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

Responding to reasonable accommodation and modification requests are topics that I regularly write about.  As apartment owners and management companies, we have to always be ready to engage in the interactive process with our residents (and applicants).  Reasonable accommodation and modification requests can come in all different shapes and sizes.

What should management do when we receive a reasonable accommodation request pursuant to the anti discrimination laws for the use of medical marijuana?   Good question.

Earlier this year HUD's General Counsel -- reaffirming guidance first issued back in 1999 -- concluded that both federal and state anti discrimination laws do not require management to grant a reasonable accommodation requests by current or prospective residents with disabilities to use medical marijuana.  Specifically, HUD found that owners may not permit the use of medical marijuana as a reasonable accommodation because:  (a) persons who are currently using illegal drugs (which include medical marijuana) are disqualified from protection under the definition of disability in the law; and (b) such a proposed accommodation is not reasonable under the Fair Housing Act because it would constitute a fundamental alteration in the nature of the property's operation.

On a related note, while management may not grant a reasonable accommodation request for medical marijuana, HUD found that owners still maintain the discretion either to evict or not to evict residents who engage in the use of marijuana.  I would argue, however, that management would not knowingly want to have drug users in our properties.

Just a Thought.

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I have previously written about the perils of management failing to properly respond to reasonable accommodation and reasonable modification requests.  Here is what can happen if management does not get it right:  on December 27, 2010, a federal district court entered a consent decree requiring Defendants Warren Properties Inc., Warren Village (Mobile) Limited Partnership and Frank R. Warren to pay $1.25 million to resolve the United States’ lawsuit alleging that the defendants violated the Fair Housing Act (FHA) by refusing to grant a tenant’s requests for a reasonable accommodation. According to the Department of Justice (DOJ), this settlement reflects the largest amount ever obtained by the DOJ in an individual housing discrimination case.

The original complaint, filed back in April 2009, alleged that that management refused to permit a tenant with a mobility impairment – an impairment which required him to use crutches and leg braces -- to move to a ground-floor apartment near the front of the building in a 196-unit apartment complex in Mobile, Alabama. The suit also alleged that the resident suffered severe injuries – resulting in the tenant being hospitalized, undergoing surgery, and having to use a wheelchair -- because he fell down the stairs that led to the second floor apartment where the tenant resided.  While I know there are two sides to every story -- and I always want to learn the other side -- this settlement reflects a cautionary tale for all of us involved in apartment ownership/management.

Under the consent decree, the defendants must pay $1,195,000 in monetary damages to the tenant, along with an additional $55,000 to the United States. The defendants must hire a reasonable accommodation facilitator to handle requests for reasonable accommodations from more than 11,000 housing units in 85 properties managed by Warren Properties Inc. in 15 states. The defendants must also attend fair housing training, implement a non-discrimination policy, and comply with specified notice, monitoring and reporting requirements.

To be sure, this is an extreme result.  However, it demonstrates that HUD and the DOJ are watching.  If you receive a reasonable accommodation or reasonable modification request, management is obligated to engage in the interactive process with the resident.  I recommend you send an interim response noting that the matter is being considered.  Then review the request as well as the proposed relief.  Decide what can be done.  Sometimes the relief is simple.  Sometimes management will propose a different solution.  What is critical is that the request not be ignored. 

Just a Thought.

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For those of us in the apartment ownership and management business, fair housing compliance is a part of our business.  The Fair Housing Act (FHA) has been on the books for over 40 years now and there also also various state, city, and county anti-discrimination laws we must follow.  The U.S. Department of Housing and Urban Development tracks the number of fair housing cases filed annually.  Here are some sobering statistics:

Year        Number of Complaints

1998        5,818

1999        6,140

2000        6,970

2001        6,973

2002        7,557

2003        8,097

2004        9,187

2005        9,254

2006        10,328

2007        10,154

2008        10,552

2009        10,242

In other words, fair housing enforcement is not going away.  In addition to a sustained increase in the number of complaints, the type of complaint has changed as well.  Historically, race and color made up the highest percentage of filed discrimination complaints.  Over the past few years, that has changed.  Now, disability discrimination make up the largest number.  I saw some recent statistics noting that 44 percent of filed complaints are related to disability, 31 concern race and about 20 percent are based on familial status.  Those numbers are consistent with what I have seen in my practice.

The best way to reduce the chances of a complaint being filed against you or your property is to ensure you engage in the interactive process with residents and applicants.  Remember, our goal is to get people into our communities and to have those residents renew their leases.  I have seen complaint after complaint filed by a disgruntled person which could have been avoided had management been proactive in dealing with them.  To be sure, there are some residents or applicants who cannot be satisfied and then we get to defend against a complaint. 

Another critical element to prevent fair housing complaints is updated fair housing training.  Management needs to ensure our leasing and maintenance staff members get it right.  Part of the way to best assist them is good training.   By a lawyer experienced in the field.

Just A Thought.

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I've posted previous entries about ensuring that apartment communities have the appropriate number of handicapped parking spaces (as well as spots which are van accessible) to accommodate our residents who need them.  Provided there are sufficient spots in a parking lot (and even sometimes when space is at a premium), I advise my clients to grant a reasonable accommodation request made by a resident with a valid Department of Motor Vehicles (DMV) handicapped placard for an additional handicapped parking spot as close to the resident's unit as practicable.  Along with grab bars in a bathroom, adding a handicapped parking spot to a lot is not a problem and not an accommodation request that typically reaches my desk.

To be sure, the handicap spot designation permits anyone with a valid DMV sticker to use the parking space.  Most of the time the new spot ends the inquiry as the resident uses the accommodation provided by management.

However, earlier this year, HUD issued a charge of discrimination against the owners and management of an apartment community because management refused to issue a designated spot in the name of a specific resident.  The resident, who has a confirmed disability preventing him from walking long distances, sought a spot just for him.  The community noted that their parking lot was first come, first serve and contained the appropriate number of handicapped spots.  Management refused to issue a new spot in the name of this resident.

HUD disagreed and apparently is taking the position that the community must designate and identify another handicapped spot in the name of this resident.

I will follow the outcome of this case and report back.  Another cautionary tale.

Just A Thought.

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