Fair Housing Defense : Fair Housing Lawyer & Attorney : Fox Rothschild Law Firm : Federal Fair Housing Act (FHA), Discrimination Complaints

I received a question about effective dates for accessibility requirements, so I thought it would be worth a post to put forward some general guidance concerning the accessibility requirements for newer multifamily buildings. With respect to buildings with four or more units that were first occupied after March 13, 1991 and that have an elevator:

·        Public and common areas must be accessible to persons with disabilities;

·        Doors and hallways must be wide enough for wheelchairs;

·        All units must have: (a) an accessible route into and through the unit; (b) accessible light switches, electrical outlets, thermostats, and other environmental controls; (c) reinforced bathroom walls to allow for later installation of grab bars; and (d) kitchens and bathroom that can be used by people in wheelchairs.

If a building with four or more units has no elevator and was first occupied after March 13, 1991, the above standards only apply to ground floor units.

Importantly, these accessibility requirements for new multifamily buildings do not replace more stringent accessibility standards which may be required under state or local law.

In my experience, problems can arise if the team building the project do not know (and do not take the time to learn) the applicable standards. If you are constructing a new building and you ignore the accessibility requirements in the Fair Housing Act (FHA) you can be held financially responsible.  The Department of Justice takes the position that developers, architects, and owners can each be responsible for the design and construction requirements. Not knowing the law will not be an excuse if a lawsuit is filed. I have seen cases in which developers have literally had to go back and retrofit communities as well as pay significant civil penalties. You do not want to be caught in that web. Trust me on that. 

Fortunately, there are a number of safe harbors which HUD has acknowledged when dealing with FHA design and construction issues. Also, training is available to help ensure compliance.

Learn the law before you get started. But, have insurance on the project, just in case.

Just A Thought.

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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 they 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 – for example, 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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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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