In a statement released earlier this month, the U.S. Department of Housing & Urban Development (HUD) announced that it settled a Fair Housing Act (FHA) sex discrimination case from California for $20,000. The facts involved allegations that the owners of an apartment complex refused to remove a husband from a lease after his wife (and mother of two minor children) obtained a domestic violence restraining order against him.

In the complaint, the woman resident claimed that the property discriminated against the now single mother of two by refusing to remove her former husband from the lease and by failing to change the locks. Furthermore, the complaint noted that although the property manager ultimately agreed to change the locks, the leasing office staff told the resident that her former husband could still have a copy of the new key should he make such a request. According to the allegations, this conduct caused the woman to move (with her children) from the apartment home.

In addition to the monetary settlement, the property owners agreed to implement a domestic violence policy at its more than 240 residential properties to address the safety and housing needs of residents who suffer from domestic violence as well as go through fair housing training.

While there are always multiple sides to every story, professional apartment management should remain nimble in a circumstance in which a resident presents a protection from abuse or similar type of restraining order against a spouse/significant other. As this case confirms, management can be held responsible for failing to act when a safety concern is raised and is supported by a court order. If you are concerned about the language in a court order or are uncertain about what to do when faced with a request like this, please reach out to a lawyer like me.

Just A Thought.

In a statement issued last week, the U.S. Department of Housing and Urban Development (HUD) announced that it resolved a familial status Fair Housing Act (FHA) case from Maine for $18,000.

The case, stated by a fair housing tester group, began when fair housing testers – who were posing as parents with children – followed up on advertising indicating that children were not allowed and asserted those ads were discriminatory. In addition to the advertisements, it was alleged the property owner and agent refused to negotiate rental terms as well as made discriminatory statements to the testers posing as parents. HUD’s consent order concludes an October 2018 charge of discrimination against the property owner and real estate agent.

As is typical in these types of cases, in addition to the $18,000 payment, the Respondents agreed to undergo fair housing training.

The takeaway here for professional apartment management includes that: (a) fair housing testers are out there, trolling the internet looking for advertising that might (again, might) violate the FHA; (b) if you think your ad comes close to the line, have it reviewed by a lawyer like me. Otherwise, you could end up as a Respondent in a fair housing matter and then you will really need a lawyer like me.

Are there times when a property owner simply does not want children at an apartment community or home? Sure. But I also have seen many circumstances in which the management company and/or leasing agent is concerned about safety (whether it is a high traffic area, limited parking, difficult stairs, restrictive swimming pool rules, or simply a perceived fear of excessive running and/or horseplay) – and those concerns get expressed in a manner such that a fair housing tester asserts that families with children are not welcome. Don’t fall into that trap. Welcome all to your property.

Just A Thought.

Earlier this month, the U.S. Department of Housing & Urban Development (HUD) announced it settled a fair housing case from California involving allegations of disability discrimination related to the remediation of mold as well as retaliation against residents for raising the mold concern.

The case was brought to HUD when a couple with disabilities filed a complaint asserting that their apartment owner/management company refused to remove mold from a building after the couple reported it. Furthermore, once the mold was identified, the complaint also alleged that the couple received a lease termination notice and an increase in their monthly rent. After receiving the lease termination notice, the couple vacated their unit.

Pursuant to the terms of a conciliation agreement, the owner and management company promised to pay the couple $6,000, undertake fair housing training, amend their reasonable accommodation policies, and distribute the revised policies to their tenants and employees.

From my perspective, mold is a hot button issue. Indeed, many of my clients treat mold extremely seriously and in truth we expedite remediation of suspected mold. If mold is found, nothing good can come to a property by leaving it unchecked. As such, while I am sure there are two sides to this story, it is rare in my experience to see mold unchecked after a report. And certainly it is uncommon to raise the rent and send a lease termination notice for such a report, which is what I suspect raised a red flag with HUD.

So, if you get a mold report, take it seriously and have it promptly checked. And document the report and remediation. This is one that management can get right.

Just A Thought.

In a post from September 2018, I reported that Facebook’s targeting advertising practices have subjected the social media site to scrutiny, including multiple civil lawsuits and administrative complaints. In short, the various plaintiffs asserted that Facebook’s micro-targeting permitted advertisers to “screen out” members of various protected classes. Facebook did this, the complaints allege, by using data to exclude women, seniors, individuals with disabilities, and minority groups from certain advertising (including those for housing).

In an effort to resolve some of these complaints, just yesterday, Facebook announced that it would overhaul its targeting advertising platforms, by creating a separate portal to limit how much advertising for housing can micro-target potential customers. Facebook believes that the new portal will prevent advertisers from using protected classes in a manner contrary to federal, state, and local anti-discrimination laws.

To be sure, there is also a financial component – the settlements announced yesterday noted that Facebook would pay less than $5 million to the various parties, including $2.5 million to a fair housing advocacy group to train advertisers to create appropriate housing ads. As a further part of the resolution, Facebook intends to give users the ability to search all housing-related ads that appear on the platform regardless of if the reader received the ad in a personal news feed or news clip. Now, Facebook still needs to resolve a HUD administrative complaint (alleging that Facebook supported housing discrimination by permitting advertisers to exclude potential renters based on race, gender, zip code, and/or religion) that was not a part of the settlements announced yesterday.

Look, targeting advertising has been around from the time of the first ad placed in a newspaper. In our world, of course, apartment communities seek to advertise in sources that will reach the most likely renters. Makes good sense. We want to spend our advertising dollars wisely. In other words, be INCLUSIVE with your targeted ads. Facebook got into trouble because it was alleged to have EXCLUDED certain protected classes. Make sense?

Just A Thought.

At the start of this week, the Trump Administration published its proposed budget for the federal government for the fiscal year starting October 1, 2019. While this is just a proposal – and will certainly be amended by Congress before the end of September – I wanted to highlight a couple of points of interest to those in the professional apartment management industry.

First, while it is true that the Administration proposed cutting funding for the U.S. Department of Housing & Urban Development (HUD) by 16.4 percent – that does not mean that the Fair Housing Act (FHA) is now off the books and management can stop fair housing training. It looks like most of the cuts would come from public housing and related block grant programs. Indeed, a little research led me to a HUD press release in which the department notes, albeit near the bottom of the text, “[a]s it did last year, the Administration is seeking $62.3 million to support HUD’s fair housing mission.” That money goes to fund various HUD fair housing partners and HUD-sponsored initiatives to combat housing discrimination. I doubt that will change very much.

Second, even if HUD reduced or stopped funding fair housing, individual state, city, and county anti-housing discrimination laws remain and are enforced in the normal course. Indeed, HUD partners with various local commissions or agencies who actually investigate many of the fair housing claims I defend against. And remember that many state, city, and county laws contain additional protected classes of individuals covered under their respective fair housing statutes.

The takeaway? The Administration’s budget number is just a proposal. Think of it as a trial balloon which Congress may, or may not, pop. Fair housing remains codified in U.S. Code and professional apartment management should continue best practices in complying with applicable law and training our leasing office team members to get it right. Or you will still need to speak with a lawyer like me.

Just A Thought.

Earlier this week, the U.S. Department of Housing and Urban Development (HUD) reported that a Minnesota housing provider agreed to pay $74,000 under the terms of a consent order to conclude a discrimination action asserting a housing provider failed to rent a home to a family of five adults and six minor children because they were Native Americans and Hispanic as well as because they had minor children. The property in question is a six-bedroom, five-bathroom home with over 7,000 square feet of living space, two kitchens, a sauna, a sunroom, a fitness room, and a library in addition to other amenities.

While the complainants alleged discrimination based on race/national origin and familial status, the Respondents claimed the denial of housing was because the number of individuals exceeded the functional capacity of the residence generally and that 11 people living in the property would have caused damage to the home’s septic system. Our federal Fair Housing Act (FHA), of course, includes prohibitions on discrimination in housing because of race, national origin, and familial status.

Following an administrative complaint, HUD filed a charge of discrimination in August 2018, after the owners of the property declined to rent the six-bedroom residence to the family. HUD believed that the property owners and broker discouraged the family from renting the home by offering them less favorable rental terms, including increasing the requested monthly rent by $1,000.

Under the terms of the settlement, the respondents will pay $74,000 to the families involved, place a fair housing advertisement in the local newspaper, and the real estate broker will take fair housing and multicultural sensitivity training.

As discussed periodically in this space, reasonable occupancy standards can certainly be appropriate. Indeed, at first glance, 11 people in one house appears to be a bit much. Until learning that the home in question had six bedrooms, five bathrooms, and over 7,000 square feet of living space.

Just A Thought.

In a case resolved last month, the California Department of Fair Employment and Housing (“DFEH”) announced it settled a housing discrimination complaint for $16,000 against a property management company asserting familial status discrimination.

The complaint was filed by a family of four who alleged that management did not allow them to rent an apartment in a building because the property manager did not consider children to be appropriate residents. Specifically, the manager was alleged to have stated that the apartment home might be overcrowded with four people, that neighbors might have issues with noise because of kids, and that the building was for “business people.”

After its investigation, DFEH found probable cause to believe discrimination took place and a civil complaint was filed in California state court. The case settled prior to trial, with the defendant agreeing to pay $12,500 to the family and $3,500 to DFEH for litigation costs. As is common in these cases, a provision in the settlement agreement requires that property management employees enroll in fair housing training and that management prepare an equal housing opportunity policy.

This case is yet another reminder that in most circumstances, leasing office team members must welcome families with children. Can there be reasonable occupancy requirements? Sure. Can eight people fit in a one bedroom apartment home?  Most likely not.  Can you limit your building to “adults only” as existed in the past? No.

Now, when a case like this is filed, I get questions concerning if there is an exception in the law.  To that end, I will post a Fair Housing Defense blog entry next month with a short primer on the Housing for Older Persons Act (HOPA) and provide a short outline of the law surrounding HOPA and buildings that operate under HOPA for those age 55 and up.

Just A Thought.

A nugget for our professional apartment management colleagues on the affordable side today. Earlier this week, the U.S. Department of Housing and Urban Development (HUD) issued a press release stating it was significantly reducing the advance notice the government gives to public housing authorities (PHAs) and private owners of HUD-subsidized apartment communities before their housing is inspected to ensure it remains safe, decent, and healthy.

HUD’s announcement (effective 30 days after publication) gives affordable property owners 14 calendar days’ notice before an inspection, a reduction from the current notice which can frequently extend up to four months. The way it currently works is that HUD’s Real Estate Assessment Center (REAC) gives management advance notice before a scheduled inspection. That notice can go for as long as 120 days.

HUD’s view is if a property owner knows an inspection is coming in, for example, three months, a less than scrupulous owner could perform cosmetic maintenance and repairs rather than adopting appropriate year-round maintenance practices. REAC inspectors review properties run by approximately 3,700 local public housing authorities across the country as well as about 23,000 privately owned apartment buildings. HUD data confirms that 96 percent of these properties pass their REAC inspections.

As such, starting in the third week in March 2019, HUD employees and REAC contract inspectors will only give affordable property owners 14 calendar days of notice prior to their inspection. If an owner declines, cancels or refuses entry for an inspection, a presumptive score of zero will be recorded. If a second attempt results in a successful inspection within seven calendar days, the score from the second inspection will be recorded.

Again, this is for property ownership/management on the affordable side. The takeaway, of course, is that HUD wants you to perform regular maintenance on your property and do repairs year round. And not just because a REAC inspector is on the way. Let’s see if the 96% pass rate changes in a year or so.

Just A Thought.

 

 

Our friends at the U.S. Department of Housing & Urban Development (HUD) publish a myriad of reports concerning the Fair Housing Act (FHA) and the efforts of the Department to enforce the law. One of the reports I like to review is a compilation of the number of discrimination complaints filed each year as well as the percentage of cases filed for each of the seven protected classes under federal law. Although the report is a year or so behind, here is what HUD discloses concerning the number of and percentage of fair housing cases filed with the Department and its partner agencies.

First, the total number of fair housing complaints filed in fiscal year 2017 was 8,186 (6,878 with HUD and 1,308 with HUD partners). My point here is that if a discrimination complaint was filed against your company, well, you are not alone. Does not make you feel any better, but thousands of complaints get filed each year. Which means lots of companies need to speak with a lawyer like me. Sorry about that.

With respect to percentages:

Protected Class                Number of Complaints                  Percentage of Complaints

Disability                             4,865                                                  59.4%

Race                                    2,132                                                   26%

Familial Status                     871                                                    10.6%

Retaliation                           834                                                    10.2%

National Origin                   826                                                    10.1%

Sex                                       800                                                     9.8%

Religion                               232                                                     2.8%

Color                                   192                                                     2.3%

Now, sharp followers of the FHA will note that retaliation is not one of the seven protected classes in the law. It is, however, covered under Section 818 of the FHA and is a growing percentage of cases I defend each year.

These figures confirm a rather dramatic trend for discrimination complaints: for the last five reported fiscal years, the number of disability discrimination complaints continues a rapid increase. The trend runs from: 52.6%, to 53.7%, to 55%, to 58.5%, and then a jump to 59.4%. I suspect next year disability complaints will cross the 60% threshold. And a big portion of these numbers are emotional support animal cases. Some of which may be legitimate. Many of which use medical verifications that were purchased over the internet with a credit card.

I continue to hear statements of sympathy from various fair housing investigators when I get yet another emotional support animal complaint. Like me, they are waiting for HUD to help with some new guidance. In the interim, I will keep knocking them off – going one at a time.

Just A Thought.

 

 

Loyal Fair Housing Defense blog readers (thank you very much) know that I defend (and report on) what seems like a never ending stream of emotional support animal (ESA) housing discrimination cases these days. The typical run of the mill case comes with a medical verification that looks like it was purchased over the internet with a credit card (as opposed to from a legitimate health care or medical professional who has an actual relationship with a disabled patient). My Firm’s accounting department likes these cases; although my clients are certainly irritated by the continuing cost.

Among my goals for the past couple of years has been to compile a thick stack of dismissals on the merits from cases involving internet purchased ESA letters to use as precedent as more and more get filed. To date, I have a few. And I cite to them in my responses. But, I am seeing a trend. In a number of these cases (particularly those filed by certain fair housing tester groups, you know who you are), once I push back and assert that the medical verification is, at best, questionable and subject to further scrutiny, the complainant stops cooperating with the investigator. While at the end of the day I get my no probable cause dismissal (which is always good), it can be for “failure to cooperate” with the investigator as opposed to on the merits. Which is less useful to our industry.

I continue to hope the U.S. Department of Housing & Urban Development (HUD) and/or the U.S. Department of Justice (DOJ) issues supplemental guidance that helps professional apartment management defend against these internet letters and the cases derived from them. From time to time I hear unofficial rumblings that something is being discussed, but I have nothing with respect to if or when new guidance will be published. In the interim, I still have a number of what I suspect are fraudulent ESA cases and I will continue to wait for more and more dismissals on the merits. Which will help all of us who work to comply with the letter and spirit of the fair housing laws.

Just A Thought.