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Fair Housing Defense

Information on and Compliance with the FHA

Under the FHA, is a Subsequent Property Owner Liable for Design and Construction Defects in an Apartment Community? In Many Cases, the Answer is No.

Posted in FHA Basics

In a case decided just last week, the U.S. Court of Appeals for the 11th Circuit provided more guidance concerning the potential liability of an apartment owner under our Fair Housing Act (FHA).  Specifically, the appellate court addressed the portion of the FHA which applies to discrimination against individuals with disabilities related to the design and construction requirements in the law.  In Harding v. Orlando Apartments, the court addressed the issue of whether the current owner of a community who had no role in the design and construction of  that property could be held liable under the FHA for various design and construction deficiencies.   In short, the 11th Circuit held the new owner could not be held liable for design and construction claims based on a plain reading of the statute.  The court looked to the fact that the FHA, in pertinent part, reads “in conncection with the design and construction” of a covered dwelling and concluded that language limited the clause to the design and construction of the property.

In addition to the court, HUD also issued a letter as well as formal guidance noting that, subject to a few exceptions, subsequent owners are not appropriate defendants for FHA claims based on the design and construction guidelines.

From my seat, this decision will help provide further clarity concerning that a subsequent owner uninvolved in the design or construction of an apartment community cannot be held liable for defects caused by someone else.  Now, does this mean that the current owner can similarly ignore reasonable accommodation or reasonable modification requests sent by a disabled resident who now lives at such a property?  No.  The current owner and/or management company must still review and respond to a reasonable accommodation or reasonable modification request under the FHA as we would from any resident or applicant.

Just A Thought.


What is the Most Common Protected Class Identified in Housing Discrimination Cases: Disability.

Posted in Disability

I saw a new batch of statistics which contained data on the number of fair housing complaints filed as well as the protected classes involved.  This data further confirms what we in the industry have known for quite some time now:  alleged discrimination based on a disability is, far and away, the most common protected class now used by individuals filing new fair housing complaints.  While race discrimination cases formerly made up the highest percentage of complaints under our Fair Housing Act (FHA), once disability was added to the law as a protected class in 1988, the number of disability cases started – and now continues – to increase.  Race discrimination cases are now much less common than are disability complaints (although, to be fair, I just got in a new race case last week).  In fact, in my practice, well over 50% of my FHA cases now involve some type of disability and if management appropriately responded to a reasonable accommodation or reasonable modification request.

So, what is the takeway here for management?  Engage with your residents when they make reasonable accommodation or reasonable modification requests.  Respond in writing.  The guidelines use the phrase “interactive process” and I find that works well.  There are many times a solution can be found working together.  Indeed, some requests have little (or no) cost to management.  The absolute worst outcome is for the management office to not respond and then the resident (quite rightly) gets annoyed and frustrated.  That is the resident who is going to file a complaint.  Another tip:  ignoring (even inadvertently) an accommodation request is even more difficult to defend if there is turnover in our management office as the person who knows something about the request is no longer employed and, at times, can be difficult to find and/or work with.

Again, even the best leasing office staff can have a complaint filed against us.  It is the nature of our industry.  Part of what management should be doing, however, is training our team members to work with our residents so that no request is unanswered.  Training always makes a difference.  Because if the office fails to address the request, you will really need to speak with a lawyer like me.

Just A Thought.

Is Management Required to Grant the Exact Reasonable Accommodation Requested by a Resident? No.

Posted in Disability, FHA Basics

Professional apartment management companies just want to know the fair housing rules.  We are happy to play by them as we engage in our daily housing operations, but it can be a challenge when the rules are uncertain.  In Davis v. Habitat for Humanity of Bay County, Inc., a decision issued in late February 2014, the U.S. Court of Appeals for the 11th Circuit provided helpful guidance when it concluded that management’s failure to meet every demand of a potential disabled resident was not actionable under the Fair Housing Act (FHA) when other reasonable accommodations for the disabled individuals were indeed made.  The appeal was filed by a disappointed plaintiff, unhappy that a home built for them did not have each and every accommodation they sought.

After the trial court dismissed the case, the plaintiff appealed.  In disposing of the appeal and affirming the district court, the 11th Circuit explained that while the FHA prohibits discriminatory housing practices based on an individual’s disability, that same individual is not entitled to the exact accommodation of his or her choice, but is entitled only to a reasonable accommodation.  Here, the court noted that there was no evidence that the home builder refused to make reasonable accommodations and that, in fact, the builder met with the plaintiffs several times and affirmatively agreed to modify the building plan for the home.  The court concluded that if each and every reasonable accommodation request was not met, that does not necessarily mean that a reasonable accommodation had not been made.

As Fair Housing Defense blog readers know, I try not to write in legalese here.  What this means is that while management must continue to engage in the interactive process with our residents and search for solutions to reasonable accommodation requests, there is no requirement under the law that the specific accommodation requested by the resident be granted in the exact form it was sought.  Make sense?

Just A Thought.

What is “Steering” and, More Importantly, How to Avoid It

Posted in FHA Basics

Under the federal Fair Housing Act (as well as state, city, and county codes) it is against the law to discourage any person from viewing and/or renting a unit because that person belongs to a protected class or to assign any person to a particular section of an apartment community or to a specific floor in a building because of his/her status as a member of a protected class. This type of conduct are examples of what is known in the fair housing arena as “steering.”

Even something which may have been said in an effort to be helpful and which could be perceived as benign – such as suggesting that a families with children live on one side of a complex because of potential noise or suggesting that an applicant might not want to live on a certain floor in an apartment building – can (and may well) be taken as unlawful steering.  I can all but guarantee that a fair housing tester will conclude you are steering if leasing office staff make any comments which could be taken as directing applicants to certain units or areas.

What is the best defense to avoid a steering claim?  When advertising or showing apartments, ensure that the applicant makes the choice of the available units that he/she qualifies to rent under your non-discriminatory selection criteria.  As a matter of practice, never give management’s perspective on what apartment might be “better” for a given applicant.  For if you do, you might need to speak with a lawyer like me.

Just A Thought.

Is My Apartment Community Covered by the Fair Housing Act (FHA) or the Americans with Disabilities Act (ADA)? Yes. No. Maybe.

Posted in Disability, FHA Basics

The interplay between the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA) is one that professional apartment management employees should know about, but the bottom line will usually stay the same.  We are mandated by law to work to accommodate our residents and/or applicants with disabilities and to engage in the interactive process to remove barriers as best we can.

The FHA prohibits discrimination in housing on the basis of seven protected classes:  race, color, religion, sex, national origin, familial status, and disability.  States, cities, and counties can (and do) have additional laws which add to the number of protected classes in the federal FHA.  Apartment communities are covered by the FHA.  While the ADA prohibits discrimination in “public accommodations” based on disability, for the most part, apartment communities are excluded from the definition of “public accommodations.”   That being said, the ADA does apply to areas in an apartment community that are open to the public.  The most common example of where the ADA applies in an apartment development is the rental office.

Indeed, some states (such as California) have a comprehensive civil rights laws which prohibits discrimination by all business establishments based on a number of protected classes.  The business of renting apartment homes has been found to be a business establishment under the California law.

The takeaway for apartment management companies?  Engage with your residents.  Develop procedures to accept, review, and respond to reasonable accommodation and reasonable modification requests.  Or you may find you will need to speak with a lawyer like me.

Just A Thought.

When Should Apartment Management Seek Medical Confirmation About Disabled Residents? Only if the Resident Requests a Reasonable Accommodation or Reasonable Modification

Posted in Disability, FHA Basics

An issue which regularly comes up for apartment leasing office staff (and which is at times misunderstood) is just how much medical information about a disabled resident or applicant must be provided to management.   The general rule is that a leasing office may not ask if a resident (or applicant) has a disability.  The exception to that general rule is that if the resident (or applicant) seeks a reasonable accommodation or reasonable modification specifically because of a disability.  If such a request is made by someone who is disabled, management may then ask for proof of the disability to demonstrate the nexus (in other words — how the disability is related) to the requested accommodation or modification.  The documentation can come from a medical professional (such as a doctor, nurse, or mental health care provider) and notes how the request will meet the needs of the disabled resident.  The limited request for information, however, does not seek details of the disability nor do we seek medical history or records.

To be sure, there are times when even this limited information can be unnecessary.  For example, if a resident uses a wheelchair for mobility, it is likely that management would not seek further documentation about a request for a designated parking spot.

Again, management should not ask for medical information unless the resident (or applicant) has made a reasonable accommodation/modification request which is based on his or her disability.  While there is no requirement that the request be submitted in writing, it is a good practice to do so in order to ensure the record is complete.  As the lawyer for the leasing office, I always advise that our response be in writing and that a copy of the response be included in the file.  Indeed, I like sending an interim response as a place holder as well as a final letter explaining what we can do for our resident.   Make sense?

Just A Thought.

What Does the “100 Day Deadline” Really Mean? Not Very Much.

Posted in FHA Basics

For most cases filed administratively under our Fair Housing Act (FHA) – whether the complaint is filed with HUD or a state, city, or county agency – the law requires that the investigation be completed within 100 days.  That means the agency or department is to make its determination if there is “probable cause” to believe discrimination took place during that time.  While the 100 day timeline remains in the law, it is not always followed.

When the deadline is missed and the investigation is not completed within the 100 days, what I see is that each party is left in limbo – the complainant wants to know if they will receive housing assistance or money damages and the respondent remains waiting to learn if they will be exonerated.  While I am mindful of the administrative burden and tight budgets faced by our respective government entities, justice is not well served by discrimination cases which languish.

The fact remains that HUD and its partner agencies carry an “aged” case load.  In fiscal year 2012, for example, there were 1,132 cases which passed the 100 day mark (an increase in 56 cases from the prior fiscal year, but an improvement from 1,353 aged cases from five years ago).  I have a drawer full of what I refer to as “100 day” letters from the investigator noting that they are still working on my case.   Another problem with old cases is that witnesses can be hard to locate and memories understandably dim after months and months (or in some cases after years).

Now, is it always HUD’s fault when a case is delayed?  In a word, no.  There are certainly circumstances when I ask for some additional time, but it is typically an extra week or two.

What can we do the reduce this number?  One suggestion is for HUD to run allegations through a more rigorous screening process before accepting a case for filing.  This will help ensure that specious allegations or issues raised by an obviously disgruntled resident have some basis in reality before forcing me to defend against it.  Another option could be to put some teeth in the law and mandate a case gets dismissed if the 100 day deadline is missed.  Should it be dismissed on the 101st day?  Of course not.  But by the 365th day?  I can make an argument for that.

Just A Thought.

Here is How The Fair Housing Laws Define “Disability”

Posted in FHA Basics

As a part of management’s consideration of reasonable accommodation or reasonable modification requests received from our valued residents (and/or applicants), sometimes we need to determine if the resident is “disabled” or has a “disability” as defined under applicable law.   While many of the fair housing laws use the term ”handicap,” cases interpreting our fair housing laws make clear that the terms “handicap” and “disability” have the same meaning in this circumstance.  As currently interpreted, individuals with handicaps or persons with disabilities include individuals:  (a) with a physical or mental impairment that substantially limits one or more major life activities; (b) who are regarded as having such an impairment; and (c) who have a record of such an impairment.  There are many conditions that can qualify as “disabled” under the law.

Nevertheless, the following individuals are not included in the fair housing definition of “disability” or “handicap”:  (a) persons currently engaging in the illegal use of a controlled substance; (b) persons whose tenancy would constitute a “direct threat” to the health or safety of other individuals or whose tenancy would cause substantial physical damage to the property of others; (c) persons convicted of the illegal manufacture or distribution of a controlled substance; and/or (d) juvenile and sex offenders.

When required, management will obtain only so much information as may be necessary to make an appropriate determination — such as to respond to a reasonable accommodation or modification request.  Make no mistake, we are not attempting to unnecessarily insert ourselves into your medical history.  To illustrate, if someone uses a wheelchair, it is unlikely that management will need further documentation about a request for a designated parking spot.  On the other hand, for someone with a disability that is not obvious, we only seek confirmation that the resident meets the definition under applicable law so we can evaluate an accommodation or modification request.  Make sense?

Just A Thought.

Is a “Right to Sue” Letter Required Before Filing a Housing Discrimination Complaint in Court? No.

Posted in FHA Basics

I got a question earlier this week which involved the intersection of housing and employment discrimination.  While many of the concepts contained in our federal fair housing laws (Title VIII of the Civil Rights Act of 1968) are similar to those that prevent employment discrimination (Title VII of the Civil Rights Act of 1964), there is one important difference that sometimes gets overlooked.  In the employment arena, before a complaint can be filed – a putative plaintiff must receive what is known as a “right to sue” letter.  This “right to sue” letter is jurisdictional and demonstrates that the party has exhausted his or her administrative remedies.  That “right to sue” letter must be obtained before filing an employment discrimination complaint in court.

In housing, unlike employment, it is not necessary to file an administrative claim or to obtain a “right to sue” letter.  A person or entity claiming housing discrimination can certainly file a complaint with HUD (or a state, city, or county agency) — and there are many reasons to file an administrative complaint — there is no requirement in the law to do so.  While the investigatory agency will review the facts and attempt to resolve the matter without cost to the complainant, if the allegations are ultimately found to be without merit and the complaint is dismissed, that will end the matter.  The department or agency will not issue a “right to sue” letter.

Also, administrative claims generally must be filed within one year of the challenged housing practice.  Housing discrimination complaints can be filed in court up to two years after the alleged discriminatory practice.  To be sure, if an administrative complaint is filed, the time the case is pending with HUD (or the state, city, or county entity) will not count against the statute of limitations.

Hope that clears it up.

Just A Thought.

Occupancy Standards: Not Quite So Simple After All

Posted in FHA Basics

The issue of occupancy standards continues to be anything but clean cut.  What might seem to be a reasonable standard to you is different than a reasonable standard for me.  Making it even more difficult is that different jurisdictions have enacted varying guidelines.  Many apartment communities (including those I represent) have a typical occupancy guideliness of two people per bedroom.  While that may seem benign, it can get us into trouble.  Although it is easy to conclude that 10 people in a moderatly sized two bedroom apartment is too many, the line is harder to draw when a family of five (with three small chliden) wishes to rent that same two bedroom unit.  What is management to do?  What happens when there is one bedroom and a den?  Or a large family room?

Here is some history:  back in the 1990′s HUD issued formal guidance (called the Keating Memorandum) in which the department made clear that two people per bedroom is presumtively reasonable — but that some other factors could justify deviating from the general rule.   Many professional apartment management companies began using that two people per bedroom as the appropriate guide.  The point was never to prevent families from living together, but as a safety, health, and security matter for all involved.

When the economy slumped and the housing market got tighter, there was a perceived need to permit additional people (many times family members but not always) to reside in the same unit.  Because of this, in the intervening years, some jurisdictions (such as California) began evaluating the occupancy issue based on the number of square feet of living space in the apartment and codes were changed such that “2 plus 1″ (in other words, three people per bedroom) would be the new guideline when there was an appropriate amount of space.  What is the appropriate amount of space?  Of course that varies.

So, what is the bottom line:  Management is absolutely within its rights to put forward reasonable occupancy standards.  Those standards, however, need to be evaluated based on the size of the unit and the state (or city or county) in which your community is located.

One point to always remember when dealing with occupancy standards (unless you are a designated housing for older persons community):  if you are going to have occupancy guidelines at your community (which I support), ensure they are based on the number of people allowed in the unit and not the number of children.  Or then you will really need to talk with a lawyer like me.  As I will detail in my next post.

Just A Thought.