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.

Each year it seems that a growing number of states approve the use of medical marijuana (and/or loosen restrictions on the use of marijuana more generally). To that end, professional apartment management will likely receive (if you have not already) a reasonable accommodation request seeking to smoke marijuana at your property. What if your property is smoke free? What if you are concerned about the use of marijuana around children or others who find marijuana smoke offensive? How do you balance the rights of all? Here are some thoughts:

Despite changes in many state and local laws, the federal Controlled Substance Act (“CSA”) continues to categorize marijuana as a Schedule 1 substance. As such, the manufacture, distribution, or possession of marijuana remains a federal criminal offense. Furthermore, the U.S. Department of Housing and Urban Development (“HUD”) has distributed a memorandum which provides that the use of marijuana for medical purposes violates federal law and that federal and state anti-discrimination laws do not require leasing offices to accommodate requests by current or prospective residents with disabilities to use medical marijuana. Specifically, HUD concluded that management may prohibit the use of medical marijuana as a reasonable accommodation because: (a) persons who are currently using illegal drugs (which include medical marijuana) are disqualified from protection under the definition of disability in the law; and (b) such a proposed accommodation is not reasonable under the FHA because it would constitute a fundamental alteration in the nature of the property’s operation.

In addition to the HUD guidance, a federal district court in Michigan faced with a resident’s request for medical marijuana as a reasonable accommodation because of a disability, concluded that as marijuana is still classified as a controlled substance under federal law, the resident was not entitled to a reasonable accommodation for medical marijuana use under the FHA. In so ruling, the judge reasoned that residents seeking accommodations for medical marijuana are categorically disqualified from relief pursuant to the FHA, Section 504 of the Rehabilitation Act of 1973 and/or the Americans with Disabilities Act as the requested accommodation is not reasonable and would constitute a fundamental alteration in the nature of the housing operation.

While every circumstance can be different, the current state of the law does not require approval of medical marijuana as a reasonable accommodation for a disability.

As always, if you have specific questions about how to apply the laws concerning marijuana at your community, I would suggest you reach out to a lawyer like me.

Just A Thought.

Earlier this week, the U.S. Department of Housing and Urban Development (HUD) sent out a press release noting that it awarded over $37 million (yes, $37 million) to combat housing discrimination under its Fair Housing Initiatives Program (FHIP). Add it all up and this money will support more than 150 national and local fair housing organizations, each with a mission (at least in part) to catch professional apartment management violating the federal Fair Housing Act (FHA) or its state, city, and/or local counterparts.

What do these local fair housing groups do with $37 million in taxpayer money? These grants permit fair housing enforcement via testers (individuals hired to compare and contrast how various protected classes are treated when inquiring about housing opportunities), investigations, and ultimately by the filing of discrimination complaints. To be fair, this money also provides for fair housing training and public education on housing matters.

Broken down by category, the HUD grants include: $30 million in Private Enforcement Initiative (PEI) grants; $7.45 million in Education and Outreach Initiative (EOI) grants; and $500,000 in Fair Housing Organizations Initiative (FHOI) money. The PEI funds are used by HUD partners who conduct intake, testing, investigation, and litigation of fair housing complaints. The EOI money is provided to organizations that educate the public about fair housing while the FHOI dollars look to help improve the effectiveness of non-profit fair housing organizations that focus on assisting the needs of underserved groups.

What does this mean for the housing industry? Follow the FHA and the state/city/county laws where your property is located. Ignorance of the law is no excuse. This includes training your leasing office staff. As well as your service team members. Checking your advertising. Reviewing your written materials. Keeping good service records. Evaluating your criminal background screening criteria. Your credit checks. And your waitlists. Your response to reasonable accommodation requests. Your response to reasonable modification requests. There is certainly more, but you see my point.

Can professional apartment management get it right? Absolutely. I see it all the time. But know that my docket is filled with complaints filed by these fair housing advocates, literally from California to Texas to Florida and just about everywhere in between.

Just A Thought.

 

Many times the cases with what look like the most egregious set of facts are the ones that get the most publicity. To that end, a fair housing case in California just settled with the owner of several apartment complexes and rental homes agreeing to pay $100,000 to conclude a disability discrimination action involving emotional support animals.

The complaint (which started as an administrative action with HUD filed by a local fair housing advocacy group) asserted that the apartment owner sent a letter to his residents stating he did “not like to deal with pets of any kind.” The letter contained no exceptions for assistance animals. Next, the defendant sent letters to the residents asserting that a flea problem existed and his solution was to ensure all pets were gone.  Or that the residents had to send letters from a veterinarian certifying that their animals did not have fleas. He then sent eviction notices to a handful of residents with pets and ultimately evicted two residents with emotional support animals.

In addition to the $100,000, the defendant agreed to participate in fair housing training, adopt policies for reviewing reasonable accommodation requests, and provide three years of semi-annual reports to the California Department of Fair Employment and Housing detailing reasonable accommodation requests and the resolution of the requests. The money includes damages to the former residents as well as investigatory costs and attorney’s fees.

The takeaway: Yes, you can prohibit pets at your apartment community. No, you cannot prohibit appropriately medically verified service and/or emotional support animals. If you are uncertain over this provision in the law, I suggest you reach out to a lawyer like me for some fair housing training.

Just A Thought.

 

 

Joining a handful of other states, New York recently enacted a state law making it a criminal offense to misrepresent that someone has a service or emotional support animal. The new statute, effective December 18, 2017, makes it unlawful for any person to knowingly misidentify a dog as a guide, service, therapy, or hearing dog. Violation of the law could result in a fine of up to $100 and up to 15 days in jail.

As permitted by our federal Fair Housing Act and various state, city, and/or county laws, some residents use service and/or emotional support animals (typically, but not always dogs) to help them in performing important tasks or to otherwise assist with receiving the full benefit of their apartment home. Assistance animals play an increasingly important role in our society and can be critical support for some residents.  Service or emotional support animals (which, of course, are not pets) do not pay otherwise due pet fees and pet deposits.

The New York law was passed to help address the concerns that a minority of individuals are taking advantage of these important laws and abusing their protections. New York is attempting to deter individuals from engaging in assistance animal fraud.

As written in this space, almost all professional apartment management companies do it right and welcome assistance animals at our properties. What we have seen, however, is an unfortunate spike in the number of applicants and residents who go online and purchase an emotional support animal verification over the internet with a few clicks and a credit card. New York has now joined a few states in working to prevent abuse of an important law which assists those Americans with legitimate disabilities and who rely on  animals every day.

A good practice is to work with your residents and applicants in preparing their reasonable accommodation request in an effort to ensure that all medical verifications are valid and were not purchased over the internet. This will help us get the request approved faster.

Just A Thought.

 

My favorite Fair Housing Defense blog post is always the first entry of each new year.  That is because I ask my Firm to compile a list of the most read entries from the previous year.  To that end, here we go with the Top Ten 2017 Fair Housing Defense posts (you can click on each link if you want to take a closer look):

#1: HUD Files New Emotional Support Animal Fair Housing Disability Discrimination Case (February 10, 2017) 

#2: Occupancy Standards and Fair Housing: A Short Summary (June 9, 2017)

#3: What’s the Difference Between a “Service Animal,” an “Assistance Animal,” and an “Emotional Support Animal”? (July 30, 2017)

#4: Do Emotional Support Animal Medical Verifications Last Forever? (May 5, 2017)

#5: U.S. District Court Issues Important Emotional Support Animal Medical Verification Opinion (October 24, 2017)

#6: Issues With Online Emotional Support Animals Medical Verifications (August 18, 2017)

#7: DOJ Settles Sexual Harassment Fair Housing Act Lawsuit for $600,000 (August 3, 2017)

#8: Some Further Thoughts on Medical Verifications for Emotional Support Animals (May 26, 2017)

#9: HUD Resolves Fair Housing Case Against the State of Maryland for $225,000 (October 13, 2017)

#10: HUD Files New Familial Status Fair Housing Case (February 3, 2017)

As always, I very much appreciate each of you taking the time to take a look at this blog.  I try to address topics that have the most interest to my readers.  If there is something related to apartment management and/or fair housing that you would like me to comment on, feel free to send me a comment and I will be happy to try to address your issue in a future entry.

Just A Thought.

 

 

 

 

Continuing down a path that has been highlighted in the news lately, last week the U.S. Department of Justice (DOJ) filed a lawsuit in U.S. District Court in Kansas alleging sexual discrimination under the Fair Housing Act (FHA). In the new complaint, DOJ asserted that female residents at a handful of rental properties in Kansas were subjected to egregious sexual harassment and retaliation.  DOJ’s complaint named four defendants (as the properties were owned by one or more of the individuals) where the illegal conduct allegedly took place from 2010 through 2014.

This litigation started when two former residents filed administrative complaints with the U.S. Department of Housing & Urban Development (HUD). The residents asserted that one of the defendants sexually harassed them by making unwelcome advances and comments, engaging in unwanted sexual touching, and evicting residents who refused to engage in sexual conduct with him.

While the complaint still needs to be proven in court (and there are always two sides to every story), the allegations remind us that DOJ and HUD remain willing to bring actions in which this type of conduct is alleged. As apartment management professionals, we need to ensure our staff members (from ownership on down) are trained to follow the FHA, which includes a component on preventing sexual misconduct. Indeed, in October 2017, DOJ announced a new Sex Harassment Initiative. The initiative specifically seeks to increase DOJ’s efforts to protect individuals from harassment by landlords, property managers, maintenance workers, security guards, and other employees and representatives of rental property owners.  DOJ also noted that it has filed or settled six sexual harassment cases since January 20, 2017, and has recovered over $1 million for victims of sexual harassment in housing.

What does this mean for property management professionals? Ensure your team members (from ownership on down) are trained to identify and prevent sexual misconduct. Don’t be the next management company or ownership group named as a defendant by DOJ or HUD following possibly inappropriate conduct by staff members.

Just A Thought.

 

Last week, the U.S. Department of Housing & Urban Development (HUD) announced that it settled a fair housing case alleging disability discrimination involving a live-in aid. Specifically, HUD reached an agreement with the owner and manager of a townhome community in California.

The settlement concludes a case filed by a resident with a mobility impairment asserting that she sought two reasonable accommodations: (1) a live-in aide; and (2) a key to a locked gate near her unit that would make it easier for her to come and go. The complaint alleged that with respect to both requests, the owner and manager asked inappropriate questions about her condition, challenged whether she really had a disability, and stated that the community was only for individuals who could live independently. After asking the intrusive questions, management denied the reasonable accommodation requests. The resident was then assisted by a fair housing advocacy group which filed a second complaint asserting discrimination.

Pursuant to the terms of the agreement, the owner and property manager will pay $4,000 to the resident and $7,000 to the fair housing group. The settlement further mandates the property owner keep the gate near the resident’s unit unlocked or provide her with a key, allows the resident to have a live-in caregiver, and requires management to participate in fair housing training.

The takeaway here is to ensure our leasing office team members know the law concerning what we can (and importantly what we cannot) ask when a resident submits a reasonable accommodation or reasonable modification request. I work with my clients to develop the appropriate forms to help prevent these types of cases from ever being filed. And if a complaint is filed, my goal is to have a paper trail (or an electronic file as we are in 2017) to permit me to defend against these types of allegations.

Just A Thought.

As apartment management company employees review and evaluate reasonable accommodation and reasonable modification requests, there are many times in which the leasing office believes it needs supplemental information in order to confirm that a resident’s request is indeed reasonable and comports with the law. In seeking additional information (such as in a circumstance in which a resident has provided a medical verification for an emotional support animal which appears to have been purchased over the internet), however, there are a number of questions management cannot ask. Remember, we are not seeking detailed medical records or confidential health care information.  Indeed, I was involved in one situation in which a treating physician’s office sent over patient medical records.  I had the records sent back with a short note.

Examples of questions that should not be asked (and this list is not exhaustive) include:

*You don’t look like you need an assistance animal. Why do you have one?

*Why do you receive social security disability benefits?

*What medication do you take to treat your disability?

*Can you walk up and down the stairs on your own?  What health care records do you have to back that up?

When we receive a request, the leasing office simply seeks legitimate information which confirms a disability (if the disability is not apparent) and provides a nexus (legalese for a link) between the disability and the requested accommodation or modification. Also, remember that while we will work to approve service and emotional support animal requests, an assistance animal can be excluded from an apartment community when that animal’s behavior constitutes a “direct threat” to other residents, the property, or to leasing office employees and the resident takes no effective action to control the animal’s behavior such that the direct threat is eliminated or at least mitigated.

Just A Thought.

 

Although it comes up most frequently when I review emotional support animal reasonable accommodation requests under the Fair Housing Act (FHA), the issue of just who is “disabled” is one for all of us in the professional apartment management field to understand. Under the law, a person is considered as “disabled” when there is a physical or mental impairment which substantially limits one of more major life activities, there exists a record of such an impairment, or if the person is regarded as having such an impairment. A major life activity is typically thought of as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and/or working. This is, of course, not an exclusive list and management must be prepared to evaluate each request based on the needs of any resident who reaches out.

Not all conditions rise to the level of a disability. For example, just because someone is diagnosed with anxiety – it does not necessarily follow that the person is disabled. It is absolutely true that some forms of anxiety are disabling such that the person is considered disabled under the law. Just not that every case of anxiety (or another condition) rises to the level where a reasonable accommodation or reasonable modification request is appropriate. Now, before anyone fires off an angry email, read this paragraph again. In short, there are many conditions (such as chronic mental illness, hearing loss, mobility impairments, visual needs, cancer, HIV, past drug use) which can be a covered disability and that my clients and I will engage in the interactive process with you to resolve. My point is simply that not every condition (particularly a condition that is not obvious or known to the leasing office) rises to the level of a legitimate disability. That is why, of course, management seeks medical verifications for certain accommodation or modification requests.

Also, there are two groups of people who are excluded from coverage under the FHA: (1) current illegal drug users and (2) anyone who poses a direct threat to the health and safety of others or to the property itself. If someone is perceived as a direct threat, management will need evidence as to the nature of the threat and instances of specific conduct. Raw speculation will not suffice. Also, it is a good practice to undertake a review to determine if there is an accommodation that would mitigate the direct threat before moving forward against a resident.

Just A Thought.