Most of the fair housing cases I report about in this Blog are brought by individuals or on behalf of individuals by a local fair housing advocacy group. There is, however, another way for a complaint to be filed. The federal Fair Housing Act (FHA) as well as many state law counterparts, permit what is called a “Secretary’s Complaint” to be initiated against a property owner or manager.

Complaints filed by the Secretary of the Department of Housing & Urban Development (HUD) are typically used in situations involving a nationwide or other significant concern that may involve more than just an issue for one resident at one property. To be clear, a Secretary’s Complaint, like a traditional complaint, is not a determination of liability and the property owner/management still has the complete opportunity to defend itself.

To that end, earlier this month, HUD announced a Secretary-initiated complaint was filed against a property owner and manager of senior living apartments in Oklahoma alleging FHA claims as HUD claims the owner/manager removed Bibles and related Christian reading material from the common areas. By its terms, discrimination based on religion is one of the protected classes in the FHA.

HUD learned of the issue when the Department received a letter from a resident at the community who claimed to be upset that management demanded the removal of religious reading material from the common areas. In addition to the religious reading materials, the resident stated that management required angel ornaments be removed from the property’s Christmas tree. In a press release announcing the case, HUD takes the position that “[b]arring religious materials infringes upon [religious liberty], and the Trump Administration will not stand for discrimination against any group for practicing their religious traditions.”

There are a handful of issues here, including that the property owner could have been simply attempting to show preference to no religion. Please understand that management walks a fine line in our effort to be welcoming to all religions while showing favoritism toward none. I will be curious to learn more about the specific facts (as there is always another side). Similarly, I typically advise my clients that Christmas trees (along with traditions like Santa and holiday elves) are so commonplace these days that there are good reasons to permit them while remaining in compliance with the law. Indeed, many times a community will have a designated area for residents to voluntarily display holiday decorations that is welcoming to all faiths.

I will report back as more facts are presented here.

Just A Thought.

 

I know I have written about this before, but a housing provider in Wyoming was just charged with familial status discrimination pursuant to the Fair Housing Act (FHA) by the U.S. Department of Housing & Urban Development (HUD) related to newly written community rules that HUD asserts unfairly targeted children.

According to HUD’s charge, the housing provider posted a notice on each apartment door directing tenants to “Please Supervise Your Children When They Are Outside” owing to the fact that management had been receiving “way too many complaints about kids on bikes driving in front of cars…” Later that same month, management issued new community rules for the property contained in a new “Community Notice” which was again placed on each apartment door. The notice, by its terms, restricted play areas and imposed a curfew because of alleged complaints about unsupervised children. According to HUD’s complaint, breaking these new rules would result in lease violation notices as well as possible eviction actions.

Not surprisingly, a resident with children received a lease violation notice (asserting that sunflower seeds were left on the sidewalk). In an effort to comply with the new rules, one of the residents (according to HUD) was forced to generally keep her kids inside because she was unable to provide “supervision” when the children were outside. And when she took her kids outside, it was for limited periods of time (as the resident also had a baby who required care). After suffering stress, the residents moved out and filed the instant complaint. HUD also claims the residents had problems finding a new home and that their new residence was not convenient and the kids were forced to find new friends, change schools, and were bullied.

While I am not involved and know there is another side to the story, what we see here is an example of community rules written in such a way as to permit HUD to charge the owner with familial status discrimination under the FHA. Now, should property management have Community Rules? Absolutely. But you might want to consult with a lawyer like me to help draft them in a way so as to avoid a complaint like this. As this charge makes clear, HUD disfavors rules which, on their face, appear to disadvantage children. For example, a better rule is one that prohibits anyone from playing in the parking lot. That checks the same safety box while not targeting kids. Similarly, if you want to prevent what you perceive as horseplay and/or excessive noise – don’t limit the offending conduct to kids. Enforce the same noise rules for children and adults. But recognize a baby crying is going to happen. And it may happen late at night.

Finally, you need to be careful of curfews for teenagers.  Sure, you may have great intentions — safety as well as peace and quiet.  But what about the 17 year old who works the night shift at a local fast food restaurant and arrives home around midnight?  Technically, he or she is breaking curfew by just driving to his or her home. Again, that is not what you are trying to prevent — but I have been in cases where HUD makes this very claim.

Just A Thought.

 

In a press release issued a couple of weeks ago, the U.S. Department of Housing & Urban Development (HUD) charged a New York property owner with discrimination under the Fair Housing Act (FHA) asserting that the owner failed to permit a resident to keep an assistance animal.

Factually, the complainant (and two roommates) moved into an apartment in Buffalo pursuant to a lease with a “no pets” provision. Following what looks like a couple of months of therapy, the resident noted he was considering getting an assistance animal to help with his disability. The owner responded by reasserting the “no pets” prohibition in the lease and asking if the resident could hold off on obtaining the animal until after his lease expired. While the parties continued discussions about an assistance animal, HUD claims the property owner said her daughter (who lived in another unit in the same building) has a dog which could be used for his therapeutic needs and that had the resident told the owner about his need for an assistance animal at any time prior to signing the lease, the owner would have directed the resident to look for other housing opportunities. As the parties continued a back and forth, HUD claims that the owner demanded the assistance animal be “certified and trained” to address his disability as well as rejecting various medical verifications and contacting the complainant’s roommates seeking their assistance to rent the room to another resident once the then-current lease expired. The owner also directed the resident to leave the apartment at the expiration of his lease.

As I have written many times – “no pets” provisions are fine, but assistance animals are not pets under the FHA and property management must have a procedure in place to address reasonable accommodation requests. Also, while I am not involved with this case and I understand there are always two sides to every story, these statements attributed to the property owner about alternatives and seeking other housing illustrate the type of alleged facts that HUD will continue to seek out. And if the government believes it finds the “right” fact pattern (like here), HUD will charge the case. In this case, those claimed facts reflected a long history of engagement by the resident attempting to get the animal approved and statements by the owner outright prohibiting the assistance animal while also seeking to learn when the resident was moving out. Based on the complaint, this is a difficult look for management and they should speak with a lawyer like me to find a way out of this box and/or to ensure the other side of the story is told.

Just A Thought.

In a charge that demonstrates the perils of acting even in what is perceived to solve a need, the City of Arlington, Texas has now been sued by the U.S. Department of Housing & Urban Development (HUD) related to their efforts to build affordable housing targeting a need among elderly residents. There is a bit of legalese involved, but the specifics involve a federal tax credit program to assist with the development of new housing. In 2016, the City of Arlington adopted a policy to determine which projects would be considered for the federal program. As a part of the City’s policy, the legislators wrote that Arlington “has a preference for new development of senior housing or redevelopment of senior and/or workforce housing.”

While the language on its face reads as a “preference” as contrasted with a mandate, HUD asserts City officials made statements illustrating that this “preference” was actually a requirement and that, in fact, the City would only approve a project if it addressed senior housing needs. In its complaint, HUD references comments from city representatives noting that the was no desire for these residents to live near a three year old or an eight year old. After receiving a proposal from a developer to build housing that would welcome families with children, the City rejected it, in favor of construction of senior housing.

According to HUD, this action “blocked the construction of affordable housing that would have been occupied by families with children” – even though there were other senior projects that could still have been approved.

From my seat, it is surprising that the parties could not have threaded the needle here and found a way to use the tax credit program to address affordable housing needs for families as well as seniors. Yes, there was some difficult language from City officials, but there is common ground to be found when talking about building needed housing. To be sure, I bet there will be an amicable resolution here as it only makes good sense.

Just A Thought.

I suspect I have mentioned this before, but it keeps coming up.  In addition to the seven protected classes (race, national origin, color, religion, sex, familial status, and disability) in the federal Fair Housing Act (FHA), there is another cause of action tucked away in a different section of the law that trips up housing providers from time to time: retaliation. Here is how it comes into play and hits my desk.

Assume a resident submits more than a few service requests and/or regularly gets into altercations with his neighbors. The leasing office has sent a couple of warning letters to comply with the terms of the lease and/or community rules. With this resident nearing the end of a one year term, management needs to decide about offering a lease renewal. While the leasing office is deciding what to do, the resident files a fair housing complaint. In it, the resident claims the property is discriminating against him on the basis of his religion (or any other protected class). The complaint is specious, but it gets referred over to me to handle in the ordinary course.

But, after learning about the complaint and before talking to me, the leasing office decides this filing is the last straw with this resident and decides not to offer him a lease renewal. And writes that in an email to the corporate office. As such, the leasing office sends the notice of non-renewal to the resident. What will happen next? The resident will call HUD to amend his complaint to add a new count – this time for retaliation. Section 818 of the FHA makes it unlawful to retaliate against anyone because he or she has filed a discrimination complaint or has assisted someone with the filing a discrimination complaint. And investigators will latch on to a retaliation count, even if the rest of the complaint is meritless. Read that again: even if the underlying complaint lacks merit, management can be on the hook if we retaliate against someone because he or she filed a meritless complaint. And in this example, it can be difficult to explain the email noting we non-renewed him because of the filed fair housing complaint.

Does that mean we can never non-renew a difficult resident? No, of course not. But we must have a legitimate, non-discriminatory reason for doing so. Having nothing to do with filing a fair housing complaint. Indeed, there are times when management just decides not to renew someone. Which can be fine. But what requires a lawyer like me to get involved is if the leasing office acts against a resident because he or she filed a complaint or was exercising fair housing rights. Finally, note that retaliation covers not just residents – but will also protect an employee who assists a resident with a complaint. Management cannot take an adverse action against an employee without risk of violating the statute.

Just A Thought.

 

 

All right. A couple of readers have asked me to comment on the November 2020 presidential election and what, if anything, the election may mean for fair housing. While I desperately try to avoid politics here at the Fair Housing Defense Blog, this is what I can report. Our federal Fair Housing Act (FHA) was passed back in 1968. It was amended in 1974 and then again in 1988. In short, the FHA has been enforced by multiple Democratic and Republican administrations. That will not change. Professional apartment management must still comply with the law concerning the seven protected classes in the statute. Those type of discrimination cases continue on regardless of which political party is in charge. Please understand that HUD will also still fund local fair housing groups and housing discrimination cases will still be filed.

I view my job as calling balls and strikes. I dislike ambiguity in the law as it makes our work harder. Now, as administrations come and go, there can certainly be changes with respect to certain points of emphasis: for example, how “disparate impact” is defined and investigated by the government is different in 2020 than it was in 2014. Another change has been how HUD has written the rules for Affirmatively Furthering Fair Housing. Given where we are in the world with the pandemic, I would also hope for more guidance concerning assistance animals generally and specifically what type of telemedicine/internet medical verifications are considered appropriate.

And even if there is a change in how federal law is enforced, always remember that each state (as well as many cities, counties, and even localities) have adopted their own laws preventing housing discrimination. Indeed, many of the state and local laws contain additional protected classes (such as source of income, LGBTQ, and age to name a handful). It remains incumbent on management to ensure we know the laws of the jurisdictions in which we do business.

But know if there ever is a substantive change in the law, you will read about it here.

Just A Thought.

In separate releases issued earlier today, the U.S. Department of Housing & Urban Development (HUD) announced that it settled two housing discrimination matters: one from California for $6,000 and one from Hawaii for $8,000. In the California case, the complainants claimed that housing providers declined to offer them a two bedroom unit because they have three children. In the Hawaii matter, the complainants asserted they were discriminated against on the basis of disability by failing to grant a reasonable accommodation request.

The old general rule involving occupancy standards (dating from at least 1992 pursuant to a HUD document referred to as the Keating Memorandum), was that an occupancy standard of “two heartbeats” per bedroom was presumptively reasonable. As such, under the prior standard, management could theoretically deny a request for a two bedroom unit from a family of five (two adults and three children). Now, over the past couple of decades, occupancy standards have loosened a bit and in many places across the country, a “two plus one” (or three) persons per bedroom can be considered appropriate. Other jurisdictions take a more nebulous approach and choose to look at the size of the total apartment (including, for example, a den or family room) to determine if it is a good fit for four, five (or more) people. To be sure, while occupancy standards have changed over time – it remains the law that for health and safety reasons, a family of twelve cannot fit in a small two bedroom apartment home. In the California case, while the family was permitted to qualify for the two bedroom unit, the family was also placed at the top of the waiting list for a three bedroom unit.

In the documents describing the Hawaii case, HUD provided no facts, other than a statement that “small accommodations can have a significant impact on the ability of persons with disabilities to fully utilize and enjoy their homes.” The agreement also required fair housing training and the adoption of non-discrimination policies.

From my desk, these cases seem unremarkable, particularly given the relatively low dollar ($8,000 and $6,000) settlement amounts. I am curious as to why HUD issued press releases.

Just A Thought.

In a bit of a surprise, the Centers for Disease Control and Prevention (CDC) just issued a nationwide order halting many pandemic-related residential evictions through the end of 2020. At first glance, the order looks to cover more than 40 million residential renters if they meet certain defined income and other eligibility requirements. This new action follows President Trump’s Executive Order of August 8, 2020. That order directed the CDC (and other federal agencies) to review whether temporarily halting evictions for failure to pay rent would be reasonably necessary to prevent the further spread of COVID-19.   In short, the CDC answered that question in the affirmative.

By its terms, to prevent an eviction, a resident must provide a written certification covering several requirements: (1) that they have used “best efforts” to obtain available government assistance for rent or housing; (2) they must certify one of three things related to their income- (a) that the individual expects to earn no more than $99,000 in 2020 (or $198,000 if filing a joint tax return); or (b) that they were not required to report any income to the IRS in 2019; or (c) that they received a stimulus check under the CARES Act; (3) they must certify that they are unable to pay the full rent due to “substantial loss of household income, loss of compensable hours of work or wages, a lay-off, or extraordinary out-of-pocket medical expenses”; (4) they must use “best efforts” to make partial payments on time that are “as close to the full payment as the individual’s circumstances may permit, taking into account other non-discretionary expenses”; and (5) residents must certify that an eviction would likely “render the individual homeless—or force the individual to move into and live in close quarters in a new congregate or share living setting—because the individual has no other available housing options.”

There is a written certification form in the CDC’s order. Please note that the certification must be signed under penalty of perjury. And criminal penalties are in there for violations of the CDC order.

Importantly, your tenants will still owe their rent. This order does not change the lease rental amount. Furthermore, management is still permitted to charge fees, penalties, and/or interest related to the failure of a resident to pay on time.

Now, there are important exclusions to this order. The CDC’s mandate does not preclude evictions for any of the following reasons: (a) criminal activity on the premises; (b) threatening the health or safety of other tenants; (c) damaging or posing an immediate and significant risk of damage to the property; (d) violating building codes or health ordinances related to health and safety; or (e) violating any of the terms of the rental agreement other than the timely payment of rent.

It is obviously unknown how local judges will react to the declaration when faced with an eviction complaint for reasons other than failure to pay rent related to COVID-19. State and/or local eviction moratoriums remain in place (although many have expired or are scheduled to expire).

As the order is literally hot off the presses, it will take a little time for the industry to review and analyze exactly what it means. After an initial read, I do not see assistance for property owners/management who still have to pay the mortgage and related expenses for properties (which are largely funded by monthly rent from residents). While housing advocates appear pleased that some evictions are being halted, industry representatives remain concerned that orders like this are kicking the can down the road until another day without providing a solution (or even a path toward a solution) to address the economic needs of all.

There will be more to come here.

Just A Thought.

A couple of (well, four) quick pandemic-centric questions today:

  1.  As we have all seen over the past few months, some amenities at apartment communities (gyms, pools, fitness centers, community rooms, games rooms, and the like) were closed or remain closed because of government health restrictions. Can residents pay reduced rent because amenities bargained for are not available? While the language in each individual lease may differ, it is likely the answer is no. Many leases provide that even in the event management is forced to close an amenity, when it does so because of a government mandate (such as COVID-19), residents may not be legally entitled to a rent credit.
  2. If a resident is behind on his or her rent due to economic hardship, does management still have to respond to maintenance requests on that unit? In a word, yes.
  3. A common apartment scenario is that of multiple residents on a lease. What happens if only one resident is financially impacted by the pandemic? Is the full rent still due? In almost all cases, the answer is again yes. Most leases have what is known as “joint and several” liability – such that if one resident cannot pay his or her portion of the rent, the other residents are responsible for the total amount. Now, a best practice, even going on more than five months in the COVID-19 era, is to still work on an individual basis with residents having difficulty paying their rent.
  4. Now, for those of you on the affordable housing side: We have all heard much about the direct payments to individuals and households under the federal CARES Act. But are those payments considered income for U.S. Department of Housing & Urban Development (HUD) reporting purposes? Well, according to guidance issued by HUD, the “economic impact payments” received from the federal government are not to be included in calculations for HUD tenant income.

I look forward to the time when I can stop writing COVID-19 focused blog entries. I fear it will still be a while.

Just A Thought.

Last week, the U.S. Department of Housing & Urban Development (HUD) announced it resolved three fair housing cases from Arkansas, settling allegations that the owners and property management company discriminated against a number of residents because of their national origin. Additionally, one of the now settled claims asserted that management retaliated against an employee who wanted to inform residents of their fair housing rights under the law.

Factually, in two cases the complainants asserted they received an eviction notice (and management started eviction proceedings) against them because of their national origin (the residents were from the Marshall Islands). In the retaliation case, an employee (who lived at the property) claimed she was fired from her job and that she received an eviction notice because she informed residents that the residents were being discriminated against.

Pursuant to the agreement, the Respondents agreed to pay the now former residents at total of $51,000, revise and distribute a non-discrimination policy as well as affirmatively market housing opportunities to immigrant communities in the local Arkansas area.

With my standard admonition that there are two sides to every story (and the facts provided by HUD are sparse), I can say that in my experience HUD takes a dim view if the Department can prove an employee was terminated because he or she assisted or informed residents of their fair housing rights. The settlement amount here ($51,000) likely reflects something more than is paid in a typical case.  Additionally, the fact that the Respondents agreed to specifically market housing opportunities to reach immigrants in the local area reflects HUD’s view that remedial compliance was needed.

Just A Thought.