Continuing a trend I have been reporting on this month, the Department of Justice (DOJ) has filed yet another complaint against the owner and manager of a 28 unit apartment community alleging familial status discrimination under the federal Fair Housing Act (FHA). This complaint, filed in Colorado, asserts that the defendants had a policy in place to generally prohibit families with children from living in the front building at the property and further that management restricted families with children to a rear building instead.
The lawsuit started with a fair housing complaint filed with HUD by a local fair housing tester group. The testers sent individuals posing as applicants to the leasing office to determine if management was complying with the FHA. It is alleged that the tests revealed that the community manager told applicants that families with children were placed in the rear building and further that families with children were not offered units in the front building. HUD issued a formal charge of discrimination and an election was made to take the case to federal court.
While I absolutely want to hear the other side before forming any opinion as to the merits, under the FHA, apartment management cannot arbitrarily limit where children live in the apartment complexes. Provided the applicant family meets a non-discriminatory resident selection criteria (which can include a credit and criminal background screen), the general rule is that the applicant should decide which specific available unit fits their needs. Management cannot direct families to a different building or even a separate floor. I have seen other instances in which management for what appears to be a benign reason – typically to have a quiet floor or building – runs into trouble (such as a discrimination complaint) because their policy unlawfully discriminates against families with children. If you have policies or are writing policies concerning occupancy (locations, limits, or standards) you might want to run them by a lawyer like me in an effort to reduce the potential that you might end up as a defendant or respondent in a fair housing case.
Just A Thought.
Continuing along a recent path, late last month HUD announced that it had filed another Fair Housing Act (FHA) discrimination complaint, this time against a management company in Texas asserting that the apartment community imposed overly restrictive rules on children under the age of 16. In the complaint, HUD alleges that the apartment community’s rules discriminate against families with children as rules prohibiting children under the age of 16 from being in their home without an adult, using the laundry facilities without an adult present, using the pool without an adult present, or using their scooters/bikes in the parking lot without an adult present violate the FHA. HUD further charged that residents were told that parking lots were not to be used as playgrounds and that if children were found playing in the street on their bikes or scooters, the families would be given a 24 hour notice to vacate.
Now, I am not involved with this case and I always want to hear both sides. From reading the complaint, it is certainly possible that at least some of the rules were developed with child safety in mind. Nevertheless, these rules were brought to the attention of a local fair housing group which conducted tests at the property. Those tests led to the HUD complaint.
This brings to mind another case in which a property owner published an ad for his apartment community, a property located on a busy street. The ad noted that because of the location, the apartments might not be the best place for kids. He wrote the ad purely as an effort to be truthful, descriptive, and because of legitimate safety concerns. Nevertheless, a local fair housing group was reviewing ads for housing and challenged the language, asserting that the ad violated the familial status provisions in the FHA. While we were able to negotiate a relatively inexpensive amicable resolution, my client remained very disappointed in the outcome as in his view he was just trying to help.
What should management do? Perhaps work with a lawyer like me to develop property rules which address legitimate concerns while at the same time reduce the chance that someone can claim you are violating the familial status section of the FHA.
Just a Thought.
HUD unveiled a proposed policy today in which smoking would be prohibited in public housing apartment homes and communities across the country. The new proposal would impact nearly one million households and is another effort by the federal government to curtail unwanted exposure to secondhand tobacco smoke. In addition to individual homes and apartments, the smoking prohibition would also mandate that common areas as well as the leasing office all be smoke free.
While introducing the draft new rules, HUD Secretary Julian Castro said in an interview yesterday that the “argument about secondhand smoke is over,” and that smoking is “harmful, and we believe it’s important that we have an environment that’s healthy in public housing.” In moving to require the prohibitions across the country, federal officials stated they are acting to protect residents from secondhand smoke, which can travel through walls and under doors. Other intended benefits of the policy are expected to be reducing the risk of fires and to lower building maintenance costs.
HUD expects strong comments on both sides of the issues. Some residents, of course, will welcome what they believe is a vital clean air and health initiative. Others will view it as big government infringing on their personal rights and adult choices. HUD anticipates that “smoke free” addendums will be added to new leases as well as lease renewals. Violations would be treated like other nuisance issues, which are typically reported by staff members or other residents. Secretary Castro hopes that the ban on smoking will not lead to evictions.
The proposed rule would require housing agencies to prohibit lit cigarettes, cigars, and pipes in all living units, indoor common areas, administrative offices and all outdoor areas within 25 feet of housing and administrative office buildings. The rule would not apply initially to electronic cigarettes, but federal officials are seeking input about whether to ban them.
The public will have 60 days to comment on the proposal. If the rules go into effect, individual public housing agencies would have up to 18 months from the effective date of the final rule to adopt and put their smoke-free policies in place after their own periods of public review and meetings with residents.
From my desk as management’s lawyer, I see a couple of issues. First, from a fair housing perspective, smoking and smokers are not a protected class under the Fair Housing Act. I do, however, see issues with enforcement. How are leasing office staff members going to police this new ban, short of walking the halls? And if HUD does not want violations to lead to evictions, what can management do to ensure the policy is followed? There will be more to come on this issue, I am sure.
Just A Thought.
In a case demonstrating the intersection between housing and unlawful sexual harassment, just last week the Department of Justice (“DOJ”) filed a federal lawsuit against the Kansas City, KS Housing Authority and its former hearing officer. In the complaint, the DOJ alleges that the former hearing officer harassed a woman who was applying for housing as well as another woman who already was public housing resident in violation of the Fair Housing Act (FHA).
The lawsuit contends that the hearing officer subjected these two women to unwanted conduct (including asking them sexual questions, showing them inappropriate videos and pictures, making explicit comments, and exposing himself) as a condition for favorable hearing decisions. The complaint asserts that the hearing officer engaged in this conduct while he was an employee of the Housing Authority. The women initially filed discrimination complaints with HUD. Following an investigation, HUD issued a formal charge of discrimination and referred the matter to DOJ. While the case is now getting started, DOJ has also requested that others who may have been victims reach out to a toll-free telephone number or email DOJ’s fair housing group.
As a defense lawyer, I know there are at least two sides to every story. With this post, I am not passing judgment on the merits of the case, I am only pointing out how the FHA protects residents and housing applicants from unwanted and/or inappropriate sexual conduct related to their housing rights.
Just A Thought.
When I started writing this blog, I feared the only readers would be my Mom and my wife. Fair housing from the perspective of management’s lawyer? Who would read that? In any event, monthly readership hit 1,000. And then grew to 2,000. And earlier this year, the Fair Housing Defense blog started getting over 3,000 hits a month. Yes, my Firm keeps score. I am still astounded by (but very much appreciate) that growth. Oh, and let’s see if my wife still checks in: Happy Birthday, sweetie.
Now, earlier this month, HUD released a new proposed rule to formalize the standards for evaluating harassment claims in housing or housing-related transactions under our Fair Housing Act (FHA). The rule – “Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices under the Fair Housing Act” – intends to define “quid pro quo harassment” and “hostile environment harassment,” respectively, as (i) subjecting a person to an unwelcome request or demand because of the person’s protected characteristic and submission to the request or demand is, explicitly or implicitly, made a condition related to the person’s housing; and (ii) subjecting a person to unwelcome conduct that is sufficiently severe or pervasive such that it interferes with or deprives the person the right to use and enjoy the housing or to exercise other rights protected by the FHA.
The proposed rule also would describe standards for “direct liability” and “vicarious liability”, which would apply to all FHA violation, not only harassment. For example, HUD proposes to define “direct liability” to include (i) a person’s own conduct; (ii) failure to take prompt action with respect to a discriminatory housing practice by an employee or action; and (iii) failing to fulfill a duty to take prompt action to correct and end a discriminatory housing practice by a third-party, where the person knew or should have known of the discriminatory conduct.
These proposals were published in the Federal Register on October 21, 2015 and comments are due by December 21, 2015. I will review and provide an analysis of what these proposed changes might mean to professional apartment management.
Just A Thought.
Readers of this space know that while professional apartment management must ensure we follow our federal Fair Housing Act (FHA) and its seven protected classes (race, national origin, color, religion, sex, familial status and disability), we must also make certain we know the state, county, city, and/or local laws applicable in the various jurisdictions in which we have apartment communities. These seven federal protected classes can be (and are) supplemented by laws encompassing, for example, source of income, sexual orientation, marital status, and/or age (to name a few).
On a related note, it was just announced that New York Governor Andrew Cuomo is planning to use an executive order to protect transgender people from discrimination in housing and employment. It has been reported that Governor Cuomo is going to make the announcement at an Empire State Pride Agenda dinner in New York.
Although efforts to change New York state law through legislation on this point have been repeatedly blocked by the Republican controlled state Senate, Governor Cuomo is going to act on his own.
This action is just another cautionary tale to ensure we keep with the laws in the jurisdictions where we operate. If you don’t know your state and/or local laws, you might want to reach out to a lawyer like me.
Just A Thought.
Earlier this year I commented on a report from HUD’s Inspector General (the Department’s internal watchdog) which severely criticized HUD’s current policy which permits individuals who are designated as “over income” to remain in public housing.
Blog readers may recall that the report found that more than 25,000 residents made 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.
A Florida congressman remains unsatisfied with HUD’s response on this issue and is threatening to withhold $104 million from HUD’s annual budget. Why $104 million? Because that is the amount HUD’s inspector general reported is wasted on subsidizing “over income” residents taken from a sample of 15 local housing authorities.
After reversing course, HUD subsequently stated that local housing authorities can indeed move to evict “over income” residents. But when the congressman checked with various housing authorities, he reported he was told that HUD would essentially not permit the evictions. His solution? Threaten to withhold federal funds.
Part of this, of course, is taxpayer money and how that money should be spent in an era of ever tighter federal budgets. Fiscal watchdogs will assert that the rules need to be followed and if someone now earns more than the guidelines for public housing, he or she should be congratulated on their success and make plans to live elsewhere. On the other side, public housing advocates will likely take the position that limited “income diversity” in affordable housing is a good thing and that it makes no sense to evict residents from their homes as that cuts against the very nature of why the federal housing programs exist in the first place.
I suspect this is an issue HUD does not enjoy being highlighted and I doubted HUD (through various Housing Authorities and private landlords) would actively start evicting residents. I still think that will be the case, but let’s see what happens next. $100 million is a big number and the administration will oppose such a cut.
Just A Thought.
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.