Posted on February 24, 2011 by Scott M. Badami

More on Smoking and Reasonable Accommodation Requests

I hesitate to publish this post.  Because it deals with smoking in apartments.  With the exception of service animals, smoking is probably the next most emotional issue -- with tempers running high on both sides.  One of my properties received a reasonable accommodation request (with a note from a physician) requesting that a resident be moved to a non-smoking section of a community because of a medical condition.  Management does not have a non-smoking section at this property. Whether we should or not is academic -- right now we do not.  And we have two valued residents we want to keep.
 
On the one hand, smoking is legal for adults in our country.  On the other hand, some individuals are allergic to smoke or otherwise need to be away from it.  I understand both sides. 
 
As such, management is in the unenviable position of trying to keep harmony between two neighbors and find a way to work out a solution in which good residents are maintained.
 
I located a 2007 letter from HUD in which the Department makes clear that there is no HUD policy, statute, or regulation that restricts management from adopting a prohibition of smoking in common areas or individual apartment units.  However, that same letter provides that management should think carefully when crafting a policy in order to avoid complaints filed by current residents based on theories of constructive eviction or breach of contract by residents who have current leases and who smoke (or have guests who smoke) in their own homes.
 
As alluded to above, one option for the long term is to discuss whether to designate a wing, section, floor, or building as "no smoking" -- and find residents and applicants who would affirmatively want to live in such a place.
 
However, management needs to respond to the pending reasonable accommodation request.  Some options include:  (a) transferring the requesting resident to a different unit; (b) asking the smoker to move to a different unit (to be sure, management will likely need to sweeten the pot to entice him or her to move); (c) provide extra interior fans and/or air cleaners; (d) increase weather stripping and/or insulation around doors and windows; or (e) permit either resident to break their lease and move.
 
This list is not exclusive.  But it provides some real world guidance concerning dealing with an issue that comes up again and again.
 
Just A Thought.
 

 

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Posted on February 15, 2011 by Scott M. Badami

A Primer on Apartment Community Parking Spaces

When apartment communities provide parking lots for our residents and guests, we need to ensure that a designated number of handicap accessible parking spaces are identified and made available for use.  

An accessible parking spot must have space for the vehicle and an additional space located either to the right or to the left of the space that serves as an access aisle. This aisle is needed to permit a person using a wheelchair, electric scooter, or other mobility device to get out of their car or van.

Accessible parking spaces should be the spaces closest to the accessible entrance and be located on level ground if at all possible.  Similarly, management should try to find an accessible route between the access aisle and the accessible building entrance.  
 
The number of accessible parking spaces that should be provided is based on the total number of parking spaces that are provided.   For example, if a community has between 1 and 25 spots, you need at least 1 van accessible space.  If a property has 26 to 50 spaces, you need to have one standard and one van accessible space.  For lots with between 51 and 75 spaces, management should identify two standard and one van accessible spots.   The number of accessible spots increases with the number of spaces in the parking lot.  Also, where parking is provided in several locations near building entrances, the accessible parking should also be dispersed if at all possible.
 
Please remember that these are the Americans with Disabilities Act (ADA) requirements and that it is possible that state and/or local governments have changed the law to enact their own building codes (and if they do the codes must meet or exceed those contained in the ADA) which may change the number of handicap accessible spots. 

Just A Thought.

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Posted on February 11, 2011 by Scott M. Badami

Staying Current With New And Amended Fair Housing Laws

 
Professional apartment community owners and managers have read this from me before:  we must stay vigilant with respect to the federal, state, and local fair housing laws which impact our business. 
 
While the federal Fair Housing Act (FHA) contains seven familiar protected classes, many states, cities, and counties have laws which include additional protected classes.  And those laws get amended regularly.  It is up to us to stay current with respect to changes in the law.  It will not be a defense to a fair housing complaint for management to claim that we did not know about a amended law in a specific jurisdiction.  To illustrate, currently pending is legislation which would amend the City of Philadelphia's Fair Practices ordinance.  In addition to changing the Ordinance's name, it would change several definitions and add domestic or sexual victim status, familial status and genetic information to the prohibited bases for discrimination. Source of income has been a protected class in Philadelphia for some time now. Additionally, the bill reorders and clarifies the complaint, mediation and hearing procedures of the City's Human Relations Commission. Some commentators have suggested these changes will reflect a new emphasis on enforcement.
 
This is but one example of how we must remain pro-active to ensure our jobs are done correctly.

Just A Thought.

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Posted on February 2, 2011 by Scott M. Badami

Here We Go Again: DOJ Files Another FHA Complaint Against a Mississippi Newspaper and Two Individuals for Discrimination Against Families with Children

 

How many times are we going to see this?  In December 2010, the DOJ filed another complaint, this time against a Gulfport, Mississippi newspaper and two individuals for violating the Fair Housing Act (FHA) by discriminating against families with children.

The lawsuit claims that a weekly newspaper distributed along Mississippi’s Gulf Coast engaged in a pattern or practice of violating the FHA or denied rights protected by the law by accepting and publishing ten advertisements for rental housing that stated illegal preferences against families with children.

The litigation follows complaints filed with the HUD by a fair housing group and a woman with three children who was searching for housing for her family. The woman’s search led her to a weekly newspaper in which she read an ad offering a house for rent with the note: "no children."  The prospective resident contacted a housing rights which conducted fair housing testing at the property in question and claims to have monitored the advertisements published in the newspaper. After HUD investigated the complaints, it issued three charges of discrimination and the matters were referred to the Justice Department.

The lawsuit seeks a court order prohibiting future discrimination by the defendants, monetary damages for those harmed by the defendants’ actions and a civil penalty.

The complaint, of course, is but an allegation of unlawful conduct. The claims must still be proven in court and as a defense lawyer, I always want to hear the other side of the story.  But in today's housing marketplace, owners and property management companies just cannot publish advertising which excludes children on its face.

Just A Thought.

 

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