Every year in December I get questions about holiday decorations in apartment communities. 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.

Acting on a complaint initially filed back in 2016, just yesterday the U.S. Department of Housing and Urban Development (HUD) formally charged the owners, architect, and builder of an apartment building (with 164 units on six floors) in Denver, Colorado with housing discrimination for failing to make the property accessible to residents with disabilities. In addition to the seven protected classes in the federal Fair Housing Act (FHA), covered multifamily housing must be designed and constructed to ensure it is accessible and usable for people with disabilities.

The case started after a local Denver fair housing group conducted tests on the property and filed a disability discrimination complaint. Finding merit to the complaint, HUD’s charge asserts that the owners and builders did not design and construct the complex in accordance with the FHA as specific areas of the building remain inaccessible to people with mobility impairments. While all of the individual units are reachable by elevator, the complaint notes issues with accessible routes to the swimming pool and hot tub located in a courtyard. Specifically, the charge alleges the thresholds for the doorways are too high (by half an inch) and the door-opening force required to enter exceeds the maximum allowable force in the guidelines. Furthermore, HUD claims six of the seven parking spots designated for accessible parking are out of compliance with the applicable standards.

Now, there are always two sides to every story, and just because a plaintiff asserts a claim does not mean it is true. One takeaway here, of course, is to ensure multifamily properties are designed and built in accordance with the applicable standards. Indeed, the law contains seven safe harbors that must be complied with.  Or property owners will need to speak with a lawyer like me.

Another takeaway is that property owners must be understand that fair housing testers (many of who are funded at least in part by HUD) are out there looking for FHA violations.  Even technical ones like those included in this discrimination charge.

Just A Thought.

Late last month, the U.S. Department of Housing & Urban Development (HUD) charged a condominium association in New Jersey with disability discrimination in violation of the federal Fair Housing Act (FHA). According to HUD, the complaint asserts that the condominium required that a resident (with vision and hearing impairments) use the service door (as opposed to the main entrance to the development) when she was accompanied by her assistance animal. Additionally, HUD alleged that the association charged the resident’s daughter a fee because she wanted to walk her mother’s assistance animal in the development’s common areas.

Factually, HUD got the case when the resident’s daughter brought a discrimination complaint asserting that the property declined to waive its requirement that residents transport pets in carriers when in common areas and in that the association fined the resident $100 for walking the animal in the common areas. According to HUD, the daughter primarily walked the dog because of her mother’s mobility impairments and was prohibited from using the main entrance to the community.

While I know there are always two sides to every case, this one at first blush presents facts that just do not look great for the property. We should not restrict assistance animals to service door or back entrances.  Additionally, always remember not to charge your residents any pet fees or pet rent for assistance animals. Remember, legitimate assistance animals are not pets and pet restrictions do not apply.  Although I am not involved here, I suspect the association simply attempted to apply its rules related to pets to this assistance animal.  Which HUD is now contesting violates the FHA.

Just A Thought.

Last week, the U.S. Department of Housing & Urban Development (HUD) charged a rental property owner in New Jersey with racial discrimination under the federal Fair Housing Act (FHA). In the charging document, HUD asserts that the property owner declined to rent an apartment to an African American woman because of her race. HUD also alleges the owner used racial slurs in various text messages when informing the prospective renter that she was not chosen for the apartment.

Factually, the charge is that the property owner listed an apartment for rent via an online site. Responding to the ad the same day it was posted, the applicant noted she and her son were anxious to move because the unit they were currently living in did not have heat. She reached out via telephone and left a message which was not returned.  Next, the applicant sent a text message to the number in the ad. In response, the property owner allegedly used a series of racial slurs when declining to show the unit to the prospect. Those slurs, of course, were captured on the applicant’s phone and turned over to HUD during the investigation. Following its inquiry, HUD found probable cause to believe the discrimination took place and issued the charge alleging a violation of the FHA.

Obviously, declining to rent a home to a prospect based on race has been against the law for more than 50 years now. Additionally, might I suggest it makes even less sense to send text messages explaining the racial animus behind the decision. Even if the property owner may subsequently contend he was joking and/or not being serious (and I am not involved with this case), using repeated racial slurs with a prospect while declining an application for an apartment is a recipe for disaster in the fair housing arena.

Just A Thought.

A little housing policy inside baseball today. Those of us in the multifamily housing space are waiting for our friends at HUD to act on two matters of interest:

First, as previously noted, HUD issued an advance notice of proposed rulemaking back in June 2018, seeking public comment on whether its 2013 disparate impact rule should be changed in light of the 2015 Inclusive Communities decision issued by the U.S. Supreme Court. In English, the belief is that the Trump Administration will indeed attempt to modify/rescind/alter the disparate impact rule enacted by the Obama Administration five years ago.   Based on an order issued by a federal judge last month in a case challenging the Obama-era disparate impact rule, there is a belief that HUD’s new rule will be published on or before December 18, 2018. I will, of course, be following along as to the progress of the underlying litigation as well as what HUD decides.

Also, I have heard from a handful of HUD (and other fair housing officials) that the Department is “working on” new guidance related to assistance animals. As anyone involved in rental housing is aware, the number of emotional support animal reasonable accommodation requests continues to increase significantly, along with the percentage of those accommodation requests that are medically verified by an online health care provider. Again, we want to get it right. We want to approve legitimate assistance animals needed by residents who are truly disabled. We do not, however, want to approve an animal that was “verified” or “registered” pursuant to a certificate purchased over the internet for the low, low price of $69.99 (or $125 if you need it overnight) in an effort to avoid pet fees. The belief in the industry is that HUD is preparing guidance. I don’t have an expected release date, but you will know as soon as I see it.

My point on both of these issues is that the professional apartment industry just wants to confirm the rules of the road. If disparate impact is indeed covered under the law, so be it.  I am happy to provide that advice.  If HUD confirms that management is permitted to seek supplemental information from an applicant after receipt of what looks like a medical verification purchased with a credit card and doing so does not run afoul of the Fair Housing Act, all the better. And we will continue to proceed on that basis.  But uncertainty is not helpful. For anyone.

Just A Thought.

In a decision published earlier this month, the U.S. Court of Appeals for the Eighth Circuit concluded that a disabled plaintiff has the ability to file a complaint under the federal Fair Housing Act (FHA) against a property management company when management allegedly declined to accept a disability benefits check as an acceptable source of income from the applicants.

The case involved a mother with a disabled adult daughter. The pair submitted an application to rent a unit using disability payments as income. The management company’s income guidelines, however, required pay stubs, an offer letter, or tax returns to verify income. The applicants could not meet that test as their income consisted solely of a disability check, social security, retirement benefits, and some rental income. As the parties engaged in the interactive process, the leasing office suggested it would accept a co-signer who was income qualified. The renters attempted to provide proof of their sources of income. When the parties could not come to an agreement, the plaintiffs sued.

The district court dismissed the complaint, holding that a reasonable accommodation was unnecessary because the defendants offered a solution which the plaintiffs refused. The appellate panel, however, reversed that decision, finding that a reasonable accommodation was indeed necessary because the offered alternative was not a substitute for a “level playing field in housing for the disabled” and that the co-signer option put forward by the defendant instituted “an additional burden on the disabled applicant.”

So, should professional apartment management have income qualification guidelines for your units? Absolutely. Along with a credit and criminal background screening policy, it is a best practice. But, as this court opinion holds, disability payments should be included as an appropriate source of income when running an application.

Just A Thought.

Last week, I got a demand letter from counsel for a resident concerning a reasonable accommodation request. That’s fine as they come in all the time. At the end of the letter, counsel demanded that we respond within three days or the lawyer will summarily conclude we denied the accommodation request. It irritates me when I see letters like this. Yes, management must evaluate and respond to every reasonable accommodation or reasonable modification request received from a resident or applicant (as well as someone acting on behalf of a resident or applicant). And our response must be sent within a “reasonable” time. But a three day turnaround time? Really?

Which begs the question – just what is a “reasonable” time? In my experience, absolutely within a week to 10 days is fine. Two weeks is also not unreasonable. Cracking three weeks and then a month is a bit more problematic for management. Is it possible that an emergency request might require a three day response time? I guess, but that would be the exception, not the rule.

What to do? My best practice is to have your leasing office send an interim response noting we have the request and we are reviewing it. That provides us with a little additional time if necessary while ensuring no claim will exist that we are ignoring the request. Again, we certainly do not necessarily have to grant every request, but we absolutely must review and respond to every request. Or run the risk of winding up as Respondents/Defendants in a fair housing case.  Hope that makes sense.

Just A Thought.

Yesterday, the U.S. Department of Housing and Urban Development (HUD) announced that a disability discrimination claim from California settled for $8,500. The agreement resolved a complaint filed by a resident with a disability asserting discrimination under the Fair Housing Act related to an assistance animal. In the complaint, the resident alleged that she was threatened with eviction because she had an emotional support animal.

The matter came to HUD after the resident filed a complaint alleging the property manager told her that she could not keep her dog and threatened to evict her.  The resident further noted that she previously  provided a medical verification confirming her need for the assistance animal. The complaint also alleged that after receiving an eviction notice, the resident vacated the home. As there are always two sides to every case, the housing providers deny that they discriminated against the woman.

As is typical in cases like this, in additional to writing a check, the housing providers are required to provide fair housing training to their management and leasing staff.

The takeaway? As a management company or leasing office staff member reviewing a reasonable accommodation request, for disabilities that are not obvious, we simply seek credible medical verification (something that is not a form letter purchased over the Internet for the low, low price of $69.99 [or $125 if you need it overnight] and/or a certificate from a nationwide animal registry) attesting to the fact that the resident is disabled, needs an assistance animal, and that there is a nexus (or link) between the animal and the disability.

If you have questions about a medical verification, you might want to speak with a lawyer like me to better evaluate how to appropriately respond to your resident.  Or you might wind up as a Respondent in a fair housing case.

Just A Thought.

Earlier this week, the U.S. Department of Housing and Urban Development (HUD) sent out a press release to note that it charged a Texas property owner and management company with discriminating against families with children in violation of the federal Fair Housing Act (FHA). In its charge, HUD asserts the owners and management company at El Patrimonio Apartments threatened to fine a family $250 because their two children played in the community area of the complex. Families with children under the age of 18, of course, are one of the seven protected classes in our FHA.

The complaint also alleges that management enacted a policy that mandated children under the age of 18 to be supervised by an adult family member while on the property (including in the pool area) or face a $250 fine. In one specific instance, residents with children were threatened with a fine as their two kids were playing in a community area while being supervised by adults who were not blood relatives.

While there are always two sides to every story, and it is likely management will assert safety as the reason for this type of policy, HUD is clear that if we impose different rules and restrictions on families because they have children, those policies will be subject to scrutiny should a complaint be filed.

When faced with these types of issues, I advise that we work to develop a policies that are neutral on their face and will, I hope, be found to comply with the FHA and its state law counterpart. For example, when dealing with community pools, one option could be to draft your rules to read that anyone unable to swim needs to be supervised by someone who can. That avoids the easy familial status claim as age has nothing to do with the rule.

Just A Thought.

From time to time cases arrive which provide clear guidance about what to do (or perhaps what not to do) when advertising multifamily housing. To that end, earlier this month, the U.S. Department of Housing & Urban Development (HUD) filed a familial status housing discrimination charge against a property manager in New Orleans based on an advertisement. The ad, which was found by a local fair housing advocacy group, included language which stated: “No Teenagers Please.”

As written in this space many times, our Fair Housing Act (FHA) includes protections for families with children under the age of 18. Unless the property is one that qualifies as housing for older persons under the FHA, the law is clear that statements seeking to exclude children under the age of 18 violate the statute.

Now, it could well be that the property manager had a benign reason for not wanting kids in the community. I have seen circumstances where management believes parking lots are dangerous. Or when a property is located next to a busy street. Good intentions, but those intentions can lead to a complaint.  Just know that a leasing office will subject the property to scrutiny with a general ad which purports to exclude children under the age of 18. Please understand that fair housing advocacy and tester groups are searching the internet (as well as traditional newspapers and apartment guides) looking for advertising that violates the law.

If you have a reason for not wanting teenagers, you should really speak with a lawyer like me to discuss the application of the FHA and state law.

Just A Thought.