A case with difficult facts from Florida involving the Fair Housing Act (FHA) as well as other civil rights laws made the news earlier this week. An immigrant from India (who is Muslim) entered into an agreement to buy a home in an upscale island neighborhood near downtown Tampa. When the purchasers came to the house to do a final inspection and some cleaning, a neighbor walked toward the house and started yelling. The neighbor allegedly said things like “This sale will not take place!” and “You are not welcome here!” and “I will break all of your f-ing windows and I will burn you f-ing house down!” The neighbor also made insulting comments about Muslims.

The neighbor was just sentenced for violating the FHA and related civil rights statutes which protect threating or interfering with another person’s housing opportunities because of their race or religion. A part of the resolution includes a $30,000 restitution payment to cover the deposit the family lost when they canceled the closing on the house. In addition to the criminal matter, the neighbor is also facing a civil suit for violating the FHA and related anti-discrimination laws.

I know the facts here were extreme. No professional apartment management team would think of using this type of language when dealing with potential purchasers or renters of housing. But this case is a simple reminder that emotional outbursts can cause significant distress as we engage in our housing operations.

Just A Thought.

 

 

Last month the U.S. Department of Housing & Urban Development (HUD) approved a settlement agreement concluding an assistance animal Fair Housing Act (FHA) discrimination case from Nevada. An applicant submitted a reasonable accommodation request (that was appropriately medically verified, according to HUD) to keep an assistance animal due to her disability. As reported in the complaint, the leasing agent told the applicant that the owner did not allow pets because the floors had recently been upgraded to hardwood. After being told animals were not allowed, the applicant did not further attempt to lease the unit.

As reported here many times, however, professional apartment management typically must waive “no pet” rules when residents and/or applicants make reasonable accommodation requests that are appropriately medically verified. While there are always two sides to every story, my suggestion is to train your leasing office employees so nobody can ever credibly claim that you forbid service or emotional support animals because of hardwood floors. Always ensure your team knows the difference between a pet and an assistance animal. Or you may need to speak with a lawyer like me.

The terms of the settlement involved a $6,000 payment to the applicant, a requirement for fair housing training, as well as the adoption of reasonable accommodation policies to ensure any future requests are appropriately (and timely) responded to.

Just A Thought.

In a case filed last week, the U.S. Department of Housing & Urban Development (HUD) formally charged property owners in Syracuse, New York with violating the Fair Housing Act (FHA) asserting that the  owners failed to accommodate a disabled resident with an assistance animal at a community that otherwise has a “no pets” policy. While management is absolutely within its rights to declare a property pet free, leasing offices have to be able to review and evaluate reasonable accommodation requests from residents/applicants with disabilities seeking, for example, an assistance animal.

In this case, HUD asserts that the resident submitted a letter from her physician describing how the resident has a disability and how the animal alleviates anxiety and assists in preventing panic attacks. When the leasing office was reached to further discuss the request, the resident’s representative (a local fair housing group) was allegedly told that if the resident provided a $600 security deposit and insurance coverage (in the range of between $500,000 and $1 million), management would consider the accommodation request. When the resident brought the dog back to the property, she was served with an eviction notice asserting the animal was a pet and was being kept in violation of the “no pets” policy. The local court stayed the eviction action pending resolution of the HUD complaint.

As always, there are two sides to every story and just because something is in a complaint does not make it true. However, I would urge you to train your leasing office staff members to never say anything like “I know you are playing the disability game. We’re not playing it” as is claimed here. Also, do not attempt to charge a pet deposit for an assistance animal. And do not require special insurance for an assistance animal. These are hot button items and will raise red flags with HUD.

To be sure, management can and should review all medical verifications to do our best to determine that the document was not simply purchased over the internet by answering a few simple questions and using a credit card. Yes, some residents are indeed attempting to “play the disability game.”  But there are ways to engage in the interactive process that should be considered.  If you have what you believe are legitimate concerns, perhaps you should reach out to a lawyer like me to review your options before winding up as a defendant in an FHA discrimination matter.

Just A Thought.

I wanted to pass along a couple of federal fair housing policy notes. Over the past two weeks, the Trump Administration has publically indicated a desire to change two points of federal housing law:

  1. On May 10, 2018, the U.S. Department of Housing and Urban Development (“HUD”) issued a press release stating that it would seek public comment on the 2013 “disparate impact” regulation put in place by the Obama Administration. The “disparate impact” regulation was an attempt to codify a way to establish legal liability in a housing discrimination case. “Disparate impact” — defined as a facially neutral policy which has a discriminatory effect on a protected class — has been used in housing discrimination cases for many years, although the words “disparate impact” are not contained in the Fair Housing Act. On the third try, the U.S. Supreme Court, in a 5-4 decision, seemingly upheld (but arguably tightened) the use of the “disparate impact” theory in fair housing cases. That HUD seeks public comment on its regulation, I suspect, means the department is looking to alter or withdraw the rule.
  2. Next, on May 18, 2018, HUD Secretary Ben Carson moved to change another Obama-era housing policy. In 2015, HUD required more than 1,200 communities receiving federal housing money to use a new computer model to assess local segregation patterns and to develop a plan to address any apparent discrimination. Communities which failed to follow the model were put on notice that they were at risk of losing federal funds. In withdrawing the computer model, Secretary Carson stated the tool was “confusing, difficult to use, and frequently produced unacceptable assessments.” With the model withdrawn, HUD has directed communities to return to what they should have been doing – self-certifying that they have analyzed impediments to fair housing and, if needed, to prepare a plan to address any deficiencies. As a prelude to HUD’s action, a group of fair housing agencies sued the department over its suspension of the computer model.

A change in administrations typically produces policy modifications over time, particularly when the political party in power switches. Which is, of course, what happened in January 2017. There will be more to come in the coming weeks and months on these housing policy issues. I will continue to report back.

Just A Thought.

 

A couple of assistance animal related questions have hit my desk recently.  At properties which have pools, can assistance animals accompany residents into the pool area? How about into the pool? No, I am not making that question up.

While every situation requires independent analysis, the general rule is that an assistance animal is permitted on the pool deck (provided the animal is secured) but is not permitted in the pool. Animals are not permitted in the water for legitimate local public health reasons.

A related question had to do with properties that have a café or otherwise serve food. Can assistance animals accompany residents into the food service area? While I have not seen a case on point, I am aware of HUD guidance noting that animals which pose a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation may not have to be granted. In this example, I would argue allowing animals into common areas specifically designated for food preparation and consumption escalates the risk of illness or other reasonable health concerns.

This conclusion is supported by two—somewhat more common—analogies. First, while the Americans with Disabilities Act (“ADA”) specifically requires restaurants to permit service animals to accompany customers in a restaurant, it does not require the proprietor to allow an emotional support animal in. This distinction between service animals (who are trained to assist their owners with major life activities) and emotional support animals (untrained animals that assist with emotional/mental disabilities) has been recognized as severe enough as to allow the former near food and food preparation, while not the latter. As such, because these types of situations are considered on a case-by-case basis, unless a specific resident could demonstrate that their need for an emotional support animal in a dining area reasonably outweighed legitimate health concerns, the same rule would likely apply under the FHA.

In sum, while I cannot rule out the risk of a complaint that a resident may claim he or she is being discriminated against because their emotional support animal (as contrasted with their service animal) is not permitted in a food service common area, I think we could argue that such an animal near any food preparation or food service area is unsanitary and will militate in management’s favor under the health and safety exception.

Hope that helps.

Just A Thought.

Last month, the U.S. Department of Justice (DOJ) announced it settled a federal discrimination lawsuit filed against the owner, builder, and designer of a three building dormitory-style property near Central Washington University in Ellensburg, Washington. The resolution concludes allegations that the defendants failed to design and construct the buildings in such a manner as to make them usable by individuals with disabilities as mandated by the accessibility requirements contained in our Fair Housing Act (FHA).

As noted here (and elsewhere), the FHA requires that multifamily housing constructed after March 1991 have basic features to help ensure that individuals with disabilities can enjoy the full benefits of their housing. In the complaint, DOJ asserted that the defendants designed and built the units with “various barriers inhibiting access to the 12 ground floor units and the associated public and common-use areas at the property.” In this case, it was alleged that the barriers included: inaccessible building entrances, inaccessible routes, inaccessible parking as well as problems with bathrooms, closets, doors, and electrical outlets that combined to make the property inaccessible to individuals with disabilities.

The case began with a HUD administrative complaint after an inspection done by a local fair housing advocacy group. Following the agency investigation, HUD issued a charge of discrimination and referred the case to DOJ.

As a part of the settlement, the defendants will: (1) retrofit property to make the 12 ground floor units and common areas accessible; (2) pay $10,000 to the local fair housing group; (3) train new employees on the FHA; and (4) adopt a nondiscrimination policy.

New multifamily housing construction is great. For designers, builders, owners, property management professionals and future residents. The FHA has several safe harbors that simply must be followed by those building new multifamily housing. If you believe your property exempt from the law, I would suggest you speak with a lawyer like me to determine if your project might fit into an exemption. Otherwise, you may have to do an expensive retrofit and pay damages at some unspecified future date if your housing is determined to be inaccessible to those with disabilities.

Just A Thought.

Earlier today, Ben Carson, the Secretary of the U.S. Department of Housing and Urban Development (HUD), put forward a plan that could significantly change the amounts paid by Americans who live in public housing. The proposal, discussed at a congressional hearing and in a HUD statement, is an effort by the Trump Administration to overhaul how housing subsidies are calculated for the estimated 4.5 million families who rely on federal housing assistance.

Currently, residents on federal public assistance generally pay 30 percent of their adjusted income toward rent — which is capped at $50 a month for the poorest families. Secretary Carson’s initiative sets the family monthly rent contribution at 35 percent of gross income, or 35 percent of their earnings working 15 hours a week at the federal minimum wage. If the bill passes, the cap for the poorest families would rise to about $150 a month. HUD estimates that about 700,000 families should expect to see their monthly rents increase to $150.

The administration stated its view that doing nothing is not an option as the current system is “confusing” and “convoluted” such that changes are necessary to help stop people from “working the system.” Secretary Carson hopes this plan will “encourage work and self-sufficiency” as the current rules “hold back the very people we’re supposed to be helping.” Now, HUD’s statement also noted that the proposed changes will not apply to individuals with disabilities or to the elderly.

Housing advocates have already signaled their opposition to this new legislation, calling it unnecessary and will have a negative impact on those who have the lowest incomes and are faced with a shortage of affordable housing.  While it is obviously too early to know how the initiative will be received in Congress, your humble Fair Housing Defense Blog editor will follow the issue and report back as appropriate.

Just A Thought.

Earlier this month, the U.S. Department of Housing & Urban Development (HUD) announced that it charged the owner and manager of a trailer park in Mississippi (with seven lots on 1.25 acres of land, each with water and utility hook ups) with violating the federal Fair Housing Act (FHA) by failing to rent a lot to an interracial married couple with two children (ages seven and five). HUD’s complaint asserts that after the property manager discovered that the husband is African American, the manager stated the entire family had to immediately relocate from the trailer park.

The case started with the filing of an administrative HUD complaint alleging that the trailer park discriminated against the family on the basis of race. The wife is Hispanic and, as noted above, the husband is African American. HUD claims that the wife was rented a lot as it was believed that the wife was Caucasian. However, literally a day after the family moved it, the defendants discovered the race of the husband and they demanded that the family move and take their trailer out of the park. HUD’s complaint further alleges that during a phone call the manager said “white and black shacking” was “problematic for his community, his church, and his mother in law.” The owner also allegedly said to the wife that “you did not tell me you were married to a black man.” Although the wife asked him to reconsider and informed him the couple was married and not “shacking”, HUD claims the owner refused and returned the first month’s rent. The family then moved out of the park. A reporter subsequently telephoned the owner and was told that neighbors did not approve of an interracial family. The HUD complaint followed.

While I always caution that these are just allegations at this point and there are two sides to every story, professional apartment management employees should be trained to avoid anyone being able to assert that a staff member would say anything like what is alleged in this complaint.  Or you will really need to speak with a lawyer like me.

Just A Thought.

I have been watching a curious trend. As written in this space (and elsewhere), many apartment residents and applicants submit requests for reasonable accommodations (changes in rules or a polies) or reasonable modifications (physical or structural changes to an apartment home). Which is fine and absolutely appropriate. I train my leasing office staff members to review, evaluate, and respond to each request. A best practice, of course, is to respond in writing so we can document the interaction.

However, a prerequisite to being granted a reasonable accommodation or reasonable modification is that the resident be disabled. Federal law defines a person with a disability as “[a]ny person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such an impairment.” As a general rule, a physical or mental impairment includes hearing, mobility impairments, visual impairments, chronic mental illness, AIDS, AIDS Related Complex, and mental retardation that substantially limits one or more “major life activities”.  Major life activities typically include walking, talking, hearing, seeing, breathing, learning, performing manual tasks, and caring for oneself.

I am seeing more requests from residents seeking accommodations or modifications but who do not assert (and/or do not have their health care provider appropriately verify) that the resident is disabled. When those requests cross my desk, I advise that an interim response be sent back to the resident explaining that while management cannot grant the request based on the materials submitted at this time, we will absolutely review any supplemental materials the resident wishes to provide. Many times this will end the matter if the resident is seeking something he or she is not really entitled to. On the other hand, if the request is legitimate, then we will receive a revised medical verification and many times my team can indeed approve the request. And in the event of a disagreement and subsequent discrimination complaint, we will have appropriately documented the file as to why the request could not be approved as originally submitted.

Just A Thought.

If you are an apartment management professional, it is good practice to presume your community is covered under our federal Fair Housing Act (FHA) as well as its state (and/or city or county counterpart). Indeed, under the federal law “dwelling” is defined as “any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof.”

That is quite a bit of legalese.

What does that mean in English? The term “dwelling” has been broadly interpreted to cover:  Apartment communities, nursing homes, group homes, seasonal facilities, residential facilities, mobile homes, trailer parks, and condominiums.

What are types of housing not covered under the FHA?

Buildings with four or less units (where the landlord occupies one of the units);

Single family housing sold or rented without a real estate agent;

Hotels and motels (which are, however, considered places of public accommodation under the Americans with Disabilities Act); and

Private clubs.

Again, if you are in the property management business, it is best to do your work as if you are covered under the FHA. If you think your property is exempt, I would suggest you reach out to a lawyer to double check. Or you could really need a lawyer like me to help defend against a discrimination complaint.

Just A Thought.