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.

 

As written in this space (and elsewhere) all too frequently, professional apartment owners and managers have seen a significant surge in the number of reasonable accommodation requests by residents with animals. Some of these requests are legitimate and we are happy to approve them. An increasing percentage of these requests, however, appear to be questionable at best and reflect an effort to avoid otherwise legitimate pet rent/fees. As a part of the review and evaluation process, here are some definitions that, I hope, will help leasing offices as we engage in the interactive process with our residents/applicants:

A ”service animal” is defined under the Americans with Disabilities Act (ADA) as a dog that is specifically trained to performs tasks for its owner with a disability. Think of a dog that assists someone with a vision disability cross the street. For the most part, the ADA does not apply to residential apartment communities. The exception is that the ADA does apply to the leasing office for the property.

An “assistance animal” is defined under the Fair Housing Act (FHA) and Section 504 of the Rehabilitation Act of 1973 as an animal that works, provides assistance or emotional support that alleviates one of more symptoms of a person’s disability. An “assistance animal” does not require any training. Think of a dog that soothes or comforts an individual with Post Traumatic Stress Disorder. Also, while dogs are the most common assistance animal, the law recognizes that many other types of animals can qualify – such as cats, ponies, ferrets, and/or even snakes. This list is not exhaustive and I am not making this up.

An ”emotional support animal” is a subset of assistance animals. These animals also provide emotional support to individuals with disabilities. Emotional support animals provide companionship, relieve loneliness, as well as can help with depression and anxiety. Unlike a “service animal,” an “emotional support animal” does not require any special training.

A “companion animal” is another way to describe an “emotional support animal.” The terms “companion animals” and “emotional support animals” are used interchangeably.

Accordingly, if you see what purports to be a medical verification for a “service animal” to help with anxiety or depression (or a letter that references the ADA for a companion animal), you might want to take a closer look to determine if indeed the verification is legitimate.

Also, remember that if an animal is approved as either a service animal or as an emotional support animal, that animal is permitted to accompany the resident anywhere within the community (except, for example, in the swimming pool or in the hot tub).

Just A Thought.

 

Earlier this month, the U.S. Department of Justice (DOJ) settled a Fair Housing Act (FHA) case filed in Massachusetts for $70,000 in which the Complainants asserted discrimination based on race and national origin.

As a part of its investigation, DOJ concluded that the Defendants discriminated against residents of South Asian descent in violation of the FHA. Specifically, the allegations were that, for over a five year period, ownership steered (legalese for directed) native South Asian residents to certain buildings in the 224 unit multi-family housing community. The Defendants, who DOJ noted cooperated with the inquiry, agreed to establish a settlement fund of $70,000 to compensate victims of the alleged discriminatory practices. As is typical in these cases, the Defendants also agreed to FHA training for their new employees.

In addition to the settlement fund, the Defendants also agreed to make changes in its rental practices to ensure that families with children are not similarly been steered to certain buildings and units in violation of the FHA.

The takeaway for professional apartment management? Ensure that your leasing office staff members permit qualified applicants choose from the available units at your communities. Management must not be in a situation in which it is directing (or steering) residents wish to reside. Indeed, there are times when it appears benign – a leasing specialist will think he or she is promoting safety by not permitting families with children to live in upstairs units or avoiding a busy parking lot or street. Similarly, a management office might think they are doing the right thing by placing people who are from certain countries in the same building or on the same floor. We simply cannot steer our applicants to certain buildings or units inside buildings and be in compliance with the letter and spirit of the FHA.

Just A Thought.

 

I get this question about exemptions to the Fair Housing Act (FHA) regularly, so I thought I would provide a refresher on the “Mrs. Murphy” exception to the FHA. At the outset, please know that apartment community owners, management companies, and leasing office staff members I represent are almost always covered by the FHA as well as companion state, city, or county anti housing discrimination laws. In my world, the FHA and its implementing regulations are part of the guidebook concerning how we do business. The FHA does, however, contain a few exceptions — one of the exemptions is referred to as the “Mrs. Murphy” exception.

The “Mrs. Murphy” exemption provides that if a dwelling has four or fewer rental units and the owner lives in one of those units, that home is exempt from the FHA. “Mrs. Murphy” is the hypothetical elderly widow who has converted a portion of her home into a rental apartment to supplement her limited income.

To be sure, the exemption does not apply to rental advertising. That means Mrs. Murphy cannot run a discriminatory advertisement indicating, for example, that a certain religious group is not welcome to rent her apartment or room. Also, this exemption does not apply when a real estate agent is representing the property owner as the law presumes agents are professionally trained and aware that housing discrimination is against the law.

Also, HUD takes the position that the Civil Rights Act of 1866 (yes, 1866) makes it illegal to discriminate based on race — and as such, there is no exemption from the law when dealing with race.

Should the “Mrs. Murphy’s” of the world discriminate? Of course not. But, the FHA does not apply in this limited circumstance and it can be a defense to a housing discrimination action.

Just A Thought.

 

While I always try to avoid political commentary here at the Fair Housing Defense Blog (as the reader comments can be, shall we say, colorful), I wanted to note a couple of housing related points with the Trump Administration in place now for just under six months. First, Dr. Ben Carson was confirmed by the U.S. Senate as Secretary of the Department of Housing & Urban Development (HUD) back in the Spring. While Dr. Carson admittedly did not have experience in federal housing policy, the fact that he is literally a brain surgeon (in other words, he is an exceptionally smart man) has to be a good thing.  Secretary Carson undertook a listening tour as he visited various HUD supported affordable housing communities to learn more about HUD’s mission (at one building, Secretary Carson did get stuck in an elevator, which was slightly amusing). Those of us who follow housing policy remain alert for any substantive changes that the administration proposes – whether concerning criminal background screens, disparate impact, affirmatively promoting fair housing, occupancy standards, or anything else. The answer on the policy side, at least to date, has been not much has been changed. Similarly, while it is too early to see if there are any fair housing enforcement priority changes, it feels as if the number of cases settled by HUD (at least with respect to the number of HUD press releases) is a little down. As soon as more detailed numbers get released, I will report back.

Next, while the Administration proposed a budget for HUD in fiscal 2018 which contained significant dollar reductions, those possible changes come with two important caveats: (1) Congress has the final say on HUD’s budget as the Administration’s proposal is only a recommendation; and (2) the Administration’s budget seeks $65.3 million to support HUD’s fair housing mission, the same funding level provided in the prior three years. Indeed, for those of us involved in fair housing – this is the number that remains important. At the end of the day, I suspect HUD’s budget for the next fiscal year will ultimately get included in what is known as a Continuing Resolution and that the funding levels will be close to those in place for the current year. And even if HUD’s fair housing budget gets cut, management would still need to ensure we comply with applicable state, city, and county fair housing laws. I would also expect local fair housing advocacy groups to file additional complaints/lawsuits related to information compiled by fair housing testers.

What does it all mean? Professional apartment management must continue to follow the important fair housing laws as we do each and every day.

Just A Thought.

The U.S. Department of Housing and Urban Development (HUD) recently announced that it settled another fair housing case, this one for $20,000, to resolve allegations of discrimination based on national origin and familial status. Two related complaints were filed against the community manager of a California property asserting that he made discriminatory statements about Hispanic residents and that the manager prohibited certain children from playing outside.

The case started when two Hispanic couples filed a complaint alleging that the owner and manager of their apartment complex discriminated against them in violation of the Fair Housing Act because of their national origin and because they had children. Additionally, a local California fair housing group filed a supplemental complaint claiming that the manager of the property repeatedly made comments indicating that he did not like having Hispanic residents because they did not speak English as well as accusing the Hispanic residents of bringing pests (including bed bugs and rats) to the property. The supplemental complaint also asserted that the community enforced overly restrictive rules that singled out kids and further that management terminated the lease of one of the Hispanic families after their two year old daughter was heard crying loudly when the manager walked by the family’s door.

In addition to the $20,000 settlement, the Respondents also will undergo fair housing and related sensitivity training.  While I remain mindful that there are always at least two sides to every story, allegations like this (to the extent they took place) provide all of us in the apartment management business a guide concerning a practice we absolutely must train our leasing office staff to avoid at all costs.  Or you will really need to speak with a lawyer like me.

Just A Thought.

Earlier this month, the U.S. Department of Housing and Urban Development (HUD) approved a settlement agreement concerning assistance animals and fees charged to residents. To resolve pending Fair Housing Act (FHA) disability discrimination complaints, the property owners and managers agreed to pay $20,500 to the Nevada housing advocacy group which filed the cases.

The allegations concerned claims that residents who required assistance animals were required to pay a pet deposit fee at three different properties in Nevada.  As has been noted in this space (and elsewhere) many times, as a part of a valid reasonable accommodation request for a service or emotional support animal – management must waive any charges or fees typically assessed against pets. Again, assistance animals are not pets and the charges paid by residents with pets should not be collected.

While I know there are always two (if not more) sides to every story, the takeaway for management is simple: professional apartment leasing offices must not charge pet rent or pet fees for service/companion animals. Or you will really need to speak with a lawyer like me.  While we can absolutely seek a medical verification for most companion animal requests, once that required is legitimately verified, we need to adjust our rent ledger accounting and welcome the resident (and animal) to our community.

Just A Thought.

 

A friend reached out to me to ask questions about HUD’s Smoke Free public housing initiative and for some general thoughts on smoking in apartment homes. So, here goes.

There is no “right” to smoke in a rental home. Smokers are not a protected class under the federal Fair Housing Act (FHA) or its state law counterparts. While some have tried to argue smoking is addictive and, as such, should qualify as a disability, to my knowledge no court has so ruled (and the tobacco companies have strongly objected to any such label). Accordingly, I am aware of no requirement for a reasonable accommodation or reasonable modification because of smoking under the FHA. Indeed, I believe the state of the law would be that smokers would benefit from quitting in that stopping smoking has been found to decrease depression, anxiety, and/or stress. Similarly, the federal government has not concluded that smoking is a legitimate or proven treatment for any recognized medical condition.

Apartment communities can prohibit smoking in individual units as a part of the lease or by means of a separate lease addendum. If your property decides to go smoke free, I recommend using a lease addendum at the time of each renewal in addition to using the addendum for new applicants. Yes, it will take a number of months to capture all of your residents, but if smoking is not addressed in your current lease, simply banning it in individual units during a lease term will be more difficult to defend before a judge.

With respect to affordable (government assisted) housing, the Department of Housing & Urban Development (HUD) issued a Smoke Free Public Housing Rule on November 5, 2016 (and which became effective as of February 3, 2017). Under this initiative, all public housing authorities must comply with the rules and implement smoke free policies within 18 months of the date of the rule (or not later than August 3, 2018). HUD’s rule is not mandating that people stop smoking. It does, however, make clear that public housing authorities must go smoke free by August 2018 such that smoking will not be permitted in apartment homes after that date. Make no mistake, there will be pushback and housing authorities are already working on policies to implement this initiative. Should someone lose their home for one violation? What if a guest lights up? What about someone who is disabled with a mobility impairment and has trouble leaving his or her home? What if someone just cannot or will not quit? What if someone has a medical marijuana permit? And I know there will be more questions than answers as affordable housing owners go through the implementation process.

Again, this rule is only mandatory for affordable communities. But affordable community property managers will likely want to reach out to a lawyer like me to get started on this process.

Just A Thought.

 

Occupancy standards are an issue which come up from time to time. On the one hand, a family certainly should have the right to decide the size of the apartment home they need and/or can afford.  On the other hand, management has a legitimate health and safety right to put a reasonable limit in place.  We do not want, and the law will not support, eight people living in a one bedroom unit.  The issue, of course, is where those two points intersect in 2017.

Going back as far as 1992, the U.S. Department of Housing & Urban Development issued guidance (known as the Keating Memorandum) which provided that a limit of two people per bedroom was presumptively reasonable. Since that time, however, there has been a shift away from a rigid “two people per bedroom” standard. Some states and localities have passed laws concluding that three people per bedroom is now reasonable, particularly when affordable housing is in limited supply and if rents are perceived to be high. Other localities (and the prevailing view) is that occupancy standards should be judged on a sliding scale based on the size of the apartment home. To illustrate, does the home have a den? Are the rooms large? If so, then three heartbeats per bedroom could well be reasonable. If the apartment is tiny, then perhaps two people per bedroom is appropriate.

To be sure, from a leasing office perspective, the old standard was easier to apply. As management’s lawyer, I always prefer when my employees have less discretion.

Also, here is a related issue that regularly comes up: a married couple rents a one bedroom unit. The woman gets pregnant. All good. But now there are going to be three people in the apartment. And what if it is a small home? In addition to occupancy standards, management needs to be cognizant of the protection for “familial status” in the Fair Housing Act (FHA). Management will not look good attempting to evict a family with an infant out of a one bedroom unit. The best advice is to talk with a lawyer like to ensure your property has policies in place to address these situations.

Just A Thought.