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

Here we go. Faithful Fair Housing Defense blog readers may recall that I reported on new guidance from the U.S. Department of Housing & Urban Development (HUD) back in April 2016 noting that what they believe as strict criminal history screening on housing applicants by management may have a “disparate impact” on certain protected classes (in this case African American and Hispanics) as individuals from those two classes are in jail at a higher percentage than one would otherwise expect based on their percentage of the U.S. population.  In short, HUD’s guidelines concluded that a strict criminal history matrix could unlawfully discriminate against African American and/or Hispanic applicants in violation of the Fair Housing Act (FHA).

Next, New York implemented new regulations concerning state funded housing which essentially requires an individualized review of an applicant with a criminal history to determine if the offense is one that should or should not disqualify him/her from housing.  New York now requires landlords at state funded housing sites to take a detailed look at how long ago was the offense, the specific type of offense, what rehabilitative efforts have been made, and if the applicant would truly be a direct threat to the other residents, to the property, and to the management team members.

It is clear that the trend is to change the burden and make it harder for management to keep criminals out of housing.

In sum, the criminal history train is officially on the tracks and professional apartment management needs to take a look at your policy to determine (as best you can) if your screening criteria will pass muster under the new guidelines. In the intervening months, I have had no less than five clients reach out to me to take a look at (and in some cases modify) criminal screening criteria. Which is good because I currently have two administrative complaints and one informal inquiry concerning this specific point. HUD (and various local fair housing tester entities) are out there looking to bring the right disparate impact criminal screening fair housing cases. You don’t want to be one of the early test cases.  Or you will really need to speak with a lawyer like me.

Just A Thought.

Last month, the U.S. Department of Justice (DOJ filed a new Fair Housing Act (FHA) complaint in U.S. District Court for the Eastern District of Missouri asserting that two landlords in St. Louis subjected female residents at their property to sexual harassment and retaliation. The lawsuit, which resulted following an administrative complaint filed with the U.S. Department of Housing and Urban Development, asserts that the offensive harassment included conditioning housing or housing benefits on an agreement to engage in certain sexual acts, coercing female residents to engage in unwelcome sexual acts, subjecting female residents to unwelcome physical touching, making inappropriate sexual comments and advances to female residents, as well as taking adverse actions against female residents who refused the sexual advances.

While there can absolutely be gray areas in the law from time to time concerning if certain conduct violates the FHA, and while I cannot comment on the merits of the specific allegations here and recognize there are always two sides to every story, professional apartment management (including our leasing and service employees) must be trained to prevent and report sexual harassment. This one is not hard.  Engage with our residents?  Yes.  Welcome applicants and work to turn prospects into residents?  Sure.  Inappropriately touch or otherwise demand anything sexual in return for housing or housing benefits?  No.  Simple as that.

You might want to speak with a lawyer like me and your Human Resources contact if you believe anyone at your property is harassing a resident (or employee). Related issues can include what happens if an employee of a vendor at your community harasses a resident (I have a case like this right now) or if a resident harasses another resident (I had this case a couple of years ago).

Just A Thought.

Late last month, the U.S. Department of Justice (DOJ) announced that it settled another familial status Fair Housing Act (FHA) case pending against seven Michigan apartment complexes. The lawsuit, filed in November 2015, asserted that the defendants discriminated against families with children by prohibiting them from renting one bedroom units in the properties owned by the defendants.  The evidence to support the discrimination claims was developed by a local fair housing advocacy group which sent testers posing as prospective renters visiting the various communities.  Testers who inquired about renting an apartment with a child were told that children were not allowed in one bedroom units.

Under the terms of the consent decree entered into to conclude the case, the defendants agreed to establish a settlement fund of $20,000 to compensate victims of their discriminatory practices as well as pay a $5,000 civil monetary penalty to the United States. Next, the defendants agreed to eliminate the restrictions on renting to families with children at the properties they own and/or operate.  Finally, the agreement mandated that the defendants inform residents of their new non-discriminatory policy and that the defendants take fair housing training to their staff and agents.

This case reminds us, once again, that fair housing testers are out there. And that DOJ will follow through if they believe the testing data has merit.  Remember that any caller/visitor to your community could indeed be someone attempting to build a case against you and/or your property.  The takeaway for management:  treat every prospect with respect, follow the law, appropriately engage with them, complete paper (or electronic) guest cards, and always date/time stamp completed applications,  Your annotated files could well be our best defense if such a case comes up at your property.

Just A Thought.

Discrimination on the basis of sex was added as a protected class to our federal Fair Housing Act (FHA) in 1974 and is settled law. But, is discrimination against lesbian, gay, bisexual, and/or transgender (LGBT) individuals covered under the FHA?  Should it be?  While LGBT persons are not specifically identified in the text of the statute, that does not end the inquiry.  HUD promulgated regulations which provide that discrimination against LGBT persons in HUD housing (or in home mortgages insured by the FHA) is a violation of the law.  Additionally, the regulation similarly prohibits inquiries about sexual orientation and/or gender identity.  And remember, even though the phrase “disparate impact” was not specifically written in the law, by a vote of 5-4, the U.S. Supreme Court concluded that disparate impact claims are indeed cognizable under the FHA.

And even if you could convince a judge that LGBT persons are not covered under the federal statute, remember to always check your state, city, or county codes as many local laws include protections for additional classes of individuals.

So, should management discriminate against LGBT individuals as they are not protected under a strict reading of the law? No.  In today’s climate, that would be characterized as unnecessarily hazardous activity.  HUD and various fair housing tester entities are looking to bring the right case.  You (and/or your company) could be that test case.  And then you would really need to speak with a lawyer like me.

Just A Thought.

The Department of Justice (DOJ) filed a recent familial status Fair Housing Act (FHA) case in U.S. District Court in Minnesota, asserting that the owner and manager of a small apartment community treated families with children “less favorably” than adults with respect to the use of various common areas. The complaint also claimed that management “printed and published” discriminatory statements which indicated an intent to limit access by children to the entire property.

According to the government, the apartment lease provided that there could be no children outside the building and that kids are not permitted to be in the hallways or yard (unless they are arriving at or leaving the property). Violations of the policy would result in a $50 fine.  And, according to DOJ, management attempted to fine one set of parents when their child was found in the hallways of the building and threatened legal action if the fine was not paid.

Now, I always know there are two sides to every story. I am not making any determination as to the circumstances in this new matter.  But, as you develop your resident lease and related community documents, I would strongly advise against a rule fining parents $50 if kids are “caught” outside the building playing or in the hallways.  While I don’t know the facts here, it is certainly possible that management thought there was a safety concern with children outside.  Indeed, one of my clients ran into a similar situation a few years ago when they wanted to prevent (as much as possible) kids from running in the parking lot, which was adjacent to a busy street, in what was believed to be a good faith effort to prevent an injury.  Although they welcomed families with children to the property, a local fair housing tester group took the position that we were attempting to restrict families with children from the property.  While we were successful in finding an amicable solution, it diverted resources having to spend quality time (and money) with me.

Sure, this is an extreme example. But the point here is to evaluate your community documents to ensure as best you can that nobody can make an assertion your property is treating families with children less favorably than adults.

Just A Thought.

Three clients have recently sent me multiple emotional support animal medical verifications for review. After a few minutes of research, it seemed pretty clear that the medical verifications came from individuals who “sell” emotional support animal verifications or service animal registrations with just a few clicks of a computer mouse (and a credit card).  Coincidently, two of the verifications (from different properties) came from the same on-line vendor.

As I have previously written in this space, leasing office staff members will review (and likely approve) any emotional support animal request which we believe to be legitimate.

The problem is, unfortunately, that the internet is full of these animal medical verifications for sale. I tread very lightly when seeking supplemental emotional support animal verification information.  Let me make clear that my clients and I are not attempting to cast doubt on any disability.  I simply want legitimate confirmation that the resident has a disability, a need for the accommodation, and that there is a nexus (link) between the disability and the accommodation.  Again, I am absolutely not seeking prohibited medical information or medical records.

Here is the question:  is reaching out to someone over the internet and obtaining a verification (for the low, low price of $69.99 or $125 if you need your letter in a rush) legitimate?  In many cases, I think not.  Were medical records reviewed?  Was the patient even interviewed?  Or did the applicant simply fill out an on-line form (and give his or her credit card).

Proceeding down this path has certainly led to some angry letters from residents, accusing us of violating the law. As a lawyer for various management companies, we receive service and companion animal requests each and every week.  We remain concerned when anyone can just turn on a computer, make a self-diagnosis, pay a fee, and then get an animal verified when there does not appear to have been any type of real medical or health care evaluation.  Let’s be honest:  some people just want to avoid paying a pet fee or pet rent.  And they get Rover verified and/or Fluffy certified over the internet.  Simple as that.

We are going to do our best to curtail abuse of the medical verification process as questionable verifications do a disservice to those disabled Americans who use service and/or companion animals every day. There will be more to come here.  I will report back.

Just A Thought.

Last week the U.S. Department of Justice (DOJ) announced that it had resolved another Fair Housing Act (FHA) case, this time recovering $75,000 to settle a familial status discrimination complaint. The agreement to conclude the case remains pending before a federal district court judge in Colorado, but is expected to be approved.

The complaint asserted that the owners and manager of an apartment community implemented a policy which generally excluded families with children from living in what was referred to as the front building at the property and restricted families to the rear building.

The inquiry began when fair housing testers (individuals who posed as potential renters) visited the property and alleged they were told that families with children were typically placed in the rear building and were precluded from seeing available units in the front building. If true, this is a practice called “steering,” which is unlawful under the FHA.

Under the terms of the proposed settlement, the defendants will pay a total of $75,000. $25,000 which will establish a settlement fund to compensate alleged victims of discrimination, $45,000 in damages to the fair housing testing group as well as a $5,000 civil penalty to the United States.  As is common in cases like this, the defendants are prohibited in engaging in further discrimination against families with children, requires them to adopt a nondiscrimination policy, receive FHA training, and conduct various monitoring/reporting for the next three years.

The takeaway: DOJ and local fair housing groups are looking to bring FHA cases.  Don’t let your property turn into one of the test cases.  Train your employees to follow the law.  Even if you think children are better served by not being on a specific floor or in a designated building for what you may believe is a benign or safety related reason – that is not management’s decision to make.  Make available to every applicant every open unit that he, she, or they qualifies to rent.

Just A Thought.