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

We have posted previous entries discussing the need for apartment owners and management companies to ensure that reasonable accommodation and reasonable modification requests from residents are appropriately handled. The consequences of failing to respond or acting as to deny a request for an accommodation or modification can be severe.

Just last week, HUD charged a property owner, its president, and a management company, with violations of the Fair Housing Act (FHA) for failing to provide reasonable accommodations to a disabled veteran. HUD claims that the property owner failed to accommodate a 71 year old double amputee (who is a Vietnam Era veteran) with a wheelchair accessible housing unit. HUD further alleges that the owner threatened to evict the tenant after he sought assistance from the Miami-Dade County Commissioner’s office.

According to HUD, the tenant’s social worker contacted management on numerous occasions, requesting that accessibility features, such as wider doorways, be provided to the resident’s apartment, or that management move the tenant to an accessible unit. The complaint alleges management refused these requests, and the tenant contacted a government agency for help. Following a visit from a local government representative, the tenant was transferred to a different unit, which was also not accessible, for six months. The tenant was later returned to his original unit, which had still not been made accessible, and which had its stove removed.

As faithful readers of this blog know, I need to hear management’s version of the events as we believe there are always two sides to every story. That being said, even if management has a good reason for making the decisions it did, this case demonstrates the costs of delaying or failing to appropriately respond to a reasonable accommodation request. Even if management was correct (and the HUD complaint asserts management was flat wrong in violation of the FHA), the landlord must now pay lawyers like us to defend against a charge. 

This case also reaffirms my belief that HUD takes seriously claims that efforts by a resident to seek assistance from a government official or fair housing agency were thwarted. HUD just will not stand for actions the department believes are in retaliation against a resident for exercising his or her rights under the FHA.

Just a Thought.

Article by Christian Moffitt.

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While I do not want to bog the blog down (did I really just write that?) with what can be mind numbing issues of constitutional law, I did want to highlight a decision yesterday made by a U.S. District Court judge for the Eastern District of Virginia. In his opinion, Judge Claude Hilton rejected a First Amendment challenge to an affordable housing project above a church in Arlington County, Virginia concluding that it does not violate the constitutional separation of church and state.

A close in suburb of Washington, D.C., Arlington County (like many suburban locales) faces a shortage of affordable housing. Real estate in Arlington has been at a premium for quite some time at any price and the property that has been available has commanded high end prices for homes, condominiums, and apartments.

In this case, the First Baptist Church of Clarendon partnered with Arlington County to construct affordable apartments and enable the church to raise money to renovate its property. The plaintiff alleged that his arrangement is advancing religion or enriching the church in violation of the Establishment Clause of the First Amendment to the Constitution.  

In disagreeing with the claim, the Court wrote that "[t]he actions of the county board . . . had a secular purpose of providing affordable housing to the citizens of Arlington County.” The plaintiff, who lives a block from the church, stated that he will appeal the ruling to the U.S. Court of Appeals for the Fourth Circuit. 

Arlington County officials, church leaders and housing advocates said they hope Arlington can be a model for local governments that want to build affordable housing by joining forces with houses of worship.  Here, the developer is building a new church sanctuary and child-development center with eight floors of apartments on top, most of them subsidized for low and moderate income renters.

To be sure, this is an unusual redevelopment plan. The proposal was crafted to meet the county's goals of increasing affordable housing and the church's need for cash to renovate its aging sanctuary. The church sold the air rights over its property for $5.6 million last year to a nonprofit group that is building the apartments with $48 million in county and state loans and federal tax credits.

Shortly after Arlington officials approved the deal, some local residents sued to block construction on zoning grounds, calling the building intrusive.  Arlington County then amended its zoning ordinance and a second legal challenge failed. Next, the plaintiff initiated his First Amendment fight.

The complaint alleged that the church received more than market value for its air rights, that the shared lobby, entrance and other brick-and-mortar elements would, literally and figuratively, entangle the church and the subsidized housing.  The Court disagreed, holding that the plaintiff lacked “factual allegations" to prove any of his claims and that the county's $13.1 million loan "is expressly for the purpose of financing the affordable housing project.” The plaintiff also failed to prove that the church was "fraudulently" paid more than its property was worth.

Supporters of the project said the constitutional questions raised in this case and by the other opponents were simply a strategy to block affordable housing in their neighborhoods.

The case is Glassman v. Arlington County, Virginia, et. al., Civil Action No. 01-09-cv-1249.

Does the plaintiff really believe there is an actionable First Amendment claim? Is this lawsuit an effort to prevent affordable housing from being constructed in the neighborhood? Should local officials work to add to the number of affordable housing units in an area that is perceived to need it? Should the opinions of the nearby residents matter?

Just A Thought.

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Forty-two years ago, in April 1968, the Fair Housing Act (“FHA”) became law.  In each succeeding April, the Department of Housing and Urban Development (“HUD”) celebrates Fair Housing Month to draw attention to the efforts it makes to enforce and promote the purposes of the FHA.  As we have discussed on numerous occasions, the FHA makes it illegal to discriminate in various housing transactions for reasons based on race, color, national origin, religion, gender, disability or familial status. 

In its press release announcing this year’s Fair Housing Month, which has been declared “A Time to Act!,” HUD emphasizes that it is constantly expanding its efforts to work with both states and local communities to reinforce the requirement that those communities promote diverse, inclusive housing opportunities. Interestingly, HUD also acknowledged that it is now examining the prevalence of housing discrimination based on sexual orientation and gender identity, two hot button categories that do not presently enjoy protection under most federal laws.  In addition to the enforcement activities that we discussed here, here, here, and here, HUD states that, in the past year, it:

• Settled a case in which it was alleged that West Chester County, New York, made false claims to the government when it made civil rights certifications required to receive funding, and in so doing, obtained an agreement from West Chester that it would build 750 units of affordable housing in parts of the county with low minority concentrations.

• Expanded its efforts to fund communities that use HUD funds to create employment opportunities for low income residents.

• Obtained $8 million plus in relief for victims of housing discrimination.

While housing providers are often the defendants or respondents in cases filed under the FHA, in my experience, our employees try to get it right for at least a couple of reasons: (1) we absolutely strive to follow the law; and (2) we are evaluated and compensated, in part, based upon how many people sign (and renew) leases to live in our communities.  In short, we try hard to rent to each and every qualified applicant.  We have every incentive to get people in our communities – not keep them out.  Am I implying errors never happen?  Of course not.  Guidelines can get misapplied.  Someone can make an inadvertent mistake.  It is a rare case where there has been intentional discrimination by our clients because of an applicant's or resident's membership in a protected class.

Just A Thought.

Article by Christian Moffitt.

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I get this question from time to time: Under the Fair Housing Act (FHA), does a tester have standing to bring a claim? “Standing” is a term which denotes that a plaintiff has the legal right to bring a complaint. If a party lacks standing, the case can be dismissed without ever getting to the merits of the claims. 

Fair housing testers regularly pose as applicants seeking an apartment. For example, a local group might send out an African American couple to a community seeking a certain apartment and then it will send out a Caucasian couple to see if less favorable terms and/or conditions have been offered by management. Additionally, the group might contend that housing was not offered to one tester or even that one tester was not offered the same pleasantries and/or amenities.

There are any number of legitimate defenses to these claims. The most common, of course, is that the specific apartment presented to the first tester was subsequently rented before the second tester arrived. For this defense to be used, however, accurate records must be kept to ensure management can prove up the date and time the apartment in question was leased. Also, while management tries to ensure everyone receives the same welcome, different leasing office employees may have slightly different styles or presentations. Good training is essential to combat this allegation.

Some owners and management companies believe they are being unfairly treated in tester cases because the complainant had no intent to actually rent an apartment and, in fact, lied to the management office staff.  

While I understand and am sympathetic to the position that management is facing testers who have no desire or intent to rent an apartment, applicable Supreme Court precedent holds that testers have standing to bring claims under the FHA. Just another reason to ensure that all leasing office staff members treat each and every applicant the same.

Just a Thought.

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