I try to avoid partisan politics here at the Fair Housing Defense Blog. As we have seen over the past year (and particularly over the past month), emotions on both sides can run hot. Nevertheless, I have had a couple of Blog readers ask my opinion about what President-elect Trump will mean for those of us in the professional apartment management world. The answer is: we don’t know.

This morning, the President-elect announced that he would nominate Dr. Ben Carson to serve as Secretary of the United States Department of Housing and Urban Development (HUD). Dr. Carson, who you may remember ran for the 2016 GOP presidential nomination, is a retired surgeon who served as the director of pediatric neurosurgery at Johns Hopkins University Hospital in Baltimore, MD. As a complete aside, the daughter of one of my good friends was operated on by Dr. Carson during his career and they speak very highly of his skills as a physician.

So, while Dr. Carson is literally a brain surgeon (which has to be a good thing), we just do not know his views on housing policy and what his initiatives for HUD might be. In the past, Dr. Carson has challenged efforts of the Obama administration to use its regulatory powers to increase racial integration in housing and he has not typically supported some of the policies put forward by various minority groups. We will certainly monitor Dr. Carson’s comments during his Senate confirmation hearings as well as what other incoming officials say and do related to housing generally and the Fair Housing Act (FHA) specifically.

A new administration will certainly mean change; although that change might not happen immediately. In my role as management’s lawyer, what I want is the ability to know what the law is and what is covered by our FHA and its regulations. From my seat, ambiguity is what I want to avoid. And remember, even if a new administration changes federal policy, we will still need to ensure management complies with various state and/or local anti-discrimination laws.

So, for now – follow the law as you have been. That includes the new 2016 HUD guidance concerning limits on criminal background screens as well as understanding that “disparate impact” remains covered under the FHA.

Just A Thought.

Thanksgiving is in the rear view mirror. Christmas, Hanukkah, and other holidays will be here sooner than we think. A great time for kids and families. Santa Claus. Christmas trees. Menorahs. Decorations. For professional apartment management, however, the question of what to do (or not do) with respect to holiday displays and decorations comes up each year at this time. Leasing office staff members are required to balance the religious and holiday requests of all, while showing a preference to none. What some might see as benign can be perceived as offensive to others. HUD’s guidance on this point notes that while our Fair Housing Act (“FHA”) does not prohibit religious expression, all residents must be treated equally and without regard to their particular religion.

The FHA makes clear that management cannot publish any notice, statement, or advertisement which indicates a preference, limitation, or any type of discrimination based on religion. Furthermore, the applicable regulations prohibit management from engaging in “inherently religious activities” when participating in any activities funded by HUD. “Inherently religious activities” include worship, religious instruction, or proselytism. To be sure, this prohibition is tempered by the qualification that these types of “inherently religious activities” may be offered separately “in time or location” from the programs, activities, or services supported by HUD funds and that participation in these programs must be voluntary. As such, management is tasked to protect the rights of those residents who wish to participate in certain activities as well as the rights of those residents who are of a different faith (or those who have no religion). If you have a community room, for example, any resident can sign up and use it. While management should not get in the business of promoting a specific religious practice or activity, the question about decorations remain.

So, what to do? Well, the easy choice is to simply ban all holiday displays. But many residents are correctly unhappy because it seems like overkill. Yet others may complain that their specific religion is omitted or another display is perceived to receive preferential treatment. What are management’s options? I have recommended that communities have a designated area in which holiday items from various faiths are displayed. Invite residents to participate. Additionally, there is guidance that notes references to Santa, Christmas trees and the North Pole are far enough away from religion so as to lose any prohibited inference. Another option is to remind residents that they can absolutely decorate the interior of their apartments, their doors, (and if appropriate at your specific community) alcoves or areas next to their doors with more overtly religious displays.

As management, we are looking for a policy which appropriately balances the beliefs of all while ensuring we are not perceived to favor one religion over another. And whatever decision you make, just know that someone may not be happy about it. Which may require you to speak with a lawyer like me.

Just A Thought.

A couple of weeks ago, the U.S. Department of Justice (DOJ) filed a new Fair Housing Act (FHA) lawsuit against the owner, builder, and designer of a housing complex near Central Washington University in Ellensburg, Washington. In the complaint, the DOJ asserts that the apartment-style homes were constructed without complying with the FHA’s accessibility requirements. The lawsuit states that each of three buildings on the property have nine individually keyed units with their own bathroom and desk as well as a shared living space, a communal kitchen, and two communal laundry rooms.

The specific barriers claimed by the DOJ include: inaccessible building entrances on an inaccessible exterior route, inaccessible knob hardware throughout (including on the building entrances and unit entrances), inaccessible electrical outlets, inaccessible laundry facilities, inaccessible bathrooms, and inaccessible walk-in closet entrances.

As always, I am mindful there are two sides to every case. DOJ made the claims following a complaint filed by a local fair housing group in Washington state after an administrative complaint was brought before the U.S. Department of Housing & Urban Development. Two takeaways here: (a) DOJ will attempt to hold everyone involved in a project accountable if perceived FHA violation exists; and (b) the law contains a number of safe harbors and guidance to help owners, designers, and builders ensure new constructions meets the accessibility criteria.  Make sure your builder/designer/owner is familiar with ensuring a building is considered accessible or find someone who is before your project gets started.  Or you might really need to speak with a lawyer like me.

Just A Thought.

In addition to renting units, many apartment owners/managers rent space for commercial enterprises (such as restaurants and stores) in their properties. Which can make good sense for both – providing a needed service or store with a ready-made group of people living extremely close by. All good, right?

But, remember that when you lease space to a commercial vendor and that tenant modifies the space for a restaurant and/or shop – make sure that the renovated site conforms with the accessibility guidelines in the Americans With Disabilities Act (ADA). While a landlord and a commercial tenant are certainly free to apportion costs as they see fit (including an indemnification clause) – if a disabled individual sues, both the landlord and commercial tenant will be named as defendants and the plaintiff will seek what is known as joint and several liability against them.  An otherwise responsible party will most likely not be able to avoid liability to a plaintiff by simply pointing out that the other party (landlord or tenant) agreed to ensure the space met the accessibility guidelines.  Yes, there will be a cross claim, but that will not get you out of the lawsuit.  The reason for this policy is that it is presumed to be unfair to the disabled individual not to be able to sue a party who should otherwise be responsible for the failure to comply with the ADA.

What this means for property owners/managers is that if we rent space (and even if the cost of the renovation is agreed to be picked up by the tenant), we are still potentially responsible to ensure that the accessibility requirements are complied with. Another reason you might want to speak with a lawyer like me if you start down the path of renting commercial space in your property.

Just A Thought.

In response to regular requests, here is a summary of when the Fair Housing Act (FHA) may not be applicable. Again, if you are a professional property management company or employee, it is extremely likely the FHA (as well as state, city, and/or county anti-discrimination laws) applies. Nevertheless, here are some guidelines:

The FHA does not generally apply to small owner-occupied buildings (a property with four or less units) when the owner resides in one of the units. This is referred to as the “Mrs. Murphy exemption.”

The FHA does not apply to single family homes rented without a broker.

If you are a part of a religious organization leasing apartments at a property that is not being operated for a commercial purpose, it is permissible to limit occupancy (or give preferences) to people of your organization’s religion.  If this exemption applies, however, please note that the FHA makes clear that this provision is only for religion and warns that religious organizations cannot discriminate based on race, color, or national origin.

If you are renting apartments on behalf of a private club and not for a commercial purpose, the FHA permits the club to give a preference or limit occupancy to club members.

If your property qualifies as Housing for Older Persons, you can be exempt from the portion of the FHA that prohibits discrimination against families with children. Exempt properties are those that are designated for age 55 and older or age 62 and older communities. You will want to speak with a lawyer like me to see if your property qualifies as Housing for Older Persons.

That being said, even if your property is exempt from the FHA, you still must follow the FHA’s prohibition on discriminatory statements, notices, or advertising. Similarly, always remember that you must also comply with the state, city, and/or county fair housing laws in which your property is located.

Hope this is helpful.

Just A Thought.

When I started writing this blog, I was afraid that only my family and perhaps a couple of friends would actually read it. I remain gratified as to the number of hits Fair Housing Defense receives every month (I work for a big law firm, we track everything). However, today is my wife’s birthday (Hi Sweetie!) – let’s see if she reads this.

Continuing their efforts to enforce the Fair Housing Act (FHA), last month the U.S. Department of Justice (DOJ) announced that a landlord in western Pennsylvania had agreed to pay $30,000 to resolve a complaint that he discriminated against families with children by refusing to permit families from renting one and two bedroom units at an apartment complex. As is so often the case, results from the use of fair housing testers were used to develop the facts which led to the filing of the complaint. In this case, it was the DOJ’s own testers who developed data showing that the defendant told applicants that children were not allowed to rent one bedroom apartments as well as refusing to inform testers about available two bedroom units until the testers informed him that no children would be living there.

Under the terms of the settlement, the defendant agreed to establish a settlement fund of $20,000 to compensate victims of the alleged discriminatory conduct and will also pay a $10,000 civil money penalty to the United States. As is common in these types of cases, the order prohibits the defendant from engaging in additional acts of discrimination, requires implementation of a non-discrimination policy (to go along with regular reporting) as well as contains a fair housing training component.

Our takeaway remains that management must train our leasing office staff to follow the law and welcome all to our properties. Remember that whether testers work for DOJ, the Department of Housing & Urban Development, or a fair housing advocacy group – know that testers are out there and are looking to bring FHA cases against owners/managers/employees. We cannot be in a situation where someone on our team makes comments that are perceived as unwelcoming (let alone discriminatory) to families with children. Even if it is done with the best of intentions (for example, if the unit is close to a busy street or up a steep flight of stairs) – that is a decision for parents, not the leasing office.

Just A Thought.

 

While individuals with a criminal record are not listed as one of the seven protected class in our federal Fair Housing Act (FHA), the Department of Housing & Urban Development (HUD) issued guidelines in April 2016 indicating that some apartment criminal screens have a “disparate impact” on African American and Hispanic applicants for housing as there are a higher percentage of African Americans and Hispanics in jail then their percentage of the population would otherwise indicate. As such, the federal government is taking the position that management evaluate prospective residents with screening criteria which is not overly broad or contains generalizations that “disproportionately disqualify” individuals based on a legally protected trait – such as race (African American) or national origin (Hispanic). HUD now takes the view that while housing providers may still consider criminal records in the application process, ownership should not make decisions which do not involve a particularized analysis of: (a) the specific offense; (b) how long ago was the offense; and (c) what rehabilitation the individual has done since the date of the conviction.

Demonstrating this new emphasis, earlier this month the Department of Justice (DOJ) filed a “statement of interest” in the U.S. District Court for the Eastern District of New York in a FHA case brought by an organization that assists those released from jail who have problems finding housing following a completed prison sentence. DOJ’s legal brief is intended to help the judge evaluate whether a specific criminal screening matrix results is unlawful discrimination if it simply uses generalized concerns about safety. In the New York case, the allegations are that management’s policy resulted in a refusal to rent to anyone with a prior conviction (felony or misdemeanor) other than traffic offenses.

The takeaway: If you have not started already, I would suggest professional apartment ownership and management review your criminal screening policy. I have now provided comments on a number of screens.  My goal is to work within the new guidance and still provide legitimate health and safety protections for our other residents, our staff members, and our properties. Look, DOJ and HUD have put management on notice and you don’t want to be the next defendant in a case challenging criminal screens, particularly if you have not had your screen reviewed by counsel.

Just A Thought.

 

At the end of last month, the U.S. Department of Justice (DOJ) announced that it had reached a settlement of a new lawsuit with the builders and developers of 31 apartment buildings in Helena, MT in which the DOJ asserted that the projects were constructed in violation of the Fair Housing Act (FHA) as they were not accessible to individuals with disabilities.

In the complaint, DOJ alleged that 64 ground floor units were built with steps to entrances, inaccessible bathrooms and kitchens as well as with other features that made them inaccessible to individuals with disabilities. Pursuant to the terms of a settlement agreement (which still must be approved by a federal judge), the defendants must complete various corrective actions to ensure accessibility to those with disabilities (including wheelchairs). The terms DOJ required include: (a) creating accessible routes to ground floor apartment entrances, parking, mailboxes and other common areas; (b) making interior modifications such as moving fixtures and/or electrical outlets to make them accessible to people with disabilities; (c) constructing new multifamily housing with enhanced accessibility features; and (d) paying $20,000 to establish a settlement fund for the purpose of compensating individuals with disabilities who have been harmed by the accessibility violations.

The takeaway? The FHA contains various “design and construction” requirements (including specific safe harbor provisions) that architects, builders, developers, and owners must be familiar with prior to undertaking new multifamily housing construction. These “design and construction” standards have been a part of the law for many years now. They need to be followed or those who don’t may really need to speak with a lawyer like me if the DOJ (or a local fair housing advocacy group) knocks on your door.

Just A Thought.

Continuing its efforts to enforce the Fair Housing Act (“FHA”), last week the U.S. Department of Justice (“DOJ”) announced that the owners and managers of four apartment communities in Utah agreed to pay $45,000 to settle a lawsuit asserting that they discriminated against residents and applicants with disabilities.

The complaint alleged that the defendants failed to provide reasonable accommodations to certain residents with disabilities with respect to their service and/or emotional support animals. The specific claim was that the owners/managers mandated that residents with disabilities who wanted to keep service or companion animals were required to obtain medical verifications which suggested that the health care provider might be held responsible for any property damage or physical injury that the assistance animal might cause pursuant to what the DOJ described as a “prescription form.” The DOJ further asserted that residents without disabilities who kept animals as pets were not required to have a third party assume liability for their animals.

Pursuant to the terms of a consent order, which still must be approved by a federal judge, the defendants are required to pay $20,000 to a former resident and her seven year old son with autism as well as establish a $25,000 settlement fund to compensate any additional individuals who were harmed by the alleged conduct.

While I was not involved in the case and I am mindful there are two sides to every story, this case reminds property management not to charge any additional fees (such as pet rent or pet deposits) or place additional conditions (such as requiring damage reimbursements not required of pet owners) on service/companion animals who live with your disabled residents as a reasonable accommodation. Should you have questions about what your leasing office team members can (and cannot) ask about service/companion animals, you might want to speak with a lawyer like me.

Just A Thought.

On September 15, 2016, the U.S. Department of Housing & Urban Development (“HUD”) issued new guidance impacting apartment management concerning residents who have limited proficiency reading, writing, speaking, or understanding the English language (“LEP”). Housing providers who take adverse actions against such people now run a new risk of liability under the provision of the Fair Housing Act (“FHA”) protects individuals based upon their national origin.

HUD’s guidance concludes that anyone who discriminates against a person because of their LEP (although not a protected class in the law) is almost certainly discriminating against someone based upon their national origin (which is a protected class in the law).

It should go without saying that it is unlawful to intentionally discriminate against someone based upon their actual or perceived national origin. The FHA has always barred housing providers, for example, from having a policy of not renting to potential tenants because they are from a specific country. HUD’s guidance clarifies that housing providers also risk violating the FHA if they have policies or practices that discriminate against persons based on their primary language. It is now potentially a violation of the FHA to base housing decisions upon a resident’s proficiency with English or to express a preference against people with LEP through advertisements.

As with other forms of discrimination, housing providers may also be held liable for unintentionally discriminating against persons with LEP based upon the discriminatory impact that a policy or practice may have on members of that class. Facially neutral policies, such as refusing to provide translation services or refusing to translate documents may have the unintended effect of discriminating against persons with LEP. Given the Supreme Court’s recent FHA decision, housing providers should be particularly cognizant of that risk. A housing provider would likely find it difficult to demonstrate that its refusal to give a potential renter access to translation services is necessary to achieve a substantial, legitimate, and nondiscriminatory interest, which the housing provider would have to do to defeat a discriminatory impact claim.

Now, it is important to note that this guidance, like all guidance issued by HUD, does not carry the full weight of law and that courts are not required to follow HUD’s directives. Regardless of how the Court’s end up treating this guidance, however, housing providers can be sure that the HUD and local fair housing advocates will attempt to capitalize upon it quickly, particularly in areas where the population density of persons with LEP is high. What to do? Housing providers should examine their current policies to determine if those practices may dissuade non-native English speakers from buying, renting, or borrowing, and, at the least, should begin exploring language translation and interpretation services available in the communities where they operate.

Just A Thought.

Article by Christian Moffitt