If professional apartment management thought that fair housing enforcement would stop because of a global pandemic, well – think again. Last week, the U.S. Department of Housing & Urban Development (HUD) announced over $40 million in grants to local fair housing advocacy groups from coast to coast. These individual grants, running in the hundreds of thousands of dollars each, are designed to assist individuals who believe they have been victims of housing discrimination as well as to provide funding for fair housing testers and investigations. The money comes from HUD’s Fair Housing Initiatives Program (FHIP) and is distributed to eligible fair housing advocacy groups who meet criteria established by the federal government.

HUD views these local fair housing groups as partners who test (and essentially investigate) claims of housing discrimination. And as a part of their joint efforts, HUD provides taxpayer dollars to fund the process. To be sure, many of these groups also do fair housing training and education.

My point in highlighting these grants is to ensure we continue to train our leasing office staff to comply with the federal Fair Housing Act and its state (and/or city or county) counterparts. It is up to us to know the protected classes in each jurisdiction where we manage properties and to make clear our front office employees appropriately handle reasonable accommodation and/or reasonable modification requests. In my experience, the best way to avoid having to deal with a lawyer like me is to educate your team members to engage with prospects, applicants, and residents to address concerns before something hits my desk.

Just A Thought.

 

Pursuant to a release issued last week, the U.S. Department of Housing & Urban Development (HUD) stated it charged the owner and manager of apartment homes in Wisconsin with housing discrimination for allegedly refusing to rent to two individuals because of a claimed disability and related need for an assistance animal.

The HUD charge asserts that prospects found an ad for an apartment online and then toured the potential new home after meeting the property manager. After the tour, the property manager directed the individuals to complete an application. Once the application was approved, the manager sent a link to a lease. The lease had a “no pets” provision and noted violations of the “no pets” clause would result in a $250 fine. The lease did not contain an exception for assistance animals nor did it include any information about making a reasonable accommodation request.

After viewing another unit (a visit that was videotaped), the applicants raised the issue of the assistance animal and made a reasonable accommodation request. The property manager allegedly did not permit the applicants to sign the lease as well as he required an allergy test on the animal from a veterinarian to determine if the property manager could “tolerate the dog” and if he could not, the accommodation would not be approved. According to the complaint, the manager then acknowledged this was a “sticky legal issue” and that it was unclear whose legal rights were more important – the manager’s or the prospective residents. After some further back and forth, HUD claims the property manager revoked access to the lease, denied the reasonable accommodation request, and as such, failed to make housing available. As an aside, It will be a tough sell to argue to HUD that an assistance animal must be screened to confirm if it is hypoallergenic. Now, if management wishes to assert the specific animal is a “direct threat” and thus should not be permitted in the apartment, management must go through the “direct threat” analysis (an evaluation HUD claims was not done here).

While I know there are always two sides to every story, these are the types of facts that raise yellow (or even red) flags with HUD investigators. Remember – you can absolutely have a “no pets” provision in your leases. That is a property owner’s choice. But, if your property is covered under the Fair Housing Act, you are required to review and evaluate any reasonable accommodation request (such as for an assistance animal needed by an applicant/resident with a disability). You cannot simply revoke a potential lease after learning of a reasonable accommodation request without potentially needing to speak with a lawyer like me.

Just A Thought

Yesterday, the U.S. Department of Housing and Urban Development (HUD) approved a $35,000 settlement agreement resolving a fair housing complaint filed against the owner and manager of apartment communities on Long Island (in New York) addressing allegations that various employees discriminated against applicants based on their race. As described in the complaint and conciliation agreement, the allegations were that certain employees treated white fair housing testers posing as prospective residents more favorably than African American fair housing testers posing as potential tenants.

The case started when a local fair housing tester group filed a complaint after several African Americans asserted they thought African Americans were denied the opportunity to rent apartments at a specific property because of their race. After receiving the report, the fair housing group claimed it conducted fair housing tests using individual testers of multiple races who all posed as potential residents. The HUD complaint claimed the tests showed that white testers received more favorable treatment (such as being told about the upcoming availability of units), while African American testers received less favorable treatment (such as being told there was a long waiting list and that no units were available). The property owners denied discrimination of any type, but nevertheless agreed to settle the complaint.

Pursuant to the HUD agreement, the property owners will pay $25,000 to the local fair housing tester group, develop and maintain a non-discrimination policy, as well as provide fair housing training for employees at the property who have contact with prospects, applicants, and residents. Furthermore, ownership agreed to create a $10,000 compensation fund for individuals who were denied housing or received misinformation about the availability of housing at the community because of their race.

Although I was not involved in this case and I have not seen the tester contact reports, management should tread carefully when evaluating facts like this. On the one hand, if multiple individuals report the same type of possible discrimination, that is a red flag. Make no mistake, applicants and prospects must be told the same information concerning availability of units and what the waiting list looks like. To that end, a best practice is to always have a prospect card (old school) or electronic chart (new school) that records the time and date of the contact. Remember, as apartment homes are rented and vacated, your availability register can (and will) change from time to time (including daily if your property is large enough). Also, make clear to track what type of unit a prospect seeks and their desired move in date – for example, you may have a long waiting list for one and two bedroom apartment homes but efficiency units available right now.  Those facts might explain some differences in the testing. Indeed, these are some of the types of questions I ask when I see a general tester complaint. In short, these differences can be absolutely benign. And we will need to prove it up. Or they could reflect a record that something has taken place (or is taking place) such that you might want to speak with a lawyer like me.

Just A Thought.

In a decision which will likely expand the scope of the federal Fair Housing Act (FHA) by analogy, the U.S. Supreme Court concluded earlier today that a 1960’s era civil rights statute protects gay and transgender workers. By a 6-3 vote, the Supreme Court held that Title VII of the Civil Rights Act of 1964, which prohibits discrimination “because of sex,” includes protection for gay and transgender employees. Our FHA, which is Title VIII of the Civil Rights Act, was patterned after the employment law and typically courts construe the protections in both statutes similarly.

As written here many times, sex was added as an additional protected class to the FHA back in 1974. Accordingly, I suspect over time courts will now read the federal anti-housing discrimination law to include LGBTQ residents and applicants. To be sure, while the FHA has seven protected classes (race, color, national origin, religion, sex, familial status, and disability) many states (as well as cities and counties) have their own housing discrimination laws which include additional protected classes (some of which already include LGBTQ individuals). But this decision – for now in the employment context but which I expect will expand to including housing – was the first to mandate nationwide protection for LGBTQ employees.

To be clear, I do not expect this change in the FHA to take place overnight. It will take a little time for a judge to expand the scope of the FHA when faced with a court challenge. But our professional apartment management industry should take a look at our anti-discrimination policies to ensure we do not unintentionally discriminate in housing against those individuals now covered by the federal anti-discrimination employment laws.

Just A Thought.

I wanted to offer up two related COVID-19 fair housing scenarios I have seen recently in my discussions with apartment management clients.

As written here (and elsewhere) regularly, our Fair Housing Act (FHA) requires management to make what is known as a “reasonable accommodation” in our rules, policies or practices as needed to permit an individual with a disability to fully use and get the benefit of his/her housing. One such accommodation is a request to terminate a lease early (and without penalty) because of a disability. In a pre-pandemic world, that request came up from time to time. But in today’s world – what happens when a resident requests to break his lease early because he contracted COVID-19 and goes to the hospital for an extended period of time? And the related question is what happens if someone who has lost her job because of the pandemic requests to break her lease early because of unfortunate economic circumstances?

While each circumstance requires an individual analysis, if a resident contracts the virus and goes to the hospital for an extended period of time, it is likely he would be considered disabled and granting the early termination request (without penalty) could be an appropriate reasonable accommodation. On the other hand, for your resident who lost her job, she is not disabled – and, as such, is not eligible for a reasonable accommodation under the FHA. To be sure, I have referred to these situations as a request for a compassionate early lease termination because of the pandemic. And there are circumstances in which I have recommended this type of request be approved.

A couple of issues that I had never thought about before March.

Just A Thought.

With just a few days left in May, apartment owners, management companies, and residents are set to deal with another month of rents due in a global pandemic. The good news (I hope) is that states are starting the process of opening again with social distancing. The belief is that many employees who were furloughed or let go because of the shutdown will have jobs to come back to so they can pay their rent. A real concern, however, is that many jobs may be gone, at least in the short to medium term. While I still recommend leasing offices and residents work cooperatively and constructively to the extent the virus has caused economic uncertainty, as Congress has not acted in this area, we are left with a patchwork of state and local landlord/tenant procedures, which have (and will continue to) change monthly, weekly, or even daily.

The eviction protections enacted in many jurisdictions have either expired or will expire soon. Some cities, counties, and states have prohibited the filing of eviction complaints. Others have permitted the filing of complaints, but have stayed proceedings. I think some states will extend eviction prohibitions further into the summer, but others will not. You need to check with your specific state (or city or county) or speak with a lawyer like me to determine what is permitted where your property is located.

Also, remember that once local courts open up, I suspect there will be a torrent of new cases.   We will hear stories of landlords behaving badly during the pandemic (threatening residents, intimating they will turn off utilities, remove mailboxes, or even change the locks if a resident does not pay his/her rent) as well as learning about residents who attempted to game a public health emergency by simply not paying their rent (even if they kept working or by engaging in a rent strike). Neither side will necessarily look good; but management will look worse.

We should absolutely tip our caps (again and again) to the medical and health care professionals working with patients every day. As well as to the first responders and others (including grocery store and food service workers) who kept our supply chains up and running during this most unusual time.   And don’t forget to recognize the apartment management leasing team members who come to work every day to serve those who live in apartment communities from coast to coast.

Just A Thought.

In a press release issued last week, the U.S. Department of Housing and Urban Development (HUD) approved a settlement agreement concluding a disability housing discrimination complaint against the owners and property managers at a community in Pennsylvania. The total amount to be paid by the Respondents is $80,000. In their complaint, two residents asserted that management failed to approve their reasonable accommodation requests for a reserved parking space, did not permit them to transfer to a first floor home, and that management retaliated against the residents for exercising their rights under the Fair Housing Act.

The case began when the two residents with mobility issues complained that their property management staff refused to permit them to move to a ground floor unit as well as denied their request for a reserved parking space because of their respective disabilities. The residents further asserted that members of the management team retaliated against them for making the reasonable accommodation requests as management moved them to a unit that was claimed to be “substandard” and that management threated to evict them. Furthermore, after being made aware of the concerns, a local fair housing group conducted tests at the housing community which tended to show that the leasing office team would not permit testers (posing as disabled applicants) to be assigned designated parking spaces. As a part of the settlement, both the property owners and managers denied the allegations of discrimination.

Although the agreement does not identify how the settlement fund is to be split between the residents, counsel, and the fair housing group, the owners/managers agreed to pay $80,000 to end the case. As is common in fair housing agreements, the Respondents also promised to develop an equal housing opportunity policy, a reasonable accommodation policy, and to have their representatives with direct leasing responsibilities at the property and/or authority to grant or deny reasonable accommodation requests attend fair housing training.

Although the agreement is light on specific facts, the $80,000 settlement amount is larger than a typical garden variety discrimination case. It is certainly possible that the retaliation claims helped push that amount higher. Also, HUD did not provide any details concerning the number of tests. The takeaway here is that professional apartment management must review and evaluate all reasonable accommodation requests and have a policy in place that follows the law. And even if you decide the request is not appropriate and should not be granted, do your best to ensure no resident can claim he or she was retaliated against because of the accommodation request or because they filed a discrimination complaint. These are hot button issues for HUD fair housing investigators.

Just A Thought.

Although the economic and personal impact of the global pandemic continues to dominate the headlines, I am seeing HUD (as well as various state, city, and county agencies) ramping up efforts on pending housing discrimination complaints. As a part of the Fair Housing Act, investigators are dual tasked when a complaint is filed: (1) to investigate; and (2) to conciliate (legalese for attempt to settle). Sometimes the process goes on at the same time. Sometimes we will try conciliation prior to going through a formal investigation.

From management’s side, there can be any number of reasons to find an early (and amicable) resolution to a complaint, including cost savings, certainty, efficiency, and the ability to move forward with business and not have to respond to emails/calls from a lawyer like me. Now, make no mistake, there are some cases that simply will not settle – such as when unfounded allegations are made by a disgruntled resident/former resident who seeks lottery size winnings – and I will absolutely defend them until I get a No Probable Cause dismissal. Alternatively, the agency may demand extensive reporting for multiple years and/or a donation to a local fair housing group which makes settling a case untenable for ownership.

My point with this post, however, is if you engage in settlement discussions – take a good look at the “boilerplate” and “public interest” provisions in your proposed agreement. Most every investigator will tell you these provisions are “standard” and required in every deal. But, as someone who has done these with HUD as well as many states can affirm – boilerplate is always different. And many times it can be changed. Indeed, even HUD agreements from different regions can have different requirements. Just remember it is NOT one size fits all. And you may want to have a lawyer like me take a look to talk through the facts of the case and what your investigator seeks in an effort to determine if the terms are appropriate.

Just A Thought.

The United States Congress (as well as any number of state, city, and county legislatures) have been at work on various pandemic relief efforts (as they should be).  As these efforts go forward, the apartment management industry needs to be aware the next set of legislative initiatives that might, for example, mandate that property owners accept rent payment plans as well as change how community amenities are paid for by residents.

For example, in an effort to help residents impacted by COVID-19, legislatures (such as the D.C. City Council) are considering and will likely adopt proposals to help residents pay bills, including allowing residents facing financial hardships because of the novel coronavirus to pay missed rent in monthly installments. While I previously noted that as a good management practice during this time, leasing offices should reach out to residents to discuss payment plans, the D.C. City Council is now requiring it. Other proposals are that residents be permitted to pay their utilities via payment plans as well as extending the hold on evictions. (Again, nobody wants to evict anybody – but most properties have mortgages and owners need to pay their banks as well as taxes, insurance, and our employees).

I am also starting to see plans which would require landlords who charge fees for certain property amenities to offer prorated refunds for services or featured amenities no longer available because of the pandemic (such as fitness centers, party rooms, and/or playgrounds). To date, however, I have not seen legislation directing rent reductions if those amenities are included in the monthly rent. At least not yet.

I will continue to follow along and report as appropriate.

Just A Thought.

 

 

 

For many Americans who live in apartment homes, rent for May 2020 is due tomorrow. As noted earlier this month, a best guess is that around 70% of residents made their April 2020 rent payments on time. That is, of course, a lower number than we would have expected under normal circumstances as each week we read that millions of more Americans filed for new unemployment benefits. Here are some of the questions I have received over the past few weeks:

Is rent still due? Yes. Rent is agreed upon in the lease between the owner/manager and the resident.  Leases remain valid.

What if the resident cannot pay? My best advice is to engage in active communication with your residents. Learn who may have lost a job or is caring for a family member stricken with the virus. While management typically does not accept partial payments, this might be a time to amend that policy. Other options include creating a payment plan, using a security deposit and/or waiving late fees during the pandemic.

Can the rent be raised? The residential lease controls the monthly price for the apartment home. The parties can agree to a new lease (with a new monthly lease amount) at any time. Also, remember that if a resident wishes to go month-to-month, many times there is an increase in the rent to pay for that convenience.

Can residents be evicted during this time? Generally, the answer is no. Many courts are closed. Some states are starting to reopen, but many courts have ordered eviction actions stayed for a number of months. For resident living in government-backed affordable housing, in the large relief package passed by Congress, evictions for affordable units are stayed through almost the end of July 2020 (at least for now).

Can residents move? In theory, yes. But it will likely be more of a challenge to arrange for a moving company at this time. My clients report the number of residents submitting notices to vacate are down.

What about a rent strike? In some larger U.S. cities, various tenant advocacy groups are attempting to organize residents to simply stop paying their monthly rent as a way to bring attention to the need for relief because of COVID-19. While I try not to do politics here at the Fair Housing Defense blog, I am not certain that a rent strike is the best way to help the country recover economically.  I would gently note that the apartment building/community most likely has a mortgage and a bank is waiting for its monthly mortgage payment.  Remember, we are all in this together.

What about leasing and maintenance offices? Depending on where the property is located, many leasing and onsite maintenance offices remain closed. To be sure, management continues to operate properties and emergency maintenance is always being addressed. But you might not be able to walk into the office as usual.

What about apartment lobbies, rails, elevators and other common areas? Professional apartment management companies have changed cleaning protocols to address the virus and are working to keep areas as clean as possible. Now, many property amenities in certain states remain closed.

While most leasing offices discussions are professional, might I suggest that management and residents jointly agree to show a bit more patience and courtesy to each other during this time? You will be glad you did.

Just A Thought.