With my annual apology to David Letterman, the first Fair Housing Defense blog entry of the year is always my favorite as I highlight the Top Ten posts from the previous year (and you can click on each entry if you want to read it). I am not surprised to see that issues involving the pandemic (obviously new for 2020) as well as emotional support animals (certainly not new for 2020) got the most reader views. Here is the full Top Ten list for 2020:

Coronavirus and Multifamily Apartment Communities

HUD Settles Disability Discrimination Fair Housing Act Case for $80,000

Retaliation and the Fair Housing Act

COVID-19: Reasonable Accommodation or Compassionate Medical Termination

HUD Issues New Assistance Animal Guidance

U.S. Department of Transportation Publishes Rule to Permit Airlines to Ban Emotional Support Animals

April 1 — Rent Is Due and What to Do?

HUD Awards $40 Million in Fair Housing Grants

Further Thoughts On The HUD Assistance Animal Guidance

How The Next Set of Pandemic Relief Efforts May Impact The Apartment Management Industry

I will do my best to continue to highlight items/issues of interest to our industry. And we can all hope that pandemic-related posts drop off this list.

Just A Thought.

I have heard from a couple of clients (and potential new clients) recently after they received either a demand letter or lawsuit (or both) asserting their property violated the Fair Housing Act (FHA) related to criminal background screening. The letter from counsel asserts that an applicant tried to rent an apartment and was rejected because the potential applicant has a criminal record. If form holds, the potential applicant also notes he or she is a minority (such as African American or Hispanic), in an effort to further claim that management’s criminal screening criteria has a “disparate impact” against minorities as a higher percentage of a given protected class has historically been incarcerated.

Remember, criminal (and credit) background screening remains a best practice for professional apartment management. But where we can get into trouble is if our screening criteria is exceptionally broad (such a no felonies permitted). While a no felonies rule might make sense at first glance, in the current environment, we need to be a little more nimble than that. Here’s why.

An argument exists that banning people with all felony convictions for all time is not appropriately tailored and does not meet the legitimate needs of the property. The Obama Administration attempted to put such a prohibition in place. The Trump Administration pulled it back or declined to enforce it. While I am not suggesting that management should open up apartment homes to child molesters and sex offenders (offenses for which lifetime bans remain appropriate), there are other offenses which the passage of time could make a difference in our perception of an applicant. Similarly, not all offenses rise to the same level and a good practice could be to have different burn off times depending on the specific type of offense.

And if you tailor your criminal background policy with features like this, it will be easier for a lawyer like me to defend it if a demand letter and/or complaint arrives asserting discrimination.

Just A Thought.

Pursuant to the terms of a conciliation agreement, the U.S. Department of Housing & Urban Development (HUD) announced earlier this month that it facilitated settlement of a sexual harassment Fair Housing Act (FHA) case from California. As a part of the agreement, the Respondents, although denying the allegations, agreed to pay $13,000 as well as provide a neutral landlord reference.

Factually, a resident claimed she was harassed by a maintenance employee at the property. After reporting the alleged misconduct, the resident (who was assisted by a local fair housing advocacy group) asserted management failed to grant her an otherwise appropriate reasonable accommodation request because of a disability and ultimately evicted her from the property.

The HUD press release was light on specific facts. While the dollars here are in the ballpark of other FHA cases, a sexual harassment claim (if proven) can make a case worth more. To be sure, the Respondents strongly denied the harassment claim and further asserted they hired a lawyer to conduct an investigation which did not corroborate the claim. In addition to the monetary relief, the Respondents also agreed to fair housing training and related FHA education/outreach initiatives.

While nobody wants to see an allegation of discrimination filed at his or her property, claims asserting sexual misconduct by employees require special care. You will want to speak with a lawyer like me to review best practices about both taking the complaint seriously while at the same time ensuring the rights of the accused employee are protected. It can be a delicate balancing act, but is something worth doing.

Just A Thought.

As written here (and elsewhere), the COVID era has raised housing law issues nobody had thought of until March 2020. While there are recently approved vaccines, until those vaccines are widely distributed to the American public (and I fully support health care professionals, first responders, frontline workers, as well as nursing home residents and other vulnerable seniors going to the front of the line), it appears the pandemic will be with us all for a number of more months. A common fact pattern I see now is a request from a resident for early termination of his/her lease (without the payment of any penalties or fees) because the resident is fearful he or she may get infected by the virus.

There are a couple of legal issues with that request. First, early termination of a lease can be an appropriate remedy as a reasonable accommodation under the Fair Housing Act (FHA) because of a legitimate disability. For example, if a resident contracts COVID and is admitted into the hospital for an extended period of time, it is certainly possible that the resident would be considered disabled and seek early termination (without paying any fees or penalties) on that basis. Lately, however, I have received requests seeking early termination not because a resident contracted the virus and is disabled, but because he or she is anxious of an infection to go along with a fear that the resulting illness will be serious. And on that basis, the resident requests to be let out of the lease.

As a strictly legal matter, such a request does not fit under the FHA’s reasonable accommodation requirement as the resident is not disabled. To be sure, management can grant the request as a courtesy, but my understanding is that the current state of the law does not require it. Now, I had one resident suggest my clients “get out in front of the law” on this issue – an interesting point, but not one my side was willing to do. We did, however, engage in the interactive process with the resident and found an acceptable solution to all.

Just A Thought.

As Fair Housing Defense blog readers are aware, the issue of questionable/fraudulent medical verifications for certain assistance animals has vexed both the professional apartment industry and airlines for some time now. In an effort to provide additional guidance for air travel, last week the U.S. Department of Transportation (DOT) published a final rule which provides that airlines “are not required to recognize emotional support animals as service animals and may treat them as pets.”

In short, the DOT decision means that while service dogs may continue to fly without paying a fee, emotional support animals do not receive the same level of protection under the law. The final rule defines a service animal as “a dog, regardless of breed or type, that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” While emotional support animals provide comfort and support for their owners, unlike service animals, they are not trained to perform any specific tasks. In the explanatory materials describing the rule, DOT wrote that approximately 15,000 comments were received on this issue, which is indicative of strong views on both sides.

Airlines sought this change, in part, because of a belief that passengers were fraudulently passing off their pets as the more loosely defined category of emotional support animals in an effort to avoid paying a fee. Additional reasons for the new rule include what has been an increase in complaints from passengers concerning misbehavior by emotional support animals and problems with what is described as “requests to transport unusual species of animals onboard aircraft.”

Not surprisingly, airlines praised the new rule as something drafted to protect the public and air crews. Once it becomes effective, the rule permits airlines to mandate passengers traveling with service animals to complete a form “attesting to the animal’s training and good behavior, and certifying the animal’s good health.” Advocates for those mental health conditions criticized the DOT rule as unfairly singling out those with legitimate mental health disabilities who need their emotional support animal.

Since the DOT rule was published, I have been asked by three clients if the housing industry can rely on this new airline guidance. The answer, for now, is no. This rule was issued by the DOT and limited to air travel.

Just A Thought.

Your humble Fair Housing Defense Blog editor gets questions from readers time to time. Which is good. Some I can’t answer off the cuff – such as “[i]t will just take a minute, but can you tell me how much my claim is worth?” Obviously, I can’t do that.  And remember, I am the guy who represents professional apartment ownership/management. Another question I regularly get concerns if a specific property is covered under the federal Fair Housing Act (FHA). The easy answer is that if you are in the apartment management business, then your property is covered by the law.

Now, in some limited circumstances, the FHA exempts owner-occupied buildings with no more than four units (commonly called the “Mrs. Murphy exemption”), single-family houses sold or rented by the owner without the use of an agent, as well as housing operated by religious organizations and private clubs that limit occupancy to members.  However, even if you try to use the Mrs. Murphy exemption — you need to check with a lawyer like me to see if a state or local law might apply.  For example, in Pennsylvania this type of home would not be exempt under state law unless the dwelling contains only two units, with one being owner occupied.  With respect to the exclusion for a single family sold or rented without use of a broker — some states do not include this exemption in their law.

Also, I am not aware of exemptions to the advertising provision in the FHA which provides you cannot make, print or publish a discriminatory statement.  Similarly, there are no exemptions from the Civil Rights Act of 1866, which prohibits all racial discrimination in the sale or rental of property.

Now, a property can qualify as housing for older persons and claim an exemption from the prohibition against familial status discrimination if: 1) HUD has determined that it is specifically designed for and occupied by elderly persons under a federal, state or local government program; 2) it is 100% occupied by persons 62 or older; or 3) it houses at least one person 55 or older in at least 80% of the occupied units, and adheres to a policy that demonstrates an intent to house persons 55 or older.  You might want to check with a lawyer like me if your property wishes to make these types of certifications.

Hope that helps.

Just A Thought.

The most uncommon year of 2020 continues on, with a most unusual Thanksgiving last week. Accordingly, it is now time for my annual Fair Housing Blog apartment community holiday decoration guide. How do we respect the Christmas celebrations of some, Hanukkah beliefs of others, as well as festive traditions of various other cultures? Can we put up decorations involving Santa Claus? What about Christmas trees? Rudolph? Menorahs? And what to do if some residents celebrate nothing during this time of year?

The question of what to do (or not do) with respect to holiday displays and decorations comes up each year at this time. Leasing office staff members are required to balance the holiday requests and religious beliefs of all, while showing a preference to none. What some might see as benign can be perceived as offensive to others. HUD’s guidance on this point notes that while our Fair Housing Act (“FHA”) does not prohibit religious expression, all residents must be treated equally and without regard to their particular religion.

To that end, the FHA makes clear that management cannot publish any notice, statement, or advertisement which indicates a preference, limitation, or any type of discrimination based on religion. Furthermore, the applicable regulations prohibit management from engaging in “inherently religious activities” when participating in any activities funded by HUD. “Inherently religious activities” include worship, religious instruction, or proselytism. To be sure, this prohibition is tempered by the qualification that these types of “inherently religious activities” may be offered separately “in time or location” from the programs, activities, or services supported by HUD funds and that participation in these programs must be voluntary. As such, management is tasked to protect the rights of those residents who wish to participate in certain activities as well as the rights of those residents who are of a different faith (or those who have no religion). If you have a community room, for example, any resident can sign up and use it. While management should not get in the business of promoting a specific religious practice or activity, the question about decorations in the community remain.

So, what to do? Well, the easy choice is to simply ban all holiday displays. But many residents are correctly unhappy because it seems like overkill. Yet others may complain that their specific religion is omitted or another display is perceived to receive preferential treatment. What are management’s options? I have recommended that communities have a designated area in which holiday items from various faiths are displayed. Invite residents to participate. Additionally, there is guidance confirming that references to Santa, Christmas trees and the North Pole are far enough away from religion so as to lose any prohibited inference. Another option is to remind residents that they can absolutely decorate the interior of their apartments, their doors, (and if appropriate at your specific community) alcoves or areas next to their doors with more overtly religious displays.

As management, we are looking for a policy which appropriately balances the beliefs of all while ensuring we are not perceived to favor one religion over another. And whatever decision you make, just know that someone may not be happy about it. Which may require you to speak with a lawyer like me.

Just A Thought.

Pursuant to the terms of a formal Consent Order, earlier this month, a property owner/manager in Georgia agreed to settle a Fair Housing Act (FHA) disability discrimination case for $34,900 as well as various additional affirmative relief. Factually, the case arose because a resident who received disability benefits sought a reasonable accommodation to move the date his rent was due to match up with the date his disability check arrived. What made the situation worse for management here was that for a number of years the system had worked and the resident paid his rent after receipt of the disability check.

However, after the property changed hands, new management started assessing late fees and charges owing to what they considered to be delinquent rent payments. In an effort to resolve the matter, the resident retained counsel and made a formal reasonable accommodation request to change the date the rent was due. Those efforts were unsuccessful and HUD charged the complaint.

To resolve the matter, in addition to the $34,900, management agreed to an injunction as well as various affirmative relief (including fair housing training). The size of this resolution shows HUD took this matter seriously – as a settlement close to $35,000 is not typical. While I know there are always two sides to every case, in my experience, changing the date rent is due as a reasonable accommodation for a disabled resident is an uncomplicated request. What made the facts more difficult here, of course, is that the prior management company worked with the resident and the new owner did not.

Just A Thought.

Earlier this month, the U.S. Department of Housing & Urban Development (HUD) announced that it charged a Pennsylvania property owner with disability discrimination related to assistance animals and designated parking spaces pursuant to the Fair Housing Act (FHA).

The case was referred to HUD by a local fair housing tester agency. The agency received a report from an applicant that the property charged pet deposits and/or pet rent for emotional support animals. The complaint notes that counsel for the property sent a letter affirming the fees are to be charged for emotional support animals. After receiving the report, the fair housing agency asserts they conducted additional tests that confirmed that emotional support animals were still charged fees which the law requires be waived.

Next, the agency used testers to determine if the property permitted mobility impaired residents to obtain designated parking spaces. While the property has reserved and open parking (along with already painted handicap parking spaces), the HUD complaint asserts management refused to work with a tester (acting as someone with a mobility disability) seeking a designated parking spot.

Again, I am not drawing any conclusions here as I am not involved. What I can say is that, as this case illustrates, HUD will charge a case if it gets credible evidence that an apartment owner/manager charges pet rent or pet fees for emotional support animals. Also, HUD expects management to work with disabled residents to find parking solutions where possible.

Just A Thought.

Most of the fair housing cases I report about in this Blog are brought by individuals or on behalf of individuals by a local fair housing advocacy group. There is, however, another way for a complaint to be filed. The federal Fair Housing Act (FHA) as well as many state law counterparts, permit what is called a “Secretary’s Complaint” to be initiated against a property owner or manager.

Complaints filed by the Secretary of the Department of Housing & Urban Development (HUD) are typically used in situations involving a nationwide or other significant concern that may involve more than just an issue for one resident at one property. To be clear, a Secretary’s Complaint, like a traditional complaint, is not a determination of liability and the property owner/management still has the complete opportunity to defend itself.

To that end, earlier this month, HUD announced a Secretary-initiated complaint was filed against a property owner and manager of senior living apartments in Oklahoma alleging FHA claims as HUD claims the owner/manager removed Bibles and related Christian reading material from the common areas. By its terms, discrimination based on religion is one of the protected classes in the FHA.

HUD learned of the issue when the Department received a letter from a resident at the community who claimed to be upset that management demanded the removal of religious reading material from the common areas. In addition to the religious reading materials, the resident stated that management required angel ornaments be removed from the property’s Christmas tree. In a press release announcing the case, HUD takes the position that “[b]arring religious materials infringes upon [religious liberty], and the Trump Administration will not stand for discrimination against any group for practicing their religious traditions.”

There are a handful of issues here, including that the property owner could have been simply attempting to show preference to no religion. Please understand that management walks a fine line in our effort to be welcoming to all religions while showing favoritism toward none. I will be curious to learn more about the specific facts (as there is always another side). Similarly, I typically advise my clients that Christmas trees (along with traditions like Santa and holiday elves) are so commonplace these days that there are good reasons to permit them while remaining in compliance with the law. Indeed, many times a community will have a designated area for residents to voluntarily display holiday decorations that is welcoming to all faiths.

I will report back as more facts are presented here.

Just A Thought.