Road, a stone’s throw from a trailhead for the new Peachtree Creek Greenway at 1793 Briarwood Road.

Alejandra Hernandez, left, with her attorney, Esther Graff-Radford, following their Feb. 19 hearing in DeKalb County Magistrate Court. (Dyana Bagby)

Attorney Esther Graff-Radford filed a counterclaim on behalf of the Hernandezes in DeKalb County Magistrate Court. She says the eviction was illegal because the landlord, Primestone Fifeco Realty Fund LLC, was retaliating against Alejandra Hernandez and her family. The lease is in Yair Hernandez’s name.

Mike Williams, an attorney for the landlord, declined comment after a recent court hearing.

The eviction followed Alejandra Hernandez’s leadership role in organizing tenants to demand repairs to air conditioners and water leaks and treatment for rodent infestations. She also helped organize other tenants to protest the landlord’s decision to issue $350 penalties for so-called patio violations because residents were leaving children’s toys and other clutter on their balconies and patios.

A law approved last year by the General Assembly prohibits landlords from retaliating against tenants who organize against unsafe conditions. If found guilty of retaliation, the landlord would have to award the Hernandezes one month’s rent, or just over $1,000, plus $500. The landlord would also have to pay attorney’s fees.

“The law levels the playing field between low-income residents and landlords who have lots of money and resources,” said Graff-Radford, a Brookhaven resident who focuses on social justice law.

An attempt to dismiss the eviction failed late last year and a settlement could not be reached. The Hernandezes were able to stay in their apartment until their lease expired Jan. 31, 2020, essentially erasing the eviction claim. They now live in the Haven Hills Exchange apartments on Buford Highway in Brookhaven. But the law says the landlord can still be held liable even if the eviction case expires, Graff-Radford said.

On Feb. 19, much of the counterclaim case was heard by Magistrate Judge Gary Leshaw. Williams, the landlord’s attorney, was scheduled to present its case Feb. 28. Leshaw indicated he would not make an immediate ruling following that hearing.

During the Feb. 19 hearing, Alejandra Hernandez said in Spanish through an English interpreter that on June 5, 2019, she and other tenants protested receiving $350 penalties for leaving bikes, toys, towels and other items on their patios and balconies. The protest included marching to the property manager’s office to pay their rent and demanding the $350 be removed. Assisting in the organizing were members of the Housing Justice League and Rebekah Cohen Morris, a member of the advocacy organization Los Vecinos de Buford Highway and now a Doraville City Council member.

The protest became a shouting match and a property manager called Brookhaven Police to tell the residents to get out of her office. The $350 penalties were dismissed.

At the time, Chip Fife, president of the company that owns the Reserve at Brookhaven, said the patio violations were implemented after Brookhaven officials conducted an inspection. Fife said the city inspectors told management the patios and balconies needed to be cleared because the city wanted Briarwood Road to be “very clean” now that the Greenway and public safety headquarters were to be located nearby. City officials denied Fife’s allegations and Mayor John Ernst met with Alejandra Hernandez and others to discuss the incident.

Alejandra Hernandez learned how to inform tenants, now named Residentes Unidos, the correct way to file work orders with property managers to get repairs to their apartments such issues as caved-in ceilings. And when serious maintenance repairs were not made, she said, she told them how to contact Brookhaven code enforcement.

“During the month of June 2019, Mrs. Hernandez and Residentes Unidos continued to protest dangerous repair conditions at the Reserve,” says the counterclaim. “They called the city of Brookhaven officials, called and wrote to corporate management and encouraged neighbors to demand repairs and learn their rights.”

At the Feb. 19 hearing, Williams presented several pages of pictures taken of the Hernandezes’ doorway and apartment exterior between June and September. One picture showed a stroller in the breezeway; in another picture, a trash bag was sitting next to the front door. A ladder and a bike were photographed on the balcony. Another picture showed a child’s orange apron from Home Depot and a yoga mat on the balcony.

All are instances of lease violations, Williams said, and numerous notifications were sent to the Hernandezes telling them to stop placing items outside their apartment. Because they ignored the requests, the decision was made to evict, he said.

Alejandra Hernandez acknowledged in testimony she left some items outside her door or on the balcony, but said it was never for a long period of time.

Graff-Radford said it was a common and longstanding practice of residents at the Reserve of Brookhaven to leave minor items like toys and tricycles on porches and breezeways. The Hernandezes had been doing so for the approximately nine years they lived there with no complaints from management. The notifications and threats to terminate their lease started only after the June 5 protest and throughout the summer and into September as Alejandra Hernandez continued to organize her neighbors.

Threatening the family of seven with eviction in October, shortly before the holidays and following months of demanding repairs to apartments, is not only morally wrong but illegal and retaliatory, Graff-Radford said.

Leaving small items outside your door “are normal, everyday activities that are not nuisance activities,” Graff-Radford said. “They are not criminal activities. These are things that any mom living in a home needs to be able to do without retaliation and harassment.”

This story has been updated to correct the spelling of Esther Graff-Radford’s name.

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