A Fair Housing Defense blog reader sent me a question about live-in aides which I thought I would answer with some general guidance in a post.

First, in order to have a live-in aide, a resident would need to meet the definition of “disabled” (or handicapped) in the Fair Housing Act (FHA). Unless the need for the aide is obvious, management may obtain a medical verification confirming the need for the aide. The live in aide is considered a reasonable accommodation under the FHA.

A live in aide qualifies for residency for as long as the disabled resident requires the services of the aide and remains a resident.   In other words, if the resident leaves the community, the live in aide does not automatically convert to a resident with rights to the apartment home. I typically recommend that a lease addendum be used to confirm that the aide acknowledges he or she has no rights to the unit without the resident he or she is assisting. The addendum should also give management the right to evict the live in aide if he or she violates any house rule (as is the case with every resident).

Next, I always recommend that a live in aide be required to meet your property’s screening criteria – other than credit (as the aide is not responsible for rent).  In my view, the aide should be screened based on the same criminal screening procedures that management has for reviewing applicants. Also, while a live in aide is counted for the purpose of determining the appropriate unit size (such that the aide can be entitled to their own bedroom), if a unit with a separate bedroom for the aide is not available, as a general rule, the resident should not be denied his or her aide, even in a smaller apartment. If a larger unit becomes available and the resident requests a transfer to the larger apartment, management should consider such a request as a reasonable accommodation. As a part of evaluating the request, however, management is entitled to charge what is likely to be higher rent for a bigger apartment home.

Hope that helps.

Just A Thought.

 

The Department of Justice (DOJ) recently announced that it has settled a handful of cases in which plaintiffs made allegations of sexual misconduct under the Fair Housing Act (FHA) and resulting discrimination. In one case, DOJ resolved a complaint filed against a Housing Authority in Indiana in which the allegations concerned sexual misconduct and discrimination based on disabilities. Another case, this one from Michigan, also involved allegations of sexual discrimination. Shortly after announcing a resolution of these cases (as well as another from Kansas), the DOJ announced an initiative to combat sexual harassment in housing.

The Michigan action resulted in the owner of rental properties agreeing to pay $150,000 to settle allegations that he sexually harassed multiple women who lived in or inquired about his rental offerings. Under the terms of an agreement, the defendant promised to pay $140,000 to ten victims of discrimination as well as a $10,000 penalty to the United States. The complaint asserted that the defendant made unwelcome sexual comments and advances, engaged in unwanted touching, offered housing benefits in exchange for sexual acts, and threatened to take adverse housing action against women who refused his harassment.

The Indiana case was filed after an investigation demonstrated that employees of a local Housing Authority subjected female residents to unlawful sexual harassment and discriminated against residents with disabilities. The complaint asserted women were subjected to unwanted sexual conduct, questions, making explicit comments, and showing inappropriate pictures and videos. The claims also included denying reasonable accommodation requests (including efforts to be transferred to first floor units and efforts to obtain designated accessible parking spots). To resolve the matter, the Housing Authority agreed to pay $70,000 to compensate seven victims of discrimination.

The initiative – which will be piloted in Washington, D.C. and in western Virginia – will work to identify barriers to reporting sexual harassment and search for new ways to cooperate and collaborate between local law enforcement, legal service providers, and public housing authorities to leverage their respective expertise. In announcing the initiative, DOJ noted that it has recovered over $1 million for victims of sexual harassment in housing in 2017.

Given the increased media attention and coverage of allegations of sexual harassment of women in various walks of life, I believe this is a good time for professional apartment management to take a look at our policies in place to prevent sexual harassment and perhaps even to schedule some refresher training. Indeed, one client contacted me last week to schedule a session.

Just A Thought.

A real world example of developing a community without knowledge of or procedures to comply with the Fair Housing Act (FHA) is on display in Maryland right now. A developer started work on a community (with just under 60 homes) overlooking a river north of Baltimore. A number of homes were built and some people bought the first group of houses. All good, right? Not so fast.

When the developer ran into financial troubles, he stopped working on the partially completed project. Last year, an immigrant from Pakistan joined forces with another developer to restart the project. Their goal was to build a retirement community for a certain Muslim sect. The stated plan was to build a “peace village” for Muslims age 55 and over with a mosque. 22 of the homes were sold. Construction was restarted.

At that point, various officials and other residents complained, asserting that the developer was violating the fair housing laws because the homes were now being marketed toward only Muslims. Indeed, one local real estate agent filed an administrative complaint with HUD asserting she could not get information about the community to market to her non-Muslim clients. Certain language on a website was deleted. Complicating matters further is another lawsuit, filed in U.S. District Court, claiming that the county  stopped issuing the necessary building permits because it was “motivated by racial and religious animus to keep members of the Islamic faith from purchasing lots and exercising their religious freedoms.”

So, is this religious intolerance? Is it steering (directing certain people to certain homes)? Would anyone have cared if the developer was catering to a different religion? But doesn’t fair housing mean that people of any faith (or no faith) should be able to buy available homes? On the one hand, religion is a protected class. On the other hand, isn’t it wrong to limit buyers to those of a specific faith? Is the county slowing down permits because of the specific religion involved? What about the daughter of one of the original buyers (who has since passed away) and now wants to sell. Is she limited to only being able to sell to Muslims?  Should “equal housing opportunity” support such a result?  Will prices be artificially depressed if it is perceived the community is segregated?

HUD and the courts will have to sort this all out. In the interim, I suspect there will be more meetings with the county, the developer, and the residents in an effort to find a solution.

Just A Thought.

 

I have written in this space (and elsewhere) about the difficulties encountered by professional apartment management companies in the face of emotional support animal medical verifications from residents that are purchased over the internet for the low, low price of $69.99 (or $125 if you need the letter overnight). In an effort to meet the test in the Fair Housing Act (FHA), these form letters note a “disability” or “impairment” which “substantially limits a major life activity” and recommend an emotional support animal. Management is given no other confirmation the resident ever met with the health care professional or is actually a patient with legitimate mental health needs.

In an important decision concerning medical verifications and emotional support animals, a U.S. District Court judge last week issued an opinion confirming that letters which only provide that a resident has a “mental illness” or has “certain limitations” are insufficient.  The judge was unmoved by such rote language and noted that the resident presented “no medical facts to support her claim she was disabled.” The court also noted the resident identified “no activity, no less a ‘major life activity’ that she claims was impaired by her ‘mental illness’”. The judge then concluded “the diagnosis may be accurate, but it fails to set forth any facts regarding if or how any of [the resident’s] conditions ‘substantially limits’ a major life activity.”

I have a number of clients who are now appropriately raising questions when these internet assistance animal letters are provided as a purported medical verification.  Now, let me make clear – all of my clients will approve legitimate service and emotional support animals for our residents. We absolutely want to comply with the law. But we are seeing an ever-increasing number of residents and applicants turning on their computers and with just a few quick clicks (and a credit card) are buying letters from someone they have never met or otherwise never had any type of real health care professional relationship.

What did the court do? It dismissed with prejudice a complaint alleging management violated the FHA by seeking supplemental information to confirm that an emotional support animal reasonable accommodation request was legitimate.

How did I learn about the case? My Fair Housing Defense group wrote the briefs.

Just A Thought.

 

Pursuant to an agreement announced last week, the U.S. Department of Housing and Urban Development (HUD) announced that it resolved a discrimination complaint filed by local housing advocacy groups against Maryland’s Department of Housing and Community Development (DHCD). The complaint challenged the fairness of Maryland’s Low-Income Housing Tax Credit (LIHTC) program.  As detailed by HUD, the resolution puts forward policies, incentives, and more flexible program rules that are designed to streamline the designation/construction of affordable housing in various neighborhoods in and around Baltimore.

With respect to housing, the deal as crafted is hoped to develop up to 1,500 new affordable units. Of those 1,500 units, more than 1,000 are slated to be new construction. In a change to state policy, developers of affordable housing will no longer have to satisfy certain local scoring or approval criteria before applying for state-allocated tax credits.

The resolution ends six years of litigation that was filed by a group of housing and civil rights organizations. The plaintiffs argued that Maryland’s policy of requiring local jurisdictions to approve proposed affordable housing projects prior to the allocation of tax credits to fund construction essentially stopped affordable housing from being developed in predominately White areas. As such, according to the complaint, housing opportunities for African American and Hispanic families were wrongfully limited in and around Baltimore.

Pursuant to the settlement, the DHCD will: end the requirement of local approvals; mandate that at least 1,500 units of affordable family housing are developed certain areas in and around Baltimore region; amend plans to now award points to any proposal to develop family housing in a community of opportunity (including providing more of an incentive for homes with two or more bedrooms); expand affirmative fair housing marketing activities; and pay $225,000 to promote the mission of the local fair housing groups.

Just A Thought.

 

In a case involving the Americans With Disabilities Act (ADA), the U.S. Court of Appeals for the Seventh Circuit issued a new opinion which details the elements of a retaliation cause of action under the Fair Housing Act (FHA). The facts involved a special education teacher who was laid off as a result of an unsatisfactory performance review. The teacher challenged her review by defending her teaching methods, not by asserting she was advocating on behalf of any students or that she was exercising rights under the ADA.

After confirming that the interference provision of the ADA was modeled after the retaliation language contained in the FHA, the court made clear the following elements that would be needed to prove a retaliation claim under the FHA: (a) that the plaintiff engaged in activity protected by the FHA; (b) that the plaintiff was engaged in, aided (or encouraged others) to exercise or otherwise enjoy their FHA-protected rights; (3) the defendant coerced, threatened, intimidated, or interfered on behalf of the statutorily protected activities; and (d) the defendant was motivated by an intent to discriminate. Applying this test to the evidence in the ADA case, the Seventh Circuit concluded the plaintiff’s facts were insufficient and affirmed the trial court’s summary judgment decision in favor of the defendant. The appellate court concluded a dispute of teaching methodology did not rise to the level of asserting rights under the ADA on behalf of disabled students.

The takeaway for professional apartment management companies and employees? Under the FHA, while retaliation claims absolutely exist, it is clear that a plaintiff must be able to demonstrate a specific protected activity that he or she was attempting to assert and either an intent to discriminate or at least a causal connection between the protected activity and the challenged action.

Just A Thought.

 

In an effort to strengthen protections in the federal Fair Housing Act (FHA) against sexual harassment, a member of the U.S. House of Representatives from Michigan introduced a bill earlier this month to further define sexual harassment and to ensure certain conduct is covered under the law. Specifically, the legislation seeks to amend the FHA to make it easier for victims to bring cases of sexual harassment to court. Under the language in this bill, harassment against a resident would be an automatic violation of the statute. Harassment would be defined to include “unwelcome touching of a sexual nature or groping, or other actions of a sexual nature intended to be coercive, threatening or intimidating.” If the conduct occurs in or near a dwelling, that conduct shall be considered severe or pervasive – and against the law.

To date, there are 16 cosponsors and the bill remains in the House Judiciary Committee. I have not seen housing law as a priority for the current House, but language like this could be attached to another piece of legislation that is designated as something that must pass.

The takeaway for management: discrimination on the basis of sex is already covered under the law. I think in practice much of this type of conduct is already covered by federal and/or state law. This bill, however, would further define harassment, which is never a bad thing as I always seek clarity. As long as professional apartment management knows what the law is – we can do our best to follow it.

Just A Thought.

 

In response to a question, here is a short Fair Housing Act (FHA) primer on the timeline for responding to reasonable accommodation or reasonable modification requests. Under our FHA, “discrimination” includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” Now, to determine if a requested accommodation is “reasonable,” a court will generally consider whether the requested accommodation is (1) reasonable and (2) necessary to (3) afford disabled individuals an equal opportunity to use and enjoy housing. Nothing controversial so far.

But what if a leasing office does not respond to a request? Or what if a community manager does not know that a request has been made?

In a circumstances like these, courts have held that a failure to respond can operate as a rejection of the request. Similarly, an “undue” delay can amount to a rejection. What is “undue” – of course – is in the eye of the beholder. Every case will be judged on its own facts? What if management responds in one week? I think that is fine. Two weeks? Still likely reasonable. A month? At this point, it starts to feel unduly delayed.

That being written, the law also provides that management must have been given the “opportunity to accommodate” the resident/applicant. To phrase it another way, the leasing office must have been given the chance to respond prior to incurring liability for refusing or failing to respond to an accommodation request.

This issue typically arises when a disability is not obvious – as takes place with most emotional support animal (ESA) requests. Until we receive a request, in the vast majority of circumstances, our leasing office team has no way to know that a resident requires an ESA. The other extreme example is that management will not typically seek further information or verification for a designated parking spot for a resident with a mobility disability who uses a wheelchair.

The takeaway?  Promptly respond to all reasonable accommodation requests.  A best practice is to send an interim response to acknowledge the request and note that management is reviewing it.  And then formally respond within a reasonable time.  One week is great.  Two weeks is likely fine.  Three weeks?  Questionable.  After that, you may need to speak with a lawyer like me.  Make sense?

Just A Thought.

 

 

Last week, the U.S. Department of Justice (DOJ) announced that it settled yet another Fair Housing Act (FHA) case, this time for a total of $95,000. In a case from Washington state, the owners/managers of three apartment buildings resolved a lawsuit claiming that the defendants refused to rent their apartments to families with children in violation of the FHA.

The federal action, filed in March 2017, asserted that in March 2014 the defendants told a woman seeking an apartment for her family (which included a one year old child) that the building was for “adults only.” The DOJ further alleged that the apartments were advertised as “adult buildings.” The case started with an administrative complaint filed with the U.S. Department of Housing and Urban Development (HUD). HUD conducted an investigation, issued a charge of discrimination, and then referred the case to DOJ.

To settle the case, the defendants agreed to pay a total of $95,000, broken up as follows: (a) $35,000 in damages to the family denied housing because of their small child; (b) $35,000 that will be used to compensate other families that were harmed by the practices of the defendants; and (c) $25,000 as a civil monetary penalty to the United States. As is common in these cases, a part of the resolution includes three years of record keeping and monitoring as well as a requirement that the defendants adopt a non-discriminatory resident selection criteria and procedures to ensure compliance with the FHA.

In today’s apartment market, unless your community is specifically designated as housing for older persons, we simply need to welcome families with children. If you use “Adults Only” in your advertising, it is a decent bet that a fair housing advocacy group will find the ad. And then you will really need to speak with a lawyer like me.

Just A Thought.

Severe weather hit Texas a couple of weeks ago. And a new storm system is turning toward Florida as I write this post. Real life and real serious. While safety of our residents and employees remains paramount, it is a best professional apartment management company practice to have a hurricane or other severe weather policy to guide employees. These policies aim to protect human life, minimize property loss, and to assist where at all possible. Management will also typically have an emergency evacuation plan so as to know where our residents will be going in the event of an emergency. At the outset, if a state directs citizens to evacuate – please inform your residents. One of my client sends a mass email to all of our residents. Another sends a group text. A third has a system for automatic telephone calls.

As a weather forecast begins to look ominous, among other points, supervisors should remind community managers to: (a) ensure back up generators (where applicable) are fueled and operational; (b) fill all gas cans; (c) collect batteries and flashlights; (d) clear storm drains and gutters; (e) make sure windows and doors are securely closed; (f) collect all trash cans and loose articles; (g) clear the pool area; (h) latch trash dumpster doors; (i) inspect your fire protection system; (j) secure all vacant apartments; (k) back up data stored on your computers; (m) let vendors know you may need assistance after the storm; (n) confirm where all community electrical, water, and gas shut off valves are located; and (o) purchase hurricane emergency kits. While this list is not exhaustive, it provides guidance for the types of issues we need to be prepared for.

Let’s hope Mother Nature sends the hurricane out to the ocean. But we should be prepared if she does not.

Just A Thought.