December will be here very soon. With the change in the calendar comes Christmas, Hanukkah, and other holidays. Always a great time for kids and families. Santa Claus. Christmas trees. Menorahs. Decorations. For professional apartment management, however, the question of what to do (or not do) with respect to holiday displays and decorations comes up each year at this time. Leasing office staff members are required to balance the religious and holiday requests of all, while showing a preference to none. What some might see as benign can be perceived as offensive to others. HUD’s guidance on this point notes that while our Fair Housing Act (“FHA”) does not prohibit religious expression, all residents must be treated equally and without regard to their particular religion.

The FHA makes clear that management cannot publish any notice, statement, or advertisement which indicates a preference, limitation, or any type of discrimination based on religion. Furthermore, the applicable regulations prohibit management from engaging in “inherently religious activities” when participating in any activities funded by HUD. “Inherently religious activities” include worship, religious instruction, or proselytism. To be sure, this prohibition is tempered by the qualification that these types of “inherently religious activities” may be offered separately “in time or location” from the programs, activities, or services supported by HUD funds and that participation in these programs must be voluntary. As such, management is tasked to protect the rights of those residents who wish to participate in certain activities as well as the rights of those residents who are of a different faith (or those who have no religion). If you have a community room, for example, any resident can sign up and use it. While management should not get in the business of promoting a specific religious practice or activity, the question about decorations remain.

So, what to do? Well, the easy choice is to simply ban all holiday displays. But many residents are correctly unhappy because it seems like overkill. Yet others may complain that their specific religion is omitted or another display is perceived to receive preferential treatment. What are management’s options? I have recommended that communities have a designated area in which holiday items from various faiths are displayed. Invite residents to participate. Additionally, there is guidance that confirm references to Santa, Christmas trees and the North Pole are far enough away from religion so as to lose any prohibited inference. Another option is to remind residents that they can absolutely decorate the interior of their apartments, their doors, (and if appropriate at your specific community) alcoves or areas next to their doors with more overtly religious displays.

As management, we are looking for a policy which appropriately balances the beliefs of all while ensuring we are not perceived to favor one religion over another. And whatever decision you make, just know that someone may not be happy about it. Which may require you to speak with a lawyer like me.

Just A Thought.

 

First, let me go off topic for a minute to wish everyone a happy and healthy Thanksgiving holiday. As I do once a year, I want to give a special shout out to my wife (Hi Sweetie!) to see if she actually reads these posts.

Assistance animal questions continue to dominate reader comments here at the Fair Housing Defense blog. As such, let me highlight a handful of points that regularly come up:

  1. Breed, size, and weight limitations may not be applied to an assistance animal (as they can be for pets).
  2. A determination that an assistance animal poses a direct threat of harm to others or would cause substantial physical damage to the property must be based on an individualized assessment that relies on objective evidence about the specific animal’s actual conduct — not on mere speculation or fear about the types of harm or damage an animal may cause and not on evidence about harm or damage that other animals have caused.
  3. Housing providers may ask individuals with disabilities that are not readily apparent to submit reliable documentation of the disability and the disability-related need for an assistance animal.
  4. Additionally, if a disability is not readily apparent, the leasing office may confirm that the need for the assistance animal continues. I do not suggest management check every three months, but around the time of an annual lease renewal could make sense.
  5. While the typical request is for one assistance animal, the law recognizes there may be circumstances in which an individual requires more than one animal. In such a circumstance, the nexus for each animal can be verified.
  6. Conditions and restrictions that housing providers apply to pets may not be applied to assistance animals. For example, while housing providers may require applicants or residents to pay a pet deposit and pet rent, they may not require applicants or residents to pay a deposit for an assistance animal.
  7. Animal owners must, however, ensure their animals stay under control at all times and clean up after the animals.

Hope that helps.  Enjoy time with family and friends this long weekend.

Just A Thought.

 

A Fair Housing Defense blog reader sent me a question about live-in aides which I thought I would answer with some general guidance in a post.

First, in order to have a live-in aide, a resident would need to meet the definition of “disabled” (or handicapped) in the Fair Housing Act (FHA). Unless the need for the aide is obvious, management may obtain a medical verification confirming the need for the aide. The live in aide is considered a reasonable accommodation under the FHA.

A live in aide qualifies for residency for as long as the disabled resident requires the services of the aide and remains a resident.   In other words, if the resident leaves the community, the live in aide does not automatically convert to a resident with rights to the apartment home. I typically recommend that a lease addendum be used to confirm that the aide acknowledges he or she has no rights to the unit without the resident he or she is assisting. The addendum should also give management the right to evict the live in aide if he or she violates any house rule (as is the case with every resident).

Next, I always recommend that a live in aide be required to meet your property’s screening criteria – other than credit (as the aide is not responsible for rent).  In my view, the aide should be screened based on the same criminal screening procedures that management has for reviewing applicants. Also, while a live in aide is counted for the purpose of determining the appropriate unit size (such that the aide can be entitled to their own bedroom), if a unit with a separate bedroom for the aide is not available, as a general rule, the resident should not be denied his or her aide, even in a smaller apartment. If a larger unit becomes available and the resident requests a transfer to the larger apartment, management should consider such a request as a reasonable accommodation. As a part of evaluating the request, however, management is entitled to charge what is likely to be higher rent for a bigger apartment home.

Hope that helps.

Just A Thought.

 

A real world example of developing a community without knowledge of or procedures to comply with the Fair Housing Act (FHA) is on display in Maryland right now. A developer started work on a community (with just under 60 homes) overlooking a river north of Baltimore. A number of homes were built and some people bought the first group of houses. All good, right? Not so fast.

When the developer ran into financial troubles, he stopped working on the partially completed project. Last year, an immigrant from Pakistan joined forces with another developer to restart the project. Their goal was to build a retirement community for a certain Muslim sect. The stated plan was to build a “peace village” for Muslims age 55 and over with a mosque. 22 of the homes were sold. Construction was restarted.

At that point, various officials and other residents complained, asserting that the developer was violating the fair housing laws because the homes were now being marketed toward only Muslims. Indeed, one local real estate agent filed an administrative complaint with HUD asserting she could not get information about the community to market to her non-Muslim clients. Certain language on a website was deleted. Complicating matters further is another lawsuit, filed in U.S. District Court, claiming that the county  stopped issuing the necessary building permits because it was “motivated by racial and religious animus to keep members of the Islamic faith from purchasing lots and exercising their religious freedoms.”

So, is this religious intolerance? Is it steering (directing certain people to certain homes)? Would anyone have cared if the developer was catering to a different religion? But doesn’t fair housing mean that people of any faith (or no faith) should be able to buy available homes? On the one hand, religion is a protected class. On the other hand, isn’t it wrong to limit buyers to those of a specific faith? Is the county slowing down permits because of the specific religion involved? What about the daughter of one of the original buyers (who has since passed away) and now wants to sell. Is she limited to only being able to sell to Muslims?  Should “equal housing opportunity” support such a result?  Will prices be artificially depressed if it is perceived the community is segregated?

HUD and the courts will have to sort this all out. In the interim, I suspect there will be more meetings with the county, the developer, and the residents in an effort to find a solution.

Just A Thought.

 

Pursuant to an agreement announced last week, the U.S. Department of Housing and Urban Development (HUD) announced that it resolved a discrimination complaint filed by local housing advocacy groups against Maryland’s Department of Housing and Community Development (DHCD). The complaint challenged the fairness of Maryland’s Low-Income Housing Tax Credit (LIHTC) program.  As detailed by HUD, the resolution puts forward policies, incentives, and more flexible program rules that are designed to streamline the designation/construction of affordable housing in various neighborhoods in and around Baltimore.

With respect to housing, the deal as crafted is hoped to develop up to 1,500 new affordable units. Of those 1,500 units, more than 1,000 are slated to be new construction. In a change to state policy, developers of affordable housing will no longer have to satisfy certain local scoring or approval criteria before applying for state-allocated tax credits.

The resolution ends six years of litigation that was filed by a group of housing and civil rights organizations. The plaintiffs argued that Maryland’s policy of requiring local jurisdictions to approve proposed affordable housing projects prior to the allocation of tax credits to fund construction essentially stopped affordable housing from being developed in predominately White areas. As such, according to the complaint, housing opportunities for African American and Hispanic families were wrongfully limited in and around Baltimore.

Pursuant to the settlement, the DHCD will: end the requirement of local approvals; mandate that at least 1,500 units of affordable family housing are developed certain areas in and around Baltimore region; amend plans to now award points to any proposal to develop family housing in a community of opportunity (including providing more of an incentive for homes with two or more bedrooms); expand affirmative fair housing marketing activities; and pay $225,000 to promote the mission of the local fair housing groups.

Just A Thought.

 

In response to a question, here is a short Fair Housing Act (FHA) primer on the timeline for responding to reasonable accommodation or reasonable modification requests. Under our FHA, “discrimination” includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” Now, to determine if a requested accommodation is “reasonable,” a court will generally consider whether the requested accommodation is (1) reasonable and (2) necessary to (3) afford disabled individuals an equal opportunity to use and enjoy housing. Nothing controversial so far.

But what if a leasing office does not respond to a request? Or what if a community manager does not know that a request has been made?

In a circumstances like these, courts have held that a failure to respond can operate as a rejection of the request. Similarly, an “undue” delay can amount to a rejection. What is “undue” – of course – is in the eye of the beholder. Every case will be judged on its own facts? What if management responds in one week? I think that is fine. Two weeks? Still likely reasonable. A month? At this point, it starts to feel unduly delayed.

That being written, the law also provides that management must have been given the “opportunity to accommodate” the resident/applicant. To phrase it another way, the leasing office must have been given the chance to respond prior to incurring liability for refusing or failing to respond to an accommodation request.

This issue typically arises when a disability is not obvious – as takes place with most emotional support animal (ESA) requests. Until we receive a request, in the vast majority of circumstances, our leasing office team has no way to know that a resident requires an ESA. The other extreme example is that management will not typically seek further information or verification for a designated parking spot for a resident with a mobility disability who uses a wheelchair.

The takeaway?  Promptly respond to all reasonable accommodation requests.  A best practice is to send an interim response to acknowledge the request and note that management is reviewing it.  And then formally respond within a reasonable time.  One week is great.  Two weeks is likely fine.  Three weeks?  Questionable.  After that, you may need to speak with a lawyer like me.  Make sense?

Just A Thought.

 

 

As an apartment management staff member, please know that advertising is absolutely a part of our Fair Housing Act (FHA) compliance efforts. Indeed, the FHA specifically has a section which confirms that it is against the law to advertise in such a way as to indicate a preference, limitation, or discrimination based on any of the protected classes the statute. Indeed, the Department of Housing & Urban Development (HUD) has had advertising regulations in place since 1972. These regulations were updated in 1989. But what does that mean in practice? Here are a few tips:

  1. It is a best practice that all advertising (which now includes internet sites in addition to flyers, mailings, newspaper ads, magazines, business cards, radio, television, and even word of mouth) contain the Equal Housing Opportunity logo.
  2. Offensive phrases, such as “no children, singles preferred, next to a catholic church, and/or perfect for Hispanics”, and the like should be avoided.
  3. To the contrary, use welcoming phrases such as “quiet residential area, close to parks and recreation, gated community, and/or near many houses of worship.”
  4. If your ads include photos of human models, make sure you select a variety of people from different national origins and races. Does that mean every picture needs to include someone of every national origin? Of course not. But work to be inclusive as you develop an advertising strategy.
  5. As a part of being inclusive, look to run your advertising in media that caters to more than one racial or national origin segment of the population.  Depending on where your property is located, you might want to try media that caters to a language other than English or caters to a group or groups that otherwise might not learn of your housing availability.

If you find it helpful, you can always speak with a lawyer like me to help develop policies to ensure your employees are informed as to what the FHA requires and that your advertising is screened for discriminatory content.

Just A Thought.

 

As written in this space (and elsewhere) all too frequently, professional apartment owners and managers have seen a significant surge in the number of reasonable accommodation requests by residents with animals. Some of these requests are legitimate and we are happy to approve them. An increasing percentage of these requests, however, appear to be questionable at best and reflect an effort to avoid otherwise legitimate pet rent/fees. As a part of the review and evaluation process, here are some definitions that, I hope, will help leasing offices as we engage in the interactive process with our residents/applicants:

A ”service animal” is defined under the Americans with Disabilities Act (ADA) as a dog that is specifically trained to performs tasks for its owner with a disability. Think of a dog that assists someone with a vision disability cross the street. For the most part, the ADA does not apply to residential apartment communities. The exception is that the ADA does apply to the leasing office for the property.

An “assistance animal” is defined under the Fair Housing Act (FHA) and Section 504 of the Rehabilitation Act of 1973 as an animal that works, provides assistance or emotional support that alleviates one of more symptoms of a person’s disability. An “assistance animal” does not require any training. Think of a dog that soothes or comforts an individual with Post Traumatic Stress Disorder. Also, while dogs are the most common assistance animal, the law recognizes that many other types of animals can qualify – such as cats, ponies, ferrets, and/or even snakes. This list is not exhaustive and I am not making this up.

An ”emotional support animal” is a subset of assistance animals. These animals also provide emotional support to individuals with disabilities. Emotional support animals provide companionship, relieve loneliness, as well as can help with depression and anxiety. Unlike a “service animal,” an “emotional support animal” does not require any special training.

A “companion animal” is another way to describe an “emotional support animal.” The terms “companion animals” and “emotional support animals” are used interchangeably.

Accordingly, if you see what purports to be a medical verification for a “service animal” to help with anxiety or depression (or a letter that references the ADA for a companion animal), you might want to take a closer look to determine if indeed the verification is legitimate.

Also, remember that if an animal is approved as either a service animal or as an emotional support animal, that animal is permitted to accompany the resident anywhere within the community (except, for example, in the swimming pool or in the hot tub).

Just A Thought.

 

Earlier this month, the U.S. Department of Justice (DOJ) settled a Fair Housing Act (FHA) case filed in Massachusetts for $70,000 in which the Complainants asserted discrimination based on race and national origin.

As a part of its investigation, DOJ concluded that the Defendants discriminated against residents of South Asian descent in violation of the FHA. Specifically, the allegations were that, for over a five year period, ownership steered (legalese for directed) native South Asian residents to certain buildings in the 224 unit multi-family housing community. The Defendants, who DOJ noted cooperated with the inquiry, agreed to establish a settlement fund of $70,000 to compensate victims of the alleged discriminatory practices. As is typical in these cases, the Defendants also agreed to FHA training for their new employees.

In addition to the settlement fund, the Defendants also agreed to make changes in its rental practices to ensure that families with children are not similarly been steered to certain buildings and units in violation of the FHA.

The takeaway for professional apartment management? Ensure that your leasing office staff members permit qualified applicants choose from the available units at your communities. Management must not be in a situation in which it is directing (or steering) residents wish to reside. Indeed, there are times when it appears benign – a leasing specialist will think he or she is promoting safety by not permitting families with children to live in upstairs units or avoiding a busy parking lot or street. Similarly, a management office might think they are doing the right thing by placing people who are from certain countries in the same building or on the same floor. We simply cannot steer our applicants to certain buildings or units inside buildings and be in compliance with the letter and spirit of the FHA.

Just A Thought.

 

 

While I always try to avoid political commentary here at the Fair Housing Defense Blog (as the reader comments can be, shall we say, colorful), I wanted to note a couple of housing related points with the Trump Administration in place now for just under six months. First, Dr. Ben Carson was confirmed by the U.S. Senate as Secretary of the Department of Housing & Urban Development (HUD) back in the Spring. While Dr. Carson admittedly did not have experience in federal housing policy, the fact that he is literally a brain surgeon (in other words, he is an exceptionally smart man) has to be a good thing.  Secretary Carson undertook a listening tour as he visited various HUD supported affordable housing communities to learn more about HUD’s mission (at one building, Secretary Carson did get stuck in an elevator, which was slightly amusing). Those of us who follow housing policy remain alert for any substantive changes that the administration proposes – whether concerning criminal background screens, disparate impact, affirmatively promoting fair housing, occupancy standards, or anything else. The answer on the policy side, at least to date, has been not much has been changed. Similarly, while it is too early to see if there are any fair housing enforcement priority changes, it feels as if the number of cases settled by HUD (at least with respect to the number of HUD press releases) is a little down. As soon as more detailed numbers get released, I will report back.

Next, while the Administration proposed a budget for HUD in fiscal 2018 which contained significant dollar reductions, those possible changes come with two important caveats: (1) Congress has the final say on HUD’s budget as the Administration’s proposal is only a recommendation; and (2) the Administration’s budget seeks $65.3 million to support HUD’s fair housing mission, the same funding level provided in the prior three years. Indeed, for those of us involved in fair housing – this is the number that remains important. At the end of the day, I suspect HUD’s budget for the next fiscal year will ultimately get included in what is known as a Continuing Resolution and that the funding levels will be close to those in place for the current year. And even if HUD’s fair housing budget gets cut, management would still need to ensure we comply with applicable state, city, and county fair housing laws. I would also expect local fair housing advocacy groups to file additional complaints/lawsuits related to information compiled by fair housing testers.

What does it all mean? Professional apartment management must continue to follow the important fair housing laws as we do each and every day.

Just A Thought.