COFAR blog

A couple that complained that second-hand cigarette smoke from another unit in their Kingston housing complex was harming the health of their disabled son are facing the possibility of eviction from their apartment.

Nicole and Cang Duong have accused the Alexan Kingston housing complex management and its attorneys of delaying their application for a state program that would help them keep up with their monthly rent.

As a result, Nicole Duong said, their RAFT rental assistance application expired on July 13, increasing their chance of eviction. They reapplied for the assistance on Monday (July 17).

The Duongs maintain that even though they took the proper steps to obtain rental assistance, they may still face eviction because of the application processing delay.

We reported on July 5 that the Duongs had complained to the management in May of a cigarette smoke odor that was coming from the air ducts in their apartment. Their 3-year-old son Caleb has Down Syndrome and severe obstructive sleep apnea. Cigarette smoke is particularly dangerous to his health, Nicole said.

Nicole said that while the housing complex management did subsequently inspect the ventilation system in their apartment and placed filters in the air ducts in response to their concerns, the management never sent anyone to their unit to investigate the origin of the alleged cigarette smoke. Yet, the complex has a strict no-smoking policy that applies to all areas, inside and outside.

In fact, the management suggested that the Duongs themselves should move out of the complex. The Duongs believe this is a violation of federal and state fair housing laws, which forbid discrimination against persons with disabilities.

Management’s lawyers allegedly “dragged their feet” in approving a rental payment plan

Nicole said she and her husband had been struggling to pay the rent on their apartment, and first applied for the RAFT assistance on June 7. She said that in compliance with the RAFT rules, they did not pay their June or July rent while the original RAFT application was being processed.

The Duongs’ monthly rent for their two-bedroom apartment, which is classified as an affordable rental unit, is $2,256.

Nicole said the approval of the RAFT assistance by the state Department of Housing depended on the family reaching agreement with the Alexan Kingston management by July 13 on a payment plan for two months’ worth of back rent.

Emails show that the Housing Department repeatedly asked Nicole earlier this month to provide a signed rental payment agreement under which the Duongs would pay $903 toward the overdue rent, and the RAFT program would pay the remainder of the $4,512 in back rent.

The first request from the Housing Department for the agreement was on July 6. An email from the Department to Nicole stated that the agreement must be submitted by July 13 “or your application process will be discontinued, and you will need to begin the application process again.”

Nicole said that while she provided the suggested RAFT agreement amount to the apartment management, the management turned the matter over to its law firm, and the law firm didn’t immediately respond. Emails show Nicole asked the apartment management and their attorneys for a copy of such an agreement on July 10 and July 11.

On July 10, the Alexan Kingston resident manager responded to Nicole, saying that he had contacted the management attorneys “to follow up on this item for us. I’ll touch base with them tomorrow as I know it’s very time sensitive.”

On July 11 at 4:53 p.m., still not having received a proposed agreement, Nicole emailed a member of the law firm, saying the RAFT application was scheduled to “time out” or expire two days later, and that a response from the management “needs to be done ASAP.”

The law firm finally sent an email with the proposed agreement to the Duongs at 7:10 p.m. on July 12, the day before the expiration of the original RAFT application. Nicole maintained that the law firm’s proposed agreement was unacceptable to them, but that it was too late in the day to contact either the management or the law firm about it.

Management’s proposed agreement included extra charges

Although the Duongs owed $4,512 in back rent, the law firm’s proposed agreement would require them to use their RAFT assistance to pay a total of $5,183, including $293 in “court costs” and $378 in “utilities/fees” as of next February 28.

Nicole contends there is no reason for her and her husband to pay court costs because the payment agreement should not require Housing Court involvement. In addition, she said, the utilities/fees cost was not explained in the proposed agreement.

The proposed agreement specified a periodic monthly payment schedule for the Duongs of $115 in addition to their monthly rent payments. The agreement stated that any late payments would constitute a material breach, which would allow eviction proceedings to begin in seven days. The Duongs would also waive their rights to an appeal or trial in the Housing Court.

Nicole said the proposed agreement would shorten the usual eviction notice period from 30 days to those seven days. She also said she and her husband would not want to sign away their right to take their case to the Housing Court.

Waiting for Section 8 placement since 2020

Even though their apartment is classified as affordable, the Duongs said they have been on a waiting list in Massachusetts for a Section 8 housing voucher since 2020.

Nicole said their rent constitutes 65% of their total income from her husband Cang’s job. She said her husband works overnight from 6 p.m. to 6 a.m., and that she needs to stay home to care for her son.

“I’m at the point of a nervous breakdown because I don’t want to lose our home,” she said.

We previously wrote to the housing complex management to urge them to fully investigate complaints from the Duongs and other residents of cigarette smoke odors in their apartments. We have now written them again to urge them to commit to reaching a timely payment agreement with the family that will cover their rental costs only.

We hope the apartment management will work to ensure that this family is not forced into homelessness.

For more than a month, Nicole and Cang Duong smelled cigarette smoke in the ventilation ducts in their apartment in a housing complex in Kingston.

They were concerned about it mainly because their 3-year-old son Caleb has Down Syndrome and severe obstructive sleep apnea. Cigarette smoke is particularly dangerous to his health.

On May 24, Caleb needed three major surgeries – tubes inserted in his ears, and his tonsils and adenoids extracted. The cigarette smoke odor was evident while he was back home recovering, Nicole said.

Nicole, Caleb, and Cang Duong.

Nicole said that while the housing complex management did subsequently inspect the ventilation system in their apartment and placed filters in the air ducts in response to their concerns, the management never sent anyone to their unit to investigate the origin of the alleged cigarette smoke. Yet, the complex has a strict no-smoking policy that applies to all areas, inside and outside.

In fact, the management suggested that the Duongs themselves should move out of the complex. The Duongs believe this is a violation of federal and state fair housing laws, which forbid discrimination against persons with disabilities.

Housing discrimination includes failing or refusing to make reasonable accommodations for tenants with disabilities, according to the Massachusetts government website.

Cigarette smoke believed to be coming from unit above

The Duongs moved into the Alexan Kingston housing complex on March 18. Their apartment is classified as an affordable rental unit.

Nicole said new people moved into the unit directly above them on May 13. She said almost immediately, she and her husband began to smell cigarette smoke in their bedroom and then in the living room. Then their oldest son, Joseph, who is 19, smelled it in his bedroom.

Nicole said that on May 13, she first texted the management about the smoke odor. On May 16, after some initial correspondence, the management sent a text to the Duongs suggesting they consider moving out of the complex:

Based on the information and concerns you just provided…we are concerned that maybe the Alexan Kingston (housing complex) may not be the best residence for you and your family. We are happy to discuss a lease-break option with you if you decide our apartment community does not meet the needs of your family.

On May 23, Nicole responded in an email to the management, stating that they did not intend to leave the complex, but that they wanted an immediate transfer to another unit within the complex. She stated that in the meantime, she was requesting that the air ducts in their unit be cleaned. That was the day that she and her husband took Caleb to the hospital for the surgeries.

Caleb playing at home.

On May 26, the management did send a maintenance man to inspect the apartment’s air ducts. He found there were no filters in those ducts, and installed some. This was the day after Caleb had come home from the hospital.

At the end of June, Nicole said, the management transferred the upstairs occupants to another apartment in the complex for unspecified reasons. The smoke odor is now gone. But Nicole said she and her husband remain concerned that the problem could happen again.

Contradictory messages from management and attorney

Nicole said that after she requested the transfer to another unit, Jefferey Turk, the management’s attorney, asserted in a June 7 letter to the Duongs that they had failed “to provide any basis for the request to transfer (to another apartment in the housing complex). Your email does not identify any reason you require a transfer or any nexus between any conditions which your son may have and his need to reside elsewhere on the property. As such, until we receive such information, the request cannot be granted.”

At the same time, Turk’s letter seemed to contradict that statement. Its final paragraph started:

Notwithstanding the foregoing, and in an attempt to resolve this matter, my client is willing to offer you a transfer to the next available apartment which is assigned to the affordable housing program and for which you qualify. You will be responsible to move yourself to that new apartment when it is available.

Nicole said that on June 28, another attorney with the management’s law firm texted her, also saying the Duongs would be allowed to transfer to another apartment in the complex. But the attorney stated that in order to do so, the Duongs would have to pay “prorated rent” for the new unit in addition to the full monthly rent on their current unit.

Nicole said she and her husband rejected that offer because it would amount to paying up to half a month of rent for the new unit as of the move-in date, plus the full month for their current unit. She said they are hopeful, for the moment, that they will not need to transfer because the upstairs tenants, who apparently created the odor problem, are no longer there.

Management attorney’s letter appeared to ignore Duongs’ evidence

Turk also maintained in his June 7 letter that the Duongs had not demonstrated that their son is actually disabled. Yet Nicole said they had fully documented their son’s disabilities. Nicole forwarded to us a letter from the state Department of Developmental Services (DDS), which she said she had sent to Turk and to the management. The DDS letter, which was dated June 2, stated that Caleb had met the Department’s eligibility criteria for services to children under five years old.

Also, the Duongs noted that Turk’s June 7 letter itself referred to a report the Duongs had provided him from Quincy Pediatric Associates. That report stated that Caleb had been diagnosed with Trisomy 21, a genetic condition that causes Down Syndrome. The pediatric report also stated that Caleb had been diagnosed with severe obstructive sleep apnea.

Caleb in the ICU after his surgeries in May.

Noise problem

Nicole said there also was a noise problem from the unit above, which disturbed Caleb. He woke up crying one night due to loud, continuous banging or stomping from that apartment. The noise continued from that Friday through Sunday night, and periodically after that.

Nicole said no one from the management office ever came to their apartment to investigate either for the smoke or noise.

No outside investigation

The Duongs said they were unsuccessful in getting any outside authorities to investigate the alleged cigarette smoke odor. The federal Department of Housing and Urban Development (HUD), which manages their affordable rent application, took preliminary information from them about the cigarette odor. But the federal agency closed out the case after 30 days, also without anyone having visited their apartment, Nicole said.

We have written to the management company to urge them to fully investigate complaints from residents such as the Duongs. It is unfortunate that rather than doing such an investigation, the management simply implied that the Duongs should consider leaving.  Moreover, we requested that if the Duongs do request a transfer to another apartment, the management should not add an excessive “prorated” rental charge on the new unit.

It is disappointing that both management entities and oversight agencies, such as HUD, which are entrusted with providing housing to persons, many of whom have disabilities, often appear to be indifferent to the wellbeing of the people living in their residential facilities.