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.

I get questions from time to time about the status of evictions during the pandemic. In short, there are no easy answers and guidance changes monthly (or even weekly). Displacing anyone from their home is unpleasant at any time. And the pandemic makes it even worse. While I certainly understand the reasoning around stopping evictions during the pandemic, I also want to speak up at the same time for a pause in multi-family property foreclosures as the rent paid by residents goes to help pay the mortgage on the building/community.

As the COVID era continues, last week the president signed an executive order which he claimed was “stopping evictions” and/or “protecting people from evictions” but readers have asked me if that is indeed true.

From my reading, the executive order requires certain federal government agencies to review if indeed a halt on evictions is necessary and directs other government officials to study if they can spend money on rental assistance for tenants. As such, commentators (including your humble Fair Housing Defense Blog editor) suggest that the executive order signed last week does not actually cease evictions and further that it is uncertain if the administration can legally appropriate money that is not approved by Congress.

Now, remember – typically it is a state court judge who decides local eviction cases. It is likely more productive to check with each state concerning the status of eviction cases. And each individual state (or in some cases, cities and/or counties) has its own policies concerning eviction moratoriums. For example, I believe Virginia and Florida have extended eviction prohibitions until next month. New York’s eviction pause continues and it looks like the hold in Pennsylvania remains in place through the end of August.  In California, the governor permitted cities and counties to enact individual protections for renters and to extend those holds through the end of September.   Eviction pauses in other states, however, have expired and new cases are permitted to be filed.

My best advice right now is to check with a lawyer like me to determine what is permitted (or prohibited) in your local jurisdiction. And continue to work with tenants on an individual basis to address rent shortfalls, payment plans, utilities, deposits, and ways to minimize the impact of financial losses during 2020.

Just A Thought.

With the 2020 presidential election less than three months away, I had an interesting question hit my desk: can a property management company restrict residents from placing political signs on their exterior windows, doors, and/or balconies? With some exceptions (noted below), the answer looks to generally be yes. Now, of course residents have First Amendment rights and leasing offices are not trying to take those away – unless the resident has agreed to a provision in the lease (or community policies made a part of the lease) which prohibits signs of any type. Management also should avoid prohibiting signs for candidates in one political party while permitting signs for candidates in another political party.

Available law and guidance out there seems to be that while a resident may have a First Amendment right to put up a political sign (with some reasonable restrictions related to size and timing), those rights can be limited by language in a lease (or in community policies which are made a part of the lease) in which the management company restricts signs of all types/sides. For example, in this election cycle, it would be problematic for a leasing office to permit Biden signs but restrict Trump signs. I also reviewed some commentary intimating that if you attempt to restrict signs related to a particular concern (such as Black Lives Matter) you could unintentionally walk yourself into a fair housing disparate impact claim as a large percentage of a protected class might be negatively impacted by such a prohibition. Because there is always an exception, it looks like California passed a statute in around 2012 which specifically allows political signs — notwithstanding what may be in a residential lease. There are limits in the law about how big the sign can be and how long it can stay up after the election. I have not done a 50 state survey and it would make sense to have a lawyer like me check the law in your specific jurisdiction.

Accordingly, If you wish to avoid getting in the middle of elections or political causes at your multi-family property (and to be clear, there is no requirement for you to do so), a best practice could be to include a provision in your lease prohibiting all signs (and having all residents agree to that policy at move in or at lease renewal time), courts will generally enforce it. It is less clear if there is no restriction in the lease.

Just A Thought.

 

Here is a fact pattern professional apartment management should work to avoid. An applicant signs a lease for an apartment home. Rent is due on the first of the month. As is typical in many residential leases, late fees are due if the rent is not paid after a few days. The resident is disabled and receives a disability check later in the month (but the check indeed comes each month). He asks the leasing office for a reasonable accommodation – specifically to change the date his rent is due to match when his monthly disability check arrives. The request was made orally. For a few years, there is no problem. The apartment is then sold and new management takes over. New management starts assessing late fees. After quite a bit of back and forth, including the late charges, the new management company moves to evict the resident.

I did not make up the above fact pattern. This is taken from a formal charge of discrimination filed by the U.S. Department of Housing & Urban Development (HUD) against a Georgia property owner/manager earlier this week. Now, I know there are always at least two sides to every story and I make no judgment on the facts here. I just want to note that if you have a resident with a disability and he/she receives a regular monthly disability check (even if the check arrives later in the month), if the resident seeks a reasonable accommodation to change the due date of his/her rent owing to the date the disability-related check is received, you might want to reach out to a lawyer like me before denying that request. I suspect management will defend this case by arguing that this reflects a financial accommodation (not necessarily required under the law) as opposed to a reasonable accommodation related to the disability (which is likely required under the law).

I get that the accounting is not clean and a rent ledger can look askew with rent paid, for example, on the 10th of every month. But, in the circumstance of a disabled resident receiving a monthly disability check used to pay rent, moving his/her due date in response to a reasonable accommodation request can potentially avoid exposure such as faced here by this property owner.

Just A Thought.

Catching up with some Fair Housing Defense reader email this week. With the caveat that this blog entry does not constitute legal advice, here we go:

  1. Am I part of the problem? Sure hope not. A reader indicated that because I defend those accused of housing discrimination (and specifically that I have previously written I will defend a case until I obtain a No Probable Cause Dismissal in certain circumstances), I am part of the problem because he has a legitimate discrimination action and nowhere to turn for representation. Let me be clear about a couple of points: (a) I have broad shoulders and have no issue with criticism; (b) my line about defending cases until the end was in reference to a plaintiff who seeks lottery-sized winnings on a meritless claim; (c) my experience teaches that fair housing cases are both under filed and over filed – by that I mean many cases which have merit never get brought but a corresponding number of cases without merit are filed. I have not done a study to determine which side of that scale weighs more; (d) yes, I only defend cases – I have taken this positional conflict because I don’t want my clients to feel that arguments and positons I take in one case I oppose in another case. It is not a true legal conflict, just a positional determination that I have chosen to make. There are many local legal aid and fair housing advocacy groups available across the country to assist residents with enforcing their fair housing rights. Indeed, tenants can also go directly to HUD as well as state, city, or county agencies to file a complaint without need of counsel.  I’m here for the other side.
  2. Can a private apartment owner/landlord be considered a “state actor” for purposes of a federal civil rights claim? The statute, 42 U.S.C. § 1983, allows people to sue when someone acting “under color of” state or local law has deprived him or her of rights created by the U.S. Constitution or federal statutes. In our housing discrimination world, a private multi-family apartment owner/landlord is typically not considered a state actor (including even a landlord who participates in government-assisted housing programs) and cannot be sued under § 1983. There are a number of cases on this point.
  3. Can management require a resident to recertify an assistance animal at lease renewal time? This is a hot button issue. If a disability is obvious, the answer is a clear no. For example, if a resident with a sight disability uses a guide dog, we would not seek to recertify the disability and/or need for the animal. If the disability is not obvious, the answer is murkier. I have a federal court decision noting that for certain emotional support animals addressing disabilities which may not be permanent, recertification at, for example, lease renewal time, is in and of itself is not improper. However, many HUD officials take a contrary view – in that once management has approved an assistance animal, there is no need to ever take a second look. HUD has issued various assistance animal guidance over the past few years, but none has specifically addressed this point. I’ve defended a handful of these cases – but none have gotten to the point of a formal determination/opinion. At least not yet.

Just A Thought.