I have written in this space before that HUD continues to spend our federal tax dollars to investigate and test for housing discrimination. HUD does this, in part, by giving money to various entities across the country with the mission of partnering with the federal government to investigate and probe housing providers to ensure compliance with our Fair Housing Act (FHA) and similar state laws.
Indeed, just last week, HUD announced that it awarded $38 million to over 100 fair housing organizations and other non-profit agencies in 43 states (and Washington, DC) to “address housing discrimination.” These grants are funded through HUD’s Fair Housing Initiatives Program (FHIP) which was created to help enforce the FHA by the use of hiring fair housing testers and funding investigations designed to catch discriminatory housing practices. The grants are also intended to provide money for education and training for housing providers, local governments, and victims of housing discrimination. $29 million of the money was designated to assist local non-profit fair housing groups to carry out testing and various enforcement activities. Another $5.5 million went to groups to educate the public and housing providers about fair housing rights/responsibilities. The final $3.6 million was awarded to groups primarily engaged to focus on the rights and needs of underserved groups, such as rural and immigrant populations.
HUD’s view remains that it lacks the necessary manpower to fight housing discrimination on its own and that fair housing partner agencies partners are vital to their efforts to combat unlawful discrimination. That is all well and good, but my concern has long been that testers are – by their very nature – not telling the truth when they pretend to show interest in an apartment at one of my communities. And that troubles me. Am I implying that each and every tester is unethical? I am not. Does that mean I believe no discrimination complaint has merit? Of course not. Management company employees certainly make mistakes from time to time. And then we work to get it right. I am just looking for a level playing field and would like to work with HUD (and its partner agencies) to develop a methodology that is both proactive and does not promote unneccessary complaints. Increased training and fair housing education come to mind. Indeed, as most cases in 2014 concern allegations that management failed to appropriately engage in the interactive process related to a reasonable accommodation or reasonable modification request from a resident with a disability, this is likely an area where HUD, professional aparment management, and fair housing community groups could all find some common ground.
Just A Thought.
Fair Housing Defense Blog readers may recall that the issue of whether claims of “disparate impact” are cognizable under our Fair Housing Act (FHA) have twice recently come before the U.S. Supreme Court. And both times the appeals settled prior to the high court hearing the cases. In my last entry on this point, I noted that other “disparate impact” cases were going to wind their way through the federal courts. And indeed, just last week, the Supreme Court granted certiorari (legalese for taking the case) with respect to a case from Texas in which the court will again test the viability of “disparate impact” under the FHA.
In The Inclusive Communities Project Inc. v. Texas Department of Housing and Community Affairs et al., No. 12-11211 (5th Cir., Mar. 24, 2014), the Fifth Circuit identified what it believed to be the correct legal standard in FHA disparate impact cases. The facts involve a challenge to the formula under which the Texas Department of Housing and Community Affairs allocates low-income housing tax credits and if that formula violates the FHA (as well as the Constitution and another federal statute). The facts of the case revolve around if the Texas agency disproportionately approved tax credits in largely minority neighborhoods and rejected tax credits in predominantly white communities. The claim, essentially, was that the this formula skewed the process and resulted in almost no low-income housing tax credit units in nonminority areas.
Following a bench trial, the district court concluded that there was a “disparate impact” claim under the FHA. During appellate review, after acknowledging that it has previously recognized the “disparate impact” theory under the FHA in 1996 and again in 2009, Fifth Circuit panel declined to revisit the issue that had twice been to the Supreme Court (but which the court ultimately did not decide). In an effort to get this issue decided once and for all, the Texas agency requested that the U.S. Supreme Court directly address the viability of “disparate impact” under the FHA. And the court agreed to hear the appeal.
Although there have been two prior false starts over the past couple of years, by granting the request to take the case, the Supreme Court has signaled its determination to resolve this question. One side will contend that “disparate impact” has been a recognized part of our FHA (and civil rights) jurisprudence for more than 40 years. The other side will claim that “disparate impact” is nowhere in the text of the FHA and it is up to Congress to amend the law if those claim are to survive. I suspect we will get a decision this time.
Just A Thought.
Your professional apartment management team has certain responsibilities when we have residents and/or applicants with service animals. The need for some service animals is obvious and we do not need any medical verification. For others, however, we seek limited information to confirm a disability and a nexus between the animal and the disability. Service animals, of course, are not charged additional fees or pet rent. We welcome service animals and have no issue with permitting service animals to accompany our residents at all times while on the property. That being said, owners of service animals have responsibilities as well. Included in those is that the animal owner is responsible for the conduct and behavior of the animal.
I am working with a situation now where a number of residents have reached out to the management office concerning a service animal that is regularly urinating and defecating inside the property, including on carpeting throughout a community. While your leasing office will absolutely understand that an occasional accident can (and likely will) happen, management cannot allow a situation like this to continue. While we have an obligation to the owner of the service animal, we have a similar responsibility to all our residents and urine and feces throughout a community is unacceptable. In a nutshell, no animal (including a service animal) can be a threat to the health or safety of others or the property.
In short, if you have a service animal (or a pet), please clean up after the dog. Sounds simple enough. If for some reason you cannot, then please contact your leasing office so we can discuss options with you. Perhaps we can find a unit on a lower floor? Perhaps we can find a unit with quicker access to the outside? Nobody wants to remove an animal (whether a pet or a service animal) from a property. But management will be forced to act if Rover becomes a threat to the health or safety of our other residents or the property.
Just A Thought.
I wanted to address some fair housing trends with this post. For many years following passage of the the Fair Housing Act (FHA) in 1968, the most frequently filed claims concerned allegations of racial discrimination. Since I started doing this work (17 years ago), however, that has changed. Now, claims of disability discrimination make up right around 50% of the cases filed. And in addition to being the most common protected class identified in formal complaints, many informal inquiries from residents (and applicants) concern requests for reasonable accommodations or reasonable modifications related to a disability. To be sure, race/national origin/color claims are in second place, with a typical percentage around 25%. Claims involving familial status are next, making up around 13% of cases, with sex and religion cases much less common.
What I have also seen over the past decade is that engaging in the interactive process with our residents can avoid the filing of a complaint altogether. Does that mean we can elimiate all FHA complaints? No, of course not. Fair housing advocacy groups will contend that many complaints are never filed because residents and applicants do not know how to exercise their rights under the law or are intimiated by the process. Professional apartment management will report that the vast majority of complaints are filed by disgruntled residents or applicants who are angry for one reason or another and file a complaint in an effort to get back at management. Where is the whole truth? Probably somewhere in the middle.
What is the best way to avoid having a complaint filed? Engage in the interactive process. Address issues in a timely manner. Document our interaction with residents and applicants. Train our leasing office staff to understand and follow the law. That way, even if you receive a complaint, I will have a file that is in excellent shape and will permit me to appropriately defend the claim.
Just A Thought.
The regulations governing our Fair Housing Act are clear that (in almost all cases), an administrative housing discrimination complaint must be investigated within 100 days of being filed. The task of HUD (or the state, city, or county partner agency assigned to handle the complaint) is to determine if there is reasonable cause to believe that unlawful discrimination occurred. The goal, of course, is to address issues at (or as close to) the time in which they took place. That way memories are fresh and details are not lost to time. The 100 day deadline makes good sense and all parties benefit from it.
Now, is the 100 day deadline always followed in the real world? Unfortunately, no. HUD and its partner agencies routinely carry what is known as an “aged” caseload. Sure, the regulations provide that Respondents (my clients) get what is known as a “100 day letter” which indicates why the investigation is taking so long to complete. I have a stack of them. But my docket (as well as the agency dockets) regularly contain cases which pass the 100 day mark. To illustrate, in fiscal year 2013, there were 1,210 cases at HUD that were still active after the 100 day mark. That number increased from 2012 (although down from 1,353 aged cases back in 2007). Old cases are just a fact of life in our business.
Now, are there times in which my side is responsible for a delay? Sure. But not in the vast majority of cases. And I am not talking about a case which needs an extra month or two to close. That, of course, would not be an issue. Indeed, I have one case which has been pending for close to three years now in which I just received a call from my investigator. Without remorse, he asked a detailed question about one line on page five of my 2011 response. You will not be shocked that I did not have that response on my desk. And after pulling the file, I learned that the leasing office staff member involved at the time no longer works for my client and that we, in fact, sold the property in 2013. See why the 100 day rule can be important? Everyone is unnecessarily prejudiced by this kind of delay. Yes, I know federal and state budgets are tight. But I am really stuck here.
I know what some of you are thinking. File a Motion to Dismiss the case as stale or for failure to prosecute. Good thought. Unfortunately, the 100 day time limit in the regulations does not give management any substantive rights to dismiss old cases. Although there are times I sure wish it did.
Just A Thought.
It is always difficult when an apartment community decides to “opt out” of the federal Section 8 housing program. While participation in “Section 8” is voluntary – the guidelines for opting out are not always easy to follow and the process does take some time. Additionally, affordable residents who have been living at the community will likely be upset and unhappy with the decision. And then may retain counsel to challenge management’s decision.
That is exactly what just happened at an affordable community in Brooklyn, NY. Earlier this week, a group of residents sued the U.S. Department of Housing and Urban Development (HUD) and the management company claiming the owner is attempting to opt out of the Section 8 program without providing the proper one year notice. The complaint further alleges that the result of this change will increase homelessness and will reduce the number of minority residents in the community. With the case, the plaintiffs seek an order requiring that the owner renew its Section 8 contract, stop all evictions, and end all rent increases. The plaintiffs also contend that management’s confusing signals caused what amounts to a panic for the residents as they only received four months notice that the housing program would be going away.
While residents are permitted to apply for what are known as “enhanced vouchers” with HUD to help permit them to remain in their homes, the residents must still ensure their units pass fair housing quality inspections. There are some residents who may have problems with the voucher and/or the inspection requirement, which will force them out of their homes. And that is always difficult.
In circumstances like this, management must ensure that all of the paperwork is correct and all of the requirements have been followed. And, even if you have done everything correctly, I can guarantee that some residents will be very unhappy with the decision to opt out of the Section 8 program. And then you will really need a lawyer like me to work with you in an effort to avoid lawsuits like this.
Just A Thought.
In a blog post in this space last month, I reported on an unusual Manhattan housing development which was designed to include both high end and affordable apartments. Included as a part of the project is what has been referred to as a “poor door” – a separate entrance for people who will live in the affordable units. Many officials, as well as housing advocates, have severely criticized the “poor door” concept as improper government-approved (if not unlawful) housing segregation. Indeed, my article prompted multiple government officials to reach out to me to seek more details. It is fair to say that the “poor door” concept has caught the eye of those in government who regulate housing and who enforce the federal Fair Housing Act (FHA) and its state law counterpart.
Because of the publicity, it appears as if the project will be changing. While the “poor door” is not (at least not yet) going away, the developer and city have reworked the project such that the affordable residents will have an entrance with shared access to a courtyard as well as a 12,000 foot roof deck with views of the Hudson River. The custom wood entrance will also face a four acre public park and will have a lobby with a glass facade – all changes proposed in an effort to remove the stigma of a rear alley entrance or of a back door.
Again, the optics of the “poor door” are just very difficult to overcome. The fact that new affordable housing units are being proposed (in a city with real affordable housing needs) is just getting lost. As the project is just getting underway, however, it seems likely that there will be more changes before it is built and ready for occupancy. And then the building will face scrutiny from the federal government, state government, and/or City of New York as someone (likely more than one person) will file a complaint alleging that the “poor door” – even the upgraded “poor door” with amenities – still has a disparate impact on a protected class and, as such, violates the FHA and New York law. You can count on that.
Just A Thought.
Think that the U.S. Department of Justice (DOJ) has lost interest in prosecuting Fair Housing Act (FHA) discrimination cases? Think again. Earlier this week, DOJ announced that two property owners in Ohio agreed to pay $850,000 to settle lawsuits filed by the DOJ as well as other private parties and Ohio state officials claiming that the defendants discriminated on the basis of race and familial status at properties they formerly owned.
The proposed agreement would conclude a DOJ complaint filed in 2011 alleging that the property owners discriminated against African Americans and families with children at three Ohio apartment communities. The settlement would also terminate companion lawsuits raising similar allegations filed by Stark County, the Ohio Civil Rights Commission as well as a number of other former property managers and residents. Indeed, in an order issued earlier this year, the judge noted that 10 former employees of the defendants had specifically testified that they were instructed to discriminate against African Americans and that other former employees told the judge that they been instructed to discriminate against families with children. Accordingly, the court concluded that the DOJ had presented sufficient evidence of a pattern or practice of unlawful discrimination by the defendants for the case to go to trial before a jury.
Under the terms of the settlement, which still must be approved by a federal judge in Ohio, the defendants will pay: $650,000 in damages and attorney’s fees to the plaintiffs in the lawsuits filed by the Ohio Civil Rights Commission, Stark County and several former residents and property managers; $175,000 in damages to 11 additional former residents and employees identified by DOJ who had been harmed by the defendants’ discrimination; and a $25,000 in a civil penalty to the United States.
Because of the serious nature and scope of the allegations, the settlement also requires that the defendants hire an independent management company to oversee all of their rental properties, receive training on the requirements of the FHA and report to the United States for a period of three years on their compliance with the settlement. The settlement also requires the defendants to hire a third party to periodically test their properties to ensure compliance with the FHA.
Make no mistake, the financial and reporting components here are higher than what would otherwise be typical in a FHA case. Because of the pattern or practice allegations that DOJ believed it could prove at trial, it likely made the case much more expensive to resolve. If you are unsure of your policies or want to check your compliance with the FHA, you might want to check with a lawyer like me.
Just A Thought.
Last week, the Department of Justice (DOJ) announced that the owner and manager of an apartment community in Cleveland agreed to pay $100,000 to settle allegations of housing discrimination brought by families with children.
In the case, DOJ alleged that the defendants violated the Fair Housing Act (FHA) by following an illegal policy of refusing to rent apartments to families with children. Additionally, the complaint alleged that the owner and manager had a policy of evicting tenants or asking tenants to move if they had a child or children while living at the community. While FHA does contain an exemption to permit housing that is reserved for older persons under certain circumstances, this community did not meet the requirements for that provision in the law.
The settlement, which still must be approved by a federal judge before it is final, requires the defendants to pay $90,000 to victims of their discriminatory actions, and to pay $10,000 in civil penalties to the United States. The agreement further mandates that the community remove any restrictions on occupancy by families with children, train its employees on the FHA and provide reports to DOJ to make sure that such discriminatory policies are not implemented in the future.
While there are always two sides to every story, this case is another cautionary tale that – in most cases – a professional apartment management company cannot simply refuse to rent to an applicant because he or she has a child or children. To be sure, if you want to attempt to qualify your community as housing for older persons – you will really want to speak with a lawyer like me to help ensure your property can meet all of the tests in the law.
Just A Thought.
Last month HUD announced a settlement with the owners of two New Hampshire properties to resolve allegations that they engaged in housing discrimination for failing to rent to a woman who was a victim of domestic violence. While victims of “domestic violence” are not a separate protected class under our Fair Housing Act (FHA), HUD now takes the position that this resident was discriminated against because of her gender (which, of course, is a FHA protected class) and, in addition, HUD looked to the federal Violence Against Women Act (VAWA) statute for additional protection as the VAWA was strengthened and reauthorized by Congress in 2013.
HUD’s view in this case was that the resident was a victim twice – first by the person who committed the acts of domestic violence against her and then by her apartment management team. The allegations in the complaint included that management refused to renew a lease because the local police had responded to 911 calls concerning allegations of domestic violence. A second complaint was filed when the woman could not get a lease from a new potential landlord, again because of the previous domestic violence visits by the police. Pursuant to the settlement agreements, the complainant will receive $13,550 from the named respondents and the landlords will participate in fair housing training as well as monitoring.
While I absolutely know that there are two sides to every story, the optics here just look bad for management. If your leasing office learns of a situation in which a resident is a potential victim of domestic violence, the prudent course of action is to fully engage in the interactive process and work to find a solution. Simply declining a renew a lease, without more, can lead to the need to speak with a lawyer like me.
Just A Thought.