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Fair Housing Defense

Information on and Compliance with the FHA

Is Following the Seven Protected Classes in the Federal Fair Housing Act Enough to Avoid a Discrimination Complaint? Most Likely Not.

Posted in FHA Basics

Law360 published an article I wrote (shameless plug here) concerning 47 years of the federal Fair Housing Act (FHA) and current Department of Justice and Department of Housing and Urban Development fair housing enforcement and investigation trends.  The article generated a question that I wanted to address.  Our federal FHA contains seven protected class:  race, color, national origin, and religion (which were all contained in the initial 1968 law), sex (added in 1974) as well as disability and familial status (added in 1988).  My reader wanted to know if only following those protected classes would be enough to avoid a housing discrimination complaint?  The answer to that question is most likely no.  There is no federal preemption with respect to protected classes.

While indeed the FHA is the law of the land, many individual states (as well as various cities and counties) have adopted their own fair housing laws which include additional protected classes, such as source of income, sexual orientation, marital status, occupation, status as a student, member of the military, and/or age.  What this means is if you operate in an area covered by additional fair housing laws, you need to know the laws in your specific jurisdiction.

The good news is that you can find out what laws apply in your jurisdiction via an online search or by checking with a lawyer like me.  Again, it will not be a defense to say that “well, I just did not know the law.”  As professional apartment management, we are tasked with knowing (and following) applicable law.  Hope that helps.

Just a Thought.

Are Individual Roommate Searches Covered by the FHA? No.

Posted in Uncategorized

I received an interesting question this week:  are roommates (and searches for roommates) protected under the Fair Housing Act (FHA).  What used to be done in newspapers (and now largely done on-line through various websites) are efforts to help people find a roommate.  Many times people are looking for roommates based on a given sex, age, race, sexual orientation and/or familial status.  And these are the types of classifications covered under federal and state fair housing laws.  In sum, can an individual roommate search be done in a manner that would violate the FHA if done by a professional apartment management company?

Well, a local fair housing group in California thought roommate searches should be covered by the fair housing laws and literally made it a federal case.  The specific legal question was if an individual bedroom within an apartment or house is a “dwelling” subject to the FHA?  The U.S. Court of Appeals for the 9th Circuit concluded that no, the FHA does not protect roommates.  The opinion basically took view that, quite unlike an apartment community, the leasing office does not have to live with the resident.  The court concluded that applying the FHA to inside a home or apartment would permit the government to restrict the ability to choose roommates compatible with individual lifestyles and would reflect a serious invasion of privacy, autonomy and security.

While there are always two sides to every issue, the court took the view that, for example, a woman might want a female roommate because of security or modesty concerns.  Similarly, an orthodox Jew may prefer a roommate with similar beliefs and/or dietary restrictions.  These are but two examples of legitimate reasons why the FHA has been held not to apply in individual roommate searches.  Hope that makes sense.

Just A Thought.

A Fair Housing Defense Blog? Here’s Why.

Posted in FHA Basics

Why a Fair Housing Defense blog?  It is a question I got this morning.  And it struck me that I have not posted this introduction for some time now.  I have been representing apartment management companies, their employees, and providing fair housing advice as well as defending housing discrimination cases for over 17 years. I have had a docket of cases stretching from Alaska to Florida and just about everywhere in between. My cases get investigated by the U.S. Department of Housing and Urban Development, the U.S. Department of Justice  in addition to many state, city, and county agencies.

The goal of this blog is to provide a forum for issues of interest to apartment owners and management companies as well as professional apartment management employees.

Ours is a Noble Mission – we provide important housing. We are committed to following the federal Fair Housing Act (“FHA”) as well as the many state and local laws which prohibit discrimination in housing. Noting that you do not discriminate on the basis of race, color, sex, disability, national origin or familial status is only a good start.

On its face, the law seems simple enough: don’t discriminate. All applicants and residents should be treated equally and with respect. But, each situation is fact intensive and requires an individualized review of the circumstances.

For what it is worth, each year I see more and more reasonable accommodation and reasonable modification requests from resident (and/or applicants) with disabilities.  Furthermore, the number of service/companion animal requests exponentially grows.

Some common questions I see include:

  • How do I respond to a reasonable accommodation/modification request?
  • What medical verification is appropriate?
  • What about those which add source of income as a protected class?
  • Should you accept vouchers?
  • Do you know the difference between a reasonable accommodation and a reasonable modification?
  • Who pays for a reasonable modification?
  • Does a request for a reasonable accommodation have to be related to the claimed disability?
  • What is Section 504 of the Rehabilitation Act of 1973 and why are two agencies investigating the same complaint?
  • Can I have occupancy standards for my apartments?
  • What do you do when the investigator asks you to halt eviction proceedings in an effort to settle the case?
  • How do you handle an investigator who wants to interview all of your employees? Or review all your files?
  • What about when the investigator who wants to knock on the doors of your residents?
  • Should you still evict a resident even after he has filed a fair housing complaint?
  • Should you place an advertisement in a church flyer?

Those are just some of the issues I hope to explore. I will do my best to give some insight based on my experience and offer solutions.

There will be no lectures here, but I will try to leave you with –

Just A Thought.

Early Termination of a Lease as a Reasonable Accommodation?

Posted in Disability, Discrimination

A Fair Housing Defense blog reader sent me a question today that I wanted to address as it comes up from time to time.  As we know, our federal Fair Housing Act (FHA) was amended in 1988 to add individuals who are disabled as a class protected from housing discrimination.  As such, federal law requires management to make accommodations with respect to our rules, policies or services at a community when such an accommodation may be necessary to ensure that the disabled resident has an equal opportunity to use and enjoy a home.  Sounds simple enough.

The question I received is:  what happens when management receives a reasonable accommodation request that seeks early termination of a lease by a disabled resident as a reasonable accommodation because of a disability?  And further, that management wave any early termination fees.    On the one hand it does not seem logical to permit a resident to break a lease as an accommodation when the whole purpose of the FHA is to find and maintain housing for all.  To phrase it another way, the whole reason behind the FHA is to get people into homes — not to permit residents to leave.   On the other hand, are there circumstances under which the law will support breaking a valid lease as being consistent with the principles in the FHA?

In practice, however, the law holds that a resident may develop a disability, or an existing disability may become so severe during the term of a lease, that he or she cannot meet the obligations of their lease. In cases in which there is no reasonable modification or reasonable accommodation that can remedy the situation, the resident may have no choice but to find alternative housing. In such a case, the resident should request that management permit an early termination of the lease, and if it is reasonable, management may have to grant the request. Either the resident or management may offer an alternative accommodation, such as another, more suitable unit.  As with all determinations of reasonableness, management may only refuse to terminate the lease without penalty if the accommodation would result in an undue burden or would substantially alter the terms of the agreement. In determining reasonableness, the landlord may consider the following:  (a) the likelihood of filling the vacancy given vacancy rates in the area/building; (b) any particular characteristics of the dwelling that make it desirable or undesirable; (c) the amount of time remaining on the lease term; (d) the size of the owner’s business; and (e) the owner’s overall resources.

A request by a disabled resident for early termination of a lease can be considered one of many suitable reasonable accommodations.  Management must evaluate that request and determine if it should be granted or perhaps seek an alternative accommodation that can meet the needs of management and the resident.  To be sure, a determination of what is or isn’t a reasonable alternative is very fact-specific and will be a decision made on a case-by-case basis by courts in the event that the issue is litigated.  These situations are further evidence that management must remain current in responding to requests from residents and we must know the law.  Hope that helps.

Just A Thought.

The Relationship Between Familial Status Discrimination and Housing for Older Persons

Posted in Discrimination, FHA Basics

A fair housing issue that can cause unintended problems for management is the intersection of the inclusion of familial status as a protected class and certain housing limited to older persons.  On its face, the provisions seem to conflict.  On the one hand, management can get sued for prohibiting (or even appearing to discourage) families with children from applying. Yet on the other hand, certain communities are designated as housing for older persons.  Here is a quick summary of the law on this point:

Under our Fair Housing Act (FHA), it is illegal to limit the admission of children into your community.  This includes a prohibition on restricting families with children to certain floors or specific buildings in a community.   There is an exception in the law which provides that if a community is designated as “housing for older persons” or “designated senior housing” there can be restrictions on kids.   There are three general categories of such housing for older persons:  (a) housing provided under specific state or federal programs; (b) housing intended for persons 62 years of age or older (in that all residents must be at least age 62) or (c) what happens most commonly, “55 and older” designated senior communities.

In the 55 and older communities, at least 80% of the housing units must have at least one resident aged 55 or older.  To operate under the provision in the law, the community is required to demonstrate its intent to exist as senior housing in all of its advertising, lease provisions, rules, and practices. The community must track (typically be means of a survey) its resident composition on a regular basis (defined to be at least once every two years).  If it is determined that the number of units with someone 55 or older falls below the 80% level, the community can no longer be designated as senior housing.   What I have found is that in practice it is hard for an existing non-senior community to convert to becoming senior housing.

You should be able to easily identify if a community holds itself out as housing for older persons.  If you do not see such promotional materials, it is likely the property has not sought such a designation and the FHA protection for families with children is in place.  Hope that makes sense.

Just A Thought.

Examples of Apartment Community Rules Which Can Be Perceived to Violate the Fair Housing Act

Posted in Discrimination, FHA Basics

I received a question related to a prior post regarding possible discriminatory impact of rules at apartment communities which, on their face, may appear benign.  The Fair Housing Defense blog reader asked me for some examples.  So, here are four instances in which management ran into trouble with community rules:

An apartment complex enacted a restriction on residents cooking/eating curry at the property.  The reason for the rule was that some people objected to food odors.  Upon review, however, this was found to have a disproportionate impact on applicants and residents from South Asia.

Next, a different community had a rule restricting the use of tricycles anywhere on the property. The rule was likely passed as it was intended to be a safety measure.  Upon challenge, however, it was perceived as a way to discourage families with young children for renting or applying to rent at the property.

Another property passed a rule which required all residents to fly the American flag on national holidays and decorate their homes for Christmas.  What could be more patriotic than flying the flag?  Well, a family who were Jehovah’s witnesses were refused admittance into the community because they would not follow these requirements.  Apparently, as Jehovah’s Witnesses do not fly national flags or decorate for Christmas as part of their faith, these requirements had a discriminatory impact on them because of their religion and, as such, violated the Fair Housing Act.

Finally, a management company refused to permit a Jewish resident from displaying a four-inch mezuzah on her front door. (A mezuzah is a small container holding a scriptural passage.) The property had rules which provided that residents could not change or alter the exterior of the homes and Jewish homeowners were informed they would have to take down the objects or purchase screen doors to conceal them.  The rule was determined to have a discriminatory impact on Jewish residents in the community and the owner paid a fine and was required to re-write its policies.

Make sense?  This is why it can be helpful to speak with a lawyer like me when drafting your community policies.

Just A Thought.

Can Management Enact Community Rules Which Appear Hostile to Children? No.

Posted in Discrimination

Even if done for what may appear to be a benign reason, professional apartment management cannot put overly restrictive rules in place which have the look of controlling the free movement of children around the community.  HUD recently announced settlement of a discrimination case in which it was alleged unlawful rules were enacted to the detriment of families with children.  The allegations included that management placed limits on children playing outside as well as a claim that children were forced to clean the manager’s office toilet when the kids were found outside unaccompanied by an adult.

Many times, of course, cases with bad facts are the ones charged.  Here seven families in California filed complaints (along with a nonprofit fair housing advocacy group) with HUD alleging that the community manager cursed at children when he found them playing outside unaccompanied, and then ordered the children to his office and instructed them to sit on the floor.  HUD’s charge further asserted that once at the office, the manager required the children to clean the office toilet and pick up trash around the complex.  He is also alleged to have threatened them by telling the children that their families might be evicted if they did not comply with his instructions. The apartment community also had a rule prohibiting children from using the swimming pool during certain hours.

Pursuant to the agreed settlement terms, the owner and community manager will pay damages to the residents, former residents, the fair housing group.  The community will also provide free rent for a number of months going forward.  The total monetary value of the settlement is approximately $19,000.  Management also agreed to eliminate the rule that restricted pool usage by children during the day and to obtain fair housing training for employees.

While many of the facts here were difficult, I suspect the pool usage restriction was done as what was perceived as a helpful safety measure.  What I have seen, however, is rules that impact kids need to be crafted in such a way as to not single out families with children.  Indeed, drafting pool rules can be one of the areas in which you might want to speak with a lawyer like me.

Just A Thought.

47 Years of the Fair Housing Act: DOJ Comments on Recent Enforcement Activity

Posted in FHA Basics

This month marks the 47th year since the passage of the federal Fair Housing Act (FHA).  While noting that anniversary, the acting head of the Civil Rights Division of the U.S. Department of Justice (DOJ) highlighted some recent DOJ accomplishments.  It remains important for professional apartment management to know about fair housing priorities at both the DOJ and the U.S. Department of Housing and Urban Development (HUD).  First, HUD and DOJ continue to believe that fair housing is more than just about finding a place to live.  Particularly in a time when recent national events have again raised the profile of racial divisions in our country, DOJ and HUD view fair housing as including equal access to good jobs, good schools, credit, transportation, safety as well as a range of opportunities and relationships.   Here are some recent cases and initiatives covering various protected classes:

Race:  In one fair housing discrimination case from 2014, in which it was alleged that management at an Ohio community told African American applicants that apartments weren’t available and made statements such as “black people are trouble,” DOJ obtained a payment of $175,000 to victims, a $25,000 civil penalty to the United States as well as an additional $650,000 in damages and attorneys’ fees.  The settlement also mandated that the defendants hire an independent management company to operate all of their rental properties, hire an unaffiliated third party to test fair housing compliance, receive FHA training, and submit regular reports to HUD for the next three years.

Familial Status:  DOJ resolved two familial status cases in which it was alleged management implemented policies that restricted children from common areas of the property or required constant supervision for anyone under 16.  In those two cases, DOJ obtained $270,000 in monetary relief and changes to the alleged discriminatory practices.

Sex:  In three recent cases, DOJ alleged that management employees engaged in a pattern or practice of sexually harassing female tenants and prospective tenants.  The complaints asserted that the employees made repeated unwanted sexual comments and advances toward their female tenants, requested sexual acts for reduced rents, delayed evictions, and took adverse actions when those sexual overtures were resisted.  DOJ was able to obtain over $4.6 million in monetary damages for the victims.  Three more cases asserting sexual harassment were filed by DOJ in November 2014.

Disability:  DOJ filed or settled a total of nine cases in 2014 alleging a failure to design and construct rental properties in compliance with the FHA accessibility guidelines promulgated by HUD.

Fair Lending:  Since 2010, DOJ has settled 18 lawsuits alleging discrimination in mortgage lending, including pricing discrimination, steering, and redlining.  Most of these cases involved allegations that if a borrower was African American or Hispanic, he or she was more likely to be placed in a subprime loan or pay more for a mortgage loan than if the borrower were a white with similar creditworthiness.

My point here is to simply note that HUD and DOJ (as well as private fair housing tester entities) are on the lookout for FHA violations.  Indeed, in our fully digital world, any ad you place is subject to scrutiny.  Any telephone conversation you have can be recorded.  Any applicant might be a tester.   As I have written before, ignorance of the law (especially one that has been on the books for now 47 years) is no excuse.  As management, we have to do our best to get it right.  We have no issue complying with the law – we just want to know the rules of the road.  And if we make a mistake (inadvertent or otherwise), then you may need to speak with a lawyer like me.

Just A Thought.

 

DOJ Settles Another Familial Status Discrimination Case: This Time for More Than $100,000

Posted in Discrimination, FHA Basics

Last week, the Department of Justice (DOJ) announced a $110,000 settlement of a fair housing case filed in November 2013 in which the owner/management of a condominium community in Minnesota was accused of discriminating against families with children.   The complaint asserted that the defendants  unlawfully discriminated against residents with children by issuing and enforcing rules regarding the use of common areas at the property.  The resolution includes an agreement from the defendants to establish a new non-discrimination policy in accordance with the Fair Housing Act, undergo fair housing training (which will specifically address issues involving families with children), pay a $10,000 penalty to the United States, and pay $100,000 to six families alleged to have been the victims of the discrimination.

As asserted in documents associated with the case, the defendants allegedly engaged in a pattern of discrimination by creating and enforcing rules in a manner that prevented children from equal enjoyment of common areas and by making statements that indicated a preference against families with children.  The complaint alleged that the defendants  required children to be supervised at all times when in  a common area, prohibited or unreasonably restricted children from using the common areas and selectively enforced the common area rules by issuing warnings and violation notices to residents with children, but not to adult residents engaging in the same activities.

This case is yet another reminder that management must do more than simply allow families with children to live at our communities.  We must also give families appropriate access to the common areas and amenities.  If you draft your community rules and policies in such a way as to be able to be read in a manner which  discourages or otherwise limits access to families, you very well may need to speak with a lawyer like me.

Just A Thought.

Here is a Summary of the Fair Housing Issue Argued Before the U.S. Supreme Court

Posted in Discrimination, FHA Basics

A Fair Housing Defense blog reader asked me to further explain the housing discrimination question that was argued before the U.S. Supreme Court back in January.  Let me see if I can do it without using too much (if any) legalese.  The federal Fair Housing Act (FHA) states it is against the law to discriminate against individuals based on their membership in one (or more) of seven different classifications:  race, color, national origin, religion, gender, disability, or familial status.  The claim in most cases is that a landlord refused to rent (or charged higher rent or failed to accommodate someone with a disability) because the individual is a member of one of the protected classes.  To phrase it another way, the landlord specifically acted against the individual because he or she fit into one (or more) of those categories and the landlord did not want to deal with that person.

In addition to this type of direct discrimination, the bulk of the case law from the last 40 years has also concluded that policies (even those that appear neutral as written) having a “disparate” (read –negative) impact on members of a protected class are also actionable under the FHA.   The words “disparate impact,” however, are not contained in the FHA.  And that is the legal issue which came to the Supreme Court.

Over the past several years, a certain group of Supreme Court justices have criticized efforts to read more into federal statues than the actual words convey.  They invalidated a portion of a law a while back and had previously accepted two cases concerning the FHA “disparate impact” question.  Those two cases, however, settled prior to the Supreme Court hearing oral argument.  As such, the cases were dropped from the docket and the Court did not issue any guidance on this issue.  In an effort to support the “disparate impact” theory, the Administration published new federal regulations in 2013 which attempted to confirm that “disparate impact” claims are indeed a long-standing and important component of the law.  And it noted decades of federal court cases approving of the “disparate impact” theory in housing cases.  Those challenging the law, however,  saw only a transparent effort to prop up a reading of the FHA that does not contain the very words at issue.  The challengers also complain that the Administration was involved in settling the two prior FHA cases that had been pending before the Court in an effort to prevent the justices from deciding (read — overturning) the point of law.

I expect the Supreme Court will issue a decision in the FHA case at some point before the end of June.  I have a prediction as well as a tally of the vote by the justices in an envelope in my desk.  I will report back.

Make sense?  Just A Thought.