In a statement issued last week, the U.S. Department of Housing & Urban Development (HUD) announced that it resolved a familial status fair housing case from California for $10,000.

The complaint, initially filed with HUD by a local fair housing tester group, asserted that families with children were being denied the opportunity to rent homes and/or that families with children were being offered less favorable terms and conditions for their home rentals. Additionally, the fair housing testers claimed that the property owners/managers used a strict two persons per bedroom occupancy standard in contravention of current law at two properties. If proven, these allegations could be found to violate the Fair Housing Act.

While there was a time years ago in which a two person per bedroom rule was considered reasonable, a best practice in 2020 is to not have a rigid occupancy standard, but use one which relies on the size of each respective bedroom as well as if there is, for example, a den or family room in the unit.  Indeed, some jurisdictions have changed their law to make clear that a two plus one (or three persons per bedroom) rule is a better occupancy standard for property management to use.

To be sure, am I writing that management must accept 8 people in a two bedroom unit? Of course not. But, depending on the living space in the home, it may well be appropriate for a family of five. The point is that leasing office team members need training to work through the specifics of how many residents can/should live in a home. But strict enforcement of the old two heartbeats per bedroom guideline can increase the chances that you will need to speak with a lawyer like me.

While the owners and managers involved in this case denied wrongdoing (and I know there are always at least two sides to every story), in addition to the money, the owners also promised to withdraw their two persons per bedroom occupancy standard, change their advertising and marketing materials as well as agree they will send anyone who interacts with applicants and residents to fair housing training.

Just A Thought.

A handful of helpful reminders today in response to questions sent in by blog readers:

  1. If you are going to draft community rules and policies (indeed, a best practice in my view) please remember not to single out members of a protected class. For example, if you want to prohibit running and/or playing in your apartment community parking lot (a good safety practice), don’t write your rule such that it reads “Children are Not Permitted to Run in Our Parking Areas” – because if you do, you run the real risk of being named a Respondent in a fair housing case asserting familial status discrimination. And then really needing to speak with a lawyer like me. Write the rule to read that “Nobody is Permitted to Run in Our Parking Areas” – which addresses the issue you want to highlight while avoiding singling out members of a protected class (families with children). Use the same type of language with respect to your swimming pool – require supervision for anyone who is unable to swim. Don’t single out minors as it can be perceived as discriminatory (and might miss the mark as many kids are excellent swimmers while some adults best take a water safety course before heading into the pool).
  2. I also recommend you use the Equal Housing Opportunity logo and/or include a statement like “We follow the letter and spirit of the federal Fair Housing Act (FHA) and its state and local law counterparts. We operate our community in a manner welcoming to all who meet our non-discriminatory resident selection criteria as well as we will review, evaluate, and respond to any reasonable accommodation or reasonable modification request received on behalf of a resident or applicant with a disability” in your rules and/or advertising. We all have an obligation to follow the law and confirming our commitment to fair housing is another good practice for professional apartment management. Also, when you use pictures with people in advertising – while not every picture needs to have diverse family members or people, ensure that your campaign photos are representative of the population at large.
  3. If your community is in a county or city which, for example, prohibits Pit Bulls as pets – remember you still need to process an assistance animal application from a resident with a Pit Bull. The federal FHA trumps the local no Pit Bull ordinance and we must evaluate and respond to such a reasonable accommodation request.

Just A Thought.

Your humble Fair Housing Defense blog editor appreciated hearing from a number of you concerning the new HUD guidance addressing reasonable accommodation requests for animals under the Fair Housing Act (FHA). In response to your requests, here are a few more thoughts on the guidance:

*As of January 2020, assistance animal complaints now make up almost 60% of all FHA cases and the number of reasonable accommodation requests for assistance animals continues to increase.

*HUD is mindful that some people with pets are attempting to use the FHA to avoid pet rent and fees.

*Under the Americans With Disabilities Act (ADA), a “service animal” is any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability. Other species of animals (whether wild or domestic, trained or untrained) are not service animals.

*If the animal is not a dog, while it may not be a “service animal” under this definition, it may still be another type of assistance animal for which a reasonable accommodation is needed.

*For non-observable disabilities, a housing provider may request information regarding both the disability and the disability-need for the animal.

*While HUD lists a number of medical conditions that “in virtually all cases” are found to result in a determination that the individual is disabled, this does not mean that conditions omitted from HUD’s guidance are not disabilities. In other words, there is no “magic list” containing every possible eligible disability.

*In HUD’s experience, documentation (such as certificates, registrations, and licensing) purchased over the internet by anyone who answers certain questions and/or participates in a short interview are not “sufficient to reliably establish that an individual has a non-observable disability or disability-related need” for an assistance animal.

*Nevertheless, HUD contends that there indeed are “legitimate, licensed health care professionals” who “deliver services remotely, including over the internet.”

*If a resident or applicant seeks approval for more than one assistance animal, the person will need to show a disability-related need for each animal.

*Housing providers may not require use of a particular form for a medical verification. Nor can housing providers require that a medical verification be notarized or made under penalty of perjury.

*As a best practice, HUD suggests that a “reasonable time” to respond to a reasonable accommodation request is 10 days following receipt of the medical verification.

Hope these help. Just A Thought.

In another helpful development for the professional apartment management industry, last week the U.S. Department of Housing & Urban Development (HUD) issued a long-awaited guidance document concerning use of an animal as a reasonable accommodation under the Fair Housing Act (FHA). As your humble blog editor has written many times over the years – I try to call balls and strikes. Having more information from our regulators helps keep everyone on the same page. While the November 2019 letter from HUD Secretary Carson to the Federal Trade Commission (FTC) seeking a federal investigation into entities that sell what I refer to as “click and pay” medical verifications for emotional support animals (ESA’s) was helpful, this new guidance document provides more of HUD’s thoughts concerning the appropriate assistance animal rules of the road.

While the HUD guidance by its own terms does not have the force of law, here are some highlights:

* A “service animal” means a dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability.

* An “assistance animal” can be a dog, cat, small bird, rabbit, hamster, gerbil, other rodent, fish, turtle or other small domesticated animal that is traditionally kept in the home for pleasure rather than for commercial purposes.

*If the individual is seeking to keep a “unique” type of animal that is not typically kept in a house, the requester has what HUD describes as a “substantial burden” of demonstrating a disability-related therapeutic need for the specific type of unique animal.

* HUD makes clear that some websites (what I call “click and pay” entities) sell certificates, registrations, and licensing documents to anyone who answers a quick questionnaire or participates in a short interview and who pays a fee. Under the FHA, housing providers may request “reliable documentation” confirming the need for the animal. HUD wrote that “documentation from the internet is not, by itself, sufficient to reliably establish that an individual has a non-observable disability or disability-related need for an assistance animal.”

*HUD also notes that there are “legitimate, licensed health care professionals” who “deliver services remotely, including over the internet.”

*To that end, housing providers must seek information from a health care provider that confirms a person’s disability and need for the animal – in addition to the fact that the health care provider has personal knowledge of the individual seeking the assistance animal. HUD suggests a best practice is documentation which includes: (a) the patient’s name; (b) the nature of the professional relationship with the person seeking the accommodation; and (c) the type of animal for which the reasonable accommodation is sought. I think it would be extremely helpful to include the number of sessions (or perhaps the length of the provider/patient relationship) in an effort to help confirm the verification is legitimate.

One short takeaway: HUD suggests our industry should not reject – out of hand – each and every medical verification that comes from online care. Yes, we can reject the form letters from the “click and pay” internet sites, but we have an obligation to engage in the interactive process to determine if indeed legitimate health/medical care has been provided over the internet (not one short questionnaire or call) by a licensed provider.

I will include additional comments on the new HUD guidance next week. Just a Thought.


My post from last week concerning the proposed rules authored by U.S. Department of Transportation (DOT) attempting to make certain only legitimate service animals fly with their owners on in the air resulted in a few comments. I always appreciate hearing from readers, even if you disagree with my opinion. To make it clear, I did not write that I think emotional support animals should be cut out of the Fair Housing Act (FHA) with respect to living in an apartment. What I intended to convey is that DOT is proposing to tighten the requirements for service animals on airplanes, and I would like our friends at the U.S. Department of Housing & Urban Development (HUD) to similarly provide supplemental guidance to let the apartment management industry know what type of emotional support animal medical verifications are appropriate and which certificates/registrations bought with a credit card over the internet can safely be questioned.

Also, on a related note, do you think that the “click and pay” online emotional support animal medical verification business has shut down? Well, think again. A client/friend of the Fair Housing Defense blog sent me an article (dated January 21, 2020) from a Brooklyn paper noting at a New Yorker registered his beer (yes, beer) as an emotional support animal (to help manage his social anxiety disorder). Now, the registration does not list a particular type of beer, but the drinker reported he likes IPA’s and local Brooklyn breweries. He used one of the online sites that sells medical verifications – the same type which, from time to time, are presented to professional apartment management in support of an emotional support animal request. So, while the DOT proposed guidelines may be useful to help curb abuse on airplanes, we still have a ways to go here on the ground.

Just A Thought.

In what some think may eventually reach the professional apartment management industry, earlier today the U.S. Department of Transportation (DOT) issued a proposed rule that would allow airlines to no longer accommodate passengers who want to fly with emotional support animals (ESA’s).

The revised rules, which DOT has been working on for years, would narrow the definition of service animal to dogs that have received individualized training to work or perform tasks for a person with a disability. According to the document released earlier today, DOT’s goal is to ensure “safe and accessible” air travel. As we have seen in the apartment industry, the airlines have also watched the definition of service animal expand such that the number of animals flying around the country has significantly increased over the past few years – estimated from 481,000 in 2016 to over 750,000 in 2017.  Many of those animal are “certified” as ESA’s via medical verification letters believed to be purchased over the Internet after a less than comprehensive medical review.

Importantly, at least to me, are the following sentences in the draft DOT rule:

There have also been reports of some online entities that may, for a fee, provide individuals with pets a letter stating that the individual is a person with a mental or emotional disability and that the animal is an emotional support animal or psychiatric service animal, when in fact it is not. While the Department’s current service animal regulation permits airlines to require documentation from a licensed mental health professional for the carriage of emotional support animals, the advent of online entities that may be guaranteeing the required documentation for a fee has made it difficult for airlines to determine whether passengers traveling with animals are traveling with their pets or with legitimate emotional support animals.

The point, and I hope HUD is paying attention, is that yet another federal department (in this case the DOT) has concluded that the short, one page medical verifications we commonly see for ESA’s are not legitimate and are worth scrutinizing.

Again, apartment communities want to approve assistance animals for those disabled Americans with legitimate needs. We just want to stop the online purchase of ESA medical verifications that are bought with a credit card.  There will, I am sure, be more to come here.

Just A Thought.

 

While I regularly report on housing discrimination cases filed (or settled) by the U.S. Department of Housing & Urban Development (HUD), I would be remiss if I did not check in on the U.S. Department of Justice (DOJ). Last fall, DOJ filed a federal lawsuit alleging that owners/managers of residential housing in Hawaii violated the Fair Housing Act (FHA) by refusing to rent to families with children.

The complaint asserts that, at least since 2015, the defendants violated the FHA because they: (a) refused to rent (or to even negotiate for the rental) of three properties because of children; (b) directed prospects with children away from the properties identified in the complaint; and (c) made discouraging and/or discriminatory statement to potential residents with children who asked about housing, including statements such as the units were not “suitable” or that the housing was not the right “fit” for families with children.

The case was brought to DOJ after a local legal aid group conducted a series of fair housing tests which, DOJ claims, demonstrated discrimination against families with children in violation of the FHA. In the complaint, DOJ seeks monetary damages, a civil monetary penalty, and a court order barring future discrimination.

Now, these are just allegations in a complaint and there are always two (if not three) sides to every story. My point by highlighting this action is that, in addition to HUD (as well as state, county, and city agencies), the DOJ can (and will) act against residential property owners and management companies if they believe the facts warrant it. Always remember that litigating against the U.S. government is an expensive place to be for many private property owners. In many cases, the best play is to train leasing office staff on the law such that you will not need a lawyer like me to deal with DOJ.

Just a Thought.

My first (and favorite) Fair Housing Defense blog post of the year.  With apologies to David Letterman, here are the Top Ten read posts from 2019.  Yes, my Firm keeps count.

When I started this blog (quite a few years ago now), I thought only my family (Hi Sweetie!) and a couple of friends would read it.  Turns out, we have found a space that works for quite a few people.  For which I am exceedingly grateful.  Here is the list with links to each page (just click on the title if you are curious):

1.  An Update on Possible HUD Emotional Support Animal Guidance

2.  “Failure to Cooperate” and Internet Purchased Emotional Support Animal Fair Housing Tester Cases

3.  HUD Secretary Carson Seeks Federal Investigation Into Websites That Sell Assistance Animal Medical Verifications

4.  Are There Restrictions On Where Assistance Animals Are Permitted To Go?

5.  Want to Learn the Number of Fair Housing Complaints Filed with HUD in a year? Or the Protected Class With the Highest Percentage of Complaints? Read On.

6.  The Top Ten Fair Housing Defense Blog Posts from 2018 (As Contrasted With the Top Ten Blog Posts From All Time)

7.  Fair Housing Act Sex Discrimination Case Settles for $20,000

8.  HUD Settles Disability Discrimination Case Concerning Mold and Retaliation for $6,000

9.  HUD Proposes to Amend “Disparate Impact” Fair Housing Rule

10.  HUD Settles Disability Housing Discrimination Case For Approximately $11,000

Blog posts addressing assistance animals (including emotional support animals) continue to receive the highest number of reads.  Please know I will continue to work with HUD (as well as state, city, and county agencies) to find the best guidance for the apartment management industry.  We want to get it right and approve legitimate assistance animal reasonable accommodation requests, while at the same time preventing the fraudulent animal medical verifications purchased online from the many “click and pay” websites that exist and only require essentially a self-diagnosis and/or an online assessment.

What can make it harder is that management is limited in what we can seek from our residents.  Please understand we don’t want confidential health care or medical information.  We don’t want information covered by the privacy laws.   We just want to get documentation that is legitimate confirming the resident is disabled and that there is a link between the accommodation request (the animal) and the disability.

Look, I will follow your lead and will keep at it in 2020.  And do my best to post on the issues that matter the most to you.

Just A Thought.

Earlier this month, the U.S. Department of Justice (DOJ) filed a complaint in federal court asserting that a housing provider in Ohio violated the Fair Housing Act (FHA) by sexually harassing a number of female tenants (for more than a decade) at various rental properties in and around Toledo.  DOJ noted that this complaint is the 12th case the Department has filed asserting a pattern or practice of sexual harassment in housing since 2017.

The lawsuit alleges that from at least 2007 through 2019, the co-owner of a number of rental properties engaged in a series of acts making up the harassment as described in the complaint. Specifically, DOJ alleged the property owner/agent engaged in “severe and pervasive sexual harassment” for more than ten years. The alleged conduct included unwelcome sexual advances as well as unwanted comments and sending sexual text messages, videos, and photos to multiple female tenants. Additionally, DOJ has evidence that he offered housing concessions — such as reducing security deposits, monthly rental amounts, and waiving of late fees — in return for sex or sexual acts. Unsurprisingly, DOJ also notes that the owner attempted to punish those tenants who rejected his sexual advances by refusing to provide maintenance services or taking other adverse housing actions such as filing eviction papers. Finally, the complaint includes allegations that the owner entered the homes of female residents without their consent and that he expressed a desire for renting to single female tenants.

As I always make clear, just because a complaint has been filed does not mean the allegations are true. Indeed, as a defense lawyer, I always know there are at least two sides to every story. But the teaching moment for professional apartment management here is to ensure we include prevention of sexual harassment in our fair housing training and – importantly – that we promptly investigate allegations of misconduct. This goes for large apartment management companies with formal leasing offices as well as family owned/operated rental units covered by the FHA. It could be that a resident is simply attempting to delay an eviction by raising specious claims. Or, like here, it could result in a federal FHA complaint with DOJ on the other side. In either case, you might want to speak with a lawyer like me.

Just A Thought.

Once a year (or so), I go a bit off topic here at the Fair Housing Defense blog.  This week feels like the right time to (in no particular order):

*Say Merry Christmas (or Happy Holidays) to people you see on the street.

*Leave work a little early and take a second to hug your son or daughter.

*Go a little out of your way and do something nice for someone you don’t know.

*We all spend too much time staring down at our phones. Instead of surfing the internet or Facebook, take a minute to call your mother, father, brother, or sister to just say hello.

*And while you are at it, why not reach out to your best friend from childhood? Or perhaps your college roommate? You will be glad you did.

*Thank a member of the U.S. military for his or her current service.

*Thank a veteran for his or her past service.

*Remember a family member who has recently passed away.

*Thank a first responder.

*Thank a police officer.

*Thank a teacher.

I will get back to fair housing next week. Enjoy the holiday. Driving around the past couple of months, my car radio has been stuck more often than not on the Beatles channel (SiriusXM Channel 18). No, I don’t remember when the Beatles were together. But their music is timeless. I do agree with this sentiment: All You Need Is Love.

Just A Thought.