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.

Thanksgiving is in the rear view mirror. Christmas, Hanukkah, and other holidays will be here sooner than we think. 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 notes 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.

Continuing its efforts to enforce the Fair Housing Act (FHA), last week the U.S. Department of Justice (DOJ) announced it had settled a disability case for $160,000 that it filed in Ohio asserting that a real estate developer and an architect (along with several companies they controlled) failed to comply with the FHA’s design and construction requirements. Specifically, the DOJ claimed that two neighboring condominium complexes had a variety of features that made them inaccessible to individuals with disabilities.

Pursuant to the settlement agreement (which still must be approved by a federal judge), the defendants will pay $100,000 to current condominium owners at the two communities who choose to make accessibility modifications to their units. The modifications will include:  eliminating steps and excessive slopes in the walkways to the front entrances of their units, widening doorways, removing or lowering thresholds, installing removable cabinets in kitchens and bathrooms to increase maneuvering space as well as relocating toilets, showers, and sinks to provide access.  Additionally, the defendants agreed to pay $10,000 each to two local fair housing community organizations as well as a $40,000 civil penalty to the United States.  The DOJ complaint followed an investigation by the U.S. Department of Housing and Urban Development

While I am certainly aware that there are always two sides to every story, this case is another reminder that those involved with designing and building multi-family housing need to ensure the accessibility provisions of the FHA are reviewed and complied with. Or you may be faced with a situation involving modifications, retrofits, and financial penalties.

Just A Thought.