At the start of this week, the Trump Administration published its proposed budget for the federal government for the fiscal year starting October 1, 2019. While this is just a proposal – and will certainly be amended by Congress before the end of September – I wanted to highlight a couple of points of interest to those in the professional apartment management industry.

First, while it is true that the Administration proposed cutting funding for the U.S. Department of Housing & Urban Development (HUD) by 16.4 percent – that does not mean that the Fair Housing Act (FHA) is now off the books and management can stop fair housing training. It looks like most of the cuts would come from public housing and related block grant programs. Indeed, a little research led me to a HUD press release in which the department notes, albeit near the bottom of the text, “[a]s it did last year, the Administration is seeking $62.3 million to support HUD’s fair housing mission.” That money goes to fund various HUD fair housing partners and HUD-sponsored initiatives to combat housing discrimination. I doubt that will change very much.

Second, even if HUD reduced or stopped funding fair housing, individual state, city, and county anti-housing discrimination laws remain and are enforced in the normal course. Indeed, HUD partners with various local commissions or agencies who actually investigate many of the fair housing claims I defend against. And remember that many state, city, and county laws contain additional protected classes of individuals covered under their respective fair housing statutes.

The takeaway? The Administration’s budget number is just a proposal. Think of it as a trial balloon which Congress may, or may not, pop. Fair housing remains codified in U.S. Code and professional apartment management should continue best practices in complying with applicable law and training our leasing office team members to get it right. Or you will still need to speak with a lawyer like me.

Just A Thought.

Earlier this week, the U.S. Department of Housing and Urban Development (HUD) reported that a Minnesota housing provider agreed to pay $74,000 under the terms of a consent order to conclude a discrimination action asserting a housing provider failed to rent a home to a family of five adults and six minor children because they were Native Americans and Hispanic as well as because they had minor children. The property in question is a six-bedroom, five-bathroom home with over 7,000 square feet of living space, two kitchens, a sauna, a sunroom, a fitness room, and a library in addition to other amenities.

While the complainants alleged discrimination based on race/national origin and familial status, the Respondents claimed the denial of housing was because the number of individuals exceeded the functional capacity of the residence generally and that 11 people living in the property would have caused damage to the home’s septic system. Our federal Fair Housing Act (FHA), of course, includes prohibitions on discrimination in housing because of race, national origin, and familial status.

Following an administrative complaint, HUD filed a charge of discrimination in August 2018, after the owners of the property declined to rent the six-bedroom residence to the family. HUD believed that the property owners and broker discouraged the family from renting the home by offering them less favorable rental terms, including increasing the requested monthly rent by $1,000.

Under the terms of the settlement, the respondents will pay $74,000 to the families involved, place a fair housing advertisement in the local newspaper, and the real estate broker will take fair housing and multicultural sensitivity training.

As discussed periodically in this space, reasonable occupancy standards can certainly be appropriate. Indeed, at first glance, 11 people in one house appears to be a bit much. Until learning that the home in question had six bedrooms, five bathrooms, and over 7,000 square feet of living space.

Just A Thought.

In a case resolved last month, the California Department of Fair Employment and Housing (“DFEH”) announced it settled a housing discrimination complaint for $16,000 against a property management company asserting familial status discrimination.

The complaint was filed by a family of four who alleged that management did not allow them to rent an apartment in a building because the property manager did not consider children to be appropriate residents. Specifically, the manager was alleged to have stated that the apartment home might be overcrowded with four people, that neighbors might have issues with noise because of kids, and that the building was for “business people.”

After its investigation, DFEH found probable cause to believe discrimination took place and a civil complaint was filed in California state court. The case settled prior to trial, with the defendant agreeing to pay $12,500 to the family and $3,500 to DFEH for litigation costs. As is common in these cases, a provision in the settlement agreement requires that property management employees enroll in fair housing training and that management prepare an equal housing opportunity policy.

This case is yet another reminder that in most circumstances, leasing office team members must welcome families with children. Can there be reasonable occupancy requirements? Sure. Can eight people fit in a one bedroom apartment home?  Most likely not.  Can you limit your building to “adults only” as existed in the past? No.

Now, when a case like this is filed, I get questions concerning if there is an exception in the law.  To that end, I will post a Fair Housing Defense blog entry next month with a short primer on the Housing for Older Persons Act (HOPA) and provide a short outline of the law surrounding HOPA and buildings that operate under HOPA for those age 55 and up.

Just A Thought.

A nugget for our professional apartment management colleagues on the affordable side today. Earlier this week, the U.S. Department of Housing and Urban Development (HUD) issued a press release stating it was significantly reducing the advance notice the government gives to public housing authorities (PHAs) and private owners of HUD-subsidized apartment communities before their housing is inspected to ensure it remains safe, decent, and healthy.

HUD’s announcement (effective 30 days after publication) gives affordable property owners 14 calendar days’ notice before an inspection, a reduction from the current notice which can frequently extend up to four months. The way it currently works is that HUD’s Real Estate Assessment Center (REAC) gives management advance notice before a scheduled inspection. That notice can go for as long as 120 days.

HUD’s view is if a property owner knows an inspection is coming in, for example, three months, a less than scrupulous owner could perform cosmetic maintenance and repairs rather than adopting appropriate year-round maintenance practices. REAC inspectors review properties run by approximately 3,700 local public housing authorities across the country as well as about 23,000 privately owned apartment buildings. HUD data confirms that 96 percent of these properties pass their REAC inspections.

As such, starting in the third week in March 2019, HUD employees and REAC contract inspectors will only give affordable property owners 14 calendar days of notice prior to their inspection. If an owner declines, cancels or refuses entry for an inspection, a presumptive score of zero will be recorded. If a second attempt results in a successful inspection within seven calendar days, the score from the second inspection will be recorded.

Again, this is for property ownership/management on the affordable side. The takeaway, of course, is that HUD wants you to perform regular maintenance on your property and do repairs year round. And not just because a REAC inspector is on the way. Let’s see if the 96% pass rate changes in a year or so.

Just A Thought.

Our friends at the U.S. Department of Housing & Urban Development (HUD) publish a myriad of reports concerning the Fair Housing Act (FHA) and the efforts of the Department to enforce the law. One of the reports I like to review is a compilation of the number of discrimination complaints filed each year as well as the percentage of cases filed for each of the seven protected classes under federal law. Although the report is a year or so behind, here is what HUD discloses concerning the number of and percentage of fair housing cases filed with the Department and its partner agencies.

First, the total number of fair housing complaints filed in fiscal year 2017 was 8,186 (6,878 with HUD and 1,308 with HUD partners). My point here is that if a discrimination complaint was filed against your company, well, you are not alone. Does not make you feel any better, but thousands of complaints get filed each year. Which means lots of companies need to speak with a lawyer like me. Sorry about that.

With respect to percentages:

Protected Class                Number of Complaints                  Percentage of Complaints

Disability                             4,865                                                  59.4%

Race                                    2,132                                                   26%

Familial Status                     871                                                    10.6%

Retaliation                           834                                                    10.2%

National Origin                   826                                                    10.1%

Sex                                       800                                                     9.8%

Religion                               232                                                     2.8%

Color                                   192                                                     2.3%

Now, sharp followers of the FHA will note that retaliation is not one of the seven protected classes in the law. It is, however, covered under Section 818 of the FHA and is a growing percentage of cases I defend each year.

These figures confirm a rather dramatic trend for discrimination complaints: for the last five reported fiscal years, the number of disability discrimination complaints continues a rapid increase. The trend runs from: 52.6%, to 53.7%, to 55%, to 58.5%, and then a jump to 59.4%. I suspect next year disability complaints will cross the 60% threshold. And a big portion of these numbers are emotional support animal cases. Some of which may be legitimate. Many of which use medical verifications that were purchased over the internet with a credit card.

I continue to hear statements of sympathy from various fair housing investigators when I get yet another emotional support animal complaint. Like me, they are waiting for HUD to help with some new guidance. In the interim, I will keep knocking them off – going one at a time.

Just A Thought.

The partial federal government shutdown is in its 30^th day as I type this. It is going on longer than most people (including me) thought. No resolution seems to be in sight. The U.S. Department of Housing & Urban Development (HUD) is one of the federal entities largely closed until the administration and Congress solve the current funding impasse.

So, what happens to our housing discrimination cases pending with HUD during the shutdown? The short answer is your case is on hold. I got emails from a handful of investigators when the shutdown went into effect noting they have been instructed not to report to the office and they are not permitted to work on their pending matters. Indeed, two of my cases had interviews scheduled that were postponed. No way to know how quickly they will get rescheduled once the government reopens.

Another three cases have responses due. My best advice is to prepare your response and send it in so there can be no allegation that we missed a deadline, although I typically like to introduce myself to the investigator and briefly discuss the issues in an effort to determine just what HUD really needs to complete its inquiry. It is, however, unclear what happens to the 100 day clock during which HUD is tasked to complete its investigation. Now, as the 100 day limit is routinely missed, I suspect pending cases will receive what I call a “100 Day Letter” noting the case needs more time and usually providing a new expected completion date.

For cases pending in federal court, the various districts are doing their best to stay open (using court fees and juggling funds previously appropriated). Best guess is there is enough money to last until around February 9, 2019. We are now seeing individual districts deciding how to prioritize cases and staff. Some courts have issued stays (legalese for a pause) in civil cases in which the United States is a party. I suspect if the shutdown lasts into the second week of February, civil case processing will stop or severely slow down.

And no — the shutdown does not mean the Fair Housing Act has lapsed.

Now, remember – the shutdown impacts HUD and the Department of Justice. If your case is pending before a state, county, or city civil rights agency/commission – it is being processed as usual.

Just A Thought.

A dutiful Fair Housing Defense reader (thanks for taking the time to visit) pinged me with a question concerning the annual Top Ten list of blog posts.   Apparently after clicking on at least one entry, my reader noticed that the post was from a few years back.  Fair point.  The list I circulated in the last post was the Top Ten Fair Housing Defense blog posts of all time.  Apparently my Firm tracks everything.  Printed below are the Top Ten Fair Housing Defense blog posts (with links) from 2018.  Because I know that distinction makes a difference to many of you:

1. Medical Marijuana, Reasonable Accommodation Requests, and the Fair Housing Act – February 6
2. Virginia Offers Guidance For Confirming That Medical Verifications for Emotional Support Animals Are Legitimate – February 27
3. These Types of Housing Are Covered Under the Fair Housing Act. And These Types of Housing Are Not. – April 6
4. Federal Court Concludes Social Security Disability Should Count As Income Under the Fair Housing Act – October 30
5. Familial Status Discrimination Case (Concerning a Family With 12 People) Settles in California – February 22
6. Assistance Animals and Guests? Here Are Some General Guidelines. – March 29
7. The Top Ten Fair Housing Defense Blog Posts From 2017 – January 2
8. California Apartment Owner Pays $100,000 to Settle Emotional Support Animal Fair Housing Case – January 22
9. Court Issues Guidance Concerning Evaluating When an Animal Might Be a “Direct Threat” – March 16
10. This is the First Step Necessary to Qualify for a Reasonable Accommodation or Reasonable Modification – April 13

Upon review, I am pleased that the list includes a handful of front burner fair housing issues (assistance animals, medical marijuana, reasonable accommodations/modifications, familial status) that professional apartment management and our leasing offices staff members deal with on a daily basis.

Just A Thought.