Time for some advertising compliance guidance related to housing. Yes, advertising is covered under our Fair Housing Act (“FHA”). Advertising can be on a sign, in print, on the radio, on television, and likely now over the internet. The FHA regulations specifically identify certain words which “convey either overt or tacit discriminatory preferences or limitations” and which should be avoided whenever possible as the Department of Justice (“DOJ”) and/or the Department of Housing and Urban Development (“HUD”) will consider the use of those words to “indicate a possible violation of the [FHA] and to establish a need for further proceedings…” Words and phrases typically to be avoided include terms such as: White private home, Jewish home, Hispanic residence, adult building, Caucasian, Black, Oriental, Christian, Chinese, Italian, close to Catholic church, perfect for singles, no children, physically fit, and/or men only. Remember this is only a subset of the potentially problematic phrases most likely to be avoided.
Again, does use of these words automatically mean you have violated the FHA? No. But it does mean that these terms are viewed skeptically by DOJ and HUD and if you use these words in an ad (in any form), you may well need to speak with a lawyer like me.
Also, if you are using human models or pictures in your ad, the best guidance is to use a variety of races/national origins. That does not mean every ethnic group must be in every advertisement, but if you are running a series or have more than one photo, the wiser course is to include some diversity in your promotional campaign.
Oh, and I always recommend that you include the Equal Housing Opportunity logo in your ad.
Just A Thought.
Here are two signs posted at an apartment community:
“NO PETS ALLOWED” “NO CHILDREN ALLOWED”
Anything wrong with either sign?
While you can absolutely decide not to permit pets at your apartment community, the general rule is that you cannot restrict children. The Fair Housing Act (FHA) was amended in 1988 to include “familial status” (legalese for “families with children”) as a protected class. That means, for the most part, management cannot simply declare that a building is for adults only (I know there are limited exceptions in the law for communities designated for those aged 55 and over, and if you are interested in such a community, I can help you with the necessary certifications). The rules still applies even if motives are good – perhaps you are concerned about safety as a building is on a crowded street or perhaps that the stairs in your old building are steep – children simply cannot be a reason for you to reject a family. Similarly, management cannot, for example, limit children to the first floor of a building or to a designated wing of a building.
The rule for animals is quite different. Some people love animals. Some dislike them. Some management companies believe permitting pets will help boost apartment rentals. Others think prohibiting (or at least restricting) animals will improve a community. Unlike children, however, management is free to make whatever choice you determine is best for your business (and your residents). Indeed, some owners charge pet deposits and monthly pet rent. Now, here is the important caveat: please know that if you decide to have a no pets community (or if you restrict certain dog breeds at your community), bona fide service and/or companion animals do not count as pets and usually must be permitted (and management cannot charge a pet deposit or pet rent for service/companion animals). While management can require limited medical verification concerning a specific disability and need for a service or companion animal, if the resident provides that documentation and you reject the reasonable accommodation request, you will likely need to speak with a lawyer like me.
Just A Thought.
While our federal Fair Housing Act (FHA) contains seven protected classes (race, color, national origin, gender, religion, disability, and familial status), apartment management professionals know that in addition to federal law, we must be mindful of and follow the state and/or local laws involving fair housing where our communities are located. For example, depending on where you live, there might be additional protections for source of income, marital status, sexual orientation, and/or age.
To illustrate how these additional protected classes can come into play, a case was filed late last month in New York (based on a New York City law) alleging that management failed to rent to applicants who stated they had housing vouchers to pay their rent. As so often happens, a local fair housing advocacy group ran a series of tests to determine if indeed management was declining to accept vouchers, which if true, violates a New York City statute.
Now, I know there are always at least two sides to every story and this post is not intended to pass judgment on the facts. Indeed, I am a defense lawyer on the receiving end of many similar complaints. That being said, my point is that if your community is located in a source of income jurisdiction, ensure your leasing office team knows the local law and how to respond when an applicant asks if the property accepts vouchers. Training on this point can (and absolutely does) make a difference.
In this case, the judge issued a temporary restraining order (a “TRO” – legalese for an interim emergency order) requiring the plaintiffs be put on the waiting list where they would have been at the time they applied. While the entry of a TRO does not mean the defendants will be found liable, one of the factors that a court must consider when deciding whether or not to issue a TRO is if the applicant has demonstrated a “likelihood of success on the merits.” As the case continues, the plaintiffs will certainly be seeking: (a) an order declaring that the challenged housing practices violate the law; (b) money damages; (c) an injunction; and (d) attorney’s fees.
This is the housing discrimination playbook faced by management these days. While we cannot eliminate the risk of a discrimination complaint being filed at your property, fair housing training remains the best way to reduce the chance of needing to speak with a lawyer like me.
Just A Thought.
Earlier this month, U.S. Attorney General Loretta Lynch was a speaker at HUD’s Fair Housing Policy Conference. Her remarks covered a broad range of fair housing enforcement initiatives, but I wanted to address a few to those of us in the professional apartment management industry:
*Lynch views fair housing as much more than just access to shelter. The Attorney General takes the position that fair housing also impacts the ability to obtain employment, education, credit, transportation, health, and safety;
*Lynch noted that the Department of Justice (DOJ) has filed more than 100 fair housing lawsuits over the past three years, including 69 pattern or practice cases to combat discrimination;
*HUD and DOJ will absolutely continue their various fair housing tester initiatives. The Attorney General reported that DOJ has filed over 100 fair housing tester cases since 1991 and those cases have resulted in more than $13 million in damages and civil money penalties;
*Fair housing tester programs, which typically involve paired sets of individuals visiting properties posing as home seekers, will certainly continue. In addition, however, testing will now also be conducted electronically in an effort to expand the reach of enforcement;
*With the Supreme Court upholding “disparate impact” as a fair housing tool under existing law, DOJ will continue to search for and file cases challenging conduct which in their view has an unfair and/or discriminatory impact on a given local community or protected class.
What does this mean for your business or apartment community? Train your employees to follow the Fair Housing Act (FHA). Ensure your leasing office team members are aware of any state or local laws which might add to the list of protected classes contained in the federal FHA. Treat every applicant equally and evenly. Document (date and time) visits and inquiries. Note when deposits are received and when leases are signed. Develop a script and follow that script with every applicant. While we can never stop every case from being filed, management can build a record to reduce the chances your company will be named as a defendant. And if you ever are sued, we can work to ensure the file exists so a lawyer like me can help you defend against the claims.
Just A Thought.
The U.S. Department of Justice (DOJ) announced yet another Fair Housing Act (FHA) case settlement yesterday. In this case, the DOJ alleged that the owners and managers of a mobile home park in Illinois had discriminated against families with children and African Americans. To resolve the complaint, among other relief, the defendants agreed to pay a total $75,000 to settle allegations that they violated the FHA.
The agreement concluded a lawsuit asserting that the mobile home park violated the FHA by refusing to rent homes to African Americans and families with children. The factual allegations which made up the complaint were based on the results of testing conducted by DOJ’s fair housing testing program. Testing, of course, is a simulation of a housing transaction that compares responses given by housing providers to different types of applicants to probe whether discrimination may be taking place. Now, I am not a fan of testing such as this because the tester is being paid not to tell the truth and sometimes make assertions not backed up by the facts. While we all can agree that discrimination has no place in housing operations, I just do not like people being paid to lie and pretend to be interested in a home when they are not. In my view, leasing office team members need to focus on meeting the legitimate needs of our current residents and actual applicants. Nevertheless, courts have approved of fair housing testing and it is a tool used by DOJ (as well as the Department of Housing and Urban Development and private fair housing entities) to press discrimination claims. DOJ concluded here that the manager and part owner of the park falsely told African Americans inquiring about renting mobile homes that no homes were available, while telling white applicants that homes were available. The testing also revealed that the defendants discouraged families with children from applying.
Under the terms of the settlement, the defendants agreed to establish a settlement fund in the amount of $45,000 to compensate victims of the discriminatory practices. They will also will pay $30,000 in civil penalties to the United States. As is common in these cases, the agreement requires management to draft (and enforce) a nondiscrimination policy, to prepare a new nondiscriminatory application and rental procedures, as well as go through FHA educational training.
Takeaways from this case? Any applicant could be a tester. Testers have standing (legalese for the right to bring a claim). Ensure you treat each applicant with respect and appropriately go through the application process, particularly with respect to available units. Engage in the interactive process. Document the file. If you don’t, you may end up needing to speak with a lawyer like me.
Just A Thought.
Readers of this space know that I regularly write that professional apartment management maintains an absolute obligation to review, evaluate, and respond to every reasonable accommodation (and/or reasonable modification) request we receive from our residents (and/or our applicants). I am certainly not writing that management must grant each request in the form it was made, but management must consider and respond to it. Doing so is part of the interactive process developed in the Fair Housing Act (FHA).
Which is all fine and good. Except, what happens when a resident facing eviction (typically for non-payment of rent, but it can be for any other valid, non-discriminatory reason) submits a reasonable accommodation or modification request during the pendency of an eviction action? Not to be cynical, but I would be shocked if a plaintiff’s lawyer would attempt to prevent an eviction by submitting, for example, a reasonable modification request seeking a ramp for his or her now disabled client shortly after receiving a notice to vacate or the start of a court eviction action.
Can management simply decline to respond to the reasonable modification request because the resident is likely going to be evicted in the near future? Because why should a ramp get built (and paid for) when the resident is on his or her way out? Easy question, right?
No. The law provides that management must review and evaluate reasonable accommodation and reasonable modification requests received at any time. Even if a resident is facing an eviction action. Should the resident file a discrimination complaint, HUD (or the state, city, or county agency investigating the case) will conclude that management failed to engage in the interactive process if we simply stop processing a request because a resident may be leaving our community. If this situation comes up in your community, you might want to speak with a lawyer like me to determine the best way to proceed.
Just A Thought.
As apartment owners and managers, from time to time, we get investigated by the U.S. Department of Housing and Urban Development (HUD). Which is fine. Every once in a while, however, HUD gets investigated as well. Just recently, HUD’s Inspector General (its internal watchdog) released a report which severely criticized HUD’s current policy which permits individuals who are designated as “over income” to remain in public housing.
Following a torrent of criticism, HUD has now reversed course and is providing new guidance, urging Housing Authorities to evict residents who no longer qualify for subsidized housing. The report found that more than 25,000 residents make more than the maximum income allowed to qualify for public housing. Now, while many of the “over income” residents exceeded the limit by a small amount, the audit revealed that nearly half were over the threshold by $10,000 to $70,000. And what really drove the findings were that a few residents were glaringly over the limits: such as a family of four in New York City with an income of just under $500,000 who is paying under $1,600 for a three-bedroom subsidized unit.
When the report was first made public, HUD harshly objected to the findings and asserted that “income diversity” in public housing was a good thing and that people should strive to earn more money, but not lose their eligibility for affordable housing. HUD also stated that the number of over income families was less than three percent of those in public housing. After hearing from many other voices (to put it mildly) following its initial comments (particularly when the most egregious examples were publicized and are so much harder to defend), HUD is changing its policy to now support removing over income individuals, particularly when affordable housing waiting lists continue to grow, from affordable housing.
I don’t suspect HUD (through various Housing Authorities and private landlords) will actively start evicting very many residents, but it was interesting to watch this debate continue to play out. Indeed, nobody enjoys the investigative process. Not even HUD.
Just A Thought.
Last month, the U.S. Department of Justice (DOJ) announced another Fair Housing Act (FHA) settlement, this time with a developer (and several related companies) from West Virginia. To resolve the DOJ’s complaint filed in U.S. District Court, the defendants agreed to pay $205,000 and make substantial retrofits to remove barriers to accessibility at various multifamily apartment communities. In the lawsuit, DOJ asserted that the developers constructed 23 apartment communities in West Virginia and Pennsylvania with a number of features that made them inaccessible to individuals with disabilities.
Pursuant to the terms of the settlement, the defendants agreed to take extensive actions to make the communities accessible to individuals with disabilities, including for those who use wheelchairs. These retrofits include replacing excessively sloped portions of sidewalks, installing properly sloped curb walkways, replacing bathroom and kitchen cabinets to provide sufficient room for wheelchair users, widening doorways, and reducing door threshold heights. In addition to establishing a settlement fund of $180,000 to be used to compensate disabled individuals who have been impacted by the accessibility violations as well as paying a $25,000 civil money penalty, the agreement further provides that the defendants are to construct a new apartment complex in West Virginia with 100 accessible units.
While I always know there are two sides to every story, the settlement here is significant as the retrofits are extensive and the cost of building an entirely new community (with 100 accessible units) demonstrates what the DOJ thought were the strengths of its case. As management companies, owners, and developers in the multifamily housing arena know, there are design and construction requirements embedded in the law which must be followed. As we see from this case, if they are not, they you will need to speak with a lawyer like me.
Just A Thought.
I want to give a shout out to the Pennsylvania-Delaware Affordable Housing Management Association and IREM Delaware Valley Chapter for inviting your humble Fair Housing Defense Blog editor to the Maintenance Matters conference held last week at the Valley Forge Casino Resort in King of Prussia, PA. We spent a good part of the morning reviewing important fair housing training points as well as discussing how service and leasing office apartment professionals can assist in avoiding fair housing complaints. For me, the best part of these training sessions is when I get questions from the audience to hear what issues are on the minds of our team members. Sure, it takes a few minutes for that first question to be asked, but once the dam breaks — the session takes off. I never know exactly where these events are going to turn. Last week, we spent quite a bit of time dealing with parking, including the number of handicapped spots that must be in a given lot, the number of van accessible spots, access to community doors, parking fees, verifications for handicapped parking placards, and designated handicapped spots.
Service and leasing office professionals are literally on the front lines for us each and every day. They have the most direct interaction with our residents. While those interactions are almost always good for resident relations purposes, from time to time residents make reasonable accommodation and/or reasonable modification requests directly to our service team members. And while formally responding to those requests is not typically in a service manager’s job description, the service team members need to know what information to give to the community manager.
Again, I appreciate the opportunity to speak to apartment management professionals. Indeed, the point of fair housing training is to do our best to get it right and to avoid formal complaints. However, as complaints are indeed filed to time to time, training also helps me defend each and every case.
Just A Thought.
Two weeks ago it was the U.S. Department of Justice (DOJ) announcing the large settlement of a housing discrimination case. Last week, it was the U.S. Department of Housing and Urban Development (HUD) issuing a press release in which it confirmed an agreement with a Virginia property owner resolving allegations of housing discrimination raised on behalf of residents with disabilities in two of the company’s rental properties. The agreement mandated that the property owners pay $167,500 in damages.
The case came to HUD’s attention when two residents and a local fair housing group filed complaints asserting that management required residents who used motorized wheelchairs or scooters to pay a $1,500 security deposit, acquire a minimum of $100,000 in liability insurance, and sign an agreement providing that approval of the scooters could be withdrawn if payments to maintain the required insurance policies were not made. Guidance from both DOJ and HUD make clear that the Fair Housing Act prohibits requiring individuals with disabilities to pay additional security deposits or to buy liability insurance because they use motorized wheelchairs. In addition, HUD’s investigation concluded that the policies (requiring both additional security deposits and buying extra liability insurance) were also applied to other properties and to other residents.
In addition to appropriate fair housing training and permanent changes to its policies going forward, the property owner agreed to pay a total of $107,500 to the complainants and other aggrieved individuals. Furthermore, the property owner will donate $30,000 to the local fair housing group involved with the case in support of “advocacy” for people with disabilities as well as donate an additional $30,000 to a different Virginia agency (approved by HUD) that promotes education and assistance to individuals with disabilities.
Now, I was not involved with this case and as loyal Fair Housing Defense blog readers understand, I know there are two sides to every case. And I always wait to hear the other side before making a judgment concerning what may (or may not) have taken place. That being said, professional apartment management needs to know that we cannot charge our disabled residents additional security deposits or require extra liability insurance. If you do, you will really need to talk to a lawyer like me.
Just a Thought.