Acting on a complaint initially filed back in 2016, just yesterday the U.S. Department of Housing and Urban Development (HUD) formally charged the owners, architect, and builder of an apartment building (with 164 units on six floors) in Denver, Colorado with housing discrimination for failing to make the property accessible to residents with disabilities. In addition to the seven protected classes in the federal Fair Housing Act (FHA), covered multifamily housing must be designed and constructed to ensure it is accessible and usable for people with disabilities.

The case started after a local Denver fair housing group conducted tests on the property and filed a disability discrimination complaint. Finding merit to the complaint, HUD’s charge asserts that the owners and builders did not design and construct the complex in accordance with the FHA as specific areas of the building remain inaccessible to people with mobility impairments. While all of the individual units are reachable by elevator, the complaint notes issues with accessible routes to the swimming pool and hot tub located in a courtyard. Specifically, the charge alleges the thresholds for the doorways are too high (by half an inch) and the door-opening force required to enter exceeds the maximum allowable force in the guidelines. Furthermore, HUD claims six of the seven parking spots designated for accessible parking are out of compliance with the applicable standards.

Now, there are always two sides to every story, and just because a plaintiff asserts a claim does not mean it is true. One takeaway here, of course, is to ensure multifamily properties are designed and built in accordance with the applicable standards. Indeed, the law contains seven safe harbors that must be complied with.  Or property owners will need to speak with a lawyer like me.

Another takeaway is that property owners must be understand that fair housing testers (many of who are funded at least in part by HUD) are out there looking for FHA violations.  Even technical ones like those included in this discrimination charge.

Just A Thought.

Late last month, the U.S. Department of Housing & Urban Development (HUD) charged a condominium association in New Jersey with disability discrimination in violation of the federal Fair Housing Act (FHA). According to HUD, the complaint asserts that the condominium required that a resident (with vision and hearing impairments) use the service door (as opposed to the main entrance to the development) when she was accompanied by her assistance animal. Additionally, HUD alleged that the association charged the resident’s daughter a fee because she wanted to walk her mother’s assistance animal in the development’s common areas.

Factually, HUD got the case when the resident’s daughter brought a discrimination complaint asserting that the property declined to waive its requirement that residents transport pets in carriers when in common areas and in that the association fined the resident $100 for walking the animal in the common areas. According to HUD, the daughter primarily walked the dog because of her mother’s mobility impairments and was prohibited from using the main entrance to the community.

While I know there are always two sides to every case, this one at first blush presents facts that just do not look great for the property. We should not restrict assistance animals to service door or back entrances.  Additionally, always remember not to charge your residents any pet fees or pet rent for assistance animals. Remember, legitimate assistance animals are not pets and pet restrictions do not apply.  Although I am not involved here, I suspect the association simply attempted to apply its rules related to pets to this assistance animal.  Which HUD is now contesting violates the FHA.

Just A Thought.

Last week, the U.S. Department of Housing & Urban Development (HUD) charged a rental property owner in New Jersey with racial discrimination under the federal Fair Housing Act (FHA). In the charging document, HUD asserts that the property owner declined to rent an apartment to an African American woman because of her race. HUD also alleges the owner used racial slurs in various text messages when informing the prospective renter that she was not chosen for the apartment.

Factually, the charge is that the property owner listed an apartment for rent via an online site. Responding to the ad the same day it was posted, the applicant noted she and her son were anxious to move because the unit they were currently living in did not have heat. She reached out via telephone and left a message which was not returned.  Next, the applicant sent a text message to the number in the ad. In response, the property owner allegedly used a series of racial slurs when declining to show the unit to the prospect. Those slurs, of course, were captured on the applicant’s phone and turned over to HUD during the investigation. Following its inquiry, HUD found probable cause to believe the discrimination took place and issued the charge alleging a violation of the FHA.

Obviously, declining to rent a home to a prospect based on race has been against the law for more than 50 years now. Additionally, might I suggest it makes even less sense to send text messages explaining the racial animus behind the decision. Even if the property owner may subsequently contend he was joking and/or not being serious (and I am not involved with this case), using repeated racial slurs with a prospect while declining an application for an apartment is a recipe for disaster in the fair housing arena.

Just A Thought.

A little housing policy inside baseball today. Those of us in the multifamily housing space are waiting for our friends at HUD to act on two matters of interest:

First, as previously noted, HUD issued an advance notice of proposed rulemaking back in June 2018, seeking public comment on whether its 2013 disparate impact rule should be changed in light of the 2015 Inclusive Communities decision issued by the U.S. Supreme Court. In English, the belief is that the Trump Administration will indeed attempt to modify/rescind/alter the disparate impact rule enacted by the Obama Administration five years ago.   Based on an order issued by a federal judge last month in a case challenging the Obama-era disparate impact rule, there is a belief that HUD’s new rule will be published on or before December 18, 2018. I will, of course, be following along as to the progress of the underlying litigation as well as what HUD decides.

Also, I have heard from a handful of HUD (and other fair housing officials) that the Department is “working on” new guidance related to assistance animals. As anyone involved in rental housing is aware, the number of emotional support animal reasonable accommodation requests continues to increase significantly, along with the percentage of those accommodation requests that are medically verified by an online health care provider. Again, we want to get it right. We want to approve legitimate assistance animals needed by residents who are truly disabled. We do not, however, want to approve an animal that was “verified” or “registered” pursuant to a certificate purchased over the internet for the low, low price of $69.99 (or $125 if you need it overnight) in an effort to avoid pet fees. The belief in the industry is that HUD is preparing guidance. I don’t have an expected release date, but you will know as soon as I see it.

My point on both of these issues is that the professional apartment industry just wants to confirm the rules of the road. If disparate impact is indeed covered under the law, so be it.  I am happy to provide that advice.  If HUD confirms that management is permitted to seek supplemental information from an applicant after receipt of what looks like a medical verification purchased with a credit card and doing so does not run afoul of the Fair Housing Act, all the better. And we will continue to proceed on that basis.  But uncertainty is not helpful. For anyone.

Just A Thought.

In a decision published earlier this month, the U.S. Court of Appeals for the Eighth Circuit concluded that a disabled plaintiff has the ability to file a complaint under the federal Fair Housing Act (FHA) against a property management company when management allegedly declined to accept a disability benefits check as an acceptable source of income from the applicants.

The case involved a mother with a disabled adult daughter. The pair submitted an application to rent a unit using disability payments as income. The management company’s income guidelines, however, required pay stubs, an offer letter, or tax returns to verify income. The applicants could not meet that test as their income consisted solely of a disability check, social security, retirement benefits, and some rental income. As the parties engaged in the interactive process, the leasing office suggested it would accept a co-signer who was income qualified. The renters attempted to provide proof of their sources of income. When the parties could not come to an agreement, the plaintiffs sued.

The district court dismissed the complaint, holding that a reasonable accommodation was unnecessary because the defendants offered a solution which the plaintiffs refused. The appellate panel, however, reversed that decision, finding that a reasonable accommodation was indeed necessary because the offered alternative was not a substitute for a “level playing field in housing for the disabled” and that the co-signer option put forward by the defendant instituted “an additional burden on the disabled applicant.”

So, should professional apartment management have income qualification guidelines for your units? Absolutely. Along with a credit and criminal background screening policy, it is a best practice. But, as this court opinion holds, disability payments should be included as an appropriate source of income when running an application.

Just A Thought.

Earlier this week, the U.S. Department of Housing and Urban Development (HUD) sent out a press release to note that it charged a Texas property owner and management company with discriminating against families with children in violation of the federal Fair Housing Act (FHA). In its charge, HUD asserts the owners and management company at El Patrimonio Apartments threatened to fine a family $250 because their two children played in the community area of the complex. Families with children under the age of 18, of course, are one of the seven protected classes in our FHA.

The complaint also alleges that management enacted a policy that mandated children under the age of 18 to be supervised by an adult family member while on the property (including in the pool area) or face a $250 fine. In one specific instance, residents with children were threatened with a fine as their two kids were playing in a community area while being supervised by adults who were not blood relatives.

While there are always two sides to every story, and it is likely management will assert safety as the reason for this type of policy, HUD is clear that if we impose different rules and restrictions on families because they have children, those policies will be subject to scrutiny should a complaint be filed.

When faced with these types of issues, I advise that we work to develop a policies that are neutral on their face and will, I hope, be found to comply with the FHA and its state law counterpart. For example, when dealing with community pools, one option could be to draft your rules to read that anyone unable to swim needs to be supervised by someone who can. That avoids the easy familial status claim as age has nothing to do with the rule.

Just A Thought.

Like many other industries, I have recently seen an increase in another type of lawsuit against professional apartment ownership/management: complaints asserting that a company website is not accessible to those with a visual disability. The claims are asserted under the Americans With Disabilities Act (ADA) and/or similar state law. While a traditional ADA claim involves physical barriers that confronted disabled individuals (things such as high curbs, seating that is not accessible, narrow doors, or fixtures too high for use by an individual in a wheelchair), lawsuits are now being filed claiming that websites (and mobile apps) for apartment communities violate the ADA as they are similarly not accessible. The claim is that someone with a vision impairment cannot review the pictures or other graphics from their computer and, as such, the website violates the ADA.

To date, courts are generally split regarding if a website qualifies as a place of “public accommodation” under the ADA. There are various tests and theories concerning how web sites should be evaluated and courts will continue to issue rulings as more of these cases reach some type of judicial resolution.

There is another possible defense in that as the U.S. Department of Justice (DOJ) has failed to issue guidance concerning the appropriate alt text standards required of websites (indeed, DOJ has now specifically reversed course and disclaimed its prior intent to issue guidelines), how can a company be charged with violating a statute when the federal government cannot even decide what the standards are?

There will absolutely be more to come here, but professional apartment management should be on alert as to your website and/or mobile app. You might want to speak with a lawyer like me to run an analysis of your website and to review the possible risks of this type of lawsuit being filed against your company. Think it won’t happen to you? At last count, more than 1,000 of these ADA complaints have been filed nationwide in 2018, a number that is already more than the 800 cases that were filed throughout 2017.

Just A Thought.

As written in this space many times, an important responsibility for professional apartment management is to know the laws where you have properties. While our federal Fair Housing Act (FHA) has seven protected classes (race, national origin, color, religion, sex, disability, and familial status) many states (as well as some cities and counties) have similar fair housing laws with additional protected classes. And in addition to monitoring changes in the law, another caveat is to also be aware if an agency changes how it interprets existing law. Such is the case in Pennsylvania – in which the Pennsylvania Human Relations Commission (PHRC) just expanded the definition of “sex” as a protected class to now include not just sex assigned at birth, but also sexual orientation, gender identity, gender expression, gender transition, and transgender identity.

What does this mean in the real world? The change permits LGBTQ individuals living in Pennsylvania to file a complaint with the PHRC asserting housing, employment, education, or public accommodation discrimination based on their LGBTQ status.

This change did not come without controversy, as the Pennsylvania legislature did not amend the Pennsylvania Human Relations Act. Nevertheless, the PHRC believed it to be in the public interest to expand the definition of “sex” and the Commission went through a comment period before issuing the amended guidance. After releasing its proposed change in 2017, the PHRC received over 8,000 comments on the topic. I am sure this change will be subject to a court challenge in the near future.

As the lawyer for apartment ownership/management, what do I want? Simple. My preference is always to have a clear understanding of the law and that the number of ambiguities get reduced as much as possible. If a legislature (federal, state, or local) is going to change the law, fine – just let me know what it is so I can provide the best advice possible. Here, although the Pennsylvania legislature chose not to change the law, the PHRC disagreed and issued guidance in an effort to do what the legislature would not. I will report back as appropriate.

Just A Thought.