Posted on August 23, 2010 by Scott M. Badami

Reasonable Accommodations and Parking

I get questions concerning handicapped parking spots regularly.  The easy answer to parking space questions is that designating a specific spot as a handicapped parking place with appropriate signage in response to a reasonable accommodation request should be granted. 
 
There is also available guidance concerning the number of van accessible spots.  Those involve the number of spaces in the parking lot and ensuring the parking lot is properly striped.
 
Those are the easier questions.  But, for example, what if a community charges all of its residents a nominal monthly fee to park at the community?  And then a disabled resident makes a reasonable accommodation request that management waive the parking charge.  Must management waive the parking fee as a reasonable accommodation?  The answer is generally no. 
 
This issue was addressed in a 9th Circuit opinion a few years ago discussing the Fair Housing Act (FHA).  The Court noted that the landlord of an apartment complex charged all residents a monthly parking fee that a disabled resident sought to have waived as a reasonable accommodation.  Although a disabled resident may require a car far more than other residents, the court noted that a waiver of the car parking fee would put the disabled resident in a privileged position in relation to other residents -- as opposed to affording them equal opportunity.
 
The Court was clear that there are a number of types of residential fees that affect both disabled and non-disabled residents equally.  And those fees are certainly proper.  Fees that courts will closely review are those with unequal impact -- such as charging more for a select parking space or adding a fee for a service animal.
 
Just A Thought.
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Posted on August 20, 2010 by Scott M. Badami

More on Source of Income As a Protected Class

At first glance, the protected classes sound simple enough.  The federal Fair Housing Act (FHA) lists seven:  race, color, religion, national origin, sex (gender), disability, and familial status (presence of children under age 18 in the household or a pregnant woman).  Some state, city, and county anti-discrimination laws include additional protected classes. 

In response to a client request, we took a look around at the state of the law involving another common protected class which is not in the FHA:  source of income.  Our research found that at least thirteen (13) states and the District of Columbia include source of income as a protected class. Furthermore, numerous cities and counties have identified source of income as a protected class.  We started counting and identified a total of at least forty-three (43) geographic areas that have enacted source of income protection to their anti-housing discrimination laws.  
 
This continues to demonstrate what I have previously noted:  source of income remains an issue that will increase over time as more jurisdictions include it as a protected class.  This is of particular concern to those apartment owner/managers with properties located in various states (or even multiple cities/counties in a single state).  Each management office certainly needs to know the laws of the jurisdiction it is in and our staff should be prepared to answer the source of income question.  It gets more complicated if the apartment owner/manager has a centralized call center dedicated to responding to inquires for various properties located in a number of areas.  In a perfect world, the call center needs to be able to access the law in the various state, cities, and counties.  
 
If you or your leasing office staff get a call about source of income and are uncertain how to respond, take a message and contact competent counsel.  I have seen any number of fair housing cases filed because of either a misunderstanding or just not being aware of how to respond to this important question.   And then you really need to spend time with someone like me.
 
Just A Thought.
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Posted on August 6, 2010 by Scott M. Badami

When Do We Start Defending Against A Housing Discrimination Complaint?

While this may seem a little backwards, in my experience, one of the best things management can do to defend against a housing discrimination complaint is to plan BEFORE any complaint gets filed.  You might ask:  how can I plan to defend against allegations I have not even seen or thought about?
 
Fair point.  But, training our employees to follow the Fair Housing Act (FHA), ensuring written documentation is in every file, appropriately responding to reasonable accommodation/modification requests as well as ensuring the community rules are followed across the board can make a real difference regardless of whatever the specific allegations in a complaint might be.  Remember, in many fair housing cases, the fact is that management must prove our innocence.  One of the best ways to do that is to have good records to provide to the investigator.  We then credibly prove the allegations in the complaint just did not happen.  At a minimum, we can show policies in place to prevent discrimination.
 
A recent case from the Ninth Circuit in California reaffirmed that in a related fact pattern (the facts involved alleged employment discrimination) the defense of any discrimination case starts with implemented policies, practices, and recordkeeping done long before any complaint is filed.  Good advice we all should follow.
 
Just A Thought.
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Posted on August 2, 2010 by Scott M. Badami

HUD Charges an Architect and a Developer With Failure to Build Apartments Accessible to Persons With Disabilities

It happens more and more all the time.  Just last month, the U.S. Department of Housing and Urban Development (HUD) charged a Chicago developer and architect with housing discrimination for designing and constructing apartments that fail to meet the accessibility requirements of the Fair Housing Act (FHA).  Specifically, in this complaint, HUD claims that the building is not accessible to persons with disabilities in several ways, including having doorways that are too narrow as well as kitchens and bathrooms that do not contain adequate or sufficient maneuvering space for those with mobility impairments.  

As I have written in the past here on the Fair Housing Defense Blog, the FHA requires that multifamily housing built for first occupancy after March 13, 1991 contain accessible features for persons with disabilities.  These requirements include accessible common areas, bathrooms and kitchens, as well as wider doors and environmental controls that can be reached by persons who use wheelchairs.  If builders, architects, and/or owners fail to include these features, which makes the property difficult or impossible to use by persons with disabilities, HUD will contend doing so violates the FHA.

In this case, a fair housing tester, who uses a wheelchair, claimed that he was unable to pass through a number of doors, and had difficulty maneuvering in the kitchens and bathrooms (among other issues) and the testing agency brought the case to HUD.

These design and building requirements have been on the books for almost 20 years.  While I certainly want to hear from the other side and I never judge a case solely by what HUD may allege, not knowing the law when you design and/or build a property is not sufficient anymore.

Just A Thought.

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