I do my level best to be evenhanded when I review emotional support animal (ESA) medical verification letters when I know they have been purchased over the internet after a short self-diagnosis questionnaire and perhaps use of an online assessment tool. There has likely been no legitimate, therapeutic relationship between the patient (who must have a recognized disability) and the individual providing the medical verification. As written here (and elsewhere), anyone can go online and buy what look like a formal letter and/or “certificate” or “registration” from various internet-based providers seeking to make a buck (or more than a buck).  Remember, there is no official ESA registration site or certificate.

While the professional apartment management industry has been doing our best to determine which verifications are legitimate and which are not, our efforts are limited in that the law only permits us to ask certain questions. And, in truth, we have no interest in medical records or other confidential health care information between a therapist and a patient.

Although it was believed the U.S. Department of Housing & Urban Development (HUD) had some new ESA guidance ready last fall, it was never published. And we continue to wait to see what, if anything, is released by HUD or the Department of Justice.

In the interim, a number of states (including at least New York, Virginia, Utah, Texas, North Carolina, New Mexico, New Jersey, New Hampshire, Nevada, Michigan, Maine, and Colorado) have passed various laws or adopted regulations prohibiting the misrepresentation of service animals. The goal, of course, is to discourage those who might otherwise attempt to submit a reasonable accommodation request for an assistance animal that is verified by someone who sells them online.

While I have not seen a list of individuals charged under these laws, the fact that they are now on the books and available for use is a helpful sign as a growing number of state legislatures take fraudulent medical verifications seriously. I will continue to update this list.

Just A Thought.

At the end of last week, the U.S. Department of Housing & Urban Development (HUD) issued a press release announcing that it charged the owner and manager of a condominium community in Colorado with discriminating against families with children under the Fair Housing Act (FHA). In the charge, HUD asserts that the owner and manager refused to rent units to individuals under 35 years of age as well as refused to rent to a fair housing tester who claimed to have a four year old child.

The case came to HUD’s attention when a local fair housing advocacy group challenged a number of newspaper ads which, on their face, appeared to violate the FHA. Specifically, the complaint alleges that the owner and manager placed no less than ten advertisements in a local newspaper offering the property for “1 or 2 people max, both over 40 years of age, no exception.” Other ads promoted the property as a “private, restricted adult…community” requiring renters at least 35 years old.

Now, just because HUD has filed a charge does not mean that the allegations are true. Always remember there are at least two sides to every story. The teaching moment here is simple: do not run advertisements which can be read as discriminatory on their face. A fair housing tester will see the ad as low hanging fruit.

Welcome all to your community, even if you think there is a legitimate, non-discriminatory reason (such as safety) to prohibit children (or to limit children to certain floors, buildings, or areas). If you are uncertain if your ad complies with the law, check with a lawyer like me. We can help with advertising compliance. Indeed, with a few exceptions (and it would not surprise me if the owner and manager here was attempting to designate the property as housing for older persons), the FHA has prohibited “adults only” housing since 1989. And if as is likely here, copies of the questioned ads were kept, it is an easy case for HUD to charge.

Just A Thought.

So, what’s the first thing you should do if your professional apartment management company (or ownership entity or leasing office employee) receives a notice from the U.S. Department of Housing & Urban Development (HUD) or a similar state, city, or county agency informing them that a housing discrimination case has been filed? Of course, the initial answer is to send it to a lawyer like me to ensure an appropriate notice of appearance is prepared and to work on submitting a written response. A lawyer will help to ensure the “other” side of the story is told (and, believe me, I know there are at least two sides to every fair housing complaint). But there is another important step management should take – send the complaint to your insurance carrier to determine if one of your policies includes coverage for discrimination cases.

Sure, some policies specifically exclude this type of coverage, but other policies cover fair housing matters. And finding insurance coverage can be an important step for management. Particularly as you have paid the premium, don’t miss out on potential coverage.

Now, my best advice is to always engage in the interactive process with residents to avoid fair housing complaints (and having to deal with a lawyer like me). But if and when a complaint is filed, always check to determine if an insurance carrier can assist.

Just A Thought.

Pursuant to an agreement released just last week, the U.S. Department of Housing & Urban Development (HUD) announced that it resolved a race discrimination Fair Housing Act (FHA) case for $20,000. The case, involving a property management company with many properties in the Los Angeles area, was filed by a fair housing tester group in southern California, asserting that management provided more information about available units to white fair housing testers than they did to black fair housing testers who all posed as potential residents seeking information about homes.

Under the terms of a conciliation agreement, in which the management company admitted no wrongdoing and denied the allegations, the company agreed to pay $20,000 and participate in fair housing training.

The takeaway for professional apartment management? This case further demonstrates why we must train our leasing office staff members to treat each applicant/guest/prospect in the same manner. To be sure, every interaction with a prospect is different and, of course, our leasing agents always hope to lease our available units to legitimate home seekers. But, as we engage in our leasing operations, we want to avoid a situation in which a fair housing tester can make a claim, like here, that individuals are receiving perceived less preferential treatment because of their race (or any other protected class).

Just A Thought.

A little wonky fair housing policy today. Last week, the U.S. Department of Housing & Urban Development (HUD) issued proposed new rules to amend how HUD interprets “disparate impact” under our federal Fair Housing Act (FHA). Public comment on HUD’s proposal is due on or before October 18, 2019.

I try never to do politics here in the Fair Housing Defense Blog. My goal is to call balls and strikes with the best guidance that is available. Here is where we are in mostly non-legalese: Back in 2013, the Obama Administration sought to clarify that “disparate impact” (policies that appear neutral on their face but which have a significant negative impact on a protected class or classes without a legitimate business justification) was included in the FHA, even though the words “disparate impact” are not in the statute. Since passage of the FHA back in 1968, any number of courts had approved of using “disparate impact” to prove housing discrimination. In a 2015 case (decided by a 5-4 vote), the U.S. Supreme Court approved the use of disparate impact in housing cases, but included certain defenses for management as well as various hurdles a plaintiff must prove. With these new proposed rules, the Trump Administration seeks to pull back from the Obama Administration interpretation.

In short, the new rules will make it harder for a plaintiff’s claim to survive a motion to dismiss and/or a motion for summary judgment. HUD describes its change as intended to ensure the “disparate impact” rules are in “closer alignment” with the Supreme Court’s decision from 2015. In the text, HUD proposes to remove a defendant’s burden to prove a substantial business reason for the challenged policy and instead mandates that a plaintiff prove the policy is unnecessary to achieve a legitimate business interest. Furthermore, the new rule describes how a housing management company or property owner could defend against disparate impact claims by use of an algorithm (fancy word for a computer model) in its housing policies. Finally, another change is that HUD now suggests the burden of proof should be shifted such that a plaintiff will need to prove each element by a preponderance of the evidence.

The takeaway? Even if these new rules go into effect, “disparate impact” claims will still technically be cognizable under the FHA. Professional apartment management will still need to ensure our policies do not have a disproportionate negative impact on a protected class or classes. But if management faces a “disparate impact” case, it is likely there will be more defenses available to assist in defending against the case.

Just A Thought.

Last month, the U.S. Department of Housing & Urban Development (HUD) announced it charged two landlords in Texas with racial discrimination under the federal Fair Housing Act (FHA). In the charge, HUD alleged that the landlords declined to rent a room to a potential resident because she is African American.

Specifically, HUD’s complaint states that the landlords posted an online advertisement for a room in a five bedroom house. The landlords required applicants to list their race and submit a photograph when applying. When this prospective resident responded to the vacancy ad, the landlords again said that the woman needed to provide a photograph. The renter refused. At that point, one of the landlords nevertheless agreed to meet the prospective resident at the house. HUD claims that when the landlord saw the woman was African American, he refused to show her the room and said that her race would make his wife and the other residents uncomfortable.

While a HUD charge does not prove the facts are as asserted, these claims are a textbook of what management must not do when evaluating an applicant.  And ensure race is not a question on your application. (Yes, I know that for affordable properties, HUD requests applicants self-select their race/national origin for government monitoring purposes.  But for a conventional property, don’t seek information on the race of your residents.)

Now, this complaint does bring up a related issue: should management obtain photos of applicants? Here is some general guidance on pictures. Management must have a legitimate, non-discriminatory reason to collect pictures of potential residents. Provided you do it for all, one such legitimate safety/security reason (the protection of your leasing consultant while giving a tour) would be to make a copy of a driver’s license when showing an apartment home. But you must make a copy of all licenses for your applicants and not just some licenses. Trust that makes sense. Or you will really need to speak with a lawyer like me.

Just A Thought.

In a press release issued last week, the U.S. Department of Housing and Urban Development (HUD) reported that a condominium association in New Jersey agreed to pay $30,000 to resolve allegations under the Fair Housing Act (FHA) that it discriminated against a resident with disabilities by restricting where and how she could bring her assistance animal on the property. The FHA, of course, requires most housing providers to allow individuals with disabilities (defined as an impairment that substantially limits a major life activity) to have an assistance animal that performs tasks (a service animal) or that provides disability-related support (an emotional support animal).

The order issued in this case represented the conclusion of a discrimination charge HUD filed against the condominium association in October 2018, asserting that the resident (with multiple disabilities) was discriminated against for having an assistance animal. HUD’s complaint alleged that the association required the resident, who is a person with both hearing and sight disabilities, to cage her animal while in common areas as well as to use the service entrance when entering and exiting the building with the animal.

To resolve the case, the condominium association will pay $30,000 to the resident and adopt a HUD-approved reasonable accommodation policy that follows the FHA. As is common in these cases, various association employees and officials will attend fair housing training.

While acknowledging there are always at least two sides to every story and the published consent order did not contain all the facts, the teaching point here for professional apartment management is to think of assistance animals as an extension of the resident. Of course, while residents must clean up after their assistance animals and animals cannot be a direct threat to other residents, employees, or to the property itself, management cannot relegate assistance animals to the service entrance nor can we (in usual circumstances) require an animal be caged while in common areas.

If you think there is a legitimate reason that an assistance animal at your property must be in a cage or use a back entrance, I suggest you speak with a lawyer like me or you may run the real risk of scrutiny from a federal, state, or local government agency.

Just A Thought.

When I do fair housing training, I always say to my audience that if one of you has a question, I am willing to bet another person in the room has the same question.  Suspecting that is the case with my Fair Housing Defense blog readers, I wanted to answer some recent questions sent to me:

To the best of my knowledge, there is no central database that publishes outcomes of all of the various fair housing cases filed around the country. Historically, HUD used the Title Eight Automated Paperless Office Tracking System (TEAPOTS) to track Fair Housing Act (FHA) cases for the Office of Fair Housing and Equal Opportunity (FHEO). A couple of years ago, HUD’s Enforcement Management System (HEMS) replaced TEAPOTS in an effort to improve security and modernize the database. But, at least to my knowledge, neither TEAPOTS nor HEMS is available to the public. To be sure, I suspect you could file a FOIA (Freedom of Information Act) or other open records request to get a list of the dispositions of agency or department cases

Here are some quick definitions:

  1. A ”service animal” is defined in the Americans with Disabilities Act (ADA) as a dog that is specifically trained to performs tasks for its owner with a disability. Think of a dog that assists someone with a vision disability cross the street. For the most part, the ADA does not apply to residential apartment communities. The exception is that the ADA does apply to the leasing office for the property.
  2. An “assistance animal” is defined in the FHA and Section 504 of the Rehabilitation Act of 1973 as an animal that works, provides assistance or emotional support that alleviates one of more symptoms of a person’s disability. An “assistance animal” is not required to have any training. Think of a dog that soothes or comforts an individual with Post Traumatic Stress Disorder. Also, while dogs are the most common assistance animal, the law recognizes that many other types of animals can qualify – such as cats, ponies, ferrets, and/or even snakes. This list is not exhaustive and I am not making this up.
  3. An ”emotional support animal” is a subset of assistance animals. These animals also provide emotional support to individuals with disabilities. Emotional support animals provide companionship, relieve loneliness, as well as can help with depression and anxiety. Unlike a “service animal,” an “emotional support animal” does not require any special training.
  4. A “companion animal” is another way to describe an “emotional support animal.” The terms “companion animals” and “emotional support animals” are used interchangeably.

No, professional apartment management cannot restrict breeds, sizes, or weights for legitimate assistance animals.  Yes, we can place those types of restrictions on pets.  But not on assistance animals.  If you have specific evidence (not a generalized fear) that a given animal is a “direct threat” — that can and should be documented.

There is no firm number of days (to my knowledge) that management must respond to a reasonable accommodation or reasonable modification request.  My general guideline is as follows:  responding within one week is absolutely reasonable.  Responding within two weeks should be considered reasonable.  Responding within three weeks can be considered reasonable.  Anything more than that risks a finding of not reasonable.

Yes, while I certainly take new fair housing cases, I am a defense lawyer who represents professional apartment owners, management, and management employees.  I do not take plaintiff’s cases as I want my clients to have confidence that an argument I use for them in one case will not be used against them in the next case.  Make no mistake, if you believe you are the victim of discrimination, you can reach out to HUD or a state, city, or county fair housing agency.  Additionally, there are various fair housing advocacy groups around the country providing advice and representing residents in these matters.

Hope that helps.

Just A Thought.

In a press release dated yesterday, the U.S. Department of Housing & Urban Development (HUD) stated that it charged a residential property owner (and an agent) in Maine with violating the Fair Housing Act (FHA) related to an assistance animal for a disabled veteran.

Factually, HUD asserts the veteran has had an assistance dog since 2015. The prospective resident saw an online advertisement for a home and called to discuss terms and finances. During a second telephone call, the complainant noted he has an assistance animal because of a disability. The complaint alleges the manager said “absolutely not” as she regretted permitting a prior tenant to have an assistance animal because other residents then wanted to get an animal for a pet. Once a local fair housing group got involved, a subsequent test was conducted at the property. At which time the manager stated having an assistance animal would be grounds for eviction. And the telephone call during the test, HUD claims, was recorded and corroborates the allegations.

There are, of course, two sides to every story and I read fair housing complaints regularly. But it is typically cases with strong facts that get charged. Here, the complaint claims a property manager flatly refused to consider assistance animals for individuals with disabilities because other residents would want a pet and further that assistance animals are grounds for eviction. Making the facts even more difficult for management is that the prospective renter here was a veteran. That can be a challenging look.

As has been written here before, professional apartment management cannot simply reject assistance animals out of hand. We must go through the process. Am I writing that every accommodation request must necessarily be approved? Of course not. But every request must be evaluated and responded to – in such a manner that if our actions are subjected to scrutiny, we can be comfortable that we followed the law.

Just A Thought.

Once a year (or so), your humble Fair Housing Defense Blog editor goes off topic.

Tomorrow is the Fourth of July. Potential for a long holiday weekend. Family outings, barbeques, and fireworks. All good. Indeed, I will be at a three day little league baseball tournament ready to cheer.

Earlier this year, my wife (Hi Sweetie!) and I took the tour of Independence Hall in Philadelphia in which our Declaration of Independence was signed some 243 years ago this week.  It is worth your while if you are ever in the area.

I know we are all busy and schedules get upside down from time to time. But let’s take a minute on July 4th to reflect on just how lucky we really are. Couple of thoughts to pass on:

If you see someone you know is a teacher, thank him or her for working with our kids. Is there anything more important than educating the next generation?

If you see someone you know is a first responder, thank him or her for saving lives. Remember these brave souls run into buildings when the rest of us are running out.

If you see someone you know is a member of our armed forces, thank him or her for volunteering to serve and keeping us safe in an ever dangerous world.

If you have a minute, call a family member who lives in another state or across the country. Just to say hello.

Wherever you are and whatever you are doing: Be present. Don’t be distracted. Put down your phone.

You will be glad you did.

Back to fair housing next week.

Just A Thought.