Earlier this week, the Department of Justice (DOJ) filed a lawsuit in federal district court alleging that the owners and managers of three apartment buildings in Washington state violated the Fair Housing Act (FHA) by refusing to rent their units to families with children. The DOJ asserts that in March 2014, one of the apartment managers told a family (which included a one year old child) that the units were “adult only” and not available to rent. The complaint further states that throughout 2014 the defendants advertised their apartments as being available only to adults. The family initially filed an administrative complaint with the Department of Housing & Urban Development (HUD). HUD found that the complaint had merit and referred the case to DOJ.

While I express no opinion as to the facts of the case and remain mindful that there are always two sides to every story, professional apartment owners/managers must be certain not to advertise apartments as “adults only” unless your property is designed as housing for those over age 55 or age 62 (which require that they meet certain conditions). In addition to advertising issues, we need to train our leasing office employees to make certain no applicant feels as if his or her family is somehow not welcome. Indeed, many times management may feel that for safety or other legitimate reasons (such as multiple flights of stairs) it would be better for a young child to not live in a certain unit or specific area of an apartment community. Remember, however, that is not management’s choice to make. Offer all available apartments that the applicants qualify for and let the parent make the choice. To be sure, an applicant could also be a fair housing tester attempting to catch a leasing office staff member violating the law with an allegation of discrimination as in this case or that we are improperly “steering” applicants to parts of the community perceived as less desirable.

Just A Thought.

I am always gratified to receive comments from Fair Housing Defense blog readers. Many enjoy the light and breezy writing style involving what could be, shall we say, a dry topic. Some, however, are a little less kind – one reader last week thought I didn’t know what I was talking about, and used a colorful metaphor. Which is fine and why I don’t publish the comments. Got to love the internet. In any event, several readers have asked me similar questions, so I thought I would try to use this post to provide some answers:

  1. I represent apartment management, ownership, trade associations, and/or apartment leasing professional employees. I have taken what is called a “positional conflict” to only represent one side. My point is that I want my clients to know that while I am defending them against allegations of discrimination in one matter, I am not pressing similar claims for another client in a different case. Residents needing representation can look to local fair housing advocacy groups as well as HUD, state, or city officials.
  2. Yes, in addition to defending cases, I also do fair housing training and compliance. Ensuring our employees know and follow the law is one of the best ways to really avoid needing to speak with a lawyer like me after a formal discrimination complaint is filed. Saying “I did not know the law” never works as a defense to a claim. Trust me on that.
  3. Even if a resident has provided you with appropriate medical verification in support of a service or emotional support animal, that animal (and its owner) must still follow the rules of your community. A service or emotional support animal is not permitted to howl long into the night, bite other residents, and/or urinate (or worse!) throughout the property. A resident may indeed be entitled to a service animal, but that resident is still required to clean up after the dog. In short, no animal can be a direct threat to other residents, property employees, or to the community itself. Also, remember that while there are no breed or size restrictions on service or companion animals, always engage with your residents in an effort to solve any issues before they become formal problems.
  4. Many of my clients are continuing to question emotional support animal verifications that appear to be purchased with a credit card over the internet without any legitimate medical evaluation. Indeed, I have had a couple of doctors let me know that they will not write medical verifications for patients simply attempting to avoid pet fees. An interesting trend, but I am sure there will be much more to come on this point.
  5. While a number of President Trump’s cabinet selections have been confirmed, there are other nominations (including that of Dr. Ben Carson to lead the U.S. Department of Housing and Urban Development) that remain pending. As the Senate will be in recess next week, it appears likely Dr. Carson will have to wait until the end of February or even early March for a final vote by the Senate. I have not seen active opposition to Dr. Carson such that his nomination is in trouble, only that it is taking longer than I would have expected following his confirmation hearing.

Just A Thought.

A Fair Housing Defense blog reader sent in a question concerning the number of housing discrimination cases filed and if there was a breakdown with respect to those filed against management as contrasted with those filed against maintenance personnel. To my knowledge, while HUD absolutely tracks the annual number of cases filed and further breaks down the complaints by the protected class of the person bringing the action, I am not aware of any data concerning claims filed against service personnel as compared to those who work in the leasing office. In my experience, while it is the conduct of leasing office personnel which make up a significant majority of the complaints, I have any number of cases in which a service team member is asserted to have either done something (or not done something) in a discriminatory manner.

Remember, many times it is HUD (or a state, city, or county agency or even a local fair housing advocacy group) who works with a potential complainant and it is the agency who actually identifies those to be named as Respondents. Sometimes it is just the ownership entity. Sometimes it is the management company. Sometimes it is the apartment community. Sometimes it is individuals who are named – a community manager, a regional manager, a leasing office associate, a service manager, and/or even the company’s president who are joined along with the entity.

Now, make no mistake, as a best practice – ownership/management should absolutely train both our leasing office staff as well as our maintenance employees in fair housing and we should update that training at least annually. Remember, all of our leasing office and service teams interact with residents. And both can cause liability if we do not do it right.

So, remember to train both your leasing office and service team members. The actions of any employee can cause fair housing liability. Saying “my service technician did not know the law” will not work as a defense in a fair housing case. Trust me.

Hope that helps. Thanks for the question.

Just A Thought.

Yesterday, Dr. Ben Carson had his confirmation hearing before the U.S. Senate Banking, Housing, and Urban Affairs Committee, which is considering his nomination to be the next Secretary of the Department of Housing & Urban Development (HUD). Many of us interested in federal housing policy were curious to hear what Dr. Carson had to say concerning the Fair Housing Act as well as any HUD initiatives as what he has previously said either disagrees with or does not address many of the issues HUD faces every day. Make no mistake, many public housing advocates have been exceedingly nervous about what HUD might look like with Dr. Carson in charge. What can I report today? With the hearing now concluded, unless something new comes to light, it seems pretty clear that Dr. Carson will be confirmed.

Indeed, at least one major media outlet reported that Dr. Carson “coasted” through the hearing as almost none of the Senators got into specific details concerning housing policy. With respect to fair housing, Dr. Carson said he would enforce the anti-discrimination laws already on the books — something that Democrats and housing advocates have not taken for granted.

When asked about government programs to aid the poor, Dr. Carson replied that “safety net programs are important, and I would never advocate abolishing them without an alternative.” He also noted that the best thing the government can do to someone on public assistance is to help and get them off of it. Some Senators did not use all of their allotted questioning time. Others did not get into any type of detailed discussion regarding any possible changes Dr. Carson wants to see in housing policy.

So, at the end of the day it looks like we know who will lead HUD in the next administration. For now, we will continue to comply with the law is currently interpreted. Possible HUD enforcement priority changes involving issues such as disparate impact and the use of criminal background screens will need to wait for another day. I will keep watching.

Just A Thought.

 

Time for my favorite Fair Housing Defense blog post of the year.  With apologies to David Letterman, here are the Top Ten entries from 2016, as calculated by the number of reads (yes, my law firm tracks everything).  You can click on any entry to read the post:

#1: DOJ Settles Another Familial Status Fair Housing Act Case — This Time for $100,000 (February 26, 2016)

#2: Colorado House Passes Bill To Criminalize False Service/Companion Animal Requests (April 1, 2016)

#3: First Circuit Issues Fair Housing Act Opinion Concerning Emotional Support Animals: Here is the Takeaway for Management (May 3, 2016)

#4: Marijuana Use and Reasonable Accommodation Requests (January 27, 2016)

#5: Is Filing an Administrative Fair Housing Complaint With HUD Required Before Going to Court? (March 11, 2016)

#6: Reasonable Accommodation/Modification Medical Verification Checklist: Is the Resident Disabled? (July 20, 2016)

#7: HUD Publishes New Guidelines Impacting Apartment Criminal Screening Criteria (April 22, 2016)

#8: Some Further Thoughts on HUD’s Criminal Screening Guidance For Management (April 28, 2016)

#9: The Next “Disparate Impact” Battleground: Criminal Background Checks (May 23, 2016)

#10: Additional Thoughts on Questionable Emotional Support Animal Verifications (August 9, 2016)

I will continue to attempt to write on topics that most interest you during 2017.  Again, I very much appreciate my readers and your comments.

Just A Thought.

With the end of 2016 in sight, I thought this might be a good time for a short landlord/tenant checklist concerning important issues that management and residents should understand when dealing with a residential lease:

What is the lease term? One year? Six months? Month-to-month? Another term? How is the lease extended? What is the notice to vacate procedure? What are the deadlines?

What additional costs (if any) are not included in the monthly rent? Application fee? Parking? Electric? Trash? Water? And how often do you pay? Monthly? Annually? For the most part, remember that cable, internet, and phone charges are extra.

When is the rent due? How does the resident pay the rent each month? Drop off a rent check in the leasing office? Maybe, but not so much anymore. On-line resident portal? Automatic monthly debit?  Check mailed to a management office? What are the late fees and how are they calculated?

What deposits are required? How are they calculated? And when are they refunded? Both sides can benefit from taking (and dating) pictures.

Are pets allowed? Are there size or breed restrictions? What fees are charged for pets? Remember, a service or companion animal is not a pet. Do everyone a favor and don’t try to qualify your pet as a service or emotional support animal by going to the internet, paying a fee, and immediately “registering” Rover or Fluffy in an effort to avoid pet rent.  Service and emotional support animals are for those disabled Americans with a real need related to their disability.  Enough said.

What is management responsible for in terms of property maintenance? Typically, management will be responsible for all major appliances, plumbing, HVAC units, radiators or window air-conditioning units. As a part of that, how are maintenance requests made? Residents should follow that policy.  Sending an email to a regional property manager for a routine maintenance request is probably not the best way to get your microwave fixed.

Who manages the property and who is available to answer questions? Management will also have an emergency phone number in case something breaks or leaks that requires prompt attention.

Every community has its owns rules and regulations concerning behavior, including items such as noise, common areas, grills, swimming pool, workout rooms, balconies, conference areas, laundry facilities, and the like.

Understanding issues like these can get the leasing office/resident relationship off to a good start.

Happy New Year everyone. See you again in 2017.

Just A Thought.

Last week, the U.S. Department of Justice (DOJ) reported that developers of six multi-family housing communities in Mississippi agreed to pay $350,000 to resolve claims that they violated the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA) by building apartment homes that were inaccessible to persons with disabilities. Pursuant to the terms of the agreement, the defendants promised to make any number of retrofits (including eliminating steps, making bathrooms more usable, installing curb ramps and parking, constructing accessible walks to amenities such as the clubhouse and pool) to remove accessibility barriers – a project that will cover almost 500 units.

In addition to the significant retrofits, the defendants agreed to pay $250,000 to 25 individuals alleged to have been harmed by the inaccessible housing as well as $100,000 in civil money penalties. As is typical in these types of cases, the DOJ also required fair housing training, periodic reporting, and an agreement that any future housing construction complies with the accessibility laws.

DOJ filed the complaint in May 2014, which followed an investigation and an administrative complaint filed with the U.S. Department of Housing & Urban Development (HUD). The case had been set for trial in January 2017.

The takeaway for professional apartment community builders/owners/designers: among other provisions, our FHA requires all multifamily housing constructed after March 13, 1991, to have basic accessibility features, including accessible routes without steps to all ground floor units and units accessible to wheelchair users and others with disabilities. The ADA requires that places of public accommodation, such as rental offices at multifamily housing complexes designed and constructed for first occupancy after January 26, 1993, be accessible to individuals with disabilities. The law also establishes a number of safe harbors will provide a template for how to design and build new multifamily housing.  If you are uncertain how the law works, you might want to consult a lawyer like me in an effort to avoid a potentially large issue after your project is complete.

Just A Thought.

I try to avoid partisan politics here at the Fair Housing Defense Blog. As we have seen over the past year (and particularly over the past month), emotions on both sides can run hot. Nevertheless, I have had a couple of Blog readers ask my opinion about what President-elect Trump will mean for those of us in the professional apartment management world. The answer is: we don’t know.

This morning, the President-elect announced that he would nominate Dr. Ben Carson to serve as Secretary of the United States Department of Housing and Urban Development (HUD). Dr. Carson, who you may remember ran for the 2016 GOP presidential nomination, is a retired surgeon who served as the director of pediatric neurosurgery at Johns Hopkins University Hospital in Baltimore, MD. As a complete aside, the daughter of one of my good friends was operated on by Dr. Carson during his career and they speak very highly of his skills as a physician.

So, while Dr. Carson is literally a brain surgeon (which has to be a good thing), we just do not know his views on housing policy and what his initiatives for HUD might be. In the past, Dr. Carson has challenged efforts of the Obama administration to use its regulatory powers to increase racial integration in housing and he has not typically supported some of the policies put forward by various minority groups. We will certainly monitor Dr. Carson’s comments during his Senate confirmation hearings as well as what other incoming officials say and do related to housing generally and the Fair Housing Act (FHA) specifically.

A new administration will certainly mean change; although that change might not happen immediately. In my role as management’s lawyer, what I want is the ability to know what the law is and what is covered by our FHA and its regulations. From my seat, ambiguity is what I want to avoid. And remember, even if a new administration changes federal policy, we will still need to ensure management complies with various state and/or local anti-discrimination laws.

So, for now – follow the law as you have been. That includes the new 2016 HUD guidance concerning limits on criminal background screens as well as understanding that “disparate impact” remains covered under the FHA.

Just A Thought.

In addition to renting units, many apartment owners/managers rent space for commercial enterprises (such as restaurants and stores) in their properties. Which can make good sense for both – providing a needed service or store with a ready-made group of people living extremely close by. All good, right?

But, remember that when you lease space to a commercial vendor and that tenant modifies the space for a restaurant and/or shop – make sure that the renovated site conforms with the accessibility guidelines in the Americans With Disabilities Act (ADA). While a landlord and a commercial tenant are certainly free to apportion costs as they see fit (including an indemnification clause) – if a disabled individual sues, both the landlord and commercial tenant will be named as defendants and the plaintiff will seek what is known as joint and several liability against them.  An otherwise responsible party will most likely not be able to avoid liability to a plaintiff by simply pointing out that the other party (landlord or tenant) agreed to ensure the space met the accessibility guidelines.  Yes, there will be a cross claim, but that will not get you out of the lawsuit.  The reason for this policy is that it is presumed to be unfair to the disabled individual not to be able to sue a party who should otherwise be responsible for the failure to comply with the ADA.

What this means for property owners/managers is that if we rent space (and even if the cost of the renovation is agreed to be picked up by the tenant), we are still potentially responsible to ensure that the accessibility requirements are complied with. Another reason you might want to speak with a lawyer like me if you start down the path of renting commercial space in your property.

Just A Thought.

In response to regular requests, here is a summary of when the Fair Housing Act (FHA) may not be applicable. Again, if you are a professional property management company or employee, it is extremely likely the FHA (as well as state, city, and/or county anti-discrimination laws) applies. Nevertheless, here are some guidelines:

The FHA does not generally apply to small owner-occupied buildings (a property with four or less units) when the owner resides in one of the units. This is referred to as the “Mrs. Murphy exemption.”

The FHA does not apply to single family homes rented without a broker.

If you are a part of a religious organization leasing apartments at a property that is not being operated for a commercial purpose, it is permissible to limit occupancy (or give preferences) to people of your organization’s religion.  If this exemption applies, however, please note that the FHA makes clear that this provision is only for religion and warns that religious organizations cannot discriminate based on race, color, or national origin.

If you are renting apartments on behalf of a private club and not for a commercial purpose, the FHA permits the club to give a preference or limit occupancy to club members.

If your property qualifies as Housing for Older Persons, you can be exempt from the portion of the FHA that prohibits discrimination against families with children. Exempt properties are those that are designated for age 55 and older or age 62 and older communities. You will want to speak with a lawyer like me to see if your property qualifies as Housing for Older Persons.

That being said, even if your property is exempt from the FHA, you still must follow the FHA’s prohibition on discriminatory statements, notices, or advertising. Similarly, always remember that you must also comply with the state, city, and/or county fair housing laws in which your property is located.

Hope this is helpful.

Just A Thought.