General Fair Housing News & Developments

Last month the U.S. Department of Housing & Urban Development (HUD) approved a settlement agreement concluding an assistance animal Fair Housing Act (FHA) discrimination case from Nevada. An applicant submitted a reasonable accommodation request (that was appropriately medically verified, according to HUD) to keep an assistance animal due to her disability. As reported in the complaint, the leasing agent told the applicant that the owner did not allow pets because the floors had recently been upgraded to hardwood. After being told animals were not allowed, the applicant did not further attempt to lease the unit.

As reported here many times, however, professional apartment management typically must waive “no pet” rules when residents and/or applicants make reasonable accommodation requests that are appropriately medically verified. While there are always two sides to every story, my suggestion is to train your leasing office employees so nobody can ever credibly claim that you forbid service or emotional support animals because of hardwood floors. Always ensure your team knows the difference between a pet and an assistance animal. Or you may need to speak with a lawyer like me.

The terms of the settlement involved a $6,000 payment to the applicant, a requirement for fair housing training, as well as the adoption of reasonable accommodation policies to ensure any future requests are appropriately (and timely) responded to.

Just A Thought.

I wanted to pass along a couple of federal fair housing policy notes. Over the past two weeks, the Trump Administration has publically indicated a desire to change two points of federal housing law:

  1. On May 10, 2018, the U.S. Department of Housing and Urban Development (“HUD”) issued a press release stating that it would seek public comment on the 2013 “disparate impact” regulation put in place by the Obama Administration. The “disparate impact” regulation was an attempt to codify a way to establish legal liability in a housing discrimination case. “Disparate impact” — defined as a facially neutral policy which has a discriminatory effect on a protected class — has been used in housing discrimination cases for many years, although the words “disparate impact” are not contained in the Fair Housing Act. On the third try, the U.S. Supreme Court, in a 5-4 decision, seemingly upheld (but arguably tightened) the use of the “disparate impact” theory in fair housing cases. That HUD seeks public comment on its regulation, I suspect, means the department is looking to alter or withdraw the rule.
  2. Next, on May 18, 2018, HUD Secretary Ben Carson moved to change another Obama-era housing policy. In 2015, HUD required more than 1,200 communities receiving federal housing money to use a new computer model to assess local segregation patterns and to develop a plan to address any apparent discrimination. Communities which failed to follow the model were put on notice that they were at risk of losing federal funds. In withdrawing the computer model, Secretary Carson stated the tool was “confusing, difficult to use, and frequently produced unacceptable assessments.” With the model withdrawn, HUD has directed communities to return to what they should have been doing – self-certifying that they have analyzed impediments to fair housing and, if needed, to prepare a plan to address any deficiencies. As a prelude to HUD’s action, a group of fair housing agencies sued the department over its suspension of the computer model.

A change in administrations typically produces policy modifications over time, particularly when the political party in power switches. Which is, of course, what happened in January 2017. There will be more to come in the coming weeks and months on these housing policy issues. I will continue to report back.

Just A Thought.

 

A couple of assistance animal related questions have hit my desk recently.  At properties which have pools, can assistance animals accompany residents into the pool area? How about into the pool? No, I am not making that question up.

While every situation requires independent analysis, the general rule is that an assistance animal is permitted on the pool deck (provided the animal is secured) but is not permitted in the pool. Animals are not permitted in the water for legitimate local public health reasons.

A related question had to do with properties that have a café or otherwise serve food. Can assistance animals accompany residents into the food service area? While I have not seen a case on point, I am aware of HUD guidance noting that animals which pose a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation may not have to be granted. In this example, I would argue allowing animals into common areas specifically designated for food preparation and consumption escalates the risk of illness or other reasonable health concerns.

This conclusion is supported by two—somewhat more common—analogies. First, while the Americans with Disabilities Act (“ADA”) specifically requires restaurants to permit service animals to accompany customers in a restaurant, it does not require the proprietor to allow an emotional support animal in. This distinction between service animals (who are trained to assist their owners with major life activities) and emotional support animals (untrained animals that assist with emotional/mental disabilities) has been recognized as severe enough as to allow the former near food and food preparation, while not the latter. As such, because these types of situations are considered on a case-by-case basis, unless a specific resident could demonstrate that their need for an emotional support animal in a dining area reasonably outweighed legitimate health concerns, the same rule would likely apply under the FHA.

In sum, while I cannot rule out the risk of a complaint that a resident may claim he or she is being discriminated against because their emotional support animal (as contrasted with their service animal) is not permitted in a food service common area, I think we could argue that such an animal near any food preparation or food service area is unsanitary and will militate in management’s favor under the health and safety exception.

Hope that helps.

Just A Thought.

Last month, the U.S. Department of Justice (DOJ) announced it settled a federal discrimination lawsuit filed against the owner, builder, and designer of a three building dormitory-style property near Central Washington University in Ellensburg, Washington. The resolution concludes allegations that the defendants failed to design and construct the buildings in such a manner as to make them usable by individuals with disabilities as mandated by the accessibility requirements contained in our Fair Housing Act (FHA).

As noted here (and elsewhere), the FHA requires that multifamily housing constructed after March 1991 have basic features to help ensure that individuals with disabilities can enjoy the full benefits of their housing. In the complaint, DOJ asserted that the defendants designed and built the units with “various barriers inhibiting access to the 12 ground floor units and the associated public and common-use areas at the property.” In this case, it was alleged that the barriers included: inaccessible building entrances, inaccessible routes, inaccessible parking as well as problems with bathrooms, closets, doors, and electrical outlets that combined to make the property inaccessible to individuals with disabilities.

The case began with a HUD administrative complaint after an inspection done by a local fair housing advocacy group. Following the agency investigation, HUD issued a charge of discrimination and referred the case to DOJ.

As a part of the settlement, the defendants will: (1) retrofit property to make the 12 ground floor units and common areas accessible; (2) pay $10,000 to the local fair housing group; (3) train new employees on the FHA; and (4) adopt a nondiscrimination policy.

New multifamily housing construction is great. For designers, builders, owners, property management professionals and future residents. The FHA has several safe harbors that simply must be followed by those building new multifamily housing. If you believe your property exempt from the law, I would suggest you speak with a lawyer like me to determine if your project might fit into an exemption. Otherwise, you may have to do an expensive retrofit and pay damages at some unspecified future date if your housing is determined to be inaccessible to those with disabilities.

Just A Thought.

Earlier today, Ben Carson, the Secretary of the U.S. Department of Housing and Urban Development (HUD), put forward a plan that could significantly change the amounts paid by Americans who live in public housing. The proposal, discussed at a congressional hearing and in a HUD statement, is an effort by the Trump Administration to overhaul how housing subsidies are calculated for the estimated 4.5 million families who rely on federal housing assistance.

Currently, residents on federal public assistance generally pay 30 percent of their adjusted income toward rent — which is capped at $50 a month for the poorest families. Secretary Carson’s initiative sets the family monthly rent contribution at 35 percent of gross income, or 35 percent of their earnings working 15 hours a week at the federal minimum wage. If the bill passes, the cap for the poorest families would rise to about $150 a month. HUD estimates that about 700,000 families should expect to see their monthly rents increase to $150.

The administration stated its view that doing nothing is not an option as the current system is “confusing” and “convoluted” such that changes are necessary to help stop people from “working the system.” Secretary Carson hopes this plan will “encourage work and self-sufficiency” as the current rules “hold back the very people we’re supposed to be helping.” Now, HUD’s statement also noted that the proposed changes will not apply to individuals with disabilities or to the elderly.

Housing advocates have already signaled their opposition to this new legislation, calling it unnecessary and will have a negative impact on those who have the lowest incomes and are faced with a shortage of affordable housing.  While it is obviously too early to know how the initiative will be received in Congress, your humble Fair Housing Defense Blog editor will follow the issue and report back as appropriate.

Just A Thought.


As professional apartment management employees and property owners, we need to remember that governmental agencies (such as the U.S. Department of Housing and Urban Development as well as state, city, and/or county anti-discrimination agencies) look for cases with what they view as “good facts” to bring. Our friends at the California Department of Fair Employment and Housing (DFEH) found one of those cases last year when an apartment landlord refused to rent to a family because the husband is serving in the military (he is a United States Marine) and if his unit gets deployed overseas, the family will need to break its lease.

The apartment owner met with the wife and expressed no hesitation about renting a unit to this family until the wife informed him that her husband is in the Marine Corps. Once the landlord learned about the military service, he allegedly would not provide the family with an application nor would he rent them a unit. The family filed a complaint under a California state law which prohibits businesses from discriminating against someone on the basis of occupation or any other arbitrary basis and pursuant to the California fair housing act (which includes source of income as a protected class).  While I know there are always at least two sides to every story, the optics here are not good for management.

To resolve the case, the landlord agreed to pay $4,500 and attend fair housing training.

It should go without saying that we welcome those who serve our country into our apartment communities. If a soldier is deployed overseas during a lease term, I would suggest working with the family to find an appropriate result if they reach out to you with a request. Indeed, there are times when members of the military are specifically permitted to break their residential leases.

Just A Thought.

Yesterday the Trump Administration submitted its proposed fiscal year 2018 federal budget to Congress. Although any administration’s budget is but a request (as it is Congress that actually sets federal spending levels), included in the document is a proposed 13% cut in funding for the U.S. Department of Housing & Urban Development (HUD). If enacted as presented, HUD’s budget would decrease from $47 billion (in fiscal 2017) to just under $41 billion (in fiscal 2018). In its proposed budget, the administration asserts that “state and local government are better positioned to serve their communities based on local needs and priorities.”

Specific line item cuts include: the Community Development Block Grant Program, the HOME Investment Partnerships Program, the Choice Neighborhoods Program, and the Self-Help Homeownership Opportunity Program. Housing advocates are already arguing that reductions of this magnitude will put a significant strain on the nation’s housing authorities and others who rely on federal funding for their housing.

I have not seen specific cuts directed at fair housing enforcement or fair housing priorities, but we are still early in the process.  So, does this mean management can stop complying with the Fair Housing Act (FHA)? No. Even if the government is less active, it is a fair bet that local housing advocacy groups (who are typically funded, at least in part, with HUD money) will continue to file cases in an effort to take up the slack and demonstrate the need for continued fair housing needs.

Just A Thought.

Earlier today, the U.S. Senate confirmed Dr. Ben Carson as our next Secretary of the Department of Housing & Urban Development (HUD). The vote (58-41) was mostly along party lines. Frankly, given how well his confirmation hearing went, I am a bit surprised the vote was as close as it was and that it took until the first week in March to clear the nomination. Nevertheless, we now have a new leader at HUD. From my seat as management’s lawyer, we will now at least begin to learn about Carson’s initiatives and how he plans to direct HUD to enforce the Fair Housing Act (FHA). During his confirmation hearing, Dr. Carson stated he would continue to aggressively enforce the law, although he acknowledged little or no experience in the housing arena.

Now confirmed by the Senate, Carson said he would take a “listening tour” to hear from career HUD officials and others involved in housing to help learn about concerns and how best to use HUD’s $49 billion dollar budget for 2017.

My initial prediction: a Carson-led HUD will continue to investigate and file housing discrimination cases based on the seven protected classes in the FHA as have previous administrations (both Republican and Democratic). But I would not be surprised to see some of HUD’s other recent initiatives (such as rules designed to “affirmatively further fair housing” and/or rules concerning LGBT individuals) to get additional scrutiny.  I would also guess that HUD will look to expand partnerships with the private sector and various religious groups in an effort to transition individuals out of public housing.

Just A Thought.