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.

It is clear that just about all (if not all) of the federal, state, and local fair housing agencies are dealing with the exponential growth of online medical verifications for emotional support animals (ESA’s). I have addressed any number of ESA issues in this space. Professional apartment management companies continue to look for the appropriate sweet spot of ensuring that everyone with a legitimate disability is granted the accommodation they need, while at the same time raising appropriate questions about medical verifications that appear to have been purchased online after a few clicks of a computer mouse (or now just on a smart phone) and a $69.99 charge on a credit card (or perhaps $125 if you need the letter overnight).

Many of my clients now seek supplemental information whey they receive what appear to be the online ESA form letters. I have a drawer full of the same letter, signed by some of the same online providers. In return, I get nasty grams from the online providers concluding my clients are violating the fair housing laws because they did not simply accept their verification as presented. I don’t mind taking the heat, but it is always good when a governmental entity blesses our efforts to confirm that medical verifications are legitimate.

To that end, the Virginia Real Estate Board and Fair Housing Board issued a Guidance Document evaluating Reasonable Accommodation Requests for Assistance Animals. Addressing the reliable medical verification concern, the guidance provides that professional apartment management “should not be daunted by the prospect of potential litigation into accepting dubious verifications limited to vague statements of how an assistance animal would benefit the requester, but rather should insist on supplemental credible confirmation of [an] underlying disability. As with any other reasonable accommodation request, housing providers are absolutely within their rights to focus first on establishing the legitimacy of the requesting party’s disability status as defined by fair housing law.” That is all we want.

The Guidance further confirms that housing providers “may request that verifiers authenticate all or some of the following information to help evaluate their reliability and knowledge of the requester’s disability.” As such, I continue to believe we are well within our rights to continue to seek information concerning the:

*General location of where the care was provided as well as the duration of the care (such as the number of in-person sessions within the preceding year);

*Whether the verifier is accountable to or subject to any regulatory body or professional entity for acts of misconduct;

*Whether the verifier is trained in any field or specialty related to persons with disabilities or the particular impairment cited; and/or

*Whether the verifier is recognized by consumers, peers, or the public as a credible provider of therapeutic care.

Will guidance like this stop the highly questionable ESA medical verifications? No. But let’s hope our efforts to seek supplemental information when something looks like it has been purchased online continue to be validated.

Just A Thought.

 

Last fall, the California Department of Fair Employment and Housing (DFEH) resolved a familial status fair housing case that I wanted to highlight. Familial status, of course, is the protected class which covers families with children under the various federal, state, and local fair housing laws. This discrimination complaint asserted that an apartment management company rejected a California family of 12 a chance to rent a 2,583 square foot home because the family had “too many kids.”

Defending against the claim, the management company noted it followed the “two plus one” occupancy standard – which means two persons per bedroom, plus one additional person in the home. Based on the facts here (a family of twelve), that would appear to require at least a four (if not a five or a six bedroom home). The DFEH typically follows the federal guidelines for home occupancy. While the U.S. Department of Housing & Urban Development (HUD) issued guidance back in 1992 confirming that two persons per bedroom would generally be considered reasonable, the guidelines since then have changed. While some states formally adopted a “two plus one” standard, the modern rule is simply that enforcement of occupancy standards depends on what is reasonable for the specific home at issue – which further depends on the size and configuration of the unit (including the number of bedrooms, the size of the bedrooms, the total living space, if there are any physical limitations in the home, the ages of the children, and other relevant factors).

As a part of the settlement, the management company agreed to revise its policies, commit to annual fair housing training as well as submit to quarterly inspections. Curiously, the press release noting the resolution did not include a financial component. Obviously, it is a rare application which comes from a family of 12.  And not many rental units can fit a family of 12.  But I suspect that was part of the reason the DFEH took the case.

The takeaway here: do not out of hand reject an application for housing because it looks like there may be “too many kids” or simply conclude that your company follows the old 1992 HUD guidance. Management companies need to perform a review to determine what is a reasonable number of occupants given the size of the home (use the total living space) – and not just the raw number of bedrooms. Or you may need to speak with a lawyer like me.

Just A Thought.


As professional apartment management employees and property owners, we need to remember that governmental agencies (such as the U.S. Department of Housing and Urban Development as well as state, city, and/or county anti-discrimination agencies) look for cases with what they view as “good facts” to bring. Our friends at the California Department of Fair Employment and Housing (DFEH) found one of those cases last year when an apartment landlord refused to rent to a family because the husband is serving in the military (he is a United States Marine) and if his unit gets deployed overseas, the family will need to break its lease.

The apartment owner met with the wife and expressed no hesitation about renting a unit to this family until the wife informed him that her husband is in the Marine Corps. Once the landlord learned about the military service, he allegedly would not provide the family with an application nor would he rent them a unit. The family filed a complaint under a California state law which prohibits businesses from discriminating against someone on the basis of occupation or any other arbitrary basis and pursuant to the California fair housing act (which includes source of income as a protected class).  While I know there are always at least two sides to every story, the optics here are not good for management.

To resolve the case, the landlord agreed to pay $4,500 and attend fair housing training.

It should go without saying that we welcome those who serve our country into our apartment communities. If a soldier is deployed overseas during a lease term, I would suggest working with the family to find an appropriate result if they reach out to you with a request. Indeed, there are times when members of the military are specifically permitted to break their residential leases.

Just A Thought.