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.

 

As an apartment management staff member, please know that advertising is absolutely a part of our Fair Housing Act (FHA) compliance efforts. Indeed, the FHA specifically has a section which confirms that it is against the law to advertise in such a way as to indicate a preference, limitation, or discrimination based on any of the protected classes the statute. Indeed, the Department of Housing & Urban Development (HUD) has had advertising regulations in place since 1972. These regulations were updated in 1989. But what does that mean in practice? Here are a few tips:

  1. It is a best practice that all advertising (which now includes internet sites in addition to flyers, mailings, newspaper ads, magazines, business cards, radio, television, and even word of mouth) contain the Equal Housing Opportunity logo.
  2. Offensive phrases, such as “no children, singles preferred, next to a catholic church, and/or perfect for Hispanics”, and the like should be avoided.
  3. To the contrary, use welcoming phrases such as “quiet residential area, close to parks and recreation, gated community, and/or near many houses of worship.”
  4. If your ads include photos of human models, make sure you select a variety of people from different national origins and races. Does that mean every picture needs to include someone of every national origin? Of course not. But work to be inclusive as you develop an advertising strategy.
  5. As a part of being inclusive, look to run your advertising in media that caters to more than one racial or national origin segment of the population.  Depending on where your property is located, you might want to try media that caters to a language other than English or caters to a group or groups that otherwise might not learn of your housing availability.

If you find it helpful, you can always speak with a lawyer like me to help develop policies to ensure your employees are informed as to what the FHA requires and that your advertising is screened for discriminatory content.

Just A Thought.

Last month, the U.S. Department of Justice (DOJ) resolved a Fair Housing Act (FHA) case against a New York based property management company in which the government asserted the defendants discriminated against a prospective home purchaser on the basis of his disability and by refusing to provide reasonable accommodations as required by law.

As contained in a January 2017 complaint, the management company for the housing cooperative rejected the application of an individual seeking to purchase a one bedroom unit because of his various disabilities. Specifically, it was alleged that the individual had suffered numerous heart attacks, had developmental language and learning disorders, as well as suffered from depression. The applicant (and his family) sought to have formal ownership of the unit be placed in a legal trust, which would help the applicant manage the requirements of cooperative housing. According to the DOJ, the management agent rejected efforts to purchase the unit in such a trust and in so doing, engaged in a pattern and practice of discrimination as the company also manages other properties. Because of the asserted unlawful conduct, the applicant was forced to stay in a boarding house with abysmal living conditions, grew increasingly depressed, and suffered another heart attack.

Pursuant to the terms of a settlement agreement, the defendants will: (a) pay a total of $125,000 (which includes damages and attorney’s fees) to the applicant and civil money penalties to the United States; (b) adopt reasonable accommodation policies and forms to be approved by the DOJ; and (c) take annual FHA training which will include reviewing reasonable accommodation requests.

The takeaway here for professional apartment management? Reasonable accommodation requests can come in all shapes and sizes. It is our responsibility to review and evaluate each of them.  Simply rejecting them outright might mean you will really need to speak with a lawyer like me.

Just a Thought.

 

 

The issue of online medical verifications for emotional support animals (ESA’s) is an ongoing problem for professional apartment management. As written in this space before, we want to approve all legitimate reasonable accommodation requests for our residents who need assistance animals. The key, of course, is “legitimate” – and that is the issue. I now have a number of different clients all working to review and evaluate ESA requests to determine, as best they can, if the medical verifications are legitimate. A quick internet search will reveal this is a lucrative industry and just about anyone can get an ESA letter by answering a few quick questions and using your credit card. Indeed, when investigative reporters look into online ESA’s, they routinely get verifications for goats and ducks as soon as they use a credit card. And when management pushes back in an effort to determine if the ESA verification is legitimate, we get back a form letter in return asserting retaliation under the Fair Housing Act.  We are not retaliating.  We just want the verification to be legitimate.

While I am unaware of the federal government acting to stop this abuse, the state legislatures in Colorado and Florida have now criminalized fraudulent claims of disability. These new state laws are certainly an important first step, but they are going to be hard to enforce. Now, I am aware of a Department of Housing & Urban Development settlement agreement in which it is made clear that for mental health and/or mental disabilities, the medical verification standard should be set higher and that verification is to be signed by a “medical provider, health or social service professional.”

These are but initial efforts at controlling a problem which is continuing to trouble apartment management. Again, fraudulent reasonable accommodation requests (and fraudulent medical verifications) do a disservice to those Americans (including our veterans) who are truly disabled and who rely on animals. Look, if you have a pet – just pay the pet fee. Most apartment communities are animal friendly these days and will welcome Rover or Fluffy.

Just A Thought.

The U.S. Department of Justice (DOJ) recently announced that it settled a Fair Housing Act (FHA) discrimination lawsuit with the owners/managers of more than 70 residential properties in West Virginia to resolve allegations that the property manager sexually harassed female residents and applicants. Under the terms of the deal, which was approved by the U.S. District Court for the Northern District of West Virginia, the defendants will pay a total of $600,000 (that is not a misprint) in damages and civil monetary penalties. Additionally, the individual manager was required to transfer his ownership percentage in these properties as well as to cease his role in managing them and agree to never again work in the property management business.

The litigation started with four female residents filing complaints with the U.S. Department of Housing and Urban Development (HUD). The government’s subsequent investigation revealed that the property manager harassed female residents and applicants (including engaging in unwanted and unwelcome sexual acts, touching and groping, offering housing benefits to female residents in return for the performance of sexual acts, verbal advances, entering units without permission, and threats to take adverse action against female residents when they refused or objected to his sexual advances) from 2006 through 2015.

The agreement mandates that the defendants pay $500,000 to individuals harmed by the discriminatory conduct and another $100,000 to the United States as a penalty for violating the law. The dollar amounts here are significantly above a traditional FHA case, but the egregious nature of the alleged conduct is what drove the large financial numbers.

In this day and age, it should go without saying that residential property owners and management companies must provide fair housing training to ensure none of our employees engage in conduct anything like what was asserted in this complaint.  It will be really difficult to explain to a judge how conduct like this was permitted to continue for ten years.  Enough said.

Just A Thought.