As new mixed apartment communities/buildings are constructed or rehabilitated across the country, one issue that is coming to light is what is being referred to as the “poor door” – a separate entrance for affordable housing residents.  Although a “poor door” has received governmental approvals, the concern is that the controversy surrounding its use will continue to increase as more similar housing projects are constructed.  What typically happens is a property is built with, for example, a separate door for market rate buyers/renters and a different door for affordable housing tenants.

The concern, of course, is if the affordable residents are being treated as “second class citizens” and those tenants are stigmatized in a manner which does not reflect how our fellow citizens should be treated under the fair housing laws.  The other side of the argument is that the developer would not have constructed the building at all without government assistance or incentives and, as such, the housing would not even exist.  I think it fair to report that this is yet another unanticipated issue that has arisen as governments partner with developers to seek creative solutions to increase the number of available, affordable housing units across the country.

In my view, while a “poor door” is not discriminatory on its face in violation of the Fair Housing Act (FHA), if the net impact of the “poor door” is such that protected classes are somehow singled out – there will be an argument that a “poor door” has a disparate impact on minorities and is therefore against the law.  I feel certain this practice will be challenged by both administrative complaints filed with HUD as well as in federal court.  If your project is one with a “poor door” — it may well ultimately be found lawful, but you most definitely will want to speak with a lawyer like me to help reduce the FHA disparate impact risk going forward.

Just A Thought.