Posted on February 8, 2010 by Scott M. Badami

More on Service Animals...

A recent blog post on service animals has caused some readers to chastise your humble editor about the state of the law concerning service animals. To be sure, we here at the Fair Housing Defense blog want to get it right. Otherwise, what’s the point? That being said, I would probably vote against some of the colorful language in the comments as they are a little over the top and unnecessary. Like politics and religion, it seems service animal issues have touched a nerve. I guess that is good.

First, a little background. While reasonable accommodation requests seeking recognition for a service or companion animal are not rare, it is not a request that comes across my desk each week. What prompted the post was about 20 service animal requests submitted to a single community manager at one property – all about the same time. While I am certainly not implying that 20 residents at one community might not all make the same request for their respective legitimate disabilities all at the same time, I cannot rule out that at least some of these people wanted to avoid paying a pet deposit or monthly pet charge. Again, let me be clear that management should grant service animal reasonable accommodation requests when then arise in almost all circumstances.

 

To be sure, in the initial post I did not appropriately distinguish the difference between a service animal and a companion animal. And I should have. Again, that was not the purpose of the post, but some readers were correct to point out that formal training is not in the law, particularly for companion animals. Nevertheless, I do think it makes sense for service or companion animals to be well mannered in public.

 

Also, while I do think it makes good sense for a service or companion animal to be identified – so as to reduce the number of children who might reach out to pet the animal, there is no requirement that it be done. I appreciate that correction.

 

Hope that straightens it out. To paraphrase Tony Kornheiser, I will try to do better next time.

 

Just A Thought.

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Posted on February 4, 2010 by Scott M. Badami

A Cautionary (and Expensive) Tale

The Fair Housing Act (FHA) has been on the books for decades. Professional apartment community owners know the law and we train our employees to follow the law. Providing housing in a non-discriminatory manner is not just required by the FHA, it makes good business sense:  we want all qualified applicants to move into (and then to renew their leases at) our communities. 

The U.S. Department of Justice (DOJ), the U.S. Department of Housing and Urban Development (HUD), along with various state, county, and city agencies, enforce the FHA. Periodically, there are reminders about what can happen when the FHA is not complied with. For example, in November 2009, the Justice Department announced that it obtained the largest monetary payment ever obtained by the DOJ to settle a case of alleged housing discrimination in the rental of apartments. Los Angeles-based apartment owner Donald T. Sterling agreed to pay $2.725 million to settle allegations of discrimination against African Americans, Hispanics, and families with children.

 

Specifically, the lawsuit alleged that Sterling, his wife and the Sterling Family Trust deliberately engaged in discriminatory renting practices targeted at tenants and prospective tenants who were not of Korean descent. The DOJ presented evidence that Sterling’s employees prepared internal reports that identified the race and/or national origin of tenants at properties that the defendants had purchased in certain sections of Los Angeles. There was also evidence that the defendants made statements to their employees indicating that African Americans and Hispanics were undesirable tenants.

 

Under the terms of the settlement, which were memorialized in a consent order:

 

  • The defendants would pay a $100,000 civil penalty to the United States;
  • The defendants would pay $2.625 million into a fund that would be used to pay monetary damages to persons who suffered discriminatory treatment as a result of the defendants’ conduct. The remaining balance would be used for further FHA education in the Los Angeles area;
  • The defendants would be enjoined from discriminating on the basis of race, national origin or family status;
  • The defendants would be required to implement a self-testing program over the next three years to monitor employee compliance with the FHA;
  • The defendants would be forced to maintain non-discriminatory practices and procedures; and
  • The defendants and their employees would be forced to undergo fair housing training through an independent contractor.

Management should always want to get it right.  This is what can happen if something goes seriously wrong.

 

Just A Thought.

 

Article by Christian Moffitt.

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Posted on January 27, 2010 by Scott M. Badami

Service Animals

More and more professional apartment management companies receive requests for service or companion animals.  When you receive such a request, management must respond to it.  Here are a few thoughts to keep in mind:
 
Both the Americans with Disabilities Act (ADA) and the Fair Housing Act (FHA) apply in situations involving a disabled resident's request for a service animal.  Management simply needs some formal notice to acknowledge the animal as a service animal.  While most service animals are dogs, there is no requirement that the animal be a dog.
 
Pet deposits and pet fees should not be charged to residents with service animals.
 
When the resident's disability is not apparent, the better practice is for management to request a note from a medical/health care professional confirming the need for the service animal.  It is not, however, management's place to inquire into the specifics of the claimed disability.  The ADA and the Department of Justice have established two training requirements for an animal to be considered a service animal:  (1) a service animal must be individually trained to perform tasks or work for the benefit of a disabled individual; and (2) a service animal must be trained to behave properly in places of public accommodation.  Management can request information to ensure the animal meets minimum training standards from a recognized school for service animals, including public access training, particularly when there is a concern about the size/breed of the animal.  Also, the animal should wear some type of easily recognized identification symbol (i.e., harness, backpack).
 
The owner of the service animal should:
  • obtain required licensure, health and training verification;
  • provide care, feeding, and supervision of their animal;
  • keep animal on leash at all times. The animal should never be permitted to wander around off leash except if the animal is working;
  • maintain control of the animal at all times;
  • assume responsibility for any damages caused by the animal;
  • maintain the good health of the animal;
  • keep the animal well groomed and measures should be taken, at all times to maintain flea and odor control; and
  • clean up animal waste and properly dispose of it.
Again, service animals should be welcomed at residential properties.  Residents and management can easily work together to document the appropriate paperwork.
 
Just A Thought.
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Posted on January 11, 2010 by Scott M. Badami

What Should You Look For in Reasonable Accommodation Requests

As I have discussed in prior posts, federal and state fair housing and anti-discrimination laws are designed to ensure that people with disabilities have an equal opportunity to access and enjoy their homes.  Owners and property management companies can be required to make a reasonable accommodation or a reasonable modification as a result of a disability.  An accommodation is a change in a policy or a procedure at the community.  An easy example is a request to waive a no-pet policy for a hearing impaired resident who has a service animal.  A modification, for example, is to lower a mailbox to assist a resident with a mobility impairment.


It is the responsibility of the resident (or applicant) with the disability to make the request for an accommodation to management.  Owners are not obligated to seek out a resident and make accommodations or modifications.


Although not required, the best practice is for reasonable accommodation and modification requests (as well as all subsequent correspondence) to be in writing.  Management should keep those letters in the resident’s file.  Having the requests in writing facilitates clear communication and creates a "paper trail" in case the issues are not resolved and we have to defend a subsequent fair housing claim.


As a part of an accommodation request (particularly when the disability is latent), the resident should include a note from a medical professional concerning the condition and the accommodation or modification request.  Management is not required to grant a reasonable accommodation or modification request unless we know or should have known about the disability. Again, in cases where the condition is not always obvious, the letter serves as notice of the disability.  Moreover, a note from a medical professional answers many, if not all, of management’s legitimate medical questions in the least intrusive manner possible.


Make no mistake, management knows and understands the law.  We want to get it right.  In my experience (which is now confirmed by HUD) fair housing complaints concerning disabilities and reasonable accommodations/modifications related to disabilities are now the most common complaints being filed.  Let’s not unnecessarily add to that stack of complaints.  Then you will not just need to read my blog, but you will need to contact me to defend a claim.


Just A Thought

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Posted on January 4, 2010 by Scott M. Badami

What To Do About Second Hand Smoke Accommodation Requests?

Professional apartment community owners and management companies know we have to respond to reasonable accommodation requests in order to ensure our compliance with the federal Fair Housing Act as well as various state laws. Accommodation requests come in all shapes and sizes. And we must respond to all of them.

I recently had two separate cases involving requests to live in a non-smoking building. In other words, the residents requested as an accommodation for their allergy or sensitivity to second hand smoke that we prohibit smoking in and around their apartments. These requests raise challenging issues because if we grant the request we are potentially infringing on the rights of other residents and guests to smoke in their personal homes. While we all may have different views on smoking, it is absolutely legal for adults to smoke – especially in their own living room.

Federal and state fair housing and disability laws, of course, are designed to ensure that people with disabilities have an equal opportunity to access and enjoy their homes. Owners and property management companies can be required to make changes to the rules or policies of the community as a reasonable accommodation to a disability. Easy examples include requests to waive a no-pet policy to assist with a service animal or to attach grab bars in a bathroom. It is just not practical to declare an entire building “non-smoking” and I am aware of no requirement that management make such a change. That being said, here are a few ways to respond to this request:

• Management could potentially prohibit smoking in the common areas of the community.

• Management could offer to transfer the resident to a vacant unit in the complex, away from the drifting smoke. To be sure, management could not guarantee that a future resident might not smoke. Also, there would likely be some negotiation concerning how the moving/transfer expenses would be taken care of. Management could not, of course, evict another resident just to create a vacancy.

 • Management could offer to permit the resident to break his or her lease without penalty in order to find another apartment community in which smoke does not appear to be a problem.

 • Management could offer to put additional weather stripping or caulk around the windows and doors. Alternatively, management could offer a fan or air purifier.

I have not seen any court decision requiring management to declare that residents cannot smoke in their own homes.  I am, however, aware of efforts by residents to make these no smoking requests.  Management must appropriately respond to protect itself and all of our residents -- even those who smoke.

Just A Thought.

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Posted on November 3, 2009 by Scott M. Badami

Who Pays for Reasonable Modification or Reasonable Accommodation Requests?

A question I regularly get asked is who is responsible for paying for a reasonable accommodation or a reasonable modification. Here is a brief summary.

A reasonable modification is a structural change made to an existing premises occupied by a person with a disability (and disability is typically defined as an individual with a physical or mental impairment that substantially limits one or more major life activity) in order to afford such a person the full enjoyment of the premises. Reasonable modifications can include structural changes to interiors and exteriors of a unit as well as common areas. A reasonable accommodation is a change, exception, or adjustment to a rule, policy or practice used in running a community. A person with a disability can request either a reasonable accommodation or reasonable modification.  It is good practice to solicit written accommodation requests, but there is no requirement in the law that the requests come in writing.

For conventional communities, the general rule is that management is responsible for absorbing the cost of a reasonable accommodation (to the extent there is a cost associated with changing a policy or procedure) but that the resident is responsible for paying for the costs related to a modification of a unit or common area. In practice, management will often agree to some type of cost sharing with the resident as a part of the interactive process expected under the Fair Housing Act (FHA).

That being said, housing that receives federal financial assistance is covered by both the FHA and Section 504 of the Rehabilitation Act of 1973.  Under the Section 504 implementing regulations, structural changes (reasonable modifications) needed by a resident with a disability must be paid for by the housing provider (management) unless providing them would be an undue financial and administrative burden or would represent a fundamental alteration of the program.  Indeed, there are also times when management can also offer to meet the resident's needs through a different accommodation. 

Requests for accommodations or modifications can be made at any time. It is important that management respond to requests in a timely manner. Failing to respond (or an undue delay in responding) can lead to a housing discrimination complaint and a probable cause finding which never should have been issued. Don’t let that unnecessarily happen to you.

Just a Thought.

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Posted on October 23, 2009 by Scott M. Badami

Up and Running

This blog has been up and running for a few months now. To be honest, I did not know what to expect. Would anyone (in addition to my Mom – by the way, Hi Mom!) actually want to read it? Would anyone think issues related to housing discrimination and compliance with the Fair Housing Act are worth learning about?

Well, the verdict is in. And I have to say I am gratified. On a regular basis I receive correspondence and/or messages for individuals with questions related to fair housing and housing discrimination. I am very pleased and will continue to post issues of interest related to fair housing on this blog.

 

That being said, I do need to make clear that I represent apartment owners and professional apartment management companies. In other words, I do not represent residents, applicants, and former residents who believe they have been discriminated against. It is not because of a true legal conflict of interest (which would be the case if I took a case against one of my clients), but because I want my clients to know that I will not take the opposing side of an issue in my next case. 

 

I trust you will understand. And I very much appreciate you checking in on this blog.

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Posted on September 23, 2009 by Scott M. Badami

Mobile Home Park Pays Large Settlement to Settle Charges of Discrimination Based on Familial Status

 

We’ve talked a bit on this blog about the different classes that are protected under the Fair Housing Act ( "FHA") --  including race, national origin, sex, color, disability and familial status. Today, the Justice Department’s Civil Rights Division, along with the U.S. Attorney’s Office for the Southern District of Alabama and HUD made a joint announcement underscoring the consequences that arise when a property owner appears to discriminate against actual and prospective tenants on the basis of their familial status, and specifically based on whether those tenants have children. The government entered into a settlement agreement and the court issued a consent decree with the owners and managers of Pina’s Mobile Home Park to settle charges of discrimination against families with children. In settling the action, the defendants agreed to pay up to $104,130 to the victims of their discriminatory tactics, along with a $30,000 civil penalty to be paid to the federal government.

 

The lawsuit arose when HUD filed a charge on behalf of a prospective tenant who attempted to rent a home at the mobile home park, and was denied because the applicant was told she had too many children to live in the park. During the owner’s initial meeting with the Complainant, the owner allegedly indicated that there were vacancies in the park, but that families with children under the age of 18 were required to pay an additional $15 per month. Once the child reached 18 years of age, that fee would increase to $30 per month. In a second meeting, the owner of the park allegedly told the Complainant that the property’s rules only permitted families with two or fewer children to reside in the mobile homes. The Complainant, however, had three children. 

During HUD’s investigation, the owner stated that the park refused families with more children because “[i]f you have too many children, you have too many problems.”

 

As we’ve stated before: as a property owner, you cannot discriminate against any of the classes protected by the FHA and its state counterparts. Although you may have legitimate concerns that a large number of children concentrated in one unit of your property may cause “too may problems,” such as elevated noise levels, potential property damage, and an increased number of general liability issues, as a landlord, you cannot turn away a family based on their number of children if it meets the occupancy standards.

 

Furthermore, you cannot charge families with children additional rental fees to offset the additional repair costs that you fear may arise.  What you can and should do is determine what the applicable laws are concerning occupancy standards where your property located and ensure management follows that law.  

 

Just A Thought.

 

Article by Christian Moffitt.

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Posted on September 3, 2009 by Scott M. Badami

Occupancy Standards -- Why They Matter

When dealing with occupancy standards, it used to be easy. The traditional rule of “two heartbeats per bedroom” was perceived as the way to go. HUD published what was referred to as the Keating Memorandum back in the early 1990s which detailed this standard and it was considered generally reasonable.  Over the years, I successfully defended any number of cases based on the Keating Memorandum and the two person per bedroom guideline.  Many professional apartment management companies, including those I represent, adopted that standard. But that is not, of course, the end of the story.

Occupancy standards are useful because management has an absolute right to set reasonable, non-discriminatory limits as to how many people can live in a specific apartment. Yet management must be careful so as to not discriminate against a family with children. Those rational goals sometimes conflict.

 

Issues come up when a tenant gets pregnant and a family increases in size. Is it appropriate to ask a family to move to a larger unit? When is it appropriate to ask the family to move? What if the family cannot afford a larger unit? What if there are no larger units available? What if a family has twins? What should you ask an applicant about a pregnancy?

 

To be sure, the Keating Memorandum also made clear that there could be other factors which might change the analysis. Factors such as the size of the bedroom and the age of any children living in an apartment need to be taken into account. For example, if two bedrooms are large and/or if there is a spacious living area or study, a two person per bedroom standard might be unreasonably restrictive.

 

Additionally, some states (like California) and even cities (like Austin, Texas) have amended their laws such that in essence “two plus one per bedroom” is the new standard.

 

What should management do? First, check the law in your jurisdiction. If you don’t know where to find the standard, ask a lawyer. Then examine the size and configuration of your apartment units and develop a reasonable occupancy policy that does not unfairly discriminate against families with children. Again, if your bedrooms are large or there is additional living space, you may consider adding more than just two heartbeats per bedroom. 

 

Always be consistent in applying your occupancy standards. Management cannot make exceptions.

 

You cannot ask an applicant (or a current resident) about how many children they plan on having. You can certainly ask how many people will be living in the unit. When you ask, I recommend phrasing the question in terms of “people” as opposed to “children” so there will be less confusion about management’s intent. In my view, occupancy standards which limit the number of children per unit will be view more harshly than a standard which only refers to people living in a unit.

 

Management cannot discriminate against families with children. I have seen many discrimination cases based on familial status. They are never fun to defend against because any number of very cute children are involved. Setting reasonable standards – and informing applicants and residents of those standards – can help ensure that such a case never gets filed. 

 

Just A Thought.

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Posted on August 6, 2009 by Scott M. Badami

Welcome to The Fair Housing Defense Blog

I have been defending housing discrimination cases for over ten years. I have 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 ("HUD") 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 management employees. I also hope we can share available resources.

If you are in the apartment ownership or management arena, you 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. Plus, not every jurisdiction is the same:

  • 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?
  • How can you confirm that a complaint has been filed by a disgruntled resident seeking to prevent an eviction?
  • 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.

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