DoD: Housing companies used NDAs 98 times since FY 2019 in settlements with military families

For the first time, we are getting a deeper understanding of how often military families are being asked to sign away their right to speak publicly when faced with settlement agreements over housing problems in our continuing investigation on the issue.

The Department of Defense (DoD) says private housing companies that operate homes on military bases have used non-disclosure agreements (NDAs) 98 times since FY 2019 for settlement agreements with military families.

These NDAs are used in order for military families to receive compensation in settlement agreements after facing unsafe living conditions like mold, sewage and structural problems.

We told you how we obtained a copy of an NDA from one housing company that runs homes on an Army base in Virginia, which says the parties shall not discuss the “alleged claims or make negative statements” about “military housing in general.”

It prohibits the tenants from talking about it “to the public (including but not limited to current, future, or former residents” as well as on social media and to the press.

This new information about the frequency of the use of NDAs is revealed in the DoD’s response to a letter from a group of Senators led by Sen. Elizabeth Warren (D-MA) sent in December demanding answers.

That was after we brought lawmakers findings in our investigation about the use of these NDAs by housing companies that are part of the Military Housing Privatization Initiative (MHPI).

The DoD response to that letter said: “All 98 NDAs provided by the MHPI companies” to the military were consistent with the law “when they were executed” by the housing companies since FY 2019.

It points out that in fewer than five instances, the military flagged that their initial proposed NDA did not comply with the statute but said, “in all such cases the MHPI company promptly provided a revised NDA that was fully compliant.”

We told you how a military spouse refused to sign an NDA after her family was displaced for months because of mold at their previous home at an Army base in Virginia.

Our investigation helped lead to a bipartisan call for change.

“It is outrageous for these companies to demand non-disclosure agreements,” Warren told our Washington News Bureau when we first showed her our findings in December.

“I don’t think it’s right,” said Sen. Rick Scott (R-FL) in December. “If you’re the next family coming in, wouldn’t you want to know what the problems are and if they’ve gotten resolved?”

One section of the DoD response is redacted for us because of sensitive information, and that part pertains to which housing companies have used NDAs since FY 2019.

We are told seven housing companies are listed in total.

We know of at least three companies from our reporting and from the Senators’ December letter.

Our investigation discovered the use of NDAs by the Michaels Organization, which operates homes at Fort Belvoir in Virginia.

A spokesperson for the Michaels Organization told us the “standard settlement confidentiality terms comply with the National Defense Authorization Act. Confidentiality in settlement discussions encourages open and transparent communications between the parties and generally leads to an amicable resolution of all concerns.”

The Senators’ letter also highlighted two other housing companies using NDAs.

“We have received reports from a safe military housing advocate that military families are still being forced to sign NDAs in order to receive compensation for damaged property, and obtained copies of the NDAs that Balfour Beatty Communities and Liberty Military Housing forced on military families,” the Senators’ letter said.

The housing companies have said the law allows the use of NDAs and defended the practice.

A spokesperson for Balfour Beatty Communities told us: “We enter into a small number of settlement agreements each year which include confidentiality provisions regarding the settlement amount. In every case we get written approval from the Office of the Secretary of Defense and we comply fully with all the requirements in the NDAA. The NDAA explicitly permits non-disclosure agreements as part of the settlement of litigation and each of our settlement agreements includes an acknowledgment from the resident that they are being entered into as part of the settlement of litigation. They also include an acknowledgment that the resident was notified of the right to advice from the legal assistance office at their installation.”

A representative of Liberty Military Housing told us: “Liberty Military Housing complies with Department of Defense and Service policies regarding the use of Non-Disclosure Agreements (NDAs). Current law allows for the use of non-disclosure agreements as part of the settlement of litigation or when a resident has retained counsel or sought military legal assistance. In addition, no LMH resident has ever been asked or required to sign a NDA in connection with entering into, continuing, or terminating a lease for the housing unit.”

A big question that is not answered in the DoD response is whether the Department will put a stop to the use of NDAs as explicitly requested by the Senators.

“We ask that you put an immediate end to any and all NDA provisions that military housing providers have put in place,” the Senators wrote in their letter.

We have asked the DoD if it will put a stop to the practice and we have not gotten that response.

Warren has said if the DoD does not make the change, she wants Congress to take action to stop the use of NDAs legislatively.

The DoD’s written response also sheds light on the Department’s role when tenants are faced with an NDA.

“The Department does not engage with Tenants as part of its review of potential NDAs submitted by MHPI companies; our review is limited to ensuring that such NDAs are consistent with” the law, the DoD wrote.

The Senators asked if the DoD has ever suggested or required the use of an NDA in the settlement agreement process for military families.

In response, the DoD wrote: “The Office of the Assistant Secretary of Defense for Energy, Installations, and Environment is unaware of any instance when a DoD employee, in their official capacity as a representative of DoD, suggested or required the use of an NDA as part of a settlement agreement between a military housing provider and a tenant. However, it is conceivable that such a recommendation might be made as part of military legal assistance provided to the Tenant, depending on the circumstances of the dispute. Such legal advice from a military legal assistance attorney would be protect by attorney-client privilege.”

This latest development comes after we told you earlier this week about our exclusive interview with Sen. Jon Ossoff (D-GA) who just launched a bipartisan inquiry into the potential link between health problems and unsafe living conditions for military families.

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