My first (and favorite) Fair Housing Defense blog post of the year.  With apologies to David Letterman, here are the Top Ten read posts from 2019.  Yes, my Firm keeps count.

When I started this blog (quite a few years ago now), I thought only my family (Hi Sweetie!) and a couple of friends would read it.  Turns out, we have found a space that works for quite a few people.  For which I am exceedingly grateful.  Here is the list with links to each page (just click on the title if you are curious):

1.  An Update on Possible HUD Emotional Support Animal Guidance

2.  “Failure to Cooperate” and Internet Purchased Emotional Support Animal Fair Housing Tester Cases

3.  HUD Secretary Carson Seeks Federal Investigation Into Websites That Sell Assistance Animal Medical Verifications

4.  Are There Restrictions On Where Assistance Animals Are Permitted To Go?

5.  Want to Learn the Number of Fair Housing Complaints Filed with HUD in a year? Or the Protected Class With the Highest Percentage of Complaints? Read On.

6.  The Top Ten Fair Housing Defense Blog Posts from 2018 (As Contrasted With the Top Ten Blog Posts From All Time)

7.  Fair Housing Act Sex Discrimination Case Settles for $20,000

8.  HUD Settles Disability Discrimination Case Concerning Mold and Retaliation for $6,000

9.  HUD Proposes to Amend “Disparate Impact” Fair Housing Rule

10.  HUD Settles Disability Housing Discrimination Case For Approximately $11,000

Blog posts addressing assistance animals (including emotional support animals) continue to receive the highest number of reads.  Please know I will continue to work with HUD (as well as state, city, and county agencies) to find the best guidance for the apartment management industry.  We want to get it right and approve legitimate assistance animal reasonable accommodation requests, while at the same time preventing the fraudulent animal medical verifications purchased online from the many “click and pay” websites that exist and only require essentially a self-diagnosis and/or an online assessment.

What can make it harder is that management is limited in what we can seek from our residents.  Please understand we don’t want confidential health care or medical information.  We don’t want information covered by the privacy laws.   We just want to get documentation that is legitimate confirming the resident is disabled and that there is a link between the accommodation request (the animal) and the disability.

Look, I will follow your lead and will keep at it in 2020.  And do my best to post on the issues that matter the most to you.

Just A Thought.

Earlier this month, the U.S. Department of Justice (DOJ) filed a complaint in federal court asserting that a housing provider in Ohio violated the Fair Housing Act (FHA) by sexually harassing a number of female tenants (for more than a decade) at various rental properties in and around Toledo.  DOJ noted that this complaint is the 12th case the Department has filed asserting a pattern or practice of sexual harassment in housing since 2017.

The lawsuit alleges that from at least 2007 through 2019, the co-owner of a number of rental properties engaged in a series of acts making up the harassment as described in the complaint. Specifically, DOJ alleged the property owner/agent engaged in “severe and pervasive sexual harassment” for more than ten years. The alleged conduct included unwelcome sexual advances as well as unwanted comments and sending sexual text messages, videos, and photos to multiple female tenants. Additionally, DOJ has evidence that he offered housing concessions — such as reducing security deposits, monthly rental amounts, and waiving of late fees — in return for sex or sexual acts. Unsurprisingly, DOJ also notes that the owner attempted to punish those tenants who rejected his sexual advances by refusing to provide maintenance services or taking other adverse housing actions such as filing eviction papers. Finally, the complaint includes allegations that the owner entered the homes of female residents without their consent and that he expressed a desire for renting to single female tenants.

As I always make clear, just because a complaint has been filed does not mean the allegations are true. Indeed, as a defense lawyer, I always know there are at least two sides to every story. But the teaching moment for professional apartment management here is to ensure we include prevention of sexual harassment in our fair housing training and – importantly – that we promptly investigate allegations of misconduct. This goes for large apartment management companies with formal leasing offices as well as family owned/operated rental units covered by the FHA. It could be that a resident is simply attempting to delay an eviction by raising specious claims. Or, like here, it could result in a federal FHA complaint with DOJ on the other side. In either case, you might want to speak with a lawyer like me.

Just A Thought.

Once a year (or so), I go a bit off topic here at the Fair Housing Defense blog.  This week feels like the right time to (in no particular order):

*Say Merry Christmas (or Happy Holidays) to people you see on the street.

*Leave work a little early and take a second to hug your son or daughter.

*Go a little out of your way and do something nice for someone you don’t know.

*We all spend too much time staring down at our phones. Instead of surfing the internet or Facebook, take a minute to call your mother, father, brother, or sister to just say hello.

*And while you are at it, why not reach out to your best friend from childhood? Or perhaps your college roommate? You will be glad you did.

*Thank a member of the U.S. military for his or her current service.

*Thank a veteran for his or her past service.

*Remember a family member who has recently passed away.

*Thank a first responder.

*Thank a police officer.

*Thank a teacher.

I will get back to fair housing next week. Enjoy the holiday. Driving around the past couple of months, my car radio has been stuck more often than not on the Beatles channel (SiriusXM Channel 18). No, I don’t remember when the Beatles were together. But their music is timeless. I do agree with this sentiment: All You Need Is Love.

Just A Thought.

Just this week, the California Department of Fair Employment and Housing (DFEH) announced that it settled a housing discrimination case involving a condominium owner who alleged her homeowners association and management company violated the law by refusing to permit the resident to display a mezuzah (a small religious object placed on the door of many Jewish homes in fulfillment of a religious obligation) on her unit door. The condo association took the position that the mezuzah violated the condominium’s conditions and restriction documents.

The complaint, filed in June 2019, asserted that the association and management company refused to permit a mezuzah to be place on her door. According to the complaint, the association and management company flat refused to change their policy, even after learning of the religious nature of the mezuzah and the reasons for the request. Furthermore, the complaint asserted that someone forcibly took the mezuzah off the door in July 2018.

Following a mediation sponsored by the DFEH, the parties agreed to a $40,000 settlement (including damages, attorney’s fees and costs). In addition to the financial component, the condo association agreed to amend its documents, to specifically permit residents to display one or more religious items on the entry door or on the entry door frame of their units.

From the DFEH’s perspective, the agency believed that by failing to permit a small mezuzah, the condo association was making housing unavailable to members of a certain religion.  I suspect HUD would take the same view. The takeaway here is that management can certainly have rules concerning decorations on unit doors and door frames – but we need to be nimble about religious articles. And if a question is raised or an accommodation is requested, we need to engage in the interactive process and look for a solution.

Just A Thought.

With the calendar firmly in December, I have now received multiple requests from Fair Housing Defense blog readers (thank you for checking in) for my annual apartment community holiday decoration guide. How do we respect the Christmas celebrations of some, Hanukkah beliefs of others, as well as festive traditions of various other cultures? Can we put up decorations involving Santa Claus? What about Christmas trees? Rudolph? Menorahs? And what to do if some residents celebrate nothing during this time of year?

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.

To that end, 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 confirm 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.

Earlier this month, the U.S. Department of Housing & Urban Development (HUD) announced that it settled a disability and retaliation Fair Housing Act (FHA) case for over $23,000 filed by two residents against housing providers in California. The residents claimed management refused to install grab bars in their shower as well as that management retaliated against the residents for making the reasonable modification request.

The case started when a couple with disabilities filed a complaint alleging that management of their housing community refused to install grab bars in their bathroom. In addition to failing to install the grab bars, the residents were issued a notice claiming they created a noise disturbance. Although management denied the allegations, the housing providers agreed to settle the complaint. Included in the terms of the agreement are that the housing providers will pay just under $20,000 to the residents in addition to over $3,500 in legal fees. Along with fair housing and reasonable accommodation training, as a part of the settlement, management agreed to notify all residents at the property that the housing providers will install grab bars in bathrooms at no cost to the residents.

While HUD did not provide many details related to the facts, in my experience, a request for grab bars – particularly when it comes from an elderly and/or disabled resident – is typically not one that makes it to my desk. Now, the property involved in this case receives federal financial assistance, which means that the cost of the reasonable modification sought here (grab bars) is the responsibility of the owner/management company. In the scope of costs for reasonable modifications, grab bars are typically minor. Now, I know there is another side to the story concerning the alleged retaliation – but it is a bad look for the leasing office to make up a noise complaint against residents because they submitted a reasonable modification (or reasonable accommodation) request. An expensive lesson here.

Just A Thought.

In a press release issued last week, the U.S. Department of Housing & Urban Development (HUD) revealed it settled a racial discrimination Fair Housing Act (FHA) claim for $80,000 pursuant to the terms of a voluntary compliance agreement directed toward an apartment community in Georgia. The $80,000 is being divided up between three lead complainants (at $20,000 each) and the establishment of a $20,000 fund to compensate other residents who may have been subjected to unlawful racial harassment.

The case started when three African American residents at the property filed complaints asserting the owners of the apartment complex refused to investigate claims that Caucasian residents subjected them to racial harassment as well as verbal and physical assaults (including attacks by dogs). Additionally, the complainants claimed management failed to timely respond to maintenance requests of African American residents generally and that management ignored their maintenance requests specifically.

Although I do not have much in the way of facts and mindful the Respondents denied the allegations, it remains a combustible mix when residents make allegations of racial misconduct against other residents. In a typical circumstance, management should investigate – without immediately taking sides – any allegations of discrimination raised by one resident against another. Particularly here in a circumstance in which the claims included alleged physical assaults and attacks by dogs. An important component is speaking to other residents (who were not involved) in an effort to determine what took place. In more serious cases (as would appear to be the case here), management might want to call the police in an effort to determine if criminal charges could be appropriate. And if the matter involves the police, it might be time to get a lawyer like me involved to decide how best to ensure management does its investigation in a manner which respects the rights of all and while ensuring no resident is retaliated against. Indeed, there have been matters in which I was involved where management made a determination of which resident was at fault. Other times we have been unable to make a factual determination as the available evidence was inconclusive. I suspect (but do not know for certain) that part of the issue here was the perceived refusal of management to conduct an inquiry.

Finally, issues regarding maintenance requests and the timely completion of maintenance requests can typically be rebutted by running a service log. Obviously, while emergencies (such as serious water leaks) take priority and can get routed to the head of the line, routine maintenance requests should be performed in the order they are received.

Just A Thought.

In a letter that is good news to those in the professional apartment ownership/management business, HUD Secretary Ben Carson wrote to the Chairman of the U.S. Federal Trade Commission (FTC) earlier this month asking that the FTC investigate websites that sell assistance animal medical verifications to individuals in an effort to permit those individuals to assert their pets are emotional support animals in order to avoid paying otherwise due pet rent and pet fees. In his letter, Secretary Carson wrote that “HUD shares these concerns” over what your humble Fair Housing Defense Blog Editor refers to as “click and pay” emotional support animal medical verification sites.

In addition to misleading Americans, HUD’s position is that the online sellers also “take advantage of persons with disabilities who need a reasonable accommodation to keep their assistance animals in housing. This request for the FTC action reflects HUD’s ongoing commitment to protecting the housing rights of persons with disabilities.” Additionally, HUD noted that some of these providers sell what appear to be certificates which look like they are affiliated with a governmental agency or are otherwise official U.S. government documents. HUD confirmed that there is no government-sponsored animal registration list nor are assistance animals certified.

Again, as I have written many times before, apartment management and our leasing office professionals will engage with residents to review their assistance animal requests. We approve requests literally every week. For disabilities that are not obvious, as the law permits, we seek only a legitimate medical verification – and something that was not purchased from an internet “click and pay” website.

As described by Secretary Carson in his letter, if an individual purports to provide a medical verification based on treatment given over the internet, that provider must have “personal knowledge of the individual’s disability-related need for the animal.” HUD describes “personal knowledge” as “knowledge of the type that health care provers ordinarily use for diagnosis and treatment,” as contrasted with simply self-selecting from an online questionnaire and assessment tool.

My clients and I welcome Secretary Carson’s comments and I hope the FTC acts against those who do a disservice to legitimately disabled Americans who need a service or emotional support animal. There will be more to come here.

Just A Thought.

A California fair housing case that settled last month provides a cautionary tale for all in the property management arena concerning lease termination and disability. None of us in the professional apartment business would knowingly end a tenancy because a resident has a disability, right? And further we would not move against someone because he or she needed an ambulance or other medical care, right?

Here is what is claimed to have happened in this case: The resident asserted that her lease was unlawfully terminated because of her disability. Specifically, the complaint alleged that because of various medical emergencies (that required the assistance of an ambulance on more than one occasion) as well as complaints from other residents about the visits from the first responders, the property manager terminated her residential lease.

While I always report there are two sides to every story (and I was not involved here), the California Department of Fair Employment and Housing (DFEH) found probable cause to believe discrimination occurred and that, in fact, management ended the lease because “they disfavor tenants with disabilities.” The apartment complex owner paid $50,000 to settle the case.

The key here, of course, is the reason for the medical emergencies and did the property manager know about the disability? I was recently involved in another matter in which the allegations were similar – except that the reasons for the multiple ambulance and police visits to the property were because of repeated fighting and violence – not because of a legitimate disability. Every resident can be required to follow community rules and a good neighbor policy. And no resident with a legitimate disability should have his or her lease terminated because of that disability. But, similarly, no resident should call 911 night after night because of fighting and not expect management to enforce its community rules.  There is a line there that we have to follow.

Just A Thought.

Over the past couple of weeks, two Fair Housing Defense blog readers asked similar questions about the processing of administrative fair housing complaints. I thought it best to answer the questions together.

Administrative housing discrimination cases can be filed with the U.S. Department of Housing & Urban Development (HUD) or with various state, city, or county anti-discrimination agencies. Pursuant to the Fair Housing Act (FHA), complaints are to be investigated within 100 days of filing. Indeed, for complaints that get referred pursuant to a state, city or county agency, their contract with HUD similarly requires the complaint to be processed within 100 days.

But, what happens if the 100 day clock is missed? Unfortunately, nothing. The investigating agency will typically send out what is known as a “100 day letter” – a form containing a number of reasons as to why the investigation is not yet complete and, sometimes, including a date as to when the determination is expected to be made.  The investigator will check a box or two as to why the complaint needs more time.  Typical responses are “because interviews still need to take place” or “the investigation to date reflects a need for more investigation.”  There are about ten choices for the investigator to choose from.

I write “unfortunately” because even though the FHA requires discrimination complaints to be investigated with the 100 day time frame, the law also provides the 100 day deadline is to be followed “unless it is impractical to do so.” And if the investigating agency is not ready to make a determination, the parties will receive the 100 day letter. Indeed, I have a drawer full of them.

Hope that helps.

Just A Thought.