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

When I am discussing defending fair housing cases, a question I get regularly is: “what is the most important thing management can do to prevent a fair housing case from ever being filed?” Seems simple enough.

The short answer is there is nothing that can be done to categorically ensure a fair housing complaint never gets filed. While my experience has revealed that the vast majority of complaints have no merit, nothing can be done to mathematically eliminate even the chance that a complaint gets filed against you or your employees at some point over the years.

But, the most important item management can do to significantly lower the chance of a complaint is: fully engage in the interactive process with your residents and applicants. 

Respond to their questions. Document your responses. Fulfill their maintenance requests. And document those service items. Promptly acknowledge requests for reasonable accommodations and reasonable modifications. We cannot grant every request – but we can provide a response. Keep copies of resident complaints and concerns. And document your responses. Ensure you keep copies of lease violation notices as well as an up to date rental payment history.

At the end of the day, if a complaint comes in (and you need to talk to a lawyer like me), we will be charged with proving our innocence. That is just part of the cost of doing business in our industry. But, by engaging in the interactive process – you will have done your good faith part of attempting to prevent a complaint AND you will invaluably help me defend against it.

Just A Thought.

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If you have read this blog (and really, who in the professional apartment management business has NOT been reading the blog), you know that the Fair Housing Act (FHA) prohibits discrimination on the basis of familial status. But, a question I get asked regularly is: Just what is familial status?

Familial status is defined as: one or more individuals (who have not attained the age of 18 years) being domiciled with: (a) a parent or another person having legal custody of such individual or individuals; or (b) the designee of such parent or other person having such custody, with the written permission of such parent or other person.

The FHA further provides that the protections afforded against discrimination on the basis of familial status shall apply to any person who is pregnant or is in the process of securing legal custody to any individual who has not attained the age of 18 years.

Notably, this protection does not, however, apply to communities which are designated as housing for older persons. 

Familial status issues also arise when discussing occupancy standards.  The old general rule, which reflected a two person per bedroom standard, is only a guide and does not end the analysis.  If a unit is large enough, some jurisdictions have found that a "two plus one" (or three persons per bedroom) standard can and should be appropriate. 

In other words, to ensure you do not discriminate against familial status, for most apartment communities -- you cannot advertise as for "adults only."  Or you will get to speak with a lawyer like me.

Just A Thought.

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Earlier today I did a presentation concerning steps professional apartment management companies can (and indeed should) take to avoid fair housing complaints.  I was pleased with the attendance and audience participation.  Included in the audience was at least one HUD official -- so I was on my best behavior.

I got a number of questions concerning reasonable accommodation and reasonable modification requests.  Specifically, I was asked, how long should it take for management to respond to an accommodation request?

Of course, there is no magic number of days.  The test is what is "reasonable" under the specific circumstances.  Nevertheless, it is always my advice for management to promptly send out an interim response noting that we have received your request and that we are actively reviewing it.

I have been involved with cases where management waited between six and twelve months to respond.  Obviously, that is far too long and has led to fair housing issues at those communities.  If the request requires immediate attention -- such as a disability which now prevents a resident from getting to her apartment, management needs to immediately act.  If the request is for something not urgent, management should still respond with a reasonable period of time -- I try to urge management to act within at least a couple of weeks. 

Again, management does not have to grant the exact accommodation sought by the resident.  There are, however, certainly times we can and should do precisely what is requested.  But, even in those circumstances where we cannot, management must still respond and attempt to develop an accommodation to meet the resident's needs.

Just A Thought.

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In our fair housing world, retailiation is against the law.  Management cannot retaliate against a resident because he or she filed a fair housing complaint.   If someone believes his or her fair housing rights have been violated, the federal Fair Housing Act (and state law) permits them to seek redress.  As a part of the case, I make clear to each of my employees that they cannot do anything to punish or strike out against someone who has filed a housing discrimination case.

Indeed, I have seen cases in which management was successful in defending against various allegations raised by a resident, but then gets into trouble with HUD or a state agency because a leasing office staff member did some action which could be construed as retaliating against the resident.

So the record is clear:  do not retaliate against anyone for filing a fair housing complaint.  Similarly, do not retaliate against someone for assisting a resident or applicant file a fair housing complaint.  Now, does retaliation work both ways?  What about the resident who keeps filing case after case alleging claims that are wholly without merit?  In so doing, the resident takes up more and more time of the leasing office staff.  Can management simply evict the resident?  Generally no -- not because of the fair housing complaints.  The only good news is that the resident will likely tire out the agency (and investigator) assigned to the case.

If management wants to non-renew a resident, make sure your record is appropriately documented so no retaliation claim can be successful.  Ensure every action is done because of conduct not related to the fair housing case.  Or you may need a lawyer like me.

Just A Thought.

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