Last week, I got a demand letter from counsel for a resident concerning a reasonable accommodation request. That’s fine as they come in all the time. At the end of the letter, counsel demanded that we respond within three days or the lawyer will summarily conclude we denied the accommodation request. It irritates me when I see letters like this. Yes, management must evaluate and respond to every reasonable accommodation or reasonable modification request received from a resident or applicant (as well as someone acting on behalf of a resident or applicant). And our response must be sent within a “reasonable” time. But a three day turnaround time? Really?

Which begs the question – just what is a “reasonable” time? In my experience, absolutely within a week to 10 days is fine. Two weeks is also not unreasonable. Cracking three weeks and then a month is a bit more problematic for management. Is it possible that an emergency request might require a three day response time? I guess, but that would be the exception, not the rule.

What to do? My best practice is to have your leasing office send an interim response noting we have the request and we are reviewing it. That provides us with a little additional time if necessary while ensuring no claim will exist that we are ignoring the request. Again, we certainly do not necessarily have to grant every request, but we absolutely must review and respond to every request. Or run the risk of winding up as Respondents/Defendants in a fair housing case.  Hope that makes sense.

Just A Thought.

Yesterday, the U.S. Department of Housing and Urban Development (HUD) announced that a disability discrimination claim from California settled for $8,500. The agreement resolved a complaint filed by a resident with a disability asserting discrimination under the Fair Housing Act related to an assistance animal. In the complaint, the resident alleged that she was threatened with eviction because she had an emotional support animal.

The matter came to HUD after the resident filed a complaint alleging the property manager told her that she could not keep her dog and threatened to evict her.  The resident further noted that she previously  provided a medical verification confirming her need for the assistance animal. The complaint also alleged that after receiving an eviction notice, the resident vacated the home. As there are always two sides to every case, the housing providers deny that they discriminated against the woman.

As is typical in cases like this, in additional to writing a check, the housing providers are required to provide fair housing training to their management and leasing staff.

The takeaway? As a management company or leasing office staff member reviewing a reasonable accommodation request, for disabilities that are not obvious, we simply seek credible medical verification (something that is not a form letter purchased over the Internet for the low, low price of $69.99 [or $125 if you need it overnight] and/or a certificate from a nationwide animal registry) attesting to the fact that the resident is disabled, needs an assistance animal, and that there is a nexus (or link) between the animal and the disability.

If you have questions about a medical verification, you might want to speak with a lawyer like me to better evaluate how to appropriately respond to your resident.  Or you might wind up as a Respondent in a fair housing case.

Just A Thought.

From time to time cases arrive which provide clear guidance about what to do (or perhaps what not to do) when advertising multifamily housing. To that end, earlier this month, the U.S. Department of Housing & Urban Development (HUD) filed a familial status housing discrimination charge against a property manager in New Orleans based on an advertisement. The ad, which was found by a local fair housing advocacy group, included language which stated: “No Teenagers Please.”

As written in this space many times, our Fair Housing Act (FHA) includes protections for families with children under the age of 18. Unless the property is one that qualifies as housing for older persons under the FHA, the law is clear that statements seeking to exclude children under the age of 18 violate the statute.

Now, it could well be that the property manager had a benign reason for not wanting kids in the community. I have seen circumstances where management believes parking lots are dangerous. Or when a property is located next to a busy street. Good intentions, but those intentions can lead to a complaint.  Just know that a leasing office will subject the property to scrutiny with a general ad which purports to exclude children under the age of 18. Please understand that fair housing advocacy and tester groups are searching the internet (as well as traditional newspapers and apartment guides) looking for advertising that violates the law.

If you have a reason for not wanting teenagers, you should really speak with a lawyer like me to discuss the application of the FHA and state law.

Just A Thought.

There are many local jurisdictions around the country which have adopted what are referred to as a Breed Specific Law (BSL). As might be expected from its name, a BSL prohibits certain dog breeds (and/or breed mixes) from residing in a given city or county. BSL’s are passed in an effort to control what are perceived to be dangerous animals. The BSL’s typically fine those animal owners who violate the local ordinance. To be sure, in every jurisdiction that has such a law, I guarantee you there is a dog lovers or animal rights group pushing to repeal the BSL because those groups believe it unfair and wrong to single out specific breeds or breed mixes – but that is a blog post for another day.

The issue that hits my desk, however, is what happens if an assistance animal is one of those restricted breeds? The federal Fair Housing Act and its implementing guidance are clear that breed, size, and weight limits do not apply for assistance animals. As such, which law controls? The local city or county code which prohibits certain breeds or the federal guidance which permits them?

In my experience, if a service or emotional support animal has been approved as a reasonable accommodation because of a disability, management runs a real risk if it rejects the assistance animal because of a local BSL. Remember, an assistance animal is not a pet – and those local BSL’s were designed to control pets. I know that may sound harsh, but it would be exceedingly risky to use that local code as a legal defense to a discrimination complaint given what HUD has published on this topic.

Now, make no mistake, assistance animals cannot be a direct threat to the health or safety of others. If management has documented proof that an animal (whether a restricted breed or otherwise) is a legitimate threat to other residents, employees, or to the property itself, that animal may be barred from the community. But professional apartment management risks scrutiny if we use generalized prohibitions on certain breeds to deny an otherwise appropriately verified service or emotional support animal.

Just A Thought.

Last month, the U.S. Department of Housing & Urban Development (HUD) filed a fair housing complaint against Facebook. Facebook? What does Facebook have to do with housing discrimination and the Fair Housing Act (FHA)? Well, with its complaint, HUD asserts that Facebook allows property managers and home sellers to use its advertising platform in such a manner as to promote housing discrimination. Here’s how:

HUD claims Facebook “enables advertisers to control which users receive housing-related ads” based upon the recipient’s membership in a protected class. HUD further argues that Facebook essentially invites advertisers to “express unlawful preferences” in violation of federal law.

HUD provided certain examples of what it claims violates the FHA in this context. To the extent your company engages in targeted adverting, here are some thoughts (according to HUD) you might want to avoid:

*running housing advertisements to only men;

*running housing advertisements to only women;

*excluding advertisements to individuals looking for “assistance animals” or “mobility scooters”;

*excluding “child care” or “parenting” concerns in your advertising;

*either running or excluding advertising to individuals Facebook has identified as interested in a particular religion or faith;

*either running or excluding advertising to individuals Facebook has identified as from another country or a different part of the world; and/or

*drawing what is known as a “red line” around certain zip codes and then have Facebook not display ads to users who live there.

Does this mean housing providers cannot or should not run targeted advertising as you seek to find renters? Of course not. But if you choose to target your advertising, design the campaign to help ensure you do not exclude potential renters based on their membership in one or more protected classes. If you have questions about targeted advertising, you might want to speak with a lawyer like me or risk a Facebook-type complaint filed by HUD.

Just A Thought.

I have had a handful of reasonable accommodation requests come across my desk over the last month with the same issue: when the leasing office gets a medical verification, the health care provider identifies that the resident has a medical or mental condition (which is appropriate), but the verification (typically in a letter) does not assert that the resident is disabled. The distinction is important as only individuals with a recognized disability (as that term is defined under federal law) are entitled to a reasonable accommodation (or reasonable modification) under the Fair Housing Act (FHA).

For example, if a letter notes a resident was diagnosed with “depression” and requires an assistance animal, management is absolutely entitled to confirm if the “depression” rises to the level of a disability. Indeed, there are countless mental and medical conditions which may – or may not – be severe enough to qualify as a disability. Also, two different medical verifications identified “therapeutic regimens” or “treatment plans” – but did not assert that an emotional support animal was part of that regimen or plan. In such a circumstance, the leasing office can also seek supplemental information from the health care provider to confirm that there is a nexus (or link) between the disability and the requested accommodation (or modification).

Again, I am not attempting to seek confidential health care information or medical records from our residents. I am not trying to violate the health care privacy laws (such as HIPPA). In an era of highly questionable medical verifications (many of which are purchased over the internet with a credit card), however, I am simply attempting to confirm that a verification is legitimate and is not from a resident without a disability and/or who is not eligible for the requested accommodation. Hope that makes sense.

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.

I have been watching a curious trend. As written in this space (and elsewhere), many apartment residents and applicants submit requests for reasonable accommodations (changes in rules or a polies) or reasonable modifications (physical or structural changes to an apartment home). Which is fine and absolutely appropriate. I train my leasing office staff members to review, evaluate, and respond to each request. A best practice, of course, is to respond in writing so we can document the interaction.

However, a prerequisite to being granted a reasonable accommodation or reasonable modification is that the resident be disabled. Federal law defines a person with a disability as “[a]ny person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such an impairment.” As a general rule, a physical or mental impairment includes hearing, mobility impairments, visual impairments, chronic mental illness, AIDS, AIDS Related Complex, and mental retardation that substantially limits one or more “major life activities”.  Major life activities typically include walking, talking, hearing, seeing, breathing, learning, performing manual tasks, and caring for oneself.

I am seeing more requests from residents seeking accommodations or modifications but who do not assert (and/or do not have their health care provider appropriately verify) that the resident is disabled. When those requests cross my desk, I advise that an interim response be sent back to the resident explaining that while management cannot grant the request based on the materials submitted at this time, we will absolutely review any supplemental materials the resident wishes to provide. Many times this will end the matter if the resident is seeking something he or she is not really entitled to. On the other hand, if the request is legitimate, then we will receive a revised medical verification and many times my team can indeed approve the request. And in the event of a disagreement and subsequent discrimination complaint, we will have appropriately documented the file as to why the request could not be approved as originally submitted.

Just A Thought.

If you are an apartment management professional, it is good practice to presume your community is covered under our federal Fair Housing Act (FHA) as well as its state (and/or city or county counterpart). Indeed, under the federal law “dwelling” is defined as “any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof.”

That is quite a bit of legalese.

What does that mean in English? The term “dwelling” has been broadly interpreted to cover:  Apartment communities, nursing homes, group homes, seasonal facilities, residential facilities, mobile homes, trailer parks, and condominiums.

What are types of housing not covered under the FHA?

Buildings with four or less units (where the landlord occupies one of the units);

Single family housing sold or rented without a real estate agent;

Hotels and motels (which are, however, considered places of public accommodation under the Americans with Disabilities Act); and

Private clubs.

Again, if you are in the property management business, it is best to do your work as if you are covered under the FHA. If you think your property is exempt, I would suggest you reach out to a lawyer to double check. Or you could really need a lawyer like me to help defend against a discrimination complaint.

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.