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.

 


I have used this space (and elsewhere) to discuss various issues involving service and emotional support animals for apartment community residents. Included in that, of course, is that management must make a reasonable accommodation in the event that a disabled resident requires an assistance animal – even if the property prohibits pets. Assistance animals are not pets and we do not charge a pet deposit or pet fees for service or emotional support animals. All good.

But, what about a situation where a resident is not disabled, but if a guest of a resident (someone not on the lease) wants to bring an assistance animal to your property? What are the rules? What can management seek from the guest?

Well, under our federal Fair Housing Act (FHA), management would be required to permit the guest of a resident to bring an assistance animal to your community (even if it is a “no pets” property). The FHA extends not only to residents, but also to individuals “associated” with the resident. As such, a guest of a resident is covered under the law as residents are entitled to the full enjoyment of their housing – which includes having guests visit.

Now, with respect to medical verifications, the rules are the same for residents or guests. If a guest’s disability is obvious (for example if the guest is blind and has a guide dog) we should not seek any type of supplemental medical verification. However, if the disability is not obvious (as is the case for many emotional support animals), management may seek competent medical information to demonstrate that the guest is indeed disabled and that there is a link between the animal and the disability.

Just A Thought.

When evaluating assistance animal requests from our residents, one of the issues faced by apartment leasing offices across the country is what to do if the animal is believed to be a “direct threat.” The law is absolutely clear that an animal (usually a dog) cannot be categorized as a “direct threat” unless there is evidence that the specific animal in question presents a legitimate danger to other residents, to property management employees, or to the property itself. To illustrate, we cannot simply deny an assistance animal because he or she is a particular breed, a particular size, or because of the animal’s weight.

Applying applicable standards concerning the “direct threat” analysis, last year the Vermont state Supreme Court issued an opinion, affirming the trial court below, concluding a landlord was correct in denying a reasonable accommodation request for a specific dog as the evidence demonstrated that the animal posed a direct threat. Even though the dog never attacked another resident, the evidence relied on by the court included:

*that the dog regularly reared up on her back legs, lunged, or bared her teeth at people and other dogs when outside;

*that the dog often went “crazy” [the court’s word, not mine] when other resident or dog passed the resident’s apartment home;

*that the resident informed others that the dog had been trained as a “guard dog” and was “people and dog aggressive”;

*that the resident asked another resident to walk their dogs at different times to avoid conflict with the purported assistance animal;

*that there was evidence in the record that the resident may not have been able to control the dog; and

*efforts by the resident to reduce or control the potential threat (such as limiting the time the dog was outdoors) would not sufficiently reduce the potential for aggression and/or were not appropriately raised or were thought not to be potentially successful.

While every reasonable accommodation request must be evaluated on a case by case basis, the court here provided some concrete examples of the types of behavior that it found disqualifying in an assistance animal. In my experience, even when we see an animal which may be a direct threat, management must always engage in the interactive process with the resident to determine if there are ways to control the animal. If you don’t, there is a decent chance that you might need to speak with a lawyer like me.

Just A Thought.

Acting pursuant to state law, the New York Division of Human Rights initiated a complaint against a property manager in New York City alleging discrimination against individuals based on their immigration status.

The complaint followed an investigation which revealed an agent for the landlord posted a letter addressed to “all tenants” on the front door of the property. The letter demanded that residents provide proof of employment, a photo identification, Social Security card, Green Card or passport, or would face a possible eviction from their homes. In addition to the letter on the door, the landlord made a number of public statements to various media outlets which the state officials contend demonstrate a discriminatory view toward New Yorkers of Latin American descent. Now, remember my usual caveat that just because a complaint has been filed does not mean a defendant is liable or that the charges have merit. Indeed, I always know there are (at least) two sides to every story.

Now, while “immigration status” is not specifically a protected class under the federal Fair Housing Act (FHA), it is certainly likely this complaint could have been filed pursuant to the federal statute using national origin, race, or creed – which are protected classes under the FHA.

To be clear, management has an absolute right (and indeed should) have a non-discriminatory resident selection criteria in place which requires that all applicants undergo a credit and criminal background screen. Those checks are a leasing office best practice. But we should not use credit and criminal background screens to do an immigration status check.  Or there might be a need to speak with a lawyer like me.

Just A Thought.

 

A Fair Housing Defense blog reader asked me for some guidance on the design and construction requirement for new apartment communities (and if there are exceptions to these requirements). While this is a topic that is better covered in a book (as opposed to an individual blog entry), there are some universal requirements that can be shared. Accordingly, new multifamily housing (with four or more units) built for initial occupancy after March 13, 1991 must have:

*a building entrance that is wide enough for a wheelchair accessed via a route without steps;

*accessible public and common-use areas;

*doors that allow passage by a person in a wheelchair;

*an accessible route into and through the dwelling units;

*light switches, thermostats, and other environmental controls in accessible locations;

*reinforcements in bathroom walls for later installation of grab bars; and

*kitchens and bathrooms that allow a wheelchair to maneuver about the space.

These fair housing standards apply to all units in buildings with elevators. In buildings without elevators, only the ground floor units must be accessible. It does not matter if the units are going to be sold or rented. If state or local accessibility laws are stricter than the federal standards, the builder/designer/owner must follow the state or local law. The federal regulations note that housing on certain sites may (and I emphasize may) be exempt because of the terrain or unusual characteristics of the site – such as extreme hills or mountains as well as certain waterfronts. The burden to establish impracticality is squarely on the builder/designer/owner of the property. You will absolutely want to speak with a lawyer like me before concluding that your site meets one of the exemptions to the accessibility requirements.

Hope that helps.

Just A Thought.