As discussed regularly in this space (and elsewhere), the number of reasonable accommodation and/or reasonable modification requests continues to significantly increase each and every year. As a part of this increase, however, is an increase in the number of requests which, shall we say, appear a bit dubious. Make no mistake, professional apartment management and leasing offices have no interest in the personal medical history of our residents and applicants. We welcome disabled residents (and applicants) to our communities and we will engage in the interactive process with you to meet legitimate needs. We do, however, need to ensure the Fair Housing Act (and similar state, city, and county laws) are followed and applied as evenly as possible across the board.
Two reasonable accommodation requests came across my desk this week. One from California and one from Minnesota. One was for an emotional support animal (the request was to waive pet rent and pet fees). The second was a request for an early lease termination (the request was to waive the early termination fees otherwise in the apartment lease). Both were verified by a physician. All good, right? Why did these requests end up on my desk?
Well, upon review of the medical verifications – neither stated that the resident was disabled. The letters provided that the resident would “benefit” from an animal or a different home. That verification, standing alone, is not sufficient as the whole point of the reasonable accommodation and reasonable modification process is to ensure our residents who are “disabled” (as the word is defined under federal law) enjoy the full benefits of their housing. Neither resident has a disability that is otherwise obvious. In such a circumstance, while management could just accept the verification, we are absolutely within our rights to seek supplemental confirmation that the resident is actually disabled.
If a request is legitimate, I suspect each leasing office will get a second verification confirming a disability. Which would be great and we can then approve it. However, it is also possible that we do not hear from either resident on these points again. Who loses here? Those Americans with legitimate disabilities as now more people are going to question if their housing-related needs are real.
Just A Thought.
Our federal Fair Housing Act (FHA), like many civil rights laws, contains a fee-shifting provision. What that means is the “prevailing party” (legalese for the winner in a case) can petition the court for an award of attorney’s fees and costs expended in obtaining the result from the other (losing) side. Most of the law involving the recovery of legal fees concerns requests by plaintiffs who believed they were the victims of unlawful discrimination. But, what about the defendant – the apartment owner or management company who is wrongfully sued for discrimination, but who is ultimately vindicated? Can management also petition the court to send the unsuccessful plaintiff a bill for its legal fees and costs?
Yes, but the burden is high. As interpreted by the federal courts across the country, a prevailing defendant (in our case an apartment owner and/or management company) can be awarded fees if the plaintiff’s case was frivolous, unreasonable, groundless or if the plaintiff continued to litigate after it clearly became so. A fee award to a prevailing defendant is also appropriate if the plaintiff brought the claim in subjective bad faith.
This means that while fees awarded to defendants are certainly not common, it is an arrow in the defense quiver — and one that can be used particularly when the plaintiff’s case is exceptionally weak and lacks any merit whatsoever. In my experience, it is not something to raise in each and every case, but one which can help when the facts are right.
Just A Thought.
A Fair Housing Defense Blog reader (thank you very much) sent me a question which I decided to respond to with this blog post. In our Fair Housing Act (FHA) compliance and litigation world of today (whether dealing with reasonable modification requests, reasonable accommodation requests, or design and construction requirements), we work to ensure that those with a “disability” can enjoy the full benefit of their housing. The text of the FHA, however, uses the term “handicap” instead of “disability.” Is there is legal distinction between the two terms in the professional property ownership/management world? Is there some significance to the different terminology? Was Congress trying to mean something different?
The answer is: No. Indeed, while the text of the fair housing law uses the term “handicap,” case law has made clear that both “disability” and “handicap” have the same legal meaning. See Bragdon v. Abbott, 524 U.S. 624, 631 (1998) (in which the U.S. Supreme Court noted that the definition of “disability” in the Americans with Disabilities Act is almost verbatim “from the definition of ‘handicap’ contained in the Fair Housing Amendments Act of 1988”). As such, every other court to my knowledge which has since addressed the issue (as well as the U.S. Department of Justice and the U.S. Department of Housing and Urban Development) have all reached the same conclusion.
Why the difference? Most likely because over time the term “disability” has simply become more generally accepted when contrasted with “handicap” over time. Hope that helps.
Just A Thought.
The kids are out of school. Summer is here. Many apartment communities around the country have pools and playgrounds. Which are a great way for adults to cool off and for kids to have fun. But, what about community rules for pools and playgrounds? Particularly those pools without lifeguards. Doesn’t it make sense (and be a management best practice) for our communities to have rules preventing kids from swimming alone as a legitimate safety issue? Or to prevent kids from playing in or near a parking lot? Yes, but you need to be careful as to how management writes those rules so as not to get into fair housing trouble.
As I have written many times in this space, familial status (families with children) was added as a protected class to our Fair Housing Act (FHA) in 1988. The immediate result of that change in the law was that (with limited exclusions for certain housing for older persons), the “adults only” apartment communities went away. And we must be careful in drafting community rules that, even with the best of intentions, appear to discriminate against families with children.
To illustrate, a pool which is promoted as for “adults only” or has swim times only for adults could be found to discriminate against children. Best practice is not to do that. Similarly, drafting a rule that says “children must be supervised at all times while in the pool” sounds good on the surface, but may not work. Is it really reasonable for a 17 year old high school swimmer to need adult supervision? A better practice is to prohibit running or horseplay on the pool deck and requiring supervision at the pool of anyone who cannot swim. Yes, I know some properties want to have safety rules preventing, for example, kids under age 10 from being at the pool alone. I absolutely agree with the intent of such a rule and that type of policy can be defended on safety grounds (as opposed to simple convenience of adults), but using ages can invite a potential claim.
Next up, what about a rule preventing kids on that playground from running through the nearby parking lot? Sounds logical. But a good practice point is not to limit the rule to kids because doing so could implicate discrimination against families with children. A solution? Simply prohibit running, skateboarding (and/or horseplay) by anyone through your busy parking lot. That is a rule that makes good sense, is enforceable, and will not violate the fair housing laws.
Again, rules involving safety are fine. Let’s just try to ensure they cover what you want and comply with the law. Indeed, you might just want to speak with a lawyer like me in an effort to reduce the risk that your rules (even those with the best of intentions and done for safety reasons) will be subject to unnecessary scrutiny.
Just A Thought.
Continuing its efforts to enforce the Fair Housing Act (FHA), last week the U.S. Department of Justice (DOJ) announced it had settled a disability case for $160,000 that it filed in Ohio asserting that a real estate developer and an architect (along with several companies they controlled) failed to comply with the FHA’s design and construction requirements. Specifically, the DOJ claimed that two neighboring condominium complexes had a variety of features that made them inaccessible to individuals with disabilities.
Pursuant to the settlement agreement (which still must be approved by a federal judge), the defendants will pay $100,000 to current condominium owners at the two communities who choose to make accessibility modifications to their units. The modifications will include: eliminating steps and excessive slopes in the walkways to the front entrances of their units, widening doorways, removing or lowering thresholds, installing removable cabinets in kitchens and bathrooms to increase maneuvering space as well as relocating toilets, showers, and sinks to provide access. Additionally, the defendants agreed to pay $10,000 each to two local fair housing community organizations as well as a $40,000 civil penalty to the United States. The DOJ complaint followed an investigation by the U.S. Department of Housing and Urban Development
While I am certainly aware that there are always two sides to every story, this case is another reminder that those involved with designing and building multi-family housing need to ensure the accessibility provisions of the FHA are reviewed and complied with. Or you may be faced with a situation involving modifications, retrofits, and financial penalties.
Just A Thought.
Here is a fact pattern that is just all too common in our fair housing management world. A resident, for example, stops paying his rent. As we do with all residents who fail to pay the agreed upon rent, the leasing office sends the appropriate notice and then starts an eviction action pursuant to local law if the rent remains unpaid. Shortly before the case is set to go to court, the leasing office receives a reasonable accommodation/reasonable modification request from the resident or even a formal fair housing complaint filed with HUD, a state, city, or a county agency. In the reasonable accommodation or reasonable modification request, the resident (for the first time) claims he has a disability and needs management to do something for him.
Is it possible the request is legitimate? Well, sure. Is it more likely the resident is attempting to use the law to delay and prevent an eviction? Yes. And the fair housing laws are clear that management must not retaliate against a resident because he filed a discrimination complaint. Many times I will get a call from an investigator asking if I will delay the eviction action because of the pending fair housing complaint. That is always a difficult discussion, but one I have had any number of times. And if your resident submitted a reasonable accommodation or reasonable modification request even after failing to pay his rent? We must review, evaluate, and respond to it in the ordinary course.
The takeaway for management? We must continue to engage in the interactive process with our residents – even if there is a pending eviction action and/or a pending housing discrimination complaint. A resident is a resident and our obligations remain.
Just A Thought.
Late last month, the U.S. Department of Justice (DOJ) settled a familial status housing discrimination case filed against property owners in Nevada. The DOJ’s complaint asserted that the defendants discriminated against families with children by placing a series of ads for a single family home in a local newspaper that stated a preference for adult residents as well as refusing to rent the home to a family with three children because, allegedly, the defendants did not want children living at the property. Additionally, DOJ claimed that one of the defendants placed other discriminatory ads for an apartment community she owns that again indicated a preference for adult residents. The DOJ’s complaint was the result of an administrative action filed before the U.S. Department of Housing and Urban Development brought by a family who was rejected for the single family home.
Pursuant to the proposed terms of an agreement, which remains pending in U.S. District Court for the District of Nevada, the defendants will pay $14,000 to the family denied the opportunity to rent the house, $10,000 into a victims fund to compensate other potentially aggrieved families, and $12,000 to the United States as a civil monetary penalty. As is common in these matters, the proposed deal includes a prohibition on future discrimination, requires the defendants to participate in fair housing training, and to provide periodic progress reports to the federal government.
I am, of course, mindful that there are always two sides to every story. Nevertheless, the takeaway for professional apartment management here is to run your advertising by a lawyer like me (or someone with an eye to fair housing issues). There are individual prospects, fair housing testers along with federal, state, and local officials searching newspapers (and on-line classified advertising for housing) looking for language which may indicate an unlawful preference or improper discouragement. Please do your best to comply with the law and remember that potential plaintiffs are out there.
Just A Thought.
Tip of the Fair Housing Defense blog cap today to the Fort Worth/Mid Cities Chapter of the National Association of Residential Property Managers. These good people flew me to Texas yesterday to conduct a seminar on emerging issues in our fair housing world. We spent the time discussing, among other points, service animals, emotional support animals, and criminal background screens. Specifically, we reviewed the what is required of a reasonable accommodation request related to an animal, how management should respond, potential issues for management, what we are seeing in the new world of internet-based medical verifications and how to appropriately push back, how some people are attempting to abuse the law as well as best practices for criminal background screens, particularly after HUD’s new April 2016 guidance.
For me, these opportunities are terrific because I get to leave my desk and learn first hand which issues are facing residential housing professionals day to day as they engage in the interactive process with our current residents and attempt to turn prospects into new residents.
Indeed, while I absolutely defend fair housing complaints filed across the country, some of the best work we can do together is interactive training to avoid problems turning into formal complaints. It is kind of like that old commercial for Fram oil filters – you can pay a lawyer like me a little now, or a lot later.
Just A Thought.
Here is another coming battleground for apartment management: what to do about applicants without social security numbers and/or who are undocumented? The issue is arising because of the decision of the Supreme Court holding that “disparate impact” is a part of the federal Fair Housing Act (FHA). Management is stuck in the middle because we absolutely believe it appropriate to run criminal background checks on our applicants. And a valid social security number is an important part of that process. While every applicant must be treated fairly, we have a similar obligation to current residents (particularly children) to do our best to ensure that sexual predators and/or other violent offenders not live in our communities.
In an effort to obtain a decision on this point, a federal lawsuit was filed earlier today in the U.S. District Court for the Eastern District of Virginia in which the plaintiffs (who are Hispanic and Latino) allege that they are being essentially evicted from their mobile home park because family members do not have a social security card or other proof of legal status. Lawyers for the plaintiffs assert that a requirement that all adults residents have a social security number, a visa (and related documents), or a passport is discriminatory because it disproportionately impacts Hispanics or Latinos.
To prove their case, lawyers for the plaintiffs will attempt to show that Latino and Hispanic residents are much more likely to be negatively impacted by a document requirement because they, as a group, are more likely not to have the paperwork. In response, I would argue that the “class” of people is not Hispanics or Latinos, but anyone (from any background) who does not have immigration documents and/or a social security card and, as such, no class of persons is disproportionally impacted.
I have not seen cases like this brought against private landlords or property owners. I know city or county ordinances mandating social security cards have absolutely been challenged. I will keep on this, see where the case goes, and develop recommendations for professional apartment management.
Just A Thought.
I took a call from a lawyer for a resident yesterday. The lawyer was upset because the resident had made a reasonable accommodation request for an emotional support animal that the leasing office team had denied. While the lawyer did not do work in the fair housing area, she had gone on-line and had done general research concerning the Fair Housing Act and specifically the portion of the law which provides for assistance to those who need service or emotional support animals. The call did not start well.
It was clear early on that she had just missed a critical component for all service and/or companion animals: the animal’s owner must have a disability. Indeed, the whole point behind service and companion animals is to assist those Americans with a recognized disability. To phrase it simply: if a resident is not disabled, he or she is not entitled to a service or companion animal.
Now, remember, many apartment communities are pet friendly and welcome animals. Yes, you may need to pay a pet fee and/or pet rent. And yes, some communities have pet size or breed restrictions. But if you want Rover or Fluffy to live with you, it can most likely happen.
Again, the point of a service or emotional support animal is to assist someone with a disability. As a management company, I don’t want (and am not entitled to) confidential health care information of our residents. If the disability is not obvious (such as an applicant in a wheelchair or a resident who is blind), all I want is a medical verification confirming: (1) the disability; and (2) a nexus (need) for the requested accommodation.
How did my call end with the lawyer for the resident yesterday? Once I explained the rationale and the applicable portion of the law, she understood completely. I do expect an amended medical verification form which my leasing office will appropriately review and respond to. If indeed the resident is disabled and there is a need for an emotional support animal, I suspect it will be approved.
But if you are not disabled, please don’t ask for a service or emotional support animal.
Just A Thought.