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Fair Housing Defense

Information on and Compliance with the FHA

Does the Fair Housing Act Apply When a Woman is on Maternity Leave? You Bet. Here is How.

Posted in Disability, FHA Basics

Over the past couple of months, HUD has announced two Fair Housing Act (FHA) settlements involving pregnancy and maternity leave that deserve mention in this space.  The cases involved similar fact patterns in which mortgage loans were denied or delayed to women because they were on maternity leave.  In the first case, a lender agreed to pay $48,000 after a married couple filed a HUD complaint alleging that the lender denied a refinancing application because the wife was on maternity leave.  The investigation revealed that the bank had done that same thing to four other applicants who were also on maternity leave.  In the second case, in which the defendant agreed to pay $25,000 to resolve the allegations, the lender asserted its mortgage insurance guidelines required the woman to have returned to work so as to count her income.  Nevertheless, the lender agreed to settle the case.

As a part of the settlements, both institutions further agreed to training and developing a policy to address borrowers on maternity leave or who are pregnant.

What do these cases mean for professional apartment management as we look to fill our units?  Ensure the proper screen is completed when running the credit check.  Make sure you do not unintentionally discriminate because a woman is pregnant or is on maternity leave such that there may be an issue with income qualification.  Indeed, part of this may be adopting a policy concerning calculating income when an applicant is pregnant, is on maternity leave, and/or paternity leave.

Just A Thought.

Federal District Court in Florida Dismisses Three Fair Housing Act Mortgage Cases

Posted in Discrimination, FHA Basics

Earlier this month, the U.S. District Court for the Southern District of Florida dismissed with prejudice the Fair Housing Act (FHA) claims in three suits filed by the City of Miami against large mortgage lenders Bank of America, Wells Fargo, and Citigroup.  In a nutshell, the city alleged the lenders engaged in predatory lending in certain less advantaged communities, that the allegedly predatory loans were more likely to result in foreclosure than were loans originated elsewhere, and that higher than average rates of foreclosures allegedly caused by those banking/mortgage practices unlawfully reduced the city’s tax base and thus increased the costs of providing important city services.

The district court judge, following recent precedent from the U.S. Supreme Court, concluded that purely economic injury is outside what is referred to as “the zone of interest” of the FHA. The court further noted that the “policy behind the [FHA]‘s emphasizes on the prevention of discrimination in the provision of housing” while the city’s alleged “economic injury from the reduction in tax revenue . . . [and] expenditures” in contrast is not impacted by membership in any protected class.  Accordingly, the judge wrote that the city’s claim fell outside the FHA’s zone of interest and the city lacked standing to sue.  The court went so far as to acknowledge a different conclusion by a district judge in California, but the court noted that it was required to apply the “zone of interest” test to the FHA claims.

The judge further noted that the city could not establish proximate cause because it did not allege facts that isolated the lenders’ practices as the cause of any alleged lending disparity, citing the independent actions of a multitude of non-parties during the recent financial crisis that “break the causal chain.” The court went on to reject the city’s statistical correlations as insufficient to support a causation claim. Finally, the court concluded that the FHA claims were time barred and that the continuing violation doctrine did not apply to extend the time limit.

Although not binding across the country, this opinion is useful to management as we interpret the FHA as requiring some sort of discrimination to be actionable as contrasted with simply allegations of economic harm.

Just A Thought.

Here is a Reasonable Accommodation Request Checklist

Posted in Disability, FHA Basics

Reasonable accommodation (or reasonable modification) requests from residents with disabilities can come in many different forms.  Here is a handy reasonable accommodation (or reasonable modification) request checklist for leasing office team members to use:

1.  A reasonable accommodation must be requested.  In other words, management cannot make the request for the resident.

2.  A reasonable accommodation request can be made at any time, by the person with a disability (resident or applicant), by a family member of the person with a disability, or by someone else who is acting on behalf of the person with a disability.  There is no maximum number of requests a resident can submit.

3.  A reasonable accommodation request does not have to be in writing.  It can be done orally or by any other effective method.  To be sure, my preference is that the leasing office receive requests in writing – but there is no requirement that a resident do so.

4.  There are no “magic” words.  As long as it can be determined that the resident has a disability, that he or she has made a request, and that the request is reasonably related to his or her disability – that is good enough.

5.  Management may request documentation to the extent necessary to verify the disability and how that disability is related to the reasonable accommodation or modification request.

6.  Do not seek confidential medical records of your residents.

7.  Disability verifications can come from a variety of medical, mental, physical, or psychological health care professionals.

As I have previously written, management must review each request.  We do not have to grant each specific request, but we must evaluate and use the interactive process to see what is reasonable.  Try to respond within a reasonable time.  Always respond in writing.  And keep a copy of our response in the resident’s file.

Just A Thought.

Things To Do On The Fourth of July

Posted in Uncategorized

Once a year here at the Fair Housing Defense blog I go off topic.  Today is that post.

Tomorrow is the Fourth of July.  Cookouts with family and friends.  Maybe a baseball game. (Indeed, I will be at the Nationals/Cubs game in Washington).  Fireworks.  A picnic.  A red, white, and blue parade.  Flags everywhere.  Everything that is right about America.   And a reminder just how lucky we are to live in this great country.  So:

If you see a member of the United States military, thank him or her for their service.  I do not pretend to understand the details of the political situations in Iraq and Afghanistan, but I know our soldiers have done everything asked, requested, and required of them.  And more.

If you are with your kids and see a police officer, remind your son or daughter that police officers work every day to keep us safe.

Similarly, if you go by a fire station, let your kids know that firefighters are the people who literally rush into burning buildings to get the rest of us out of them in an emergency.

Finally, if you have not spoken with your mother or father (or brother or sister) for a while, pick up the phone.  You should do it in any event, but particularly make a call today if there is a petty disagreement that has been lingering for too long.

You will be glad you did.

Just A Thought.

How Long is “Reasonable” to Respond to an Accommodation or Modification Request?

Posted in Disability

I am involved in a new matter right now involving a reasonable accommodation request.  As I have written any number of times, management must evaluate and consider every reasonable accommodation (and/or reasonable modification) request received from our residents/applicants.  No issue about that whatsoever.  The point that struck me as odd is that opposing counsel demanded management respond within 48 hours or they would deem the request denied and file a complaint.

To be sure, management needs to timely review and respond to all requests.  But, a self-imposed 48 hour deadline?  Seemed a bit unrealistic to me.  Which opens the door to the next question:  just what is reasonable?  There is no firm bright line in the law on that.  I have seen 10 days, two weeks, 15 days and 20 days all fall within the definition of “reasonable.”  And those time frames feel about right.  I certainly have never had a court, administative agency, or federal department mandate that 48 hours was the outside edge of “reasonable”.

Can I conceive of an emergency situation in which 48 hours might be reasonable and 72 hours might not be?  Perhaps.  But, I continue to believe that reasonable accommodation and reasonable modification requests are best done through the interactive process with management and the resident working together cooperatively.  And that can take more than just a couple of days.

Now, there are absolutely situations in which an unresponded to reasonable accommodation request can (and should) be considered denied.  Sometimes it is just inadvertent — for example if leasing office staff members change and a file is not appropriately documented.  Sometimes management is just slow.  Neither circumstance is textbook and we try to put procedures in place to avoid such an unforced error.  But, it can (and does) happen.

And if there is an unreasonable  delay, that is when management needs to speak with a lawyer like me.

Just A Thought.

Is That Dog a Pet or a Service Animal?

Posted in Disability, FHA Basics

A Fair Housing Defense Blog reader sent me a question related to my recent entry on service animals.  Specifically, my reader wanted to know how to distinguish a service animal from a pet.  There are a couple of issues involved with this question – so I will try to hit the high points.  First, service (or companion) animals perform important functions for their owners.  Some service animals are easy to spot – such as the dog that assists an individual with a vision impairment.   I have found it useful to think of service animals as similar to a wheelchair – as they are needed to assist a disabled individual with physical or emotional needs.

In our apartment management arena, there is an important distinction between service animals and pets as a service animal is exempt from extra pet rent and/or related pet fees.  The problem I see (also noted by my reader) is that some individuals wish to avoid paying pet rent/fees and simply claim their dog is not a pet, but is a service or companion animal.  Notwithstanding the disappointing and less than ethical behavior of these people, it truly does a disservice to the animals who assist individuals with real needs.  Another reason some people attempt to classify their pet as a service animal is that service animals are exempt from size and/or breed prohibitions.

At the outset, while many service animals wear a special vest or collar, there is no requirement that the animal have any such identification.   As such, there are many times when management is absolutely within our rights to seek confirmation from a medical/health care professional that the animal is not a pet.  And yes, a companion animal can be verified by a medical/health care professional.  Also, while formal animal training can be useful and there are many good trainers out there, the DOJ/HUD guidance on this point is clear that there is no requirement in the law mandating that a service or companion animal be specially trained.

Hope that helps.

Just A Thought.

Is There a Difference Between “Disability” and “Handicap” in the Fair Housing Laws?

Posted in Disability, FHA Basics

In this space and elsewhere, the terms “disability” or “handicap” are often used in identifying certain individuals who are included in a protected class.   Do they mean the same thing?  Something different?  While the Fair Housing Act (FHA) defines the word “handicap,” the Americans with Disabilities Act (ADA) defines the word “disability.”  At least one Supreme Court case has noted that the definition of “disability” in the ADA is almost verbatim from the definition of “handicap” in the FHA.  In practice, the two words have the same legal meaning.  To be sure, “disability” is used more often today and would be considered more generally accepted.

So, just what is the definition of “disability” or “handicap” in our FHA world?  Any person who has a physical or mental impairment that substantially limits one of more major life activity, has a record of such an impairment, or is regarded as having such an impairment.  Typical (but not an exhaustive list of) major life activities include:  seeing, walking, learning, performing manual tasks, hearing, breathing, or speaking.

Now, the definition of disability (such that management does not have to provide a reasonable accommodation or reasonable modification) specifically does not include:  (a) current drug use or alcohol abuse; or (b) individuals who pose a direct threat to health and/or safety.

In the real world, of course, certain disabilities are obvious and management needs no medical documentation.  For other conditions, however, it is absolutely appropriate for management to seek limited medical confirmation that a resident (or applicant) has a recognized disability and that there is a nexus (or connection) between the specific disability and the requested accommodation/modification.  While there is no requirement that a resident make a request in writing, I always advise that management’s responses (both interim and final) be done in a timely manner, be put in writing, and included in the resident’s file.  That way we can ensure the file is documented and management can prove we engaged in the interactive process with our resident.

Just A Thought.

Some Thoughts on Apartment Community Swimming Pools and Accessiblity

Posted in Disability, FHA Basics

Summertime means swimming pools.  Many of our communities have a pool for use by residents and guests.  Pools can (and do) make a terrific amenity when a prospect is visiting an apartment complex.  But, how does management ensure compliance with the Fair Housing Act (FHA) and/or the Americans with Disabilities Act (ADA) with respect to a disabled resident who seeks access to a pool?

The ADA defines a place of public accommodation as a “facility operated by a private entity whose operations affect commerce.” Included in the definition are lodging places (hotels), restaurants, theaters, grocery and department stores, schools, museums and other places of recreation. In short, just about any place that is open to the public may be considered a place of public accommodation.

In general, however, privately owned conventional residential communities — such as apartment complexes — are not considered to be places of public accommodation under the ADA.   Regulations implementing the ADA have caused a lot of property owners to ask the question if management is responsible for the costs of installing a lift to ensure pool access by a disabled resident.  Here is some general guidance, although each case will need to be evaluated independently:

In cases where a community’s pool is exclusively for the use of the community’s residents, the ADA would not apply. In contrast, in cases where the general public is also entitled to regularly use the pool, the ADA would most certainly apply. For example, if a property owner sells memberships to the general public, or if it allows the pool to be used for public swim meets, the ADA will likely apply.

Of course, there are gray areas.  What about guests?  What if the residents’ guests are allowed to use the pool even if the resident is not present? What if the owner allows the residents to rent the pool area for parties? Or, what if the owner periodically throws pool parties as part of his marketing/advertising plan?

Each of these situations will create uncertainty.  The guidance currently available is this: the more it appears that the pool is available for the public’s use, the more likely the new ADA rules will apply.  I think if it is just residents and guests, the new ADA rules likely will not apply.

Now, even though the ADA may not apply to a given situation, the FHA certainly applies to us.  Under the FHA, management must not discriminate against a disabled resident in the use of our amenities. That is, management must ensure that the amenities at the property are available for the reasonable use of all residents. While the FHA does not contain accessibility standards like those under the new ADA rules, management would be required to provide a barrier-free pathway to the edge of the pool.  In addition, management must not unreasonably prevent a resident from using his/her own lift or other equipment to gain access to a pool.

Make sense?  This is one where you might want to speak with a lawyer like me.

Just A Thought.

Some Guidance on Verifications for Reasonable Accommodation and Reasonable Modification Requests

Posted in Disability, FHA Basics

One of my recent posts sparked some comments about the requirements concerning seeking verification of reasonable accommodation or reasonable modification requests.  Remember that a resident (or applicant) must make an accommodation/modification request.  Management cannot initiate such a request on our own.  That being said, a request can come from the resident or applicant (or from someone acting on behalf of the resident or applicant).  While I prefer to receive the request in writing, there is no such requirement in the law and the request can be oral or by any other effective method.  I similarly recommend that management always respond in writing to any accommodation or modification request that is received and keep a copy of our response in the files.  So, when is a verification necessary?  Is a verification always needed?  What can management seek to obtain?

Here is some general guidance concerning verifications that might be helpful as well as an non-exclusive list as to just where a verification can come from:

  • If an obviously blind resident who uses a cane makes a request for a service animal, it is likely no further verification is needed as the disability and nexus are obvious;
  • To phrase it another way, management may request documentation of the need for an accommodation/modification only to the extent necessary to verify the disability and if the accommodation/modification has a nexus (or is related to) the claimed disability;
  • Management should not seek to acquire confidential medical records or ask about the nature or severity of a resident’s disability;
  • The verification of a disability and the need for an accommodation/modification can be from a doctor, medical provider, licensed health provider, nurse practitioner, social service agency, disability agency, mental health facility or another provider that can verify the disability and nexus to the request for an accommodation/modification.

The reasonable accommodation/modification matrix is a fact intensive inquiry that we go through one at a time.  Reviewing and responding to each request can help you avoid the need to speak with a lawyer like me.

Just A Thought.

Must Service Animals Comply With Community Rules? Yes.

Posted in Disability, FHA Basics

Service (and/or companion) animals can and do perform important functions for their owners.  Even if a property has a “no pets” policy, pursuant to an appropriate reasonable accommodation request (my preference is for the request to come in writing, but there is no requirement of a writing), a resident with a disability can get that policy waived.  And at an apartment community which welcomes pets, a service animal owner will not have to pay the otherwise likely pet rent or associated fees.  That part is simple.  But, what happens when a service animal misbehaves or is not properly supervised by its owner?

I am assisting one property in which the owner of a service animal who lives on the fourth floor, permits the animal to urinate on the balcony (which then drips on the balcony below) as well as bark loudly all through the night.  The resident has taken the position that because Fluffy (I made that name up) is a service animal, Fluffy does not have to comply with the rules of the community related to animals.

That is, of course, not the law.  While professional apartment leasing office team members work to welcome service animals needed by our disabled residents, those animal owners still must ensure the animal behaves appropriately and is supervised.  In my case, management has sent a handful of letters in an effort to get the owner to comply with our reasonable community rules related to animals.  In extreme cases, service animal owners can be assessed costs of damage in excess of normal wear and tear and/or the owner will not be permitted to keep the offending animal if violations continue and the owner chooses not to work to get the animal into compliance.  Again, this is not management failing to accommodate a request, but simply working to ensure the rights of all our valued residents are protected.

My hope is that by engaging in the interactive process now I can help solve a problem before it gets too far down the line.

Just A Thought.