Posted on April 27, 2011 by Scott M. Badami

Did We Really Retaliate Against a Resident Because of a Prior Fair Housing Complaint? Likely Not, but Management Needs to Prove It

The federal Fair Housing Act (FHA) and its various state law counterparts are clear -- a resident or applicant cannot be discriminated against because he or she filed a previous housing discrimination case or otherwise assisted someone in exercising their fair housing rights under the law.  Professional apartment property owners and managers know the law, but we are still required to ensure our community rules and policies are followed.
 
However, the situation just recently brought to my attention involves a resident who filed two previous fair housing complaints.  Neither had merit.  Management settled the first in an effort to show good faith with the hope that litigation with the resident would end.  When the second complaint was filed, we appropriately defended it.  And the agency correctly found No Probable Cause and dismissed the action.  As the resident continued to engage in conduct which management believed was a direct threat to the safety of our leasing office staff members, management issued a non-renewal notice.
 
You can guess what happened next.  A third complaint -- this time for retaliation.  Rest assured, management did not retaliate against this resident.  But we are being forced to again prove our innocence.  Yet further evidence why management must keep good records and document what we do and why.  My usual recommendation is certainly that management must enforce its rules across the board.  I do not think it appropriate to essentially reward a resident who refuses to comport his or her conduct to what is required of all residents. 
 
But if we cannot document the reasons behind our actions, it can look like retaliation.  Even when it is not.
 
Just a thought.
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Posted on April 25, 2011 by Scott M. Badami

Back to the Basics of Reasonable Accommodations and Reasonable Modifications

The Fair Housing Act (FHA) requires that management provide a reasonable accommodation (a change in a rule or policy) or a reasonable modification (constructing, adding or physically removing something) when necessary to permit an individual with a disability to obtain an equal opportunity to use and enjoy rental housing. That being said, it is the responsibility of the person with the disability to request any necessary reasonable accommodations or reasoniable modifications believed to be necessary.

An easy example of a reasonable accommodation is modifying a no pet policy to permit a person with a disability to keep a service animal in an apartment community. Refusing to waive a no pets rule may constitute a discriminatory practice when a resident with a disability is unable to use and enjoy a dwelling, including entertaining guests with disabilities who require the use of service animals.  A typical reasonable modification would be to permit the resident to install grab bars in a shower or bath. 

Management may not unnecessarily inquire into the existence, nature and/or extent of a disability.  However, when an applicant or resident with a disability requests a reasonable accommodation or reasonable modification, he or she may be asked to provide some reliable professional documentation confirming that the disability and demonstrating how the accommodation is related to the disability such that it will assist the resident.

At a conventional property, the cost of the accommodation is typically the responsibility of the resident.  To be sure, many times management will work with residents to come up with some sort of cost sharing plan.  At an affordable property, management is required (within certain limits) to pay for needed modifications or accommodations. 

Management wants to engage in the interactive process with our residents and applicants.  When dealing with reasonable accommodation and/or modification requests, we don't want to intrude into your medical history, except as necessary under the law.

Just A Thought.

 

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Posted on April 12, 2011 by Scott M. Badami

Just What is Section 8?

All of us in the housing arena have heard of "Section 8."  But I thought it was worth an entry to review just what makes up Section 8 and how Section 8 works in real life.
 
"Section 8" takes its name from Section 8 of the United States Housing Act of 1937 (which has been amended any number of times since).  The statute authorizes the payment of rental housing assistance to private landlords on behalf certain low-income households. I have seen statistics that reveal over 3 million families receive this type of assistance.  Section 8 is run through several programs, the largest of which is the Housing Choice Voucher Program (HCVP).  The HCVP pays a large portion of the rents and utilities of about 2.1 million households. HUD manages the various Section 8 programs.

The HCVP provides what is called "tenant-based" rental assistance, so an assisted tenant can move with assistance from one unit to another. Section 8 also authorizes a variety of "project-based" rental assistance programs, under which the owner reserves some or all of the units in a building for low-income residents, in return for a Federal government guarantee to make up the difference between the tenant's contribution and the rent specified in the owner's contract with the government. .

Under the voucher program, individuals or families with a voucher find and lease a unit (either in a specified complex or in the private sector) and pay a portion of the rent (based on income, but generally no more than 30% of the family's income).

The general rule is that management participation in the Section 8 program is voluntary -- although depending on where you live, there may be local laws mandating that management accept a housing voucher.  Yet another good reason to know the fair housing laws in your area.  Or you will have to check with a lawyer like me.

Just a Thought.

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Posted on April 1, 2011 by Scott M. Badami

Occupancy Standards and Familial Status -- How Do They Intersect?

A reader asked a question about the relationship between familial status (families with children) discrimination and occupancy standards (how many people can live in an apartment).  Added to the Fair Housing Act as a protected class in 1988, "familial status" means that management cannot (except for certain communities designated for age 55 and older) exclude families with children from an apartment. 
 
That does not, however, mean that a family of five can live in a one bedroom unit.  For legitimate reasons related to safety and wear and tear, the general rule on occupancy standards (confirmed by what was known as HUD's Keating Memorandum back in the 1990's) was a two person per bedroom limit was presumed to be reasonable.  In other words, a family of four could live in a two bedroom apartment.
 
Over the past number of years, however, the rules on occupancy standards have changed.  Some states and localities have changed their laws to provide that a "two plus one" person per bedroom standard is appropriate.  Recent guidance from HUD provides that management needs to evaluate the size of the entire apartment when deciding about the specific occupancy standard for a unit.  As such, while a two person per bedroom standard might be absolutely appropriate for smaller apartments, if the unit has a den or large rooms, a "two plus one" standard could be reasonable.
 
I don't like giving responses that include "it depends" in the answer, but it really does in this case. 
 
Just A Thought. 
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