Three properties I represent (two on the west coast and one on the east coast) are currently involved with residents who separately have submitted reasonable accommodation requests to their respective leasing offices.  All good as professional apartment management has the obligation under the law the review, evaluate, and respond to each of them.

The three requests came from residents with different claimed disabilities (none of which were obvious or otherwise known), but they have the same request:  that management make a financial accommodation because of a disability.  The typical reasonable accommodation, of course, involves a change in a rule or a policy designed to ensure a disabled resident is still able to enjoy the full benefits of his or her housing.  The three submissions ask that management:  not raise rent, accept less for rent, and to cease eviction proceedings from a resident who is behind on her rent but does not wish to leave.

Setting aside the facts that none of the three requests (again for claimed disabilities which were not obvious and were not known to the leasing office) were medically verified, I have legitimate questions about each because of the financial nature of the requested remedy.  Now, while I understand (and agree) that the law presumes there may be a small financial cost associated with granting a request, I am unaware of guidance mandating that management reduce agreed upon rent as an accommodation.  For example, if a resident on the third floor of a building without an elevator suffers a mobility impairment, it could well be appropriate to let the resident out of his or her lease early as an accommodation, without charging any otherwise due early termination fees.  That is a cost to management.  Again, the point of the law is to help disabled residents obtain the full benefit of their housing— not to get a benefit not available to anyone else.

To phrase it another way, every resident (disabled and non-disabled alike) would benefit from a reduction in rent, not paying rent, or not getting evicted for failing to pay rent.  What I fear we are now seeing is residents (with or without counsel) attempting to use the reasonable accommodation process to avoid their financial obligations because of a claimed disability.

In my experience, financial accommodations like those sought here are not part of our federal Fair Housing Act.

Just A Thought.

Last week, the U.S. Department of Housing & Urban Development (HUD) announced settlement of a disability discrimination Fair Housing Act (FHA) case from San Francisco, CA.  A family filed a fair housing complaint asserting their apartment community failed to transfer them in violation of the FHA as their infant son had a disability and management was required to transfer them to a non-smoking unit.

The infant involved here has a condition that impacts his breathing. The family requested a transfer to a smoke-free building as a reasonable accommodation related to the young man’s disability. The family asserted that instead of moving them to a smoke free building, management simply provided them an air purifier. HUD concluded that solution was insufficient and brokered the settlement.

Pursuant to the terms of the agreement, the Respondents agreed to pay $12,000 and develop a grievance procedure that complies with Section 504 of the Rehabilitation Act of 1973.

As I have written in this space and elsewhere, complaints concerning disability discrimination now reflect over 50% of all of the housing discrimination complaints filed across the country. My docket similarly reflects the shift confirming that disability claims make up more than half of all the complaints that cross my desk. Indeed, HUD reports that in 2017 the department (as well as its state and local fair housing advocacy groups) investigated over 4,500 complaints in which disability discrimination was claimed. This is a trend which is simply not going to go away. Professional apartment management needs to ensure we have procedures in place to review, evaluate, and respond to each reasonable accommodation (or reasonable modification) request that is submitted by our residents.  Or you may really need to speak with a lawyer like me.

Just A Thought.

In a case filed last week, the U.S. Department of Housing & Urban Development (HUD) formally charged property owners in Syracuse, New York with violating the Fair Housing Act (FHA) asserting that the  owners failed to accommodate a disabled resident with an assistance animal at a community that otherwise has a “no pets” policy. While management is absolutely within its rights to declare a property pet free, leasing offices have to be able to review and evaluate reasonable accommodation requests from residents/applicants with disabilities seeking, for example, an assistance animal.

In this case, HUD asserts that the resident submitted a letter from her physician describing how the resident has a disability and how the animal alleviates anxiety and assists in preventing panic attacks. When the leasing office was reached to further discuss the request, the resident’s representative (a local fair housing group) was allegedly told that if the resident provided a $600 security deposit and insurance coverage (in the range of between $500,000 and $1 million), management would consider the accommodation request. When the resident brought the dog back to the property, she was served with an eviction notice asserting the animal was a pet and was being kept in violation of the “no pets” policy. The local court stayed the eviction action pending resolution of the HUD complaint.

As always, there are two sides to every story and just because something is in a complaint does not make it true. However, I would urge you to train your leasing office staff members to never say anything like “I know you are playing the disability game. We’re not playing it” as is claimed here. Also, do not attempt to charge a pet deposit for an assistance animal. And do not require special insurance for an assistance animal. These are hot button items and will raise red flags with HUD.

To be sure, management can and should review all medical verifications to do our best to determine that the document was not simply purchased over the internet by answering a few simple questions and using a credit card. Yes, some residents are indeed attempting to “play the disability game.”  But there are ways to engage in the interactive process that should be considered.  If you have what you believe are legitimate concerns, perhaps you should reach out to a lawyer like me to review your options before winding up as a defendant in an FHA discrimination matter.

Just A Thought.


I have used this space (and elsewhere) to discuss various issues involving service and emotional support animals for apartment community residents. Included in that, of course, is that management must make a reasonable accommodation in the event that a disabled resident requires an assistance animal – even if the property prohibits pets. Assistance animals are not pets and we do not charge a pet deposit or pet fees for service or emotional support animals. All good.

But, what about a situation where a resident is not disabled, but if a guest of a resident (someone not on the lease) wants to bring an assistance animal to your property? What are the rules? What can management seek from the guest?

Well, under our federal Fair Housing Act (FHA), management would be required to permit the guest of a resident to bring an assistance animal to your community (even if it is a “no pets” property). The FHA extends not only to residents, but also to individuals “associated” with the resident. As such, a guest of a resident is covered under the law as residents are entitled to the full enjoyment of their housing – which includes having guests visit.

Now, with respect to medical verifications, the rules are the same for residents or guests. If a guest’s disability is obvious (for example if the guest is blind and has a guide dog) we should not seek any type of supplemental medical verification. However, if the disability is not obvious (as is the case for many emotional support animals), management may seek competent medical information to demonstrate that the guest is indeed disabled and that there is a link between the animal and the disability.

Just A Thought.

When evaluating assistance animal requests from our residents, one of the issues faced by apartment leasing offices across the country is what to do if the animal is believed to be a “direct threat.” The law is absolutely clear that an animal (usually a dog) cannot be categorized as a “direct threat” unless there is evidence that the specific animal in question presents a legitimate danger to other residents, to property management employees, or to the property itself. To illustrate, we cannot simply deny an assistance animal because he or she is a particular breed, a particular size, or because of the animal’s weight.

Applying applicable standards concerning the “direct threat” analysis, last year the Vermont state Supreme Court issued an opinion, affirming the trial court below, concluding a landlord was correct in denying a reasonable accommodation request for a specific dog as the evidence demonstrated that the animal posed a direct threat. Even though the dog never attacked another resident, the evidence relied on by the court included:

*that the dog regularly reared up on her back legs, lunged, or bared her teeth at people and other dogs when outside;

*that the dog often went “crazy” [the court’s word, not mine] when other resident or dog passed the resident’s apartment home;

*that the resident informed others that the dog had been trained as a “guard dog” and was “people and dog aggressive”;

*that the resident asked another resident to walk their dogs at different times to avoid conflict with the purported assistance animal;

*that there was evidence in the record that the resident may not have been able to control the dog; and

*efforts by the resident to reduce or control the potential threat (such as limiting the time the dog was outdoors) would not sufficiently reduce the potential for aggression and/or were not appropriately raised or were thought not to be potentially successful.

While every reasonable accommodation request must be evaluated on a case by case basis, the court here provided some concrete examples of the types of behavior that it found disqualifying in an assistance animal. In my experience, even when we see an animal which may be a direct threat, management must always engage in the interactive process with the resident to determine if there are ways to control the animal. If you don’t, there is a decent chance that you might need to speak with a lawyer like me.

Just A Thought.

 

A Fair Housing Defense blog reader asked me for some guidance on the design and construction requirement for new apartment communities (and if there are exceptions to these requirements). While this is a topic that is better covered in a book (as opposed to an individual blog entry), there are some universal requirements that can be shared. Accordingly, new multifamily housing (with four or more units) built for initial occupancy after March 13, 1991 must have:

*a building entrance that is wide enough for a wheelchair accessed via a route without steps;

*accessible public and common-use areas;

*doors that allow passage by a person in a wheelchair;

*an accessible route into and through the dwelling units;

*light switches, thermostats, and other environmental controls in accessible locations;

*reinforcements in bathroom walls for later installation of grab bars; and

*kitchens and bathrooms that allow a wheelchair to maneuver about the space.

These fair housing standards apply to all units in buildings with elevators. In buildings without elevators, only the ground floor units must be accessible. It does not matter if the units are going to be sold or rented. If state or local accessibility laws are stricter than the federal standards, the builder/designer/owner must follow the state or local law. The federal regulations note that housing on certain sites may (and I emphasize may) be exempt because of the terrain or unusual characteristics of the site – such as extreme hills or mountains as well as certain waterfronts. The burden to establish impracticality is squarely on the builder/designer/owner of the property. You will absolutely want to speak with a lawyer like me before concluding that your site meets one of the exemptions to the accessibility requirements.

Hope that helps.

Just A Thought.

It is clear that just about all (if not all) of the federal, state, and local fair housing agencies are dealing with the exponential growth of online medical verifications for emotional support animals (ESA’s). I have addressed any number of ESA issues in this space. Professional apartment management companies continue to look for the appropriate sweet spot of ensuring that everyone with a legitimate disability is granted the accommodation they need, while at the same time raising appropriate questions about medical verifications that appear to have been purchased online after a few clicks of a computer mouse (or now just on a smart phone) and a $69.99 charge on a credit card (or perhaps $125 if you need the letter overnight).

Many of my clients now seek supplemental information whey they receive what appear to be the online ESA form letters. I have a drawer full of the same letter, signed by some of the same online providers. In return, I get nasty grams from the online providers concluding my clients are violating the fair housing laws because they did not simply accept their verification as presented. I don’t mind taking the heat, but it is always good when a governmental entity blesses our efforts to confirm that medical verifications are legitimate.

To that end, the Virginia Real Estate Board and Fair Housing Board issued a Guidance Document evaluating Reasonable Accommodation Requests for Assistance Animals. Addressing the reliable medical verification concern, the guidance provides that professional apartment management “should not be daunted by the prospect of potential litigation into accepting dubious verifications limited to vague statements of how an assistance animal would benefit the requester, but rather should insist on supplemental credible confirmation of [an] underlying disability. As with any other reasonable accommodation request, housing providers are absolutely within their rights to focus first on establishing the legitimacy of the requesting party’s disability status as defined by fair housing law.” That is all we want.

The Guidance further confirms that housing providers “may request that verifiers authenticate all or some of the following information to help evaluate their reliability and knowledge of the requester’s disability.” As such, I continue to believe we are well within our rights to continue to seek information concerning the:

*General location of where the care was provided as well as the duration of the care (such as the number of in-person sessions within the preceding year);

*Whether the verifier is accountable to or subject to any regulatory body or professional entity for acts of misconduct;

*Whether the verifier is trained in any field or specialty related to persons with disabilities or the particular impairment cited; and/or

*Whether the verifier is recognized by consumers, peers, or the public as a credible provider of therapeutic care.

Will guidance like this stop the highly questionable ESA medical verifications? No. But let’s hope our efforts to seek supplemental information when something looks like it has been purchased online continue to be validated.

Just A Thought.

 

Each year it seems that a growing number of states approve the use of medical marijuana (and/or loosen restrictions on the use of marijuana more generally). To that end, professional apartment management will likely receive (if you have not already) a reasonable accommodation request seeking to smoke marijuana at your property. What if your property is smoke free? What if you are concerned about the use of marijuana around children or others who find marijuana smoke offensive? How do you balance the rights of all? Here are some thoughts:

Despite changes in many state and local laws, the federal Controlled Substance Act (“CSA”) continues to categorize marijuana as a Schedule 1 substance. As such, the manufacture, distribution, or possession of marijuana remains a federal criminal offense. Furthermore, the U.S. Department of Housing and Urban Development (“HUD”) has distributed a memorandum which provides that the use of marijuana for medical purposes violates federal law and that federal and state anti-discrimination laws do not require leasing offices to accommodate requests by current or prospective residents with disabilities to use medical marijuana. Specifically, HUD concluded that management may prohibit the use of medical marijuana as a reasonable accommodation because: (a) persons who are currently using illegal drugs (which include medical marijuana) are disqualified from protection under the definition of disability in the law; and (b) such a proposed accommodation is not reasonable under the FHA because it would constitute a fundamental alteration in the nature of the property’s operation.

In addition to the HUD guidance, a federal district court in Michigan faced with a resident’s request for medical marijuana as a reasonable accommodation because of a disability, concluded that as marijuana is still classified as a controlled substance under federal law, the resident was not entitled to a reasonable accommodation for medical marijuana use under the FHA. In so ruling, the judge reasoned that residents seeking accommodations for medical marijuana are categorically disqualified from relief pursuant to the FHA, Section 504 of the Rehabilitation Act of 1973 and/or the Americans with Disabilities Act as the requested accommodation is not reasonable and would constitute a fundamental alteration in the nature of the housing operation.

While every circumstance can be different, the current state of the law does not require approval of medical marijuana as a reasonable accommodation for a disability.

As always, if you have specific questions about how to apply the laws concerning marijuana at your community, I would suggest you reach out to a lawyer like me.

Just A Thought.

Many times the cases with what look like the most egregious set of facts are the ones that get the most publicity. To that end, a fair housing case in California just settled with the owner of several apartment complexes and rental homes agreeing to pay $100,000 to conclude a disability discrimination action involving emotional support animals.

The complaint (which started as an administrative action with HUD filed by a local fair housing advocacy group) asserted that the apartment owner sent a letter to his residents stating he did “not like to deal with pets of any kind.” The letter contained no exceptions for assistance animals. Next, the defendant sent letters to the residents asserting that a flea problem existed and his solution was to ensure all pets were gone.  Or that the residents had to send letters from a veterinarian certifying that their animals did not have fleas. He then sent eviction notices to a handful of residents with pets and ultimately evicted two residents with emotional support animals.

In addition to the $100,000, the defendant agreed to participate in fair housing training, adopt policies for reviewing reasonable accommodation requests, and provide three years of semi-annual reports to the California Department of Fair Employment and Housing detailing reasonable accommodation requests and the resolution of the requests. The money includes damages to the former residents as well as investigatory costs and attorney’s fees.

The takeaway: Yes, you can prohibit pets at your apartment community. No, you cannot prohibit appropriately medically verified service and/or emotional support animals. If you are uncertain over this provision in the law, I suggest you reach out to a lawyer like me for some fair housing training.

Just A Thought.

 

 

Joining a handful of other states, New York recently enacted a state law making it a criminal offense to misrepresent that someone has a service or emotional support animal. The new statute, effective December 18, 2017, makes it unlawful for any person to knowingly misidentify a dog as a guide, service, therapy, or hearing dog. Violation of the law could result in a fine of up to $100 and up to 15 days in jail.

As permitted by our federal Fair Housing Act and various state, city, and/or county laws, some residents use service and/or emotional support animals (typically, but not always dogs) to help them in performing important tasks or to otherwise assist with receiving the full benefit of their apartment home. Assistance animals play an increasingly important role in our society and can be critical support for some residents.  Service or emotional support animals (which, of course, are not pets) do not pay otherwise due pet fees and pet deposits.

The New York law was passed to help address the concerns that a minority of individuals are taking advantage of these important laws and abusing their protections. New York is attempting to deter individuals from engaging in assistance animal fraud.

As written in this space, almost all professional apartment management companies do it right and welcome assistance animals at our properties. What we have seen, however, is an unfortunate spike in the number of applicants and residents who go online and purchase an emotional support animal verification over the internet with a few clicks and a credit card. New York has now joined a few states in working to prevent abuse of an important law which assists those Americans with legitimate disabilities and who rely on  animals every day.

A good practice is to work with your residents and applicants in preparing their reasonable accommodation request in an effort to ensure that all medical verifications are valid and were not purchased over the internet. This will help us get the request approved faster.

Just A Thought.