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

With 2011 now in the books, your friendly Fair Housing Defense blogger thought this might be a good time to review the Top Ten most read of the 48 blog posts during the past year.  Interestingly, they involve any number of items related to the Fair Housing Act and how management must comply with the law. 

1. http://fairhousing.foxrothschild.com/2011/01/articles/fha-basics/exemptions-to-the-fair-housing-act-not-many-but-here-are-some/
2. http://fairhousing.foxrothschild.com/2011/04/articles/fha-basics/occupancy-standards-and-familial-status-how-do-they-intersect/
3. http://fairhousing.foxrothschild.com/2010/11/articles/fha-basics/are-punitive-damages-available-in-a-fair-housing-lawsuit-only-in-extreme-cases/
4. http://fairhousing.foxrothschild.com/2011/07/articles/disability/can-a-request-to-break-a-lease-be-considered-a-reasonable-accommodation-yes-depending-on-the-circumstances/
5. http://fairhousing.foxrothschild.com/2011/05/articles/disability/this-is-what-can-happen-if-management-fails-to-appropriately-respond-to-an-accommodation-request/
6. http://fairhousing.foxrothschild.com/2011/05/articles/fha-basics/huds-increased-fair-housing-activity-management-must-get-it-right/
7. http://fairhousing.foxrothschild.com/2011/08/articles/fha-basics/criminal-background-checks-how-far-back-can-management-look/
8. http://fairhousing.foxrothschild.com/2011/08/articles/fha-basics/are-business-cards-considered-advertising-subject-to-the-fair-housing-act/
9. http://fairhousing.foxrothschild.com/2011/04/articles/discrimination/back-to-the-basics-of-reasonable-accommodations-and-reasonable-modifications/
10. http://fairhousing.foxrothschild.com/2011/09/articles/fha-basics/remember-that-hud-and-fair-housing-testers-are-reviewing-ads-to-confirm-compliance-with-the-fair-housing-act/

If you want to take a look at any of the most read entries, simply click on the above links.   From your editor's perspective, I was caught by the fact that what you read most are my tips and suggestions about what to do (and what not to do) concerning fair housing compliance as opposed to simply reporting on cases.  Let's see what I can do in 2012 to better meet those reader needs.

Just A Thought.

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We here at the Fair Housing Defense blog write over and over that we know there are always two sides to every case and that both stories deserve to be heard. Today’s post involves a case in which the Ohio Civil Rights Commission found probable cause to believe that unlawful discrimination took place. 

The allegations involve an Ohio landlord who posted a racially insensitive sign at a community swimming pool. Just last week the landlord called on the Ohio Civil Rights Commission to reconsider its September 2011 ruling that she had discriminated on the basis of race in violation of Ohio law when she posted a sign at the pool in one of her properties that read “Public Swimming Pool, White Only.”

According to the Ohio investigators, the landlord directly accused the resident’s biracial daughter of making the water in the pool “cloudy” because of the chemicals that she used in her hair. Shortly thereafter, management allegedly posted the offending sign. Several witnesses confirmed that the sign was indeed posted. The parents filed a discrimination charge and moved out of the community to “avoid subjecting their family to further humiliating treatment.” In defending against the charge, the landlord stated that she didn’t “have any problem with race at all. It’s a historical sign.” She also contended that the swimming pool at the apartment duplex is private property and that “everybody has to ask before getting in my pool.”  The landlord's motion for reconsideration is scheduled to be heard in January 2012.

The Fair Housing Act is clear that management cannot, among other things, post a sign that gives the appearance of discrimination against any person on the basis of race, color, national origin, religion, sex, familial status or handicap.  Enough said.  That prohibition extends not only to the rental of apartments, but also to the use of the amenities and common facilities – such as a pool.  Management representatives who fail to strictly comply with these laws expose themselves unnecessarily to potentially severe (and expensive) consequences.

Just a Thought.

Article by Christian Moffitt.

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The Justice Department filed a lawsuit this week against a university and various university employees in Nebraska alleging violations of the Fair Housing Act (FHA) by discriminating against students with disabilities.

The lawsuit, filed in the U.S. District Court for Nebraska, alleges the university and its employees engaged in a pattern or practice of violating the FHA by denying reasonable accommodation requests by students with psychological or emotional disabilities who sought to live with emotional assistance animals in university housing. The case also alleges that the defendants required students with psychological disabilities to disclose sensitive medical and other information that is unnecessary to evaluate their accommodation requests.  This lawsuit began following a complaint filed with the Department of Housing and Urban Development (HUD) by a student who requested an emotional assistance dog.  

As we have reviewed any number of times in the Fair Housing Defense blog, reasonable accommodation and reasonable modification requests must be reviewed/responded to in a timely basis.  The law is clear that management can only request enough medical information to confirm that the disability is recognized and that the accommodation (in this case a service animal) is reasonably related (or has a nexus) to the disability.  DOJ's suit seeks a court order prohibiting future discrimination by the defendants, monetary damages for those harmed, and a civil penalty. 

Now remember, I am a defense lawyer.  The complaint is only an allegation of unlawful conduct. There is always another side to the story and I want to hear from the defense before drawing any conclusions.  But management (in this case a university) must always consider and respond to reasonable accommodation/modification requests.  Or you may well face an action like this.

Just a thought.

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From time to time I include in the Fair Housing Defense blog new cases filed by the Department of Justice (DOJ) and/or the Department of Housing and Urban Development (HUD) dealing with the Fair Housing Act (FHA).  Just last month, DOJ filed a lawsuit against the manager and owner of the Geneva Terrace Apartments, a community in La Crosse, Wisconsin, alleging discrimination against African-Americans who were seeking to rent apartments at the complex.

The complaint, filed in the U.S. District Court for the Western District of Wisconsin, alleges that the manager and owner of Geneva Terrace told prospective African American renters that apartments were not available when they were, while telling prospective white renters that there were apartments available.

As alleged in the complaint, in 2009 and 2010,  the community manager told an African-American couple who were interested in renting an apartment in Geneva Terrace that there were no apartments available, even though the complex had posted a sign advertising vacancies.  The couple found it suspicious and asked a white friend to contact the complex. It is alleged that the white friend  was told there were available apartments.  The couple then reported their experience to a nonprofit fair housing organization.  That organization conducted fair housing tests, which  it is alleged in the complaint confirmed that  the community manager  was telling African Americans that apartments were not available when they were while showing available apartments to white persons. 

The couple also filed a complaint with HUD, which conducted an investigation and, after issuing a charge of discrimination, referred the matter to DOJ.   The lawsuit seeks an order prohibiting the defendants from engaging in future unlawful discrimination.  It also seeks payment of a civil penalty and monetary damages for the persons who were refused the opportunity to rent at Geneva Terrace because of their race. 

As I have written before, as a defense lawyer I always know there are two sides to the story and I always look forward to hearing what the defendants will say.  However, this case provides yet another compelling reason to ensure all of us in the professional apartment ownership and management business continue to follow the law and ensure that our communities and employees do not discriminate.  DOJ and HUD -- along with fair housing testers -- continue to probe and file new cases.  You do not want to be next.   If you are, you may need a lawyer like me.

Just a Thought. 

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I have discussed familial status discrimination any number of times here at the Fair Housing Defense blog.  Apartment owners and management companies must understand that advertising and attempting to lease most apartments to "adults only" renters or charging extra for children will subject you to unneeded scrutiny.  Just recently, HUD charged several properties under the Fair Housing Act (FHA) for violating the law against discriminating against families with children.

On September 2, 2011, HUD charged the owner and apartment manager of a single family house in La Crosse, Wisconsin with discrimination with violating the FHA on the basis of sex and familial status. The manager would not rent nor show the property to a single mother, because she did not have a man to "shovel the snow." The manager reiterated this opinion to HUD staff four times during the investigation.

On July 21, 2011 HUD charged the owner and manager an apartment building in Phoenixville, Pennsylvania for discriminating against families with children, by imposing different rental charges when a child was present in the family.  Management quoted one price for adults and an increased amount if a child was going to live in the unit.  

Remember I am a defense lawyer and I always want to hear the other side of the story.  In fact, it is my job to ensure HUD knows what really took place.  However, in these cases -- which will now be heard by a HUD Administrative Law Judge or referred to federal court -- management will have some serious explaining to do. 

Just A Thought.

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I have written on this topic before, but this seems like a good time for a reminder.  As a part of our role as management, we must engage in the "interactive process" with our residents.  That means we must reach out to and appropriately respond to our residents.

As a part of the "interactive process," I always recommend that we document our interaction with residents.  Failing to do so is a mistake I see time and time again.  For example, we must always respond to a request for a reasonable accommodation or reasonable modification.  Providing an interim response does not mean that management will grant every accommodation or modification request, but we must ensure that each request be evaluated.  Note that while it is good practice for residents to submit their requests in writing, there is no requirement they do so.  When we make a decision about a reasonable accommodation or reasonable modification request, that must be documented as well.

Similarly, I suggest you keep copies of correspondence with your residents in their individual files or via a community computer system which can print records if needed.  I also like a log in which leasing office staff members can note oral communications with residents.

Does this seem like overkill?  Maybe at the outset it does -- but wait until a fair housing case gets filed and the investigator comes to see you or me.  All that documentation will make our job much easier.

Just A Thought.

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Just A Thought.

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As professional apartment owners and management companies, we want quality residents at our properties.  To help obtain the best residents, many management companies publish a non-discriminatory Resident Selection Criteria (RSC) to help ensure the rules are enforced across the board.  Included in the RSC (particularly at affordable communities) will be items such as credit and criminal background checks.

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I have been defending housing discrimination cases for 13 years.  I have a docket of cases stretching from Alaska to Florida and just about everywhere in between.  My cases get investigated by the U.S. Department of Housing and Urban Development ("HUD") in addition to many state, city, and county agencies.  The goal of this blog is to provide a forum for issues of interest to apartment owners and management companies as well as professional management employees. I also hope we can share available resources.

If you are in the apartment ownership or management arena, you are committed to following the federal Fair Housing Act ("FHA") as well as the many state and local laws which prohibit discrimination in housing. Noting that you do not discriminate on the basis of race, color, sex, disability, national origin or familial status is only a good start.

On its face, the law seems simple enough: don’t discriminate. All applicants and residents should be treated equally and with respect. But, each situation is fact intensive and requires an individualized review of the circumstances. Plus, not every jurisdiction is the same:

• what about those which add source of income as a protected class?
• Should you accept vouchers?
• Do you know the difference between a reasonable accommodation and a reasonable modification?
• Who pays for a reasonable modification?
• Does a request for a reasonable accommodation have to be related to the claimed disability?
• What is Section 504 of the Rehabilitation Act of 1973 and why are two agencies investigating the same complaint?
• Can I have occupancy standards for my apartments?
• How can you confirm that a complaint has been filed by a disgruntled resident seeking to prevent an eviction?
• What do you do when the investigator asks you to halt eviction proceedings in an effort to settle the case?
• How do you handle an investigator who wants to interview all of your employees? Or review all your files?
• What about when the investigator who wants to knock on the doors of your residents?
• Should you still evict a resident even after he has filed a fair housing complaint?
• Should you place an advertisement in a church flyer?

Those are just some of the issues I hope to explore. I will do my best to give some insight based on my experience and offer solutions.

There will be no lectures here, but I will try to leave you with --

Just A Thought.

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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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Last week, I was featured on the Capital Thinking radio show talking about the Fair Housing Act (FHA) and how the law impacts most Americans from time to time.  I did a 15 minute segment with the host and we covered a number of topics. 

Here is the link to my interview if you are curious.  

Just A Thought.

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On Thursday, June 16 at 12:30 p.m. eastern time, your Fair Housing Defense editor will be a guest on the Capital Thinking program on the VoiceAmerica Business Network.   Our segment will focus on issues of interest to those in the fair housing arena, including topics related to the history of the Fair Housing Act (FHA), the specific protected classes as well as some thoughts on dealing with residents and avoiding housing discrimination complaints. 

Log on to listen:  www.voiceamerica.com

Just a Thought.

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In writing these blog entries, your humble editor tries to avoid legal jargon and responses that don't give clear answers.  Unfortunately, this post will be one that breaks my general rules.  I was asked recently, can management simply non-renew a resident? 

First, the rules with respect to non-renewals are different for conventional and affordable communities.  At a conventional community, management has the right to non-renew a resident -- provided the non-renewal is not based on discrimination.  For example, a property would violate the law if it issued non-renewal notices to all (or any) of its Jewish residents because of their religion.  Before non-renewing any resident, however, I always advise management to have documented the file to ensure we can demonstrate the reason behind the non-renewal decision.  We may never be asked to do so, but it is the better practice to be prepared just in case a question is raised.

At affordable properties, the rules are a little different.  To be clear, if a resident causes a direct threat to the community, its residents, or our management team, the leasing office staff will attempt to terminate a lease.  Also, if a resident fails to complete the annual recertification paperwork, it is likely that the government assistance will be terminated (which will result in the rent rising to the regular, market rate which most likely the resident cannot afford to pay).  However, in practice -- provided a resident at an affordable community follows the House Rules and ensures his or her recertification paperwork is timely done, it is not practicable to even attempt to non-renew.

Also, management at any property cannot non-renew a resident because he or she filed a previous fair housing complaint.  Such an action would be retaliation -- which is also against the law.

Finally, if you non-renew a resident -- be prepared for what may happen next.  While many times the resident will voluntarily leave, I have seen some residents who simply hold over and require management to go to court. 

Just a thought.

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Two different cases in two parts of the country provide a good reminder for all of us in the professional apartment ownership and management arena.  I am dealing with a HUD fair housing investigation at a conventional property in the south and a HUD compliance review at an affordable community in the northeast.

What links the inquiries is that management is being probed to prove what we did and how we documented our actions.  While interviews from current and former employees are very helpful, HUD always wants to review resident files and they always look for notes detailing interaction between management and residents.

Even if your interaction with residents is benign, please make sure to note it in a log or in a resident's file.  Particularly if you issue a notice or even a warning letter, ensure it is dated and included in the file.  While certain issues may not look at the outset like they will rise to the level of a housing discrimination complaint or HUD compliance review (and to be sure, most certainly do not) -- if and when such an issue arises, management will be best served by detailed records and notes so we can demonstrate what was done and why it was done.

To illustrate, in one of my cases we are being asked why there was only one warning letter in a file before a non-renewal notice was issued.  Notwithstanding that there was a series of incidents between the leasing office staff and the resident.  For whatever reason, the file did not indicate to HUD's complete satisfaction the level of distress caused by the resident.  I think the case could have been closed with more detail in the file.  For now, it continues on until I develop additional evidence to demonstrate why the notice of non-renewal was appropriate.

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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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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I got invited to a fair housing conference recently.  Which is great.  But a line from the invitation gave me pause for a moment.  So I thought I would share it with you.

Professional apartment community management (whether the entities that own the properties or the professionals who manage them) work with HUD and various state, county, and cities agencies almost on a daily basis.  This is particularly true with respect to affordable communities.  The fact of the matter is that management is HUD's business partner.  We have every incentive to get it right and discrimination has no place in our work.  We try to ensure the law is followed and if we make a mistake, I will try to fix it.

What was odd about the invitation, however, is that it noted that representatives of industry (in other words management) are "also" welcome.   Far too often, it seems, that only representatives of tenants are included.  Of course, management needs a seat at the table as well.  It is taken as a given that a tenant's rights group should be invited to a fair housing conference.  I guess my point is that it should be second nature for management to be there as well. 

Just A Thought.

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Just A Thought.

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Title VIII of the Civil Rights Act of 1968 is known as the Fair Housing Act ("FHA").   As we have discussed many times on our Fair Housing Defense blog, that law provides that we cannot be discriminated against in most housing transactions because of our race, gender, religion, national origin, or color.  The FHA was amended in 1988 to include familial status (which is the presence of children under the age of 18) and handicap.

As written, the FHA covers most -- but not all -- housing.  Some exemptions to coverage under the FHA include: (a) owner-occupied buildings with no more than four units (which is commonly known as the Mrs. Murphy exemption); (b) single family housing sold or rented without the use of a broker if the private individual owner does not own more than three such single family homes at one time; or (c) housing operated by organizations and private clubs that limit occupancy to members.

I don't want to focus on the exemptions all that often because the vast majority of apartment housing is covered by the FHA and our professional apartment community owners and management companies absolutely are committed to following the law which prohibits housing discrimination.  However, as a defense lawyer, if I see a case and if one of the FHA exemptions applies -- we need to ensure to use it.

Just A Thought.

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We spend most of our time on this blog discussing the Fair Housing Act ("FHA") and ensuring that the FHA is complied with.  However, there is more in this arena than just the FHA.  Specifically, housing providers who receive federal financial assistance should be aware of Section 504 of the Rehabilitation Act of 1973 ("Section 504").  Section 504 prohibits discrimination on the basis of disability in any program or activity that receives financial assistance from any federal agency.

This means that persons with disabilities may not be denied housing because of their disability and that management may not impose additional application or qualification criteria that are different than those required of persons who are not disabled.

Section 504 also prohibits housing providers from requiring that persons with disabilities live only on certain floors or to live in one section of the community.  Housing providers may not refuse to make repairs and may not limit or deny someone with a disability access to recreational and other public/common use facilities. 

Now, does this mean that management is required to accept any disabled applicant?  Of course not.  Section 504 simply mandates that a person with a disability be evaluated using the same objective criteria that are applied to persons without disabilities.  Subjective fears, unsubstantiated rumors, speculation and general suspicion do not constitute objective information that can be used to deny an applicant.

Just A Thought.

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I was recently asked if a plaintiff could be awarded punitive damages in a fair housing case.   While I try not to devolve into lawyer-speak here at the Fair Housing Defense blog all that often, I wanted to provide a few thoughts on the question.  While the short answer to the question is yes, punitive damages are not typical and will only come up in extreme circumstances.

The Fair Housing Act (FHA) provides for the recovery of punitive damages by victims of discriminatory housing practices.  "[T]he assessment of punitive damages under the FHA is governed by federal rather than state law." United States v. Big D Enterprises, Inc., 184 F.3d 924, 932 (8th Cir. 1999), cert. denied, 120 S. Ct. 1419 (2000). Punitive damages are appropriate in a federal civil rights action "when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56 (1983). The Supreme Court addressed the meaning of the terms "malice" and "reckless indifference" as they relate to the standard for punitive damages in the Title VII (employment) context. See Kolstad v. American Dental Assoc., 527 U.S. 526 (1999). The Court stated that "'malice' or 'reckless indifference' pertain to the [defendant's] knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination." The Kolstad Court further explained that, although conduct justifying a punitive damages award is sometimes characterized as egregious or outrageous, it "is not to say that [defendants] must engage in conduct with some independent, 'egregious' quality before being subject to a punitive award."   In an employment context, it is sufficient that a defendant "discriminate in the face of a perceived risk that its actions will violate federal law to be liable in punitive damages."   

Although Kolstad concerned punitive damages in a Title VII employment discrimination case, and Wade addressed punitive damages in a § 1983 civil rights action, it is likely the same standard for punitive damages applies in the FHA arena. See Alexander v. Riga, 208 F.3d 419, 430-32 (3rd Cir. 2000) (discussing applicability of Kolstad to Fair Housing Act violations). 

Management's knowledge of and compliance with the fair housing laws is, of course, our best defense to a fair housing complaint.  Nevertheless, even if there is a case in which one of our leasing office employees may have misunderstood a guideline or simply made a mistake, punitive damages are only available when a strict standard is met. 

Just A Thought.

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While faithful blog readers know that "source of income" is not one of the seven protected classes in the federal Fair Housing Act ("FHA"), a number of states and localities do include "source of income" as a protected class.  The issue that comes up in these jurisdictions, of course, is just what is covered in the "source of income" of an applicant.  From a legal perspective, the problem is that various jurisdictions differ (or do not always define) just what makes up "source of income."  

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I write often on this blog about cooperating with fair housing investigators who work for HUD or a state, city, or county housing anti-discrimination agency.  From management's perspective, developing a good working relationship with the investigator assigned to a case remains important.  In my experience, management must prove our innocence.  While that sounds a little backward, such is the way of the world in fair housing litigation.  Management understands that burden and we typically welcome it.

But, there is indeed another reason to work on a case professionally and early with an investigator:  because our best chance to win is when the case is being initially reviewed and considered.  I just saw some statistics on appeals which reminded me why our best chance is to win at the first possible stage:  the national average of getting a case reversed on appeal is less than 10%.  In other words, if a case goes to court, the losing side has less than a 10% chance of getting the appeals court to reverse the decision below.  Those are sobering [and expensive] numbers (not just for professional apartment management companies, but for ANY party who loses a case and wants to file an appeal).

This is just further evidence why we work so hard with the line investigators to get the right decision the first time.

 Just A Thought.

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A new fair housing complaint arrived on my desk this week.  It alleged that a resident made a reasonable accommodation (really a reasonable modification) request for a ramp three years ago and management did not respond.  As faithful readers of this blog know, I always believe there are two sides to every complaint and I always want to hear from management before I make up my mind.

Nevertheless, this complaint provides yet another reminder that management absolutely should respond to each and every reasonable accommodation or reasonable modification request you receive.  I recommend management send an interim response informing the resident that we have received your request and are reviewing it.  I have written and circulated those letters.  Then, once management understands what the resident seeks, send them another letter.  And include copies of those letters in the files.  I cannot stress how important it is to document the file.  Remember, in a fair housing case, management usually has to prove our innocence.  One of the best ways to do that is to ensure the resident's file is appropriately documented.

I don't yet know the facts of this new complaint.  I will be shocked if a resident's reasonable accommodation or modification request languished for three years.  But this is further evidence that management must appropriately document requests and respond to them.

Just A Thought.

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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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I regularly do fair housing training or speak on fair housing issues.  I always appreciate the opportunity to talk with those in the housing industry (residents, owners, leasing office employees and government officials) to review issues of common interest.

When at a speaking engagement, I like to follow the HUD (or state, city, or county) fair housing official because I get to say that -- almost without exception -- management agrees with everything the official just said.  Lost in the ether of fair housing defense and litigation is that management is required to follow the Fair Housing Act (FHA) and indeed that we want to ensure every qualified applicant gets to move into our community.  

In addition to following the law, management company employees are reviewed and compensated, in part, on filling available units.  Even if occupancy percentages at some communities tip over 90% -- that means there still are available units to fill.  And my management team wants to get applications approved.  Again, it is more than just following applicable law -- it is how we do business.

Am I saying housing discrimination does not occur?  Of course not.  I am, however, noting that I see many more cases where a resident, former resident, or applicant files a case because he or she is disgruntled with management for one reason or another -- and not because management violated any law.  Make no mistake, if management learns of any leasing office employee acting in violation of the letter or spirit of the laws preventing housing discrimination, management can and will act.   Similarly, have I seen cases in which a mistake or error was made by a leasing office employee?  Unfortunately, yes.  And when we see those situations, my management team does everything we can to make it right.

Just A Thought.

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I have been defending housing discrimination cases for over 12 years. I have a docket of cases stretching from Alaska to Florida and just about everywhere in between. My cases get investigated by the U.S. Department of Housing and Urban Development ("HUD") in addition to many state, city, and county agencies.

The goal of this blog is to provide a forum for issues of interest to apartment owners and management companies as well as professional management employees. I also hope we can share available resources.

If you are in the apartment ownership or management arena, you are committed to following the federal Fair Housing Act ("FHA") as well as the many state and local laws which prohibit discrimination in housing. Noting that you do not discriminate on the basis of race, color, sex, disability, national origin or familial status is only a good start.

On its face, the law seems simple enough: don’t discriminate. All applicants and residents should be treated equally and with respect. But, each situation is fact intensive and requires an individualized review of the circumstances. Plus, not every jurisdiction is the same:

• what about those which add source of income as a protected class?
• Should you accept vouchers?
• Do you know the difference between a reasonable accommodation and a reasonable modification?
• Who pays for a reasonable modification?
• Does a request for a reasonable accommodation have to be related to the claimed disability?
• What is Section 504 of the Rehabilitation Act of 1973 and why are two agencies investigating the same complaint?
• Can I have occupancy standards for my apartments?
• How can you confirm that a complaint has been filed by a disgruntled resident seeking to prevent an eviction?
• What do you do when the investigator asks you to halt eviction proceedings in an effort to settle the case?
• How do you handle an investigator who wants to interview all of your employees? Or review all your files?
• What about when the investigator who wants to knock on the doors of your residents?
• Should you still evict a resident even after he has filed a fair housing complaint?
• Should you place an advertisement in a church flyer?

Those are just some of the issues I hope to explore. I will do my best to give some insight based on my experience and offer solutions.

There will be no lectures here, but I will try to leave you with --

Just A Thought.

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At first glance, the protected classes sound simple enough.  The federal Fair Housing Act (FHA) lists seven:  race, color, religion, national origin, sex (gender), disability, and familial status (presence of children under age 18 in the household or a pregnant woman).  Some state, city, and county anti-discrimination laws include additional protected classes. 

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One common question we get asked is:  “If one of my staff members violates the Fair Housing Act ("FHA") by discriminating against a member of a protected class, can I be held personally liable as the owner or officer of my company?”  The general answer is no as the FHA does not impose vicarious liability directly upon a corporation’s officers or owners.  The FHA, however, does impose vicarious liability directly upon the corporation, regardless of fault. The Supreme Court addressed this issue in Meyer v. Holley, 537 US 280 (2003).

In that case, the Supreme Court held that the FHA imposed vicarious liability directly upon the corporation without regard to culpability, but that it does not impose liability directly upon the corporation’s officers or owners.  The Court reasoned that Congress legislates against a legal backdrop, in this instance, the backdrop of traditional common law tort principles, which traditionally impose vicarious liability upon principals or employers when the agent or employee commits a tort while acting in the scope of their authority or employment. Typically, a corporate employee acts on behalf of the corporation that employs him, not on behalf of the officers, owners or shareholders of the corporation.  As such, the Court reasoned that Congress could not have “intended to apply any unusual modification of those rules” in the FHA because the FHA is completely silent on the issue. This notion was further strengthened through statements by HUD that ordinary vicarious liability rules apply in this area.

So what does this mean for you as an owner or officer of a business involved in the rental or sale of real estate?  First, make sure you are protected by having your business in the appropriate corporate form.  Second, draft and follow policies regarding the rental and sale of real estate.  Pay particular attention to the rules and requirements contained in the FHA and in HUD regulations.  Train your employees to follow the law and your policies.  

Just a Thought

Article by Christian Moffitt.

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As we have reviewed many times on this blog, the Fair Housing Act (FHA) protects individuals from housing discrimination based on their race, color, religion, national origin, gender, disability or familial status.  Additionally, some states and localities include additional protected classes in their laws, such as source of income or sexual orientation.  But there is more to the FHA than just those protected classes. 

Advertising is also protected under the FHA. This provision in the statute makes it unlawful to prepare, print, or publish discriminatory statements in any type of media. For example, if a management company were to put the statement “no children allowed” in an advertisement for an apartment community which is published in a newspaper, magazine or even over the internet, that could well be considered discriminatory advertising as it would act to limit the housing choices of families with children.

Cases interpreting the FHA have made clear that anyone who acts on behalf of the landlord can also be held liable for housing discrimination. This includes people such as the owner, management company, property management company employees, maintenance staff members, and real estate agents as well as anyone else who is acting on behalf of the landlord seeking tenants.

Think nobody is paying attention to apartment community advertisements? Think again. Many fair housing testers specifically look for advertisements with potentially questionable content and then they file a case with HUD. And then you have to defend against it.

Yet another reason to follow the law.

Just A Thought.

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As professional apartment community owners and managers, we try hard to get it right. Combating housing discrimination is part of what we do. It would be naïve, however, to think that errors do not occur. We must be vigilant and we must keep good records. Following the Fair Housing Act and its implementing regulations are prerequisites for anyone in our field.

In addition to following the law, there is another reason not to discriminate: there are many community fair housing and testing entities out there looking to catch us making a mistake. These testers call and/or visit our properties to determine if they can claim discrimination. And then they file a complaint with HUD or a state agency. And then I get involved.

One way to test management is to have, for example, an African American call the property seeking an apartment and then have a Caucasian call later in the day seeking the same type of unit. The testers will compare and contrast how they believe each caller was treated. While I have serious questions concerning how leasing office staff members are expected to tell the race or national origin of a person based on a single call (and I have successfully defended against these types of cases), you need to know they are out there. In fact, in one recent study, the testing agency concluded that 54% of the testers “sounding” African American were treated less favorably than the testers “sounding” Caucasian.  That is an extraordinary figure and even if only a portion of the findings are accurate, management needs to know these testers are looking to file cases.

To be sure, I have seen a number of cases in which the reason for the alleged different treatment was simply because the apartment in question was leased during the interim time between the two calls. If someone else puts a deposit down, the apartment simply is no longer available. And what could have been unlawful discrimination was simply benign leasing office business.

It sounds simple but it is always worth repeating: treat all applicants the same. Keep good records.

Just A Thought.

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The owners and management companies of the apartment communities I represent are almost always covered by the Fair Housing Act (FHA).  In practice, the FHA and its implementing regulations are part of the guidebook concerning how we do business.  The FHA does, however, contain a few exceptions -- one of the exemptions is referred to as the "Mrs. Murphy" exception.

"Mrs. Murphy's" Exemption provides that if a dwelling has four or fewer rental units and the owner lives in one of those units, that home is exempt from the FHA.  "Mrs. Murphy" is the hypothetical elderly widow who has converted a portion of her home into a rental apartment to supplement her limited income.

To be sure, the exemption does not apply to rental advertising.  That means Mrs. Murphy cannot run a discriminatory advertisement indicating, for example, that a certain religious group is not welcome to rent her apartment or room.  Also, this exemption does not apply when a real estate agent is representing the property owner as the law presumes agents are professionally trained and aware that housing discrimination is against the law.

Also, HUD takes the position that the Civil Rights Act of 1866 (yes, 1866) makes it illegal to discriminate based on race -- and as such, there is not exemption from the law when dealing with race.

Should the "Mrs. Murphy's" of the world discriminate?  Of course not.  But, the FHA does not apply in this limited circumstance and it can be a defense to a housing discrimination action.

Just A Thought.

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Previous blog entries have reviewed the seven protected classes included in the Fair Housing Act (FHA):  race, color, sex, disability, familial status, national origin, and religion.  Knowing the state and/or local laws in your jurisdiction are also important as additional requirements (and protected classes) can come into play.  One of the most common queries I see concerns "source of income" -- in other words, must management accept a housing voucher for some or all of the rent for an apartment?

At last count, there were at least 14 states (and Washington, D.C.) which include protection against discrimination in housing rentals based on an applicant's source of income.  These jurisdictions include:  California, Connecticut, the District of Columbia, Maine, Maryland, Massachusetts, Minnesota, New Jersey, North Dakota, Oklahoma, Oregon, Utah, Vermont, and Wisconsin.  This list continue to grow.  Additionally, many counties and cities throughout the United States have enacted ordinances protecting source of income.   For example, while source of income is not a protected class in Illinois, it is a protected class in Cook County, IL (which includes Chicago).

If your apartment community is located in an area in which source of income is a protected class, a housing provider cannot discriminate against an applicant if he or she utilizes a housing voucher.  In this circumstance, management must factor in the voucher and adjust the scoring criteria before making a determination as to whether the applicant qualifies to rent the apartment in question.

To avoid a discrimination action inadvertently brought against management because you turned away an applicant with a voucher in a source of income jurisdiction, it is important to identify if your state, city, or county classifies source of income as a protected class in housing and ensure you implement a policy that adds in the amount of the voucher when processing the application. 

Just a Thought.

Article by Karin Corbett.

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In the year 2010, it seems shocking to some that blatant discrimination in housing would still be taking place. The only color property owners and managers I work with care about is green. If you meet the resident selection criteria and an available unit exists, you get it.

As readers have seen from this blog, however, both HUD and the Department of Justice (as well as state, city, and county agencies) still actively police housing discrimination pursuant to the federal Fair Housing Act (FHA) and its state law counterparts.

In fact, according to HUD’s most recent data, the number of housing discrimination complaints filed is at an all time high: 10,552 across the country.  The protected classes with the most complaints are: (1) disability; (2) race; and (3) familial status.  To be sure, while many of these have been filed by disgruntled applicants, residents, or former residents seeking to retaliate against management for a perceived wrong, the costs (both in time and for legal expenses) to management for defending even against a meritless complaint can be excessive.

The best defense against one of these complaints (and the need to hire a lawyer like me) is to avoid having it filed against you. While there are some people who can never be satisfied and are going to file in any event, my experience has been that good recordkeeping with an attention to detail and being responsive to your applicants and residents will lessen the chance of a fair housing case.

Just A Thought.

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While I do not want to bog the blog down (did I really just write that?) with what can be mind numbing issues of constitutional law, I did want to highlight a decision yesterday made by a U.S. District Court judge for the Eastern District of Virginia. In his opinion, Judge Claude Hilton rejected a First Amendment challenge to an affordable housing project above a church in Arlington County, Virginia concluding that it does not violate the constitutional separation of church and state.

A close in suburb of Washington, D.C., Arlington County (like many suburban locales) faces a shortage of affordable housing. Real estate in Arlington has been at a premium for quite some time at any price and the property that has been available has commanded high end prices for homes, condominiums, and apartments.

In this case, the First Baptist Church of Clarendon partnered with Arlington County to construct affordable apartments and enable the church to raise money to renovate its property. The plaintiff alleged that his arrangement is advancing religion or enriching the church in violation of the Establishment Clause of the First Amendment to the Constitution.  

In disagreeing with the claim, the Court wrote that "[t]he actions of the county board . . . had a secular purpose of providing affordable housing to the citizens of Arlington County.” The plaintiff, who lives a block from the church, stated that he will appeal the ruling to the U.S. Court of Appeals for the Fourth Circuit. 

Arlington County officials, church leaders and housing advocates said they hope Arlington can be a model for local governments that want to build affordable housing by joining forces with houses of worship.  Here, the developer is building a new church sanctuary and child-development center with eight floors of apartments on top, most of them subsidized for low and moderate income renters.

To be sure, this is an unusual redevelopment plan. The proposal was crafted to meet the county's goals of increasing affordable housing and the church's need for cash to renovate its aging sanctuary. The church sold the air rights over its property for $5.6 million last year to a nonprofit group that is building the apartments with $48 million in county and state loans and federal tax credits.

Shortly after Arlington officials approved the deal, some local residents sued to block construction on zoning grounds, calling the building intrusive.  Arlington County then amended its zoning ordinance and a second legal challenge failed. Next, the plaintiff initiated his First Amendment fight.

The complaint alleged that the church received more than market value for its air rights, that the shared lobby, entrance and other brick-and-mortar elements would, literally and figuratively, entangle the church and the subsidized housing.  The Court disagreed, holding that the plaintiff lacked “factual allegations" to prove any of his claims and that the county's $13.1 million loan "is expressly for the purpose of financing the affordable housing project.” The plaintiff also failed to prove that the church was "fraudulently" paid more than its property was worth.

Supporters of the project said the constitutional questions raised in this case and by the other opponents were simply a strategy to block affordable housing in their neighborhoods.

The case is Glassman v. Arlington County, Virginia, et. al., Civil Action No. 01-09-cv-1249.

Does the plaintiff really believe there is an actionable First Amendment claim? Is this lawsuit an effort to prevent affordable housing from being constructed in the neighborhood? Should local officials work to add to the number of affordable housing units in an area that is perceived to need it? Should the opinions of the nearby residents matter?

Just A Thought.

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Forty-two years ago, in April 1968, the Fair Housing Act (“FHA”) became law.  In each succeeding April, the Department of Housing and Urban Development (“HUD”) celebrates Fair Housing Month to draw attention to the efforts it makes to enforce and promote the purposes of the FHA.  As we have discussed on numerous occasions, the FHA makes it illegal to discriminate in various housing transactions for reasons based on race, color, national origin, religion, gender, disability or familial status. 

In its press release announcing this year’s Fair Housing Month, which has been declared “A Time to Act!,” HUD emphasizes that it is constantly expanding its efforts to work with both states and local communities to reinforce the requirement that those communities promote diverse, inclusive housing opportunities. Interestingly, HUD also acknowledged that it is now examining the prevalence of housing discrimination based on sexual orientation and gender identity, two hot button categories that do not presently enjoy protection under most federal laws.  In addition to the enforcement activities that we discussed here, here, here, and here, HUD states that, in the past year, it:

• Settled a case in which it was alleged that West Chester County, New York, made false claims to the government when it made civil rights certifications required to receive funding, and in so doing, obtained an agreement from West Chester that it would build 750 units of affordable housing in parts of the county with low minority concentrations.

• Expanded its efforts to fund communities that use HUD funds to create employment opportunities for low income residents.

• Obtained $8 million plus in relief for victims of housing discrimination.

While housing providers are often the defendants or respondents in cases filed under the FHA, in my experience, our employees try to get it right for at least a couple of reasons: (1) we absolutely strive to follow the law; and (2) we are evaluated and compensated, in part, based upon how many people sign (and renew) leases to live in our communities.  In short, we try hard to rent to each and every qualified applicant.  We have every incentive to get people in our communities – not keep them out.  Am I implying errors never happen?  Of course not.  Guidelines can get misapplied.  Someone can make an inadvertent mistake.  It is a rare case where there has been intentional discrimination by our clients because of an applicant's or resident's membership in a protected class.

Just A Thought.

Article by Christian Moffitt.

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I get this question from time to time: Under the Fair Housing Act (FHA), does a tester have standing to bring a claim? “Standing” is a term which denotes that a plaintiff has the legal right to bring a complaint. If a party lacks standing, the case can be dismissed without ever getting to the merits of the claims. 

Fair housing testers regularly pose as applicants seeking an apartment. For example, a local group might send out an African American couple to a community seeking a certain apartment and then it will send out a Caucasian couple to see if less favorable terms and/or conditions have been offered by management. Additionally, the group might contend that housing was not offered to one tester or even that one tester was not offered the same pleasantries and/or amenities.

There are any number of legitimate defenses to these claims. The most common, of course, is that the specific apartment presented to the first tester was subsequently rented before the second tester arrived. For this defense to be used, however, accurate records must be kept to ensure management can prove up the date and time the apartment in question was leased. Also, while management tries to ensure everyone receives the same welcome, different leasing office employees may have slightly different styles or presentations. Good training is essential to combat this allegation.

Some owners and management companies believe they are being unfairly treated in tester cases because the complainant had no intent to actually rent an apartment and, in fact, lied to the management office staff.  

While I understand and am sympathetic to the position that management is facing testers who have no desire or intent to rent an apartment, applicable Supreme Court precedent holds that testers have standing to bring claims under the FHA. Just another reason to ensure that all leasing office staff members treat each and every applicant the same.

Just a Thought.

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As a part of every fair housing action, the investigator assigned to the case ALWAYS asks if management wants to settle (or conciliate) the complaint. To be sure, it is in the Fair Housing Act that HUD (and the various state, city, and county agencies) are to work to bring the parties together. I am told that there will be some agreed upon relief for the complainant and there will be a few “standard” public interest provisions in an agreement. 

While I am certainly not adverse to amicably resolving a case in the appropriate circumstance, I ALWAYS tell my clients to: (a) listen to what the complainant wants/demands; and (2) carefully review any language in an agreement.

Some complainants think their fair housing case represents lottery winnings. Almost all of them are wrong. And most of the investigators let them know that a $100,000 check is not coming their way – even if management made a good faith mistake. Indeed, when a complaint looks for the big payday, it can make the investigator a bit more skeptical when evaluating the allegations.

Furthermore, contrary to what you may be told, the “standard” language varies from each investigator and each agency. In truth, nothing is standard and the provisions always change. Trust me, I have a stack of agreements in my files – and ALL of them are different. All agencies negotiate settlement terms. You will find that some are more willing to alter or amend provisions than are others. 

Also, as a tactical matter, there are times when I am willing to resolve a case, but I want the complainant to withdraw the allegations. There are situations when I find withdrawal of a charge with prejudice to be extremely effective.

There are many reasons to amicably conclude a fair housing case, including controlling litigation defense costs and the risks associated with the claims.  That being said, there are many times when settlement just cannot happen and we take the case to the end.  No two cases are alike and there is no cookie cutter advice on whether management should settle a claim.  But I can say that a careful evaluation of the facts and circumstances leading up to the charge is important.  Additionally, management's written record and the file of the resident/applicant are critical to our defense of the action.

Just a Thought.

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I received a question about effective dates for accessibility requirements, so I thought it would be worth a post to put forward some general guidance concerning the accessibility requirements for newer multifamily buildings. With respect to buildings with four or more units that were first occupied after March 13, 1991 and that have an elevator:

·        Public and common areas must be accessible to persons with disabilities;

·        Doors and hallways must be wide enough for wheelchairs;

·        All units must have: (a) an accessible route into and through the unit; (b) accessible light switches, electrical outlets, thermostats, and other environmental controls; (c) reinforced bathroom walls to allow for later installation of grab bars; and (d) kitchens and bathroom that can be used by people in wheelchairs.

If a building with four or more units has no elevator and was first occupied after March 13, 1991, the above standards only apply to ground floor units.

Importantly, these accessibility requirements for new multifamily buildings do not replace more stringent accessibility standards which may be required under state or local law.

In my experience, problems can arise if the team building the project do not know (and do not take the time to learn) the applicable standards. If you are constructing a new building and you ignore the accessibility requirements in the Fair Housing Act (FHA) you can be held financially responsible.  The Department of Justice takes the position that developers, architects, and owners can each be responsible for the design and construction requirements. Not knowing the law will not be an excuse if a lawsuit is filed. I have seen cases in which developers have literally had to go back and retrofit communities as well as pay significant civil penalties. You do not want to be caught in that web. Trust me on that. 

Fortunately, there are a number of safe harbors which HUD has acknowledged when dealing with FHA design and construction issues. Also, training is available to help ensure compliance.

Learn the law before you get started. But, have insurance on the project, just in case.

Just A Thought.

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A question I regularly get asked is who is responsible for paying for a reasonable accommodation or a reasonable modification. Here is a brief summary.

A reasonable modification is a structural change made to an existing premises occupied by a person with a disability (and disability is typically defined as an individual with a physical or mental impairment that substantially limits one or more major life activity) in order to afford such a person the full enjoyment of the premises. Reasonable modifications can include structural changes to interiors and exteriors of a unit as well as common areas. A reasonable accommodation is a change, exception, or adjustment to a rule, policy or practice used in running a community. A person with a disability can request either a reasonable accommodation or reasonable modification.  It is good practice to solicit written accommodation requests, but there is no requirement in the law that the requests come in writing.

For conventional communities, the general rule is that management is responsible for absorbing the cost of a reasonable accommodation (to the extent there is a cost associated with changing a policy or procedure) but that the resident is responsible for paying for the costs related to a modification of a unit or common area. In practice, management will often agree to some type of cost sharing with the resident as a part of the interactive process expected under the Fair Housing Act (FHA).

That being said, housing that receives federal financial assistance is covered by both the FHA and Section 504 of the Rehabilitation Act of 1973.  Under the Section 504 implementing regulations, structural changes (reasonable modifications) needed by a resident with a disability must be paid for by the housing provider (management) unless providing them would be an undue financial and administrative burden or would represent a fundamental alteration of the program.  Indeed, there are also times when management can also offer to meet the resident's needs through a different accommodation. 

Requests for accommodations or modifications can be made at any time. It is important that management respond to requests in a timely manner. Failing to respond (or an undue delay in responding) can lead to a housing discrimination complaint and a probable cause finding which never should have been issued. Don’t let that unnecessarily happen to you.

Just a Thought.

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This blog has been up and running for a few months now. To be honest, I did not know what to expect. Would anyone (in addition to my Mom – by the way, Hi Mom!) actually want to read it? Would anyone think issues related to housing discrimination and compliance with the Fair Housing Act are worth learning about?

Well, the verdict is in. And I have to say I am gratified. On a regular basis I receive correspondence and/or messages for individuals with questions related to fair housing and housing discrimination. I am very pleased and will continue to post issues of interest related to fair housing on this blog.

That being said, I do need to make clear that I represent apartment owners and professional apartment management companies. In other words, I do not represent residents, applicants, and former residents who believe they have been discriminated against. It is not because of a true legal conflict of interest (which would be the case if I took a case against one of my clients), but because I want my clients to know that I will not take the opposing side of an issue in my next case. 

I trust you will understand. And I very much appreciate you checking in on this blog.

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I have been defending housing discrimination cases for over ten years. I have a docket of cases stretching from Alaska to Florida and just about everywhere in between. My cases get investigated by the U.S. Department of Housing and Urban Development ("HUD") in addition to many state, city, and county agencies.

The goal of this blog is to provide a forum for issues of interest to apartment owners and management companies as well as professional management employees. I also hope we can share available resources.

If you are in the apartment ownership or management arena, you are committed to following the federal Fair Housing Act ("FHA") as well as the many state and local laws which prohibit discrimination in housing. Noting that you do not discriminate on the basis of race, color, sex, disability, national origin or familial status is only a good start.

On its face, the law seems simple enough: don’t discriminate. All applicants and residents should be treated equally and with respect. But, each situation is fact intensive and requires an individualized review of the circumstances. Plus, not every jurisdiction is the same:

• what about those which add source of income as a protected class?
• Should you accept vouchers?
• Do you know the difference between a reasonable accommodation and a reasonable modification?
• Who pays for a reasonable modification?
• Does a request for a reasonable accommodation have to be related to the claimed disability?
• What is Section 504 of the Rehabilitation Act of 1973 and why are two agencies investigating the same complaint?
• Can I have occupancy standards for my apartments?
• How can you confirm that a complaint has been filed by a disgruntled resident seeking to prevent an eviction?
• What do you do when the investigator asks you to halt eviction proceedings in an effort to settle the case?
• How do you handle an investigator who wants to interview all of your employees? Or review all your files?
• What about when the investigator who wants to knock on the doors of your residents?
• Should you still evict a resident even after he has filed a fair housing complaint?
• Should you place an advertisement in a church flyer?

Those are just some of the issues I hope to explore. I will do my best to give some insight based on my experience and offer solutions.

There will be no lectures here, but I will try to leave you with --

Just A Thought.

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No one in the professional apartment management business supports housing discrimination. We support the federal Fair Housing Act (“FHA”) as well as the many similar state statutes and regulations. We train our employees to both follow the letter and spirit of the law.

We are in the business of leasing quality apartment homes to all applicants who meet the non-discriminatory resident selection criteria for a particular property. In addition to being against the law, our management teams are evaluated and compensated (at least in part) on obtaining the highest possible occupancy percentage they can. In other words, in addition to being against the law, discriminating against otherwise qualified applicants would cost property management staff money. Nevertheless, the U.S. Department of Housing and Urban Development’s (HUD) staff (as well as the staffs at various state, county, and city agencies) monitor our work and investigate allegations of discrimination.

To illustrate, in fiscal year 2008, there were 470 HUD employees in regional and field offices as well as 113 employees in HUD’s headquarters. As such, HUD’s fair housing staff last year was just under 600 employees.

HUD’s fair housing budget for salaries and expenses last year was just under $67 million dollars. Additionally, HUD's Fair Housing Assistance Program (FHAP) – which is a made up of state and local government agencies tasked to investigate allegations of housing discrimination – grants totaled over $25 million in fiscal 2008. The budget for HUD’s Fair Housing Initiatives Program (FHIP) – which was created to increase compliance with the FHA through the use of private enforcement and educational activities – was another $24 million last year. 

In short, HUD spent over $116 million investigating housing discrimination last year. HUD’s budget for its Office of Fair Housing and Equal Opportunity has generally increased over the years. I see no change in 2009 going forward. 

We need to follow the law and get it right when dealing with our residents and applicants. If we don’t, then the knock on the door will be a fair housing investigator. And then you may really need to call me. 

Just A Thought.

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The Fair Housing Act (as well as various state and local anti discrimination laws) sets some limits with respect to what management can and cannot do in the applicant selection process. As you evaluate applications, always be cognizant of what you can – and importantly what you cannot say. Prepare a resident selection criteria. And follow it. With every prospect and applicant.

It is absolutely appropriate to run a criminal background check and to set reasonable standards for what types of prior offense record will disqualify an applicant from your community. While HUD’s guidelines suggest management only look back five years for certain offenses, the regulations make clear that management has discretion to look farther back in time. Also, be aware that certain jurisdictions also limit how far back management can look. It is imperative, however, to run the same background check on each applicant and to score each applicant in the same manner. Many management companies contract with a third party vendor to perform this service. It is obviously never appropriate to only run background checks on applicants believed to be of certain races or national origins.

Similarly, you can and should check an applicant’s income, credit, and references. As with criminal background screenings, be consistent. Run the same check on every applicant. While it is not a protected class under the Fair Housing Act, an ever growing number of states and localities have included source of income as a protected class. That means you cannot discriminate against an applicant if he or she has a housing voucher. In such a jurisdiction, management should factor in the voucher and adjust the scoring criteria. Other protected classes in certain jurisdictions are marital status and sexual orientation. As such, knowing the laws in your jurisdiction can help reduce the chance of a housing discrimination complaint.

Rental decisions need to be made on legitimate, non-discriminatory criteria. The decision to rent an apartment, in part, reflects an assessment of risk. Management should engage in an “interactive process” with applicants in an effort to ensure everyone is treated appropriately.

All members of the leasing office staff must be trained in fair housing. Additionally, it is also important to ensure your maintenance staff is trained as well as service professionals regularly interact with residents. Importantly, the owner and/or management company can be held liable for discriminatory conduct done by employees.

It may seem self evident, but it is crucial to be consistent when dealing with applicants and residents. For example, if management arbitrarily sets higher standards when renting to members of a racial minority – the door is open for a lawsuit. Similarly, if you give one person a break (such as lowering the security deposit for a single mother but not other residents), you will unnecessarily risk a charge of discrimination from other applicants or residents.

Just A Thought.

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I have been defending housing discrimination cases for over ten years. I have a docket of cases stretching from Alaska to Florida and just about everywhere in between. My cases get investigated by the U.S. Department of Housing and Urban Development ("HUD") in addition to many state, city, and county agencies.

The goal of this blog is to provide a forum for issues of interest to apartment owners and management companies as well as professional management employees. I also hope we can share available resources.

If you are in the apartment ownership or management arena, you are committed to following the federal Fair Housing Act ("FHA") as well as the many state and local laws which prohibit discrimination in housing. Noting that you do not discriminate on the basis of race, color, sex, disability, national origin or familial status is only a good start.

On its face, the law seems simple enough: don’t discriminate. All applicants and residents should be treated equally and with respect. But, each situation is fact intensive and requires an individualized review of the circumstances. Plus, not every jurisdiction is the same:

• what about those which add source of income as a protected class?
• Should you accept vouchers?
• Do you know the difference between a reasonable accommodation and a reasonable modification?
• Who pays for a reasonable modification?
• Does a request for a reasonable accommodation have to be related to the claimed disability?
• What is Section 504 of the Rehabilitation Act of 1973 and why are two agencies investigating the same complaint?
• Can I have occupancy standards for my apartments?
• How can you confirm that a complaint has been filed by a disgruntled resident seeking to prevent an eviction?
• What do you do when the investigator asks you to halt eviction proceedings in an effort to settle the case?
• How do you handle an investigator who wants to interview all of your employees? Or review all your files?
• What about when the investigator who wants to knock on the doors of your residents?
• Should you still evict a resident even after he has filed a fair housing complaint?
• Should you place an advertisement in a church flyer?

Those are just some of the issues I hope to explore. I will do my best to give some insight based on my experience and offer solutions.

There will be no lectures here, but I will try to leave you with --

Just A Thought.

Welcome.

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The Fair Housing Act ("FHA") was adopted in 1968 and later amended to add additional protected classes. The original 1968 law was designed to prevent discrimination based on: race, color, religion, and national origin. In 1974, the FHA was amended to prevent discrimination based on sex.  In 1988, the FHA was again amended to add handicap (disability) and familial status as protected classes. 

In addition to federal law, some state laws and local ordinances provide additional protections based on categories including: source of income, marital status, sexual orientation, occupation, age, and criminal history. 

The FHA covers most housing. In some circumstances, the FHA exempts owner-occupied buildings with no more than four units, single family housing sold or rented without the use of a broker, and housing operated by organizations and private clubs that limit occupancy to members.

The FHA protects: 

• residents,
• applicants,
• and prospective applicants.

 Those are easy. The FHA, however, also protects: 

• the guests of your residents,
• fair housing testers,
• and management company employees. 

Under the law, it is illegal to retaliate against an employee who helped a resident, applicant or prospective applicant to exercise his or her rights under the FHA. 

Indeed, from my experience, HUD remains very concerned when they believe any type of retaliation has taken place. If such an allegation comes up, do your best to confront it first. If you do not and a complaint gets filed, I will have to deal with it later.

Just A Thought.

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A "reasonable accommodation" is a change, exception, or adjustment to a rule, policy, practice or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling. To show that a requested accommodation may be necessary, there must be an identifiable relationship – or nexus – between the requested accommodation and the individual’s disability. 

Relatively simple reasonable accommodation requests are those that seek a designated handicapped parking spot or waiver of a "no pets" policy.

The harder decisions come when a request has nothing whatsoever to do with the claimed disability. Additionally, a reasonable accommodation can be denied if providing the accommodation is not reasonable – for example, if it would impose an undue financial or administrative burden on the housing provider or if it would fundamentally alter the nature of the provider’s services.

Also, a housing provider has an obligation to provide prompt responses to a request for a reasonable accommodation. An undue delay in responding to a requested accommodation may be deemed to be a failure to provide that reasonable accommodation.

A reasonable modification is a structural change made to existing premises occupied (or to be occupied) to a person with a disability in order to afford such a person full enjoyment of the premises. Reasonable modifications can include structural changes to interiors and exteriors of communities as well as to common and public use areas. A request for a reasonable modification can be made at any time during a residency.

As with a reasonable accommodation, to show that a requested modification may be necessary, there must be an identifiable relationship – or nexus – between the requested modification and the individual’s disability. Furthermore, the requested modification must be reasonable. Examples of modifications includes grab bars in bathrooms or lowering of kitchen cabinets to a height suitable for persons in a wheelchair.

The general rule concerning costs involving reasonable modifications is that the resident is required to pay for them at conventional communities and that management is required to pay for them at affordable communities. To be sure, there are many times when management at a conventional property will work with a resident and engage in some type of cost sharing in an effort to further attempt to meet the needs of our valued residents.

The bottom line is to work with your residents and engage in the interactive process contemplated under the FHA and its implementing regulations. If management cannot grant the request for an accommodation or modification, is there an alternative accommodation or modification that would effectively address the requester’s disability-related needs? If there is, you should propose it. And you should document in writing your proposed solution.

Just A Thought.

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