Occupancy standards are an issue which come up from time to time. On the one hand, a family certainly should have the right to decide the size of the apartment home they need and/or can afford.  On the other hand, management has a legitimate health and safety right to put a reasonable limit in place.  We do not want, and the law will not support, eight people living in a one bedroom unit.  The issue, of course, is where those two points intersect in 2017.

Going back as far as 1992, the U.S. Department of Housing & Urban Development issued guidance (known as the Keating Memorandum) which provided that a limit of two people per bedroom was presumptively reasonable. Since that time, however, there has been a shift away from a rigid “two people per bedroom” standard. Some states and localities have passed laws concluding that three people per bedroom is now reasonable, particularly when affordable housing is in limited supply and if rents are perceived to be high. Other localities (and the prevailing view) is that occupancy standards should be judged on a sliding scale based on the size of the apartment home. To illustrate, does the home have a den? Are the rooms large? If so, then three heartbeats per bedroom could well be reasonable. If the apartment is tiny, then perhaps two people per bedroom is appropriate.

To be sure, from a leasing office perspective, the old standard was easier to apply. As management’s lawyer, I always prefer when my employees have less discretion.

Also, here is a related issue that regularly comes up: a married couple rents a one bedroom unit. The woman gets pregnant. All good. But now there are going to be three people in the apartment. And what if it is a small home? In addition to occupancy standards, management needs to be cognizant of the protection for “familial status” in the Fair Housing Act (FHA). Management will not look good attempting to evict a family with an infant out of a one bedroom unit. The best advice is to talk with a lawyer like to ensure your property has policies in place to address these situations.

Just A Thought.

As all of us in the property ownership/management business know, communities get bought and sold from time to time. Indeed, a property can be sold many years (even decades) after it was first designed and constructed. Effective in properties designed and/or constructed from 1991 on, the Fair Housing Act (FHA) requires that all multifamily construction meet a specified level of accessibility for individuals with disabilities. As a part of the law, the FHA has seven “safe harbors” that design and construction firms must follow.  Notably, while the Americans With Disability Act (ADA) and the FHA share some elements, simply following the ADA may not be enough to ensure your project is in compliance with the FHA.

So, what happens to a subsequent owner or purchaser of a property built after the effective date of the statute? Are they on the hook for deficiencies in the design and/or construction that took place long before they bought the property? Most likely not.

There is a very strong appellate opinion from the 11^th Circuit Court of Appeals as well as guidance from the U.S. Department of Justice and the U.S. Department of Housing & Urban Development noting that a subsequent property owner who had no involvement in the initial design and construction should not have liability arising from the improper design and/or constructions. That is the good news. The less good news is that in the event the property faces a FHA accessibility lawsuit, the new owner will most likely be named as a nominal defendant required to provide access to the property for what can be costly repairs and/or retrofits.  Even if those repairs are funded by someone else.

What should an individual or entity contemplating buying a community built after 1991 do? My recommendation is to do a FHA accessibility review as a part of your due diligence process. And if you are buying from the original owner/developer, check on the status of their insurance for these types of claims. You will be glad you did.

Just A Thought.

While many apartment communities are “pet friendly” and welcome animals, almost every community has restrictions concerning, for example, certain breeds and/or weight limits for pets. In addition to the community policy on animals, many local jurisdictions similarly ban some dog breeds pursuant to a county or city ordinance. The question that comes to my desk is what happens when a resident submits a request for a service or companion animal as a reasonable accommodation pursuant to the federal Fair Housing Act (FHA) that would otherwise run afoul of the county or city ordinance because of the breed of the dog? Courts have answered this question by concluding that enforcing a city or county ordinance banning certain breeds would violate the FHA by permitting a discriminatory housing practice. In short, the federal statute controls.

Now, there is another step for management to take. We can undertake an analysis to determine if the animal at issue poses a “direct threat” to other residents, to the property, and/or to the leasing office staff. A “direct threat” must be particularized to the specific animal and not based on a generalized stereotype. For example, management could not simply conclude that because pit bulls are generally restricted by a county ordinance, all pit bulls are therefore a “direct threat” and are banned from our property, even as a companion animal. In order to make such a conclusion, management needs to have objective evidence that the specific animal in question has behaved in such a manner to be a “direct threat” (and such behavior likely cannot be remedied) before making such a determination.

You might want to reach out to a lawyer like me if this issue comes up at your property so you can review the appropriate analysis in an effort to avoid needing to defend against a discrimination complaint.

Just A Thought.

Advertising your property is a good way to get apartments filled. But marketing a community can create a handful of fair housing challenges concerning the use of advertising.  First, remember that advertising is covered under the Fair Housing Act (FHA). When you advertise, do it in a way to reach as many demographic groups as possible. For example, when using people, be certain your advertising copy contains individuals of multiple races. Does that mean you cannot show a family of a single race in one shot? Of course not. But it does mean that management will want to avoid the situation of only having one race in all of your advertising photographs. I have no issue with you including shots of individuals, couples, and families.  In short, mix it up.

Particularly if your property is located in an area with a diverse mix of potential applicants, look to advertise (for example, local newspapers or radio stations that reach certain demographic groups) in places that have the chance to reach individuals of different backgrounds who might not see an ad in a traditional news outlet.

Next, I recommend avoiding using religious landmarks (such as churches, mosques, or synagogues) in your ad. Writing that your property is “near Christ the King Church” could be read as favoring one religion over another. If you want to use some type of landmark, try a park, a shopping center, or perhaps a local train/subway line. To be sure, you can absolutely note that the property is conveniently located near public transportation, shopping, and local schools.

If you decide to run a discounted rent special in an effort to drive new residents, remember to offer that incentive to everyone who applies during the time of the promotion. You could well need to speak with a lawyer like me if your leasing office picks and chooses which applicants get offered the promotion.

Finally, put the “Equal Housing Opportunity” logo on your ad. It is easy to find and is a best practice.

Just A Thought.

Back-to-back posts concerning the Fair Housing Act (FHA) and federal courts. Last week, in what I believe is another decision of first impression, a federal district court judge in Colorado concluded that the FHA prohibits discrimination against LGBT individuals. While the FHA prohibits discrimination because of sex (added as a protected class in 1974), familial status (1988), and/or national origin (1968), the statute says nothing about sexual orientation or gender identity and the issue had been in question for some time.

The facts here involved a lesbian couple (one of the women is transgender) with two children who, because of their “unique relationship,” had their application for a rental townhouse denied. They continued to engage with the landlord and were told their family was not welcome to rent because another family was concerned about noise and kids. In a further reply, the landlord allegedly reported that the “status” of the couple “would be the talk of the town” and there would be no opportunity to “keep a low profile.”

The legal question involved in the case was whether “sex” (as written in the FHA) included sexual orientation and gender identity. In answering the question in the affirmative, the Colorado court looked to various employment statutes and cases interpreting those laws and concluded “stereotypical norms are no different from other stereotypes associated with women, such as the way she should dress or act…and are products of sex stereotyping.”

While this is one judge in one district court, given the trend in the law, this decision should not come as a surprise. The FHA (like the laws against employment discrimination) are intended to be applied broadly and courts will look to fill in the gaps when the statute is silent. Such is the case here.

So, what is the impact for professional apartment management? Not that much. My hope is that in 2017 the vast majority of our management offices with apartments or townhomes to rent are certainly not evaluating sexual orientation when determining if an applicant can rent a home. Nevertheless, if we do, there is now at least one judge who has specifically found that LGBT individuals are covered under the FHA.

Just A Thought.

In a case of first impression (at least as far as I can tell), in an opinion issued last week, the U.S. Court of Appeals for the Third Circuit evaluated (and answered) the question of whether a Fair Housing Act (FHA) claim survives the death of a party. The facts involved an emotional support animal request and whether the condominium board had appropriately responded to the request. Before reaching the merits, however, the Court addressed an uncommon (and sad) issue that came up: during the pendency of the case, one of the plaintiff’s (who made the emotional support animal request) died. Leaving the question of if the FHA claim remains? The text of the FHA does not address what should happen in such a circumstance.

The District Court judge answered the question in the negative, reading first a federal “gap-filler” statute and then local law. Upon appellate review, however, the Third Circuit looked to federal common law (a doctrine that is not universally well liked) to fulfill what is referred to as the “overall purpose” of the statute. The appellate court concluded that as the FHA was intended by Congress to have “broad remedial intent,” a fair housing claim should survive the death of a party and can be continued by the decedent’s estate.

I must admit I had not thought about this issue prior to reading this new opinion. Had I been asked the question, I think I would have agreed with the Third Circuit, although I do not blame counsel for the defense for raising the issue.

Just A Thought.

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.