General Fair Housing News & Developments

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Professional apartment management companies continue to face an ever increasing number of emotional support animal medical verification letters that are purchased over the internet following just a few clicks on a computer and use of a credit card. As leasing offices do our best to ensure the medical verifications are legitimate (and we want to approve assistance animals for those Americans who are truly disabled), I nevertheless wind up defending against any number of housing discrimination complaints asserting that management is required to accept letters purchased over the internet.

In an effort to help with the review and evaluation process of these emotional support animal medical verification letters, here are some of the issues to be on the lookout for:

  1.  Emotional Support Animal “Registration” Services. Many of the web sites promise to send you an animal registration card to somehow confer magical rights. The truth is assistance animals are not required to be registered. There is no government agency that “registers” these animals.  There is no legitimate approved list.
  2. Instant Approval. A medical verification should come from a licensed or otherwise credentialed health care or medical professional. I find it exceedingly unlikely that any reputable therapist or doctor would instantly approve an emotional support animal based on an online questionnaire and essentially a one-time self-diagnosis.
  3. Bargain or Low Cost Verification Letters. The law intended that an assistance animal medical verification letter come from a licensed therapist or doctor who has an established relationship with a patient. Sounds good, right? But go online and you will easily find what I refer to as the exceedingly questionable internet sites that sell emotional support animal medical verifications for $69.99 (or $149 in you want both a housing and an airline letter) charged on a credit card.

While my leasing offices will always engage in the interactive process with a resident or applicant who makes any reasonable accommodation request, more management companies are seeking supplemental information when we see 10 or 20 of essentially the exact same letter from a handful of the same online sources. There are other red/yellow flags, but these three are common.

In addition to getting the complaints dismissed, my other goal is to educate the investigating agency to make certain they know about the fake internet sites.

Just A Thought.

Three properties I represent (two on the west coast and one on the east coast) are currently involved with residents who separately have submitted reasonable accommodation requests to their respective leasing offices.  All good as professional apartment management has the obligation under the law the review, evaluate, and respond to each of them.

The three requests came from residents with different claimed disabilities (none of which were obvious or otherwise known), but they have the same request:  that management make a financial accommodation because of a disability.  The typical reasonable accommodation, of course, involves a change in a rule or a policy designed to ensure a disabled resident is still able to enjoy the full benefits of his or her housing.  The three submissions ask that management:  not raise rent, accept less for rent, and to cease eviction proceedings from a resident who is behind on her rent but does not wish to leave.

Setting aside the facts that none of the three requests (again for claimed disabilities which were not obvious and were not known to the leasing office) were medically verified, I have legitimate questions about each because of the financial nature of the requested remedy.  Now, while I understand (and agree) that the law presumes there may be a small financial cost associated with granting a request, I am unaware of guidance mandating that management reduce agreed upon rent as an accommodation.  For example, if a resident on the third floor of a building without an elevator suffers a mobility impairment, it could well be appropriate to let the resident out of his or her lease early as an accommodation, without charging any otherwise due early termination fees.  That is a cost to management.  Again, the point of the law is to help disabled residents obtain the full benefit of their housing— not to get a benefit not available to anyone else.

To phrase it another way, every resident (disabled and non-disabled alike) would benefit from a reduction in rent, not paying rent, or not getting evicted for failing to pay rent.  What I fear we are now seeing is residents (with or without counsel) attempting to use the reasonable accommodation process to avoid their financial obligations because of a claimed disability.

In my experience, financial accommodations like those sought here are not part of our federal Fair Housing Act.

Just A Thought.

Earlier this month, the California Department of Fair Employment and Housing (DFEH) announced that it settled a housing discrimination action against a property owner brought by a man who claimed he was denied the opportunity to rent a home because he was not legally married to his partner.  The allegations included that the potential resident was offered a lease for a home in San Diego, but upon disclosing that he planned to live with his boyfriend, the potential resident was told that both he and his partner had to individually satisfy a $90,000 yearly income standard. Following an inquiry about whether the two men could aggregate their incomes to satisfy the income requirement, they were told that they could only do so if they were married. And as the two individuals were not married, the two potential renters had to find another home to rent together.

After an investigation, the DFEH found probable cause to believe a violation of state law took place. Following a mandatory conciliation process, the property owner and manager agreed to pay $7,500 to resolve the claims. As is common in these types of cases, in addition to paying the money, the owner/manager was required to attend annual fair housing training and to ensure that fair housing brochures are provided to current and future applicants for the next two years.

The lesson here is that California, like some other states, includes additional protected classes in its state anti-discrimination law (in addition to those covered in the federal Fair Housing Act). Other protected classes in California include: sexual orientation; gender identity and gender expression; marital status; medical condition; ancestry; source of income; age (people over the age of 40); genetic information (also known as family medical history); and any arbitrary discrimination (which means a person cannot be discriminated against for any other arbitrary reason).

If you are involved in the professional apartment management business, you must know the state (or even local) laws in your jurisdictions to help ensure you comply with them. If you are uncertain, ask a lawyer like me for guidance on protected classes where your property is located.

Just A Thought.

 

At the end of last month, the U.S. Department of Housing & Urban Development (HUD) issued a formal charge of housing discrimination against the developer, owner, construction company, and architect of a multifamily property in New York, asserting that the parties failed to design and construct a condominium development in Queens, NY in compliance with the accessibility requirements of the Fair Housing Act (FHA).

The FHA, of course, mandates that multifamily housing built after March 1991 contain accessible features for disabled individuals. These requirements include accessible kitchens, bathrooms, common areas, wider doors, and lower controls that can be reached by residents who use wheelchairs. These design and construction features are required to be included in order for multifamily properties to be in compliance with the law.

HUD’s charge of discrimination followed an investigation which was started with the filing of a discrimination complaint back in 2012 by a resident at the property asserting that the Respondents designed and constructed a building with any number of inaccessible features. As a part of its investigation, HUD conducted an on-site inspection and claims it discovered various design and construction problems. Specifically, HUD now asserts the property lacks safe and accessible routes between units and common areas in addition to issues with the property’s main entrance, hallways, shared outdoor terrace, patios, trash rooms, and its parking garage. Finally, HUD’s complaint alleges its investigation revealed multiple violations inside individual units, including inaccessible doors, bathrooms, kitchens, and environmental controls.

The case will now be heard by a HUD Administrative Law Judge, unless one of the parties chooses to send the case to federal court. As regular readers of this space are aware, I always know there are at least two sides to every story and that a complaint simply puts forward one side. The takeaway for defense lawyers like me, however, is that we need to advise our clients to follow the design and construction requirements contained in the law/regulations. Indeed, there are even safe harbors to help prevent complaints like this.

Just A Thought.

As predicted in this space a couple of months ago, on June 20, 2018, the U.S. Department of Housing & Urban Development (HUD) published a notice of proposed rulemaking in the Federal Register entitled “Reconsideration of HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard.”

What’s going on here?  Here is a summary, in English (as opposed to legalese):

“Disparate impact” involves testing a rule or a policy that looks neutral on its face, but which has a discriminatory impact on a protected class. While the phrase “disparate impact” is not contained in the text of the Fair Housing Act (FHA), courts have read the phrase into the law, most recently with a 2015 U.S. Supreme Court decision, which held, by a 5-4 margin, that “disparate impact” can be used in certain circumstances. It was clear to the Obama Administration that a “disparate impact” case was likely to reach the Supreme Court (as two prior FHA cases were accepted by the high court but those matters settled prior to the justices issuing a decision).

In an effort to bolster the use of “disparate impact” in fair housing cases, HUD adopted a Disparate Impact Rule (if I recall correctly, in 2013) discussing how “disparate impact” can and should be used in fair housing matters. Now, the Trump Administration is taking another look at HUD’s 2013 rule to see if indeed it is consistent with the Supreme Court’s 2015 FHA decision.

With its notice, HUD is requesting public comments related to:

  1. Are the Disparate Impact Rule’s burdens of proof appropriately assigned?
  2. Does the Disparate Impact Rule’s definition of “discriminatory effect” strike the appropriate balance for legitimate claims? In other words, are legitimate claims protected and are unmeritorious claims discarded?
  3. Should there be a safe harbor or other defenses to claims of “disparate impact” liability?
  4. Should the Disparate Impact Rule be revised to improve clarity, reduce uncertainty, decrease regulatory burdens, or assist the housing community and the public in determining just what is lawful under the FHA?

Comments to HUD are due on or before August 20, 2018. I am not breaking new ground here in predicting the Trump Administration’s view concerning the appropriateness of “disparate impact” in fair housing claims will be different from that of the Obama Administration.

As the lawyer for professional apartment management, my view continues to be that I want clarity in the law. I want to be able to tell my clients the rules of the road. If “disparate impact” is included in the FHA, fine. If it is outside the statute, just let us know. Uncertainty, however, is not helpful as we attempt to provide the best advice we can.

There will be more to come here.

Just A Thought.

Earlier this week a number of fair housing advocacy groups filed a lawsuit in U.S. District Court in Maryland asserting that a major financial institution and a property management company are violating the Fair Housing Act (FHA) by exposing predominately minority communities to economic harm, increased crime, and a less than optimal quality of life by failing to market and maintain its foreclosed properties in the same condition as the financial institution does in communities with a majority of Caucasian residents.

Based on a claimed multi-year investigation involving over 1,600 foreclosed homes in more than 30 metropolitan areas, the complaint alleges that bank-owned homes in communities of color are more likely to have overgrown grass, unsecured doors as well as various health and safety problems when compared to better maintained homes located in predominantly white communities.

The plaintiffs assert they want to hold the defendants responsible for “unjust policies and practices” while the bank contends it applies “uniform practices to the management and marketing of vacant bank-owned properties…regardless of their location.”

This is one of a series of actions filed by fair housing advocacy groups against lenders across the country in an effort to use disparate impact to assert claims of discrimination by banks and property management entities in predominantly African American and Latino communities. These groups are using the FHA in an effort to combat perceived segregation. Defendants will rely on their records and will likely try to increase the size of the statistical areas identified by the plaintiffs in an effort to weaken the disparate impact claims involving demographics.  There is a long way to go here.  I will be certain to report back as the case progresses.

Just A Thought.

 

Last week, the U.S. Department of Housing & Urban Development (HUD) announced settlement of a disability discrimination Fair Housing Act (FHA) case from San Francisco, CA.  A family filed a fair housing complaint asserting their apartment community failed to transfer them in violation of the FHA as their infant son had a disability and management was required to transfer them to a non-smoking unit.

The infant involved here has a condition that impacts his breathing. The family requested a transfer to a smoke-free building as a reasonable accommodation related to the young man’s disability. The family asserted that instead of moving them to a smoke free building, management simply provided them an air purifier. HUD concluded that solution was insufficient and brokered the settlement.

Pursuant to the terms of the agreement, the Respondents agreed to pay $12,000 and develop a grievance procedure that complies with Section 504 of the Rehabilitation Act of 1973.

As I have written in this space and elsewhere, complaints concerning disability discrimination now reflect over 50% of all of the housing discrimination complaints filed across the country. My docket similarly reflects the shift confirming that disability claims make up more than half of all the complaints that cross my desk. Indeed, HUD reports that in 2017 the department (as well as its state and local fair housing advocacy groups) investigated over 4,500 complaints in which disability discrimination was claimed. This is a trend which is simply not going to go away. Professional apartment management needs to ensure we have procedures in place to review, evaluate, and respond to each reasonable accommodation (or reasonable modification) request that is submitted by our residents.  Or you may really need to speak with a lawyer like me.

Just A Thought.

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.