My previous blog post, dealing with the request from a resident to permit a 30 pound boa constrictor as a companion animal generated a few comments from readers. As the internet can be a raw, unfiltered place from time to time, here at the family-friendly Fair Housing Defense blog I don’t post the comments from readers, although I do review them. Safe to say that some readers were appalled that anyone would consider a 30 pound snake a companion animal (particularly with one toddler at home and another child on the way). Another reader was aghast that I would even question the request as my post obviously shows bias in that I don’t know anything about snakes. (Which, by the way, is true).
Another, more helpful, reader included a link to a reported decision from a federal judge in Washington state from 2006 in which a resident from an apartment community sought a boa constrictor as a companion animal.
The point of the post was to again note the wide range of reasonable accommodation requests received by management. And that while our leasing office team members will absolutely review and evaluate each request, there are some that we just cannot do. I also see (and want to report on) what appear to be some requests from residents simply attempting to avoid pet rent and pet fees by getting their pets classified as service or companion animals. Indeed, one of my clients got another such request this week. I worked to draft a careful response indicating why the medical verification (which rejected the designation that the specific dog should be a companion animal) did not support the request.
Oh, how did the court rule on the request that a boa constrictor be permitted as a companion animal? The judge rejected the request.
Just A Thought.
I had a different Fair Housing Defense blog entry ready for today, but it will wait until next month. I got a call this morning from a lawyer in Michigan who, like me, represents professional apartment management companies. His clients face many of the same issues surrounding reasonable accommodations and reasonable modifications that mine work to resolve. From time to time we share stories and review issues of interest to lawyers working to prevent housing discrimination claims. Today we talked about service animals who assist our disabled residents.
I have written many times in this space that service or companion animals are not limited to dogs, although dogs are by far the most common animal used by our residents. I have seen reasonable accommodation requests seeking approvals for a variety of other animals – but today’s request was one for the books: a resident at an apartment community in Michigan (who is pregnant and who has another young child) submitted a reasonable accommodation request to keep her 32 pound boa constrictor as a companion animal. That is a new one on me.
First, I look forward to the medical verification confirming the nexus between the resident’s disability and the snake. At first glance, I don’t see it. While most management companies do not keep medical professionals on staff, that verification might indeed be one to take a closer look at. Next, while the reasonable accommodation regulations are clear that management cannot reject a companion animal solely because it is a specific breed or based on a generalized fear – I would have a real concern that a 32 pound boa constrictor would indeed cause a direct threat to the other residents (including children) and the leasing office team. I would be willing to bet that if another resident has seen the snake, he or she would be legitimately afraid of it. I know many parents of young children would similarly have a legitimate fear about a boa constrictor living next door.
Again, while management absolutely has the responsibility to engage in the interactive process with every resident who seeks a companion animal, we have the same responsibility to all of our residents to do our best to provide housing that is safe and free from danger. A 32 pound boa constrictor around young kids in an apartment community as a companion animal? Fair to say I am just a bit skeptical. I will report back as I learn more here. In the interim, I now have a new example for my next fair housing training seminar.
Just A Thought.
I wanted to give a shout out to the Institute of Real Estate Management (IREM) and the IREM 2015 Tri-State Conference and Expo held yesterday and today at the Borgata Hotel in Atlantic City, NJ. The good people at IREM were kind enough to invite me to speak at their conference. While my topic was management’s responsibilities when receiving reasonable accommodation and reasonable modification requests – I also promised that I would give conference attendees the “magic” list of all necessary reasonable accommodations and reasonable modifications. Indeed, our group spent almost 90 minutes yesterday afternoon discussing reasonable accommodations and reasonable modifications in general as well as going into specifics concerning recognized disabilities, types and format of requests, how to respond to requests, service animals, companion animals, restricted breeds, size limitations, pet fees and pet rent, direct threats, medical verifications, early lease terminations, changing rental due dates, ramps, thermostats, and parking spaces – just to name some of the topics we went through. It was an extremely useful exercise to get real world questions from property management professionals on the front lines working with our residents and applicants.
Oh, and that “magic” list of accommodations? It does not exist. We also discussed that management must review, evaluate, and respond (in writing) to every request. While we absolutely do not necessarily have to grant every request, we must consider each and every one we receive. And always remember to engage in the interactive process to: (a) comply with the law; and (b) to avoid having to deal with lawyers like me.
Just A Thought.
I got a question from a client concerning use of illegal substances and if use of an illegal substance qualified as a disability under applicable fair housing law. The short answer is that individuals who currently use illegal drugs are specifically excluded from protection pursuant to the Fair Housing Act (FHA), Section 504 of the Rehabilitation Act of 1973 (Section 504), and the Americans with Disabilities Act (ADA). That being said, both federal and state law distinguish between individuals who currently use illegal drugs as contrasted with individuals who are not currently using drugs, but who have a history of addiction.
On a related note, individuals with alcoholism are treated differently under Section 504 as contrasted with the FHA or ADA. HUD’s regulations concerning Section 504 are clear that current alcohol abuse prevents that person from being considered an individual with a disability and prevents those individuals from participating in federally funded housing programs. The analysis is the same with respect to an individual whose current alcohol abuse would constitute a direct threat to the property or to the safety of other residents or members of the leasing office team.
While the FHA’s definition of an individual with a disability can be read to alcoholism as a covered disability, the law also provides for a general exclusion for any individual who residency would pose a direct threat to the safety/health of others or which could damage the property, provided that a reasonable accommodation could not eliminate the threat.
Please remember these comments present general guidelines. Each leasing office must engage in the interactive process with your residents and applicants in an effort to appropriately evaluate the circumstances presented by each individual. Sometimes, you end up speaking with a lawyer like me in an effort to try to get it right.
Just A Thought.
I have written in this space before that there is no complete list of just what can be included as a reasonable accommodation under the Fair Housing Act (FHA). The reason is that every disabled individual can have different needs related to his or her specific disability. Management’s responsibility, of course, is to review and evaluate each request. That being said, there is some guidance I can provide about what makes up a valid reasonable accommodation claim and what is objectively not reasonable.
To establish a failure to accommodate claim, a plaintiff must prove that: (a) he (or she) is disabled within the meaning of the FHA; (b) he (or she) requested a reasonable accommodation; (c) the requested accommodation was necessary to afford him (or her) an equal opportunity to use and enjoy the dwelling; and (d) the defendant refused to make the accommodation.
Some disabilities are obvious. Others require medical confirmation. In seeking confirmation, management is not attempting to unnecessarily pry into the health history of our residents or applicants. We simply are required to confirm that a disability exists and that there is a nexus (link) between the disability and the sought after accommodation. The law requires management to find those accommodations that may be necessary to afford an equal opportunity to use and enjoy a dwelling. An “equal opportunity” means that a disabled person must be afforded the same opportunity to use and enjoy housing as is provided to a non-disabled person. To phrase it another way, preferential treatment is not required. Another defense to these claims is that an accommodation is not reasonable if it imposes an undue financial burden on management.
How does this work in the real world? Well, in one of my cases a federal appeals court just concluded it would be unreasonable as a matter of law to require management to breach a commercial lease entered into prior to the resident moving into our community to afford the resident the specific accommodation he demanded. That court (correctly, in my view) found that the requested accommodation was simply unreasonable as it would impose an undue financial burden on management. While this result was what we believed the court would find, our preference would have been to avoid legal proceedings, engage in the interactive process with the resident, and work together to find a solution that met the needs of all.
Just A Thought.
I see this issue come up literally on a weekly basis now. A resident (or applicant) likely attempting to avoid pet fees and charges by claiming that a pet is actually a service animal. I have written in this space before that anyone falsely claiming to be disabled and in need of a service animal (in addition to outright lying) denigrates everyone who legitimately needs a service or companion animal. Remember that service or companion animals are exempt from pet fees and pet rent. But that is not the point of this post.
If you are disabled and require a service or companion animal, my clients typically ask you to complete a reasonable accommodation verification form (unless your disability and need for the service animal is obvious). The form seeks medical confirmation of the disability and then a nexus as to how the accommodation will assist with your housing. Most of these requests are promptly approved at the community level and never reach my desk.
Last week, the request was from a resident with dyslexia who sought approval for a service animal to assist her. Now, my understanding is that dyslexia is typically characterized by a difficulty with learning to read and/or comprehension issues despite normal or even above-average intelligence. While I am certainly not a medical professional and I understand dogs can be incredibly helpful, I could not find a link between dyslexia and how a service animal could assist with reading or comprehension. As such, we could not approve the dog as a service animal. To be sure, I had management write that we will absolutely evaluate any supplemental information the resident may have with respect to any type of link between her disability and accommodation request.
This week, the request was from a resident who has been unhappily paying pet rent for a number of months, after initially denying that he had a dog. In any event, management received a note indicating that the resident’s wife had been in a car accident and Rover was, in actuality, a service animal to assist the resident’s wife. While there is no question that a service animal could assist someone recovering from certain injuries suffered in a car accident, I wrote that we will need appropriate medical verification and link between the disability and the services to be provided by the animal. I have not heard back yet, but the week is far from over.
I am not making these up. I wonder what next week will bring?
Just A Thought.
The U.S. Supreme Court considered the Fair Housing Act (FHA) earlier today when it held oral argument in a Texas case to answer the question if “disparate impact” claims are cognizable under the FHA. Essentially “disparate impact” is a way to find liability under the FHA even if the defendant did not have a discriminatory intent – if a policy or policies have a “disparate impact” against a protected class, then there can be liability under the law.
While the statute itself is silent as to the practice, case law over the intervening decades has approved of the disparate impact theory. Today marked the first time the Supreme Court heard argument on the issue, notwithstanding that two prior disparate impact cases had reached its docket. The prior two cases (one from Minnesota and one from New Jersey), however, both settled before argument at the Supreme Court, thus ending the chance for the Supreme Court to rule.
As happens often these days, the Court’s perceived liberal justices appeared to support the disparate impact theory while the conservative justices raised concerns over the use of the practice. That being said, Justice Scalia asked some questions and made some comments that have Supreme Court watchers thinking his vote may not be so easy to predict here.
The lawyer for those challenging the law argued that developers, landlords, and housing agencies may grow so fearful of a disparate impact suit that they will do too much to help minorities, creating what he called a functional equivalent of an unlawful quota system. Defending the statute, the Administration contended that that disparate impact suits discourage practices that harm minorities without justification, such as apartment-occupancy limits that disproportionately affect ethnic groups with large families. Additionally, the parties battled over if it was possible that 11 appellate courts had misread the intent of the FHA for the past 40 years.
What should happen? What will happen? Well, the Court should issue a decision before July. From my seat as management’s lawyer, I know our preference is to know what the rules of the road are. Once the issue is decided, so be it. But uncertainty is not good for anyone. Do I have a prediction? Yes. And I will keep it in an envelope in my desk. I will open it for you when the decision is issued.
Just a Thought.
One of my favorite posts of the year — the Top Ten Fair Housing Defense Blog entries of the previous year, as ranked by readers. Yes, my Firm keeps score. You can click on any article and you will be directed to that post.
#1: Third Time The Charm? “Disparate Impact” and the FHA Is Back Before the U.S. Supreme Court (October 9, 2014)
#2: Justice Department Announces $317,000 Fair Housing Act Case Settlement (January 9, 2014)
#3: Here is a Reasonable Accommodation Request Checklist (July 8, 2014)
#4: Medical Marijuana as a Reasonable Accommodation Because of a Disability? One Court Says No (December 12, 2014)
#5: Is Management Obligated to Provide a Reasonable Accommodation if an Accommodation Has Not Been Requested? No. (January 27, 2014)
#6: Retaliation Complaints and Eviction Actions: Here is How They Intersect (April 30, 2014)
#7: HUD Announces Over $38 Million in Grants to Combat Housing Discrimination (October 21, 2014)
#8: Is Smoking a Recognized Disability Under the Fair Housing Act? No. (November 3, 2014)
#9: Criminal Background Screening and Fair Housing (October 31, 2014)
#10: Some Guidance on Verifications for Reasonable Accommodation and Reasonable Modification Requests (May 28, 2014)
These articles reflect a good mix of topics of interest to those of us in the fair housing arena. Always remember that if you have specific questions, you might want to speak with a lawyer like me.
Just A Thought.
Happy New Year Fair Housing Defense Blog readers. Your humble editor starts another year with a question related to a reasonable accommodation request. Specifically, what can or should apartment management do to verify an accommodation request? Here are some simple guidelines:
1. If a person’s disability is obvious or known (and the need for the requested accommodation is also known), then management should not ask for any more information. For example, if a resident in a wheelchair submits a reasonable accommodation request seeking a handicapped parking spot, no further verification is needed.
2. If the disability is obvious or known (but the need for the accommodation is not known), then management should seek only information required to verify the need for the accommodation. To illustrate, if an individual with a mobility impairment requests a service animal, management may be entitled to confirm the disability-related need for the service animal.
3. If neither the disability nor the need for the accommodation is readily apparent, management can seek verification of both the disability as well as the need for the accommodation. An example of this type of request would be if an applicant with an diagnosed anxiety issue seeks an assistance animal. Many leasing offices have a simple form that a resident can complete and get verified by his/her health care professional.
Make no mistake, apartment management company employees do not want to unnecessarily delve into the personal medical history of any resident or applicant. We are only attempting to comply with the Fair Housing Act and appropriately respond to each reasonable accommodation or reasonable modification request we receive. If you have a specific question about a request and/or how to respond to it, you might want to speak with a lawyer like me.
Just A Thought.
A Fair Housing Defense Blog reader asked me to attempt to unscramble the various statues in play that apartment management professionals must work with. So, here is a short summary:
Although legislation to specifically combat housing discrimination had been pending in Congress for many years, it took a galvanizing event (the assassination of Martin Luther King) to overcome Senate opposition to the bill. Congress moved swiftly after Dr. King’s death and passed Title VIII of the Civil Rights Act of 1968 – which we know today as the Fair Housing Act (“FHA”). As originally adopted, the FHA prohibited discrimination in housing on the basis of race, color, religion, or national origin.
Congress initially attempted to combat discrimination against individuals with disabilities at the national level by adopting civil rights legislation prohibiting discrimination by federal employers as well as within programs that receive federal financial assistance. That law, the Rehabilitation Act of 1973 (“the Rehabilitation Act”), contains what is known in our world as “Section 504” and provides a supplemental basis for ensuring that individuals with disabilities receive the full benefit of their housing and are not discriminated against in federal programs because of their disabilities. The regulations which implemented Section 504 were amended over time to make clear that housing providers were required to evaluate and respond to reasonable accommodation requests received from disabled residents and applicants.
In 1974, Congress amended the FHA to prohibit gender discrimination.
In 1988, Congress again amended the FHA, this time adding protections for familial status and disability. As such our current FHA has seven protected classes. And various state, city, and county fair housing laws often can (and do) include additional protected classes not listed in the federal FHA.
Next, when Congress was drafting the Americans with Disabilities Act (“ADA”) in the early 1990’s, the legislators looked to the reasonable accommodation matrix taken from the Rehabilitation Act to design a reasonable accommodation provision within the ADA and to ensure that a failure to reasonably accommodate an individual was included in the definition of discrimination under the ADA. Indeed, Congress then went back and amended the Rehabilitation Act to include the same reasonable accommodation standards as they wrote into the ADA. Now, as a general rule, the ADA does not fully apply to residential apartments communities – except that the leasing office and any retail space leased to vendors on the property must comply with ADA accessibility guidelines.
Hope that helps. For individual questions dealing with one of these (or other) laws, you might want to speak with a lawyer like me as every case typically involves a fact specific analysis.
Just A Thought.