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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.

 

Earlier this week, the U.S. Department of Housing and Urban Development (HUD) sent out a press release noting that it awarded over $37 million (yes, $37 million) to combat housing discrimination under its Fair Housing Initiatives Program (FHIP). Add it all up and this money will support more than 150 national and local fair housing organizations, each with a mission (at least in part) to catch professional apartment management violating the federal Fair Housing Act (FHA) or its state, city, and/or local counterparts.

What do these local fair housing groups do with $37 million in taxpayer money? These grants permit fair housing enforcement via testers (individuals hired to compare and contrast how various protected classes are treated when inquiring about housing opportunities), investigations, and ultimately by the filing of discrimination complaints. To be fair, this money also provides for fair housing training and public education on housing matters.

Broken down by category, the HUD grants include: $30 million in Private Enforcement Initiative (PEI) grants; $7.45 million in Education and Outreach Initiative (EOI) grants; and $500,000 in Fair Housing Organizations Initiative (FHOI) money. The PEI funds are used by HUD partners who conduct intake, testing, investigation, and litigation of fair housing complaints. The EOI money is provided to organizations that educate the public about fair housing while the FHOI dollars look to help improve the effectiveness of non-profit fair housing organizations that focus on assisting the needs of underserved groups.

What does this mean for the housing industry? Follow the FHA and the state/city/county laws where your property is located. Ignorance of the law is no excuse. This includes training your leasing office staff. As well as your service team members. Checking your advertising. Reviewing your written materials. Keeping good service records. Evaluating your criminal background screening criteria. Your credit checks. And your waitlists. Your response to reasonable accommodation requests. Your response to reasonable modification requests. There is certainly more, but you see my point.

Can professional apartment management get it right? Absolutely. I see it all the time. But know that my docket is filled with complaints filed by these fair housing advocates, literally from California to Texas to Florida and just about everywhere in between.

Just A Thought.

 

My favorite Fair Housing Defense blog post is always the first entry of each new year.  That is because I ask my Firm to compile a list of the most read entries from the previous year.  To that end, here we go with the Top Ten 2017 Fair Housing Defense posts (you can click on each link if you want to take a closer look):

#1: HUD Files New Emotional Support Animal Fair Housing Disability Discrimination Case (February 10, 2017) 

#2: Occupancy Standards and Fair Housing: A Short Summary (June 9, 2017)

#3: What’s the Difference Between a “Service Animal,” an “Assistance Animal,” and an “Emotional Support Animal”? (July 30, 2017)

#4: Do Emotional Support Animal Medical Verifications Last Forever? (May 5, 2017)

#5: U.S. District Court Issues Important Emotional Support Animal Medical Verification Opinion (October 24, 2017)

#6: Issues With Online Emotional Support Animals Medical Verifications (August 18, 2017)

#7: DOJ Settles Sexual Harassment Fair Housing Act Lawsuit for $600,000 (August 3, 2017)

#8: Some Further Thoughts on Medical Verifications for Emotional Support Animals (May 26, 2017)

#9: HUD Resolves Fair Housing Case Against the State of Maryland for $225,000 (October 13, 2017)

#10: HUD Files New Familial Status Fair Housing Case (February 3, 2017)

As always, I very much appreciate each of you taking the time to take a look at this blog.  I try to address topics that have the most interest to my readers.  If there is something related to apartment management and/or fair housing that you would like me to comment on, feel free to send me a comment and I will be happy to try to address your issue in a future entry.

Just A Thought.

 

 

 

 

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.

 

Severe weather hit Texas a couple of weeks ago. And a new storm system is turning toward Florida as I write this post. Real life and real serious. While safety of our residents and employees remains paramount, it is a best professional apartment management company practice to have a hurricane or other severe weather policy to guide employees. These policies aim to protect human life, minimize property loss, and to assist where at all possible. Management will also typically have an emergency evacuation plan so as to know where our residents will be going in the event of an emergency. At the outset, if a state directs citizens to evacuate – please inform your residents. One of my client sends a mass email to all of our residents. Another sends a group text. A third has a system for automatic telephone calls.

As a weather forecast begins to look ominous, among other points, supervisors should remind community managers to:

  • (a) ensure back up generators (where applicable) are fueled and operational;
  • (b) fill all gas cans;
  • (c) collect batteries and flashlights;
  • (d) clear storm drains and gutters;
  • (e) make sure windows and doors are securely closed;
  • (f) collect all trash cans and loose articles;
  • (g) clear the pool area;
  • (h) latch trash dumpster doors;
  • (i) inspect your fire protection system;
  • (j) secure all vacant apartments;
  • (k) back up data stored on your computers;
  • (m) let vendors know you may need assistance after the storm;
  • (n) confirm where all community electrical, water, and gas shut off valves are located; and
  • (o) purchase hurricane emergency kits.

While this list is not exhaustive, it provides guidance for the types of issues we need to be prepared for.

Let’s hope Mother Nature sends the hurricane out to the ocean. But we should be prepared if she does not.

Just A Thought.