For most cases filed administratively under our Fair Housing Act (FHA) – whether the complaint is filed with HUD or a state, city, or county agency – the law requires that the investigation be completed within 100 days. That means the agency or department is to make its determination if there is “probable cause” to believe discrimination took place during that time. While the 100 day timeline remains in the law, it is not always followed.
When the deadline is missed and the investigation is not completed within the 100 days, what I see is that each party is left in limbo – the complainant wants to know if they will receive housing assistance or money damages and the respondent remains waiting to learn if they will be exonerated. While I am mindful of the administrative burden and tight budgets faced by our respective government entities, justice is not well served by discrimination cases which languish.
The fact remains that HUD and its partner agencies carry an “aged” case load. In fiscal year 2012, for example, there were 1,132 cases which passed the 100 day mark (an increase in 56 cases from the prior fiscal year, but an improvement from 1,353 aged cases from five years ago). I have a drawer full of what I refer to as “100 day” letters from the investigator noting that they are still working on my case. Another problem with old cases is that witnesses can be hard to locate and memories understandably dim after months and months (or in some cases after years).
Now, is it always HUD’s fault when a case is delayed? In a word, no. There are certainly circumstances when I ask for some additional time, but it is typically an extra week or two.
What can we do the reduce this number? One suggestion is for HUD to run allegations through a more rigorous screening process before accepting a case for filing. This will help ensure that specious allegations or issues raised by an obviously disgruntled resident have some basis in reality before forcing me to defend against it. Another option could be to put some teeth in the law and mandate a case gets dismissed if the 100 day deadline is missed. Should it be dismissed on the 101st day? Of course not. But by the 365th day? I can make an argument for that.
Just A Thought.
As a part of management’s consideration of reasonable accommodation or reasonable modification requests received from our valued residents (and/or applicants), sometimes we need to determine if the resident is “disabled” or has a “disability” as defined under applicable law. While many of the fair housing laws use the term ”handicap,” cases interpreting our fair housing laws make clear that the terms “handicap” and “disability” have the same meaning in this circumstance. As currently interpreted, individuals with handicaps or persons with disabilities include individuals: (a) with a physical or mental impairment that substantially limits one or more major life activities; (b) who are regarded as having such an impairment; and (c) who have a record of such an impairment. There are many conditions that can qualify as “disabled” under the law.
Nevertheless, the following individuals are not included in the fair housing definition of “disability” or “handicap”: (a) persons currently engaging in the illegal use of a controlled substance; (b) persons whose tenancy would constitute a “direct threat” to the health or safety of other individuals or whose tenancy would cause substantial physical damage to the property of others; (c) persons convicted of the illegal manufacture or distribution of a controlled substance; and/or (d) juvenile and sex offenders.
When required, management will obtain only so much information as may be necessary to make an appropriate determination — such as to respond to a reasonable accommodation or modification request. Make no mistake, we are not attempting to unnecessarily insert ourselves into your medical history. To illustrate, if someone uses a wheelchair, it is unlikely that management will need further documentation about a request for a designated parking spot. On the other hand, for someone with a disability that is not obvious, we only seek confirmation that the resident meets the definition under applicable law so we can evaluate an accommodation or modification request. Make sense?
Just A Thought.
I got a question earlier this week which involved the intersection of housing and employment discrimination. While many of the concepts contained in our federal fair housing laws (Title VIII of the Civil Rights Act of 1968) are similar to those that prevent employment discrimination (Title VII of the Civil Rights Act of 1964), there is one important difference that sometimes gets overlooked. In the employment arena, before a complaint can be filed – a putative plaintiff must receive what is known as a “right to sue” letter. This “right to sue” letter is jurisdictional and demonstrates that the party has exhausted his or her administrative remedies. That “right to sue” letter must be obtained before filing an employment discrimination complaint in court.
In housing, unlike employment, it is not necessary to file an administrative claim or to obtain a “right to sue” letter. A person or entity claiming housing discrimination can certainly file a complaint with HUD (or a state, city, or county agency) — and there are many reasons to file an administrative complaint — there is no requirement in the law to do so. While the investigatory agency will review the facts and attempt to resolve the matter without cost to the complainant, if the allegations are ultimately found to be without merit and the complaint is dismissed, that will end the matter. The department or agency will not issue a “right to sue” letter.
Also, administrative claims generally must be filed within one year of the challenged housing practice. Housing discrimination complaints can be filed in court up to two years after the alleged discriminatory practice. To be sure, if an administrative complaint is filed, the time the case is pending with HUD (or the state, city, or county entity) will not count against the statute of limitations.
Hope that clears it up.
Just A Thought.
The issue of occupancy standards continues to be anything but clean cut. What might seem to be a reasonable standard to you is different than a reasonable standard for me. Making it even more difficult is that different jurisdictions have enacted varying guidelines. Many apartment communities (including those I represent) have a typical occupancy guideliness of two people per bedroom. While that may seem benign, it can get us into trouble. Although it is easy to conclude that 10 people in a moderatly sized two bedroom apartment is too many, the line is harder to draw when a family of five (with three small chliden) wishes to rent that same two bedroom unit. What is management to do? What happens when there is one bedroom and a den? Or a large family room?
Here is some history: back in the 1990′s HUD issued formal guidance (called the Keating Memorandum) in which the department made clear that two people per bedroom is presumtively reasonable — but that some other factors could justify deviating from the general rule. Many professional apartment management companies began using that two people per bedroom as the appropriate guide. The point was never to prevent families from living together, but as a safety, health, and security matter for all involved.
When the economy slumped and the housing market got tighter, there was a perceived need to permit additional people (many times family members but not always) to reside in the same unit. Because of this, in the intervening years, some jurisdictions (such as California) began evaluating the occupancy issue based on the number of square feet of living space in the apartment and codes were changed such that “2 plus 1″ (in other words, three people per bedroom) would be the new guideline when there was an appropriate amount of space. What is the appropriate amount of space? Of course that varies.
So, what is the bottom line: Management is absolutely within its rights to put forward reasonable occupancy standards. Those standards, however, need to be evaluated based on the size of the unit and the state (or city or county) in which your community is located.
One point to always remember when dealing with occupancy standards (unless you are a designated housing for older persons community): if you are going to have occupancy guidelines at your community (which I support), ensure they are based on the number of people allowed in the unit and not the number of children. Or then you will really need to talk with a lawyer like me. As I will detail in my next post.
Just A Thought.
Both the Department of Justice (DOJ) and Department of Housing and Urban Development (HUD) are clear that management cannot charge an extra fee or require an additional deposit for residents (or applicants) with disabilities as a condition of granting a reasonable accommodation or modification. That does not, however, mean that residents do not have to pay for damage they are responsible for. Here are two examples of how the process can work:
1. A resident lives in a property which prohibits motorized vehicles in the building. As a reasonable accommodation because of his disability, a resident asks for permission to use a motorized scooter throughout the premises. As noted above, the resident cannot be charged an additional deposit for using the scooter. Nevertheless, the resident still must use the scooter in such as a manner as not to cause a direct threat or otherwise cause damage in his unit, in the common areas, or to property belonging to other residents. If the individual’s use of the scooter causes damage to his unit, another unit, or the common areas, management may charge him for the costs of repairing the damage, provided that management charges all residents for costs beyond normal wear and tear.
2. Again, as noted above, a resident with an assistance animal cannot be assessed an extra fee. However, if the animal causes damage to the apartment or the community’s common areas – then the resident can be required to pay for the damage (above normal wear and tear), provided that management charges all residents for damage above normal wear and tear.
Make sense? Following these guidelines will help you from needing to speak with a lawyer like me after you have received a complaint from DOJ or HUD.
Just A Thought.
I try to avoid using my active cases as specific examples here at the Fair Housing Defense blog, but today I am going to make an exception. I won’t discuss the details of the case or even the location, but I do want to address an issue I am doing my best to ensure HUD and the courts remain aware of: as a housing provider, we can only be obligated to provide a reasonable accommodation (or reasonable modification) to a resident or an applicant if a request for an accommodation (or modification) is actually made. In other words, if a resident does not ask for an accommodation, management should not be retroactively responsible because we did not do something that was never asked of us.
Indeed, under our Fair Housing Act, is would be unlawful for management: (a) to ask if a resident or an applicant for housing has a disability; or (b) to ask about the nature or severity of a person’s disability. Again, reasonable accommodation and/or reasonable modification requests come from the residents/applicants. The leasing office staff is not to guess or make assumptions about what a resident may or may not seek because of a disability.
To be sure, residents are not required to use a certain form nor can management mandate any “magic” words. While I believe it is always good practice for accommodation and/or modification requests to come in writing (email is fine), there is no requirement that the request be written down. All that is required is that a person, a family member, or someone acting on behalf of a person requests a change, an exception, or adjustment to a rule, policy or service because of a disability.
Depending on the request, a housing provider may request reliable disability related information if it is necessary to verify that the person meets the definition of “disabled” (has a physical or mental impairment that substantially limits one or more major life activities) under the law, describes the sought after accommodation, and identifies the nexus between the disability and the requested accommodation. Management’s goal is to simply seek only the information that is necessary to appropriately evaluate the request. But we cannot start down that path without receiving a request for our resident or applicant.
I will report back at some point how the case came out.
Just A Thought.
What happens when a resident (or an applicant) submits a reasonable accommodation or reasonable modification request that management believes it cannot do? Should we just send a curt “No” response and let that be the end of it. Of course not. If there is a request that management does not believe is reasonable, the leasing office staff should discuss with the resident whether there is an alternative accommodation that would effectively address the disability-related needs. Many times I have been able to assist management (and the resident) as we have all worked together to find an accommodation or modification that the community can do and which appropriately meets the needs of the resident. Indeed, engaging in the interactive process with our residents can really help reduce the number of housing discrimination complaints.
Please remember that there is no required form that a resident must use to request an accommodation (or modification). To be sure, I recommend that management send an interim response noting that we have received the request and that we are actively considering it. And then follow up with a final letter noting that the community has approved the accommodation or discussing what we can do. Many times a request can be granted. Some times when the specific request is not something that we can do, working together, the parties can find an acceptable alternative. That alternative should be noted and included in the file.
What is the worst thing management can do? Nothing. And just let the request sit. If indeed nothing is ever done, it is more likely that: (1) a complaint will be filed; and (2) you will really need a lawyer like me because the file will be incomplete at best and our defense will be more complicated than it should have been.
Just A Thought.
Just yesterday the Department of Justice (DOJ) announced that it had resolved a race/national origin fair housing case from Texas for $317,000 in which it was alleged that individuals of Middle Eastern and South Asian descent were discriminated against. Under the terms of the agreement, the defendants will pay a total of $107,000 in civil penalties and $210,000 in a damage fund to compensate victims of the defendants’ alleged discrimination.
The settlement agreement was in the form of a joint proposed order, the terms of which must be approved by a federal judge in Dallas. DOJ’s complaint alleged that for several years, the owners, employees and management company of an apartment community violated the Fair Housing Act (FHA) by denying housing opportunities to persons of Middle Eastern and South Asian descent. Specifically, DOJ contended that the former property manager ordered leasing agents to misrepresent apartment availability based on the accent and perceived race or national origin of potential tenants, and/or to segregate those approved tenants of Middle Eastern or South Asian descent into two buildings in order to isolate any smells which may have been associated with ethnic cuisine that the manager disliked.
As is common in circumstances like this, the defendants also must adopt a nondiscrimination policy and undertake numerous other corrective measures, including training, record keeping and monitoring. Not surprisingly, the property manager who allegedly ordered the discrimination is no longer employed by the property owners or its management company.
It goes without saying that professional apartment management cannot misrepresent availability of units and we similarly cannot steer applicants into certain buildings or floors. While there are always two sides to every case, if you learn of anything like this at your property, you may really need to see a lawyer like me.
Just A Thought.
A case filed in U.S. District Court in Washington, D.C. will again test if the disparate impact theory of liability is cognizable under our federal Fair Housing Act (FHA). A district court judge restated a case filed by two trade associations challenging HUD regulations issued in February 2013 specifically allowing disparate impact claims under the FHA. Disparate impact cases are those in which a plaintiff (either the government or a private party) challenges a practice that impacts a certain minority group or groups without having to prove any intentional discrimination on the part of the defendant. The Obama Administration believes that the claims are encompassed by current law and notes that it can be difficult to prove housing practices are based on intentional discrimination and that the disparate impact theory is needed to overcome “entrenched barriers to equal opportunity in housing.” Groups challenging the law note that “disparate impact” does not appear in the statute and it is improper to essentially amend a statute by issuing a regulation as only Congress is empowered to amend a federal law.
Fair Housing Defense Blog readers know this is the third time the disparate impact issue has come up recently. The prior two cases reached the U.S. Supreme Court – only to have both cases settle prior to a determination. To be sure, even if the federal judge in Washington issues a decision (one way or the other), it will take some time before the Supreme Court is again asked to take the case.
From the perspective of a lawyer who represents apartment owners, management companies, and employees – we just want to know the rules of the game. We will follow the law, but it is reasonable to ask just exactly what the law is. And let’s hope the third time really is the charm when it comes to getting a determination of whether disparate impact is recognized under our FHA.
Just A Thought.