Earlier this month, the California Department of Fair Employment and Housing (DFEH) announced that it settled a housing discrimination action against a property owner brought by a man who claimed he was denied the opportunity to rent a home because he was not legally married to his partner.  The allegations included that the potential resident was offered a lease for a home in San Diego, but upon disclosing that he planned to live with his boyfriend, the potential resident was told that both he and his partner had to individually satisfy a $90,000 yearly income standard. Following an inquiry about whether the two men could aggregate their incomes to satisfy the income requirement, they were told that they could only do so if they were married. And as the two individuals were not married, the two potential renters had to find another home to rent together.

After an investigation, the DFEH found probable cause to believe a violation of state law took place. Following a mandatory conciliation process, the property owner and manager agreed to pay $7,500 to resolve the claims. As is common in these types of cases, in addition to paying the money, the owner/manager was required to attend annual fair housing training and to ensure that fair housing brochures are provided to current and future applicants for the next two years.

The lesson here is that California, like some other states, includes additional protected classes in its state anti-discrimination law (in addition to those covered in the federal Fair Housing Act). Other protected classes in California include: sexual orientation; gender identity and gender expression; marital status; medical condition; ancestry; source of income; age (people over the age of 40); genetic information (also known as family medical history); and any arbitrary discrimination (which means a person cannot be discriminated against for any other arbitrary reason).

If you are involved in the professional apartment management business, you must know the state (or even local) laws in your jurisdictions to help ensure you comply with them. If you are uncertain, ask a lawyer like me for guidance on protected classes where your property is located.

Just A Thought.

 

A case with difficult facts from Florida involving the Fair Housing Act (FHA) as well as other civil rights laws made the news earlier this week. An immigrant from India (who is Muslim) entered into an agreement to buy a home in an upscale island neighborhood near downtown Tampa. When the purchasers came to the house to do a final inspection and some cleaning, a neighbor walked toward the house and started yelling. The neighbor allegedly said things like “This sale will not take place!” and “You are not welcome here!” and “I will break all of your f-ing windows and I will burn you f-ing house down!” The neighbor also made insulting comments about Muslims.

The neighbor was just sentenced for violating the FHA and related civil rights statutes which protect threating or interfering with another person’s housing opportunities because of their race or religion. A part of the resolution includes a $30,000 restitution payment to cover the deposit the family lost when they canceled the closing on the house. In addition to the criminal matter, the neighbor is also facing a civil suit for violating the FHA and related anti-discrimination laws.

I know the facts here were extreme. No professional apartment management team would think of using this type of language when dealing with potential purchasers or renters of housing. But this case is a simple reminder that emotional outbursts can cause significant distress as we engage in our housing operations.

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.

Earlier this month, the U.S. Department of Housing & Urban Development (HUD) announced that it charged the owner and manager of a trailer park in Mississippi (with seven lots on 1.25 acres of land, each with water and utility hook ups) with violating the federal Fair Housing Act (FHA) by failing to rent a lot to an interracial married couple with two children (ages seven and five). HUD’s complaint asserts that after the property manager discovered that the husband is African American, the manager stated the entire family had to immediately relocate from the trailer park.

The case started with the filing of an administrative HUD complaint alleging that the trailer park discriminated against the family on the basis of race. The wife is Hispanic and, as noted above, the husband is African American. HUD claims that the wife was rented a lot as it was believed that the wife was Caucasian. However, literally a day after the family moved it, the defendants discovered the race of the husband and they demanded that the family move and take their trailer out of the park. HUD’s complaint further alleges that during a phone call the manager said “white and black shacking” was “problematic for his community, his church, and his mother in law.” The owner also allegedly said to the wife that “you did not tell me you were married to a black man.” Although the wife asked him to reconsider and informed him the couple was married and not “shacking”, HUD claims the owner refused and returned the first month’s rent. The family then moved out of the park. A reporter subsequently telephoned the owner and was told that neighbors did not approve of an interracial family. The HUD complaint followed.

While I always caution that these are just allegations at this point and there are two sides to every story, professional apartment management employees should be trained to avoid anyone being able to assert that a staff member would say anything like what is alleged in this complaint.  Or you will really need to speak with a lawyer like me.

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.

Acting pursuant to state law, the New York Division of Human Rights initiated a complaint against a property manager in New York City alleging discrimination against individuals based on their immigration status.

The complaint followed an investigation which revealed an agent for the landlord posted a letter addressed to “all tenants” on the front door of the property. The letter demanded that residents provide proof of employment, a photo identification, Social Security card, Green Card or passport, or would face a possible eviction from their homes. In addition to the letter on the door, the landlord made a number of public statements to various media outlets which the state officials contend demonstrate a discriminatory view toward New Yorkers of Latin American descent. Now, remember my usual caveat that just because a complaint has been filed does not mean a defendant is liable or that the charges have merit. Indeed, I always know there are (at least) two sides to every story.

Now, while “immigration status” is not specifically a protected class under the federal Fair Housing Act (FHA), it is certainly likely this complaint could have been filed pursuant to the federal statute using national origin, race, or creed – which are protected classes under the FHA.

To be clear, management has an absolute right (and indeed should) have a non-discriminatory resident selection criteria in place which requires that all applicants undergo a credit and criminal background screen. Those checks are a leasing office best practice. But we should not use credit and criminal background screens to do an immigration status check.  Or there might be a need to speak with a lawyer like me.

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.

 

Last fall, the California Department of Fair Employment and Housing (DFEH) resolved a familial status fair housing case that I wanted to highlight. Familial status, of course, is the protected class which covers families with children under the various federal, state, and local fair housing laws. This discrimination complaint asserted that an apartment management company rejected a California family of 12 a chance to rent a 2,583 square foot home because the family had “too many kids.”

Defending against the claim, the management company noted it followed the “two plus one” occupancy standard – which means two persons per bedroom, plus one additional person in the home. Based on the facts here (a family of twelve), that would appear to require at least a four (if not a five or a six bedroom home). The DFEH typically follows the federal guidelines for home occupancy. While the U.S. Department of Housing & Urban Development (HUD) issued guidance back in 1992 confirming that two persons per bedroom would generally be considered reasonable, the guidelines since then have changed. While some states formally adopted a “two plus one” standard, the modern rule is simply that enforcement of occupancy standards depends on what is reasonable for the specific home at issue – which further depends on the size and configuration of the unit (including the number of bedrooms, the size of the bedrooms, the total living space, if there are any physical limitations in the home, the ages of the children, and other relevant factors).

As a part of the settlement, the management company agreed to revise its policies, commit to annual fair housing training as well as submit to quarterly inspections. Curiously, the press release noting the resolution did not include a financial component. Obviously, it is a rare application which comes from a family of 12.  And not many rental units can fit a family of 12.  But I suspect that was part of the reason the DFEH took the case.

The takeaway here: do not out of hand reject an application for housing because it looks like there may be “too many kids” or simply conclude that your company follows the old 1992 HUD guidance. Management companies need to perform a review to determine what is a reasonable number of occupants given the size of the home (use the total living space) – and not just the raw number of bedrooms. Or you may need to speak with 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.

 

 

Continuing down a path that has been highlighted in the news lately, last week the U.S. Department of Justice (DOJ) filed a lawsuit in U.S. District Court in Kansas alleging sexual discrimination under the Fair Housing Act (FHA). In the new complaint, DOJ asserted that female residents at a handful of rental properties in Kansas were subjected to egregious sexual harassment and retaliation.  DOJ’s complaint named four defendants (as the properties were owned by one or more of the individuals) where the illegal conduct allegedly took place from 2010 through 2014.

This litigation started when two former residents filed administrative complaints with the U.S. Department of Housing & Urban Development (HUD). The residents asserted that one of the defendants sexually harassed them by making unwelcome advances and comments, engaging in unwanted sexual touching, and evicting residents who refused to engage in sexual conduct with him.

While the complaint still needs to be proven in court (and there are always two sides to every story), the allegations remind us that DOJ and HUD remain willing to bring actions in which this type of conduct is alleged. As apartment management professionals, we need to ensure our staff members (from ownership on down) are trained to follow the FHA, which includes a component on preventing sexual misconduct. Indeed, in October 2017, DOJ announced a new Sex Harassment Initiative. The initiative specifically seeks to increase DOJ’s efforts to protect individuals from harassment by landlords, property managers, maintenance workers, security guards, and other employees and representatives of rental property owners.  DOJ also noted that it has filed or settled six sexual harassment cases since January 20, 2017, and has recovered over $1 million for victims of sexual harassment in housing.

What does this mean for property management professionals? Ensure your team members (from ownership on down) are trained to identify and prevent sexual misconduct. Don’t be the next management company or ownership group named as a defendant by DOJ or HUD following possibly inappropriate conduct by staff members.

Just A Thought.