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Fair Housing Defense

Information on and Compliance with the FHA

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.

Another Fair Housing Familial Status Discrimination Case Involving Advertising Settles — This Time for $17,000

Posted in Discrimination, FHA Basics

Some smaller apartment management companies use online services (such as Craigslist) to efficiently (and inexpensively) run ads for their rental apartment units.  Which is just fine.  However, if you use an online service to promote your vacancy or community, please don’t take short cuts and avoid complying with the Fair Housing Act (FHA).  Many Craigslist ads, which are typically short, can be read in such a way as to infer that management is not following the law.  To illustrate, phrases such as “perfect for a single” or “has stairs” or “ideal for a student” or “on a busy street” – which may well all be true and which may have absolutely no overt discriminatory intent, can be read as discouraging families with children from applying.  Familial status, of course, was added to the FHA back in 1988.  And saying that “I did not know the law,” will not make for an effective defense.

Don’t think your electronic ad will be seen by a fair housing tester?  Think again.  Fair housing testers hire people to view online ads and then pose as applicants in an effort to catch management violating the law.  This is what happened to a real estate firm in Massachusetts who just recently settled a familial status housing discrimination claim concerning online ads.  The firm ended up paying $17,000 to resolve the claims as well as agreeing to various fair housing training and implementing anti-discrimination policies.

Similarly, I do not recommend a line that says your property is “just down the street from the local Catholic church.”  Again, a statement that could well be accurate and could appear neutral.  But a fair housing tester will assert that such a statement discourages members of other faiths from seeking your rental unit because you are promoting one religion over another.  And religion is a protected class in the FHA.  Think I am making this up?  I was involved in a situation years ago in which an apartment owner wanted to run a promotion in a church flyer offering rental discounts to members of the congregation.  I had to advise it was not a good idea, because such a promotion could be viewed as supporting one religion to the detriment of members of different faiths.

As the recent case from Massachusetts demonstrates, advertising compliance remains an issue we all must work to get right.  Or you might need to see a lawyer like me.

Just A Thought.

 

Part II: A Boa Constrictor as a Companion Animal?

Posted in Disability, Discrimination

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.

A 32 Pound Boa Constrictor as a Companion Animal? A Review of How to Respond.

Posted in Disability

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.

A Great Afternoon Speaking at the 2015 IREM Conference and Expo

Posted in Disability, FHA Basics

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.

Here is How Use of Illegal Substances and Alcohol Abuse are Treated Under the Fair Housing Laws

Posted in Disability

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.