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

In response to a recent post, I was asked what type of records should management keep and how should management best work to avoid fair housing complaints.  In addition to assisting in preventing housing discrimination complaints, if a complaint ultimately gets filed, these items will almost always help us defend against the claims. Here are some thoughts:

(1) Engage in the “interactive process” with our residents. And document all interaction with residents. Particularly with difficult residents. Failing to do so appropriately is a common mistake I see time and time again. I am mindful it is can be a burden to do – but if you and I have to respond to a discrimination complaint, it will be time very well spent.

(2) All resident complaints should be noted in writing and a copy should be retained in the resident’s file. As a part of management’s efforts to address the situation, include copies of our responses in the files.

(3) Always respond to reasonable accommodation and/or reasonable modification requests. I usually suggest that management prepare an interim response to let the resident know we are reviewing their request. While not every request can or should be granted, each request must be evaluated and responded to.

(4) In a perfect world, reasonable accommodation and/or reasonable modification requests should be written, signed and dated by the resident. But, there is no requirement that the request be written down. Again, even with a request that comes in orally, the best practice is to document in writing what steps were taken by management to address the resident’s needs.

(5) Similarly, it is important to document all lease violations in writing in the resident’s file. You should also make sure lease violation notices/warning letters are appropriately sent all to all residents for the same violation.

(6) A full and complete rent payment history should be available for each household in their resident file (or in a computer file that can be printed) as well as a lease and any community policies you have in place.

Indeed, I know it sounds backwards. But, proving our innocence is a cost of doing business in the professional apartment management arena these days.

Just a Thought.

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As an owner or management company employee of an apartment community, we have many responsibilities delegated to us pursuant to the Fair Housing Act (FHA).  Among the things we cannot do is retaliate against a resident, applicant, or former resident because he or she previously filed a fair housing complaint.  Even if the prior case was wholly without merit, management cannot retaliate against that person.  Additionally, the prohibition against retaliation also applies to anyone who assisted someone else in filing a complaint or exercising rights under the FHA.

Retaliation can be defined as punishing or otherwise striking out against someone for filing a fair housing complaint.  It typically arises if management non-renews or moves to evict a resident who previously filed a complaint.  Again, even if the prior complaint was meritless, management cannot act because of the prior case.  HUD and the various state, city, and county agencies who investigate complaints take retaliation claims seriously and we must prove our innocence.

To be sure, management must guard against a resident who believes he or she is bullet proof and cannot be evicted or non-renewed simply because of a prior fair housing complaint. Make no mistake, non-renewals are not common.  Management wants most of our residents to sign new leases.  But, there are times when a resident behaves in such a manner as to force our hand.  If that resident has filed a previous complaint, management's best protection is to ensure the file is documented as to why a resident received a notice of non-renewal.  As I have written many times before, ensure that everyone is treated the same and we have a record to act as we did.

Otherwise, you will need a lawyer like me.

Just A Thought.

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Some fair housing questions are relatively straight forward.  I love when I can give a direct answer. 

Can management charge a higher security deposit simply because an applicant has children who may cause more wear and tear in an apartment?  The answer is no.  Familial status (families with one or more children under the age of 18, including pregnant women as well as individuals seeking to adopt or gain custody of a child) is one of the protected classes in the Fair Housing Act (FHA).  Management cannot charge a higher security deposit because a child or children might cause damage to an apartment.  Security deposits need to be set based on objective, non-discriminatory criteria.

To be sure, there are still valid occupancy standards for most units.  Occupancy standards prohibit, for example, eight people living in a two bedroom apartment.  Part of the reason for occupancy standards is safety.  Another reason is to prevent excessive damage to a unit.

Just A Thought.

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I got a question about a specific reasonable accommodation request last week which I thought would make for a good blog entry.  The Fair Housing Act (FHA) was amended in 1988 to add individuals who are disabled as a class protected from housing discrimination.  As such, the law requires management to make accommodations with respect to our rules, policies or services at a community when such an accommodation may be necessary to ensure that the disabled resident/applicant has an equal opportunity to use and enjoy a home.  Sounds simple enough.

What happens, however, when management receives a reasonable accommodation request which seeks early termination of a lease by a disabled resident as a reasonable accommodation?  Can the phrase "equal opportunity to use and enjoy a home" be read to mean that a resident can break his or her lease as a reasonable accommodation?  How is breaking a valid lease consistent with the "use and enjoy a home" language in the FHA?  That does not logically seem to follow.

In practice, however, the law holds that a resident may develop a disability, or an existing disability may become so severe during the term of a lease, that he or she cannot meet the obligations of their lease. In cases in which there is no reasonable modification or reasonable accommodation that can remedy the situation, the resident may have no choice but to find alternative housing. In such a case, the resident should request that management permit an early termination of the lease, and if it is reasonable, management may have to grant the request. Either the resident or management may offer an alternative accommodation, such as another, more suitable unit.  As with all determinations of reasonableness, management may only refuse to terminate the lease without penalty if the accommodation would result in an undue burden or would substantially alter the terms of the agreement. In determining reasonableness, the landlord may consider the following:  (a) the likelihood of filling the vacancy given vacancy rates in the area/building; (b) any particular characteristics of the dwelling that make it desirable or undesirable; (c) the amount of time remaining on the lease term; (d) the size of the owner’s business; and (e) the owner’s overall resources. See  e.g.Samuelson v. Mid-Atlantic Realty Co., Inc., 947 F. Supp. 756 (D. Del. 1996).

To phrase it another way, the request by a disabled resident for early termination of a lease can be considered one of many suitable reasonable accommodations.  Management must evaluate that request and determine if it should be granted or perhaps seek an alternative accommodation that can meet the needs of management and the resident.  To be sure, a determination of what is or isn’t a reasonable alternative is very fact-specific and will be a decision made on a case-by-case basis by courts in the event that the issue is litigated.  These situations are further evidence that management must remain current in responding to requests from residents and we must know the law

Just A Thought.

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