Time for my favorite Fair Housing Defense blog post of the year.  With apologies to David Letterman, here are the Top Ten entries from 2016, as calculated by the number of reads (yes, my law firm tracks everything).  You can click on any entry to read the post:

#1: DOJ Settles Another Familial Status Fair Housing Act Case — This Time for $100,000 (February 26, 2016)

#2: Colorado House Passes Bill To Criminalize False Service/Companion Animal Requests (April 1, 2016)

#3: First Circuit Issues Fair Housing Act Opinion Concerning Emotional Support Animals: Here is the Takeaway for Management (May 3, 2016)

#4: Marijuana Use and Reasonable Accommodation Requests (January 27, 2016)

#5: Is Filing an Administrative Fair Housing Complaint With HUD Required Before Going to Court? (March 11, 2016)

#6: Reasonable Accommodation/Modification Medical Verification Checklist: Is the Resident Disabled? (July 20, 2016)

#7: HUD Publishes New Guidelines Impacting Apartment Criminal Screening Criteria (April 22, 2016)

#8: Some Further Thoughts on HUD’s Criminal Screening Guidance For Management (April 28, 2016)

#9: The Next “Disparate Impact” Battleground: Criminal Background Checks (May 23, 2016)

#10: Additional Thoughts on Questionable Emotional Support Animal Verifications (August 9, 2016)

I will continue to attempt to write on topics that most interest you during 2017.  Again, I very much appreciate my readers and your comments.

Just A Thought.

With the end of 2016 in sight, I thought this might be a good time for a short landlord/tenant checklist concerning important issues that management and residents should understand when dealing with a residential lease:

What is the lease term? One year? Six months? Month-to-month? Another term? How is the lease extended? What is the notice to vacate procedure? What are the deadlines?

What additional costs (if any) are not included in the monthly rent? Application fee? Parking? Electric? Trash? Water? And how often do you pay? Monthly? Annually? For the most part, remember that cable, internet, and phone charges are extra.

When is the rent due? How does the resident pay the rent each month? Drop off a rent check in the leasing office? Maybe, but not so much anymore. On-line resident portal? Automatic monthly debit?  Check mailed to a management office? What are the late fees and how are they calculated?

What deposits are required? How are they calculated? And when are they refunded? Both sides can benefit from taking (and dating) pictures.

Are pets allowed? Are there size or breed restrictions? What fees are charged for pets? Remember, a service or companion animal is not a pet. Do everyone a favor and don’t try to qualify your pet as a service or emotional support animal by going to the internet, paying a fee, and immediately “registering” Rover or Fluffy in an effort to avoid pet rent.  Service and emotional support animals are for those disabled Americans with a real need related to their disability.  Enough said.

What is management responsible for in terms of property maintenance? Typically, management will be responsible for all major appliances, plumbing, HVAC units, radiators or window air-conditioning units. As a part of that, how are maintenance requests made? Residents should follow that policy.  Sending an email to a regional property manager for a routine maintenance request is probably not the best way to get your microwave fixed.

Who manages the property and who is available to answer questions? Management will also have an emergency phone number in case something breaks or leaks that requires prompt attention.

Every community has its owns rules and regulations concerning behavior, including items such as noise, common areas, grills, swimming pool, workout rooms, balconies, conference areas, laundry facilities, and the like.

Understanding issues like these can get the leasing office/resident relationship off to a good start.

Happy New Year everyone. See you again in 2017.

Just A Thought.

I had three clients in three states (one near the Pacific Ocean, one in the Midwest, and one in the middle Atlantic) all reach out to me with a variation of the same question concerning service and/or companion animals: what happens if the resident is not disabled but still seeks an emotional support animal? Does management have to approve that request?

The fact pattern typically comes up when a resident or an applicant submits a reasonable accommodation request. And that accommodation request is verified by someone who writes that John Resident or Ann Applicant “would benefit from” an emotional support animal. The verification does not state that John or Ann is “disabled” and there is nothing that would otherwise make management aware that John or Ann has a disability.

In such a circumstance, management does not have to approve the emotional support animal. The whole point of service or emotional support animals is to assist our disabled residents so they can obtain the full benefits of their housing. If you do not have a disability, you do not qualify for an emotional support animal.

To be sure, I am not writing that you cannot necessarily have an animal. Indeed, our industry is turning more pet friendly these days and many properties welcome pets. And yes, we welcome your pet rent and pet fees.

Now, when I see a verification such as I have described above, my response will typically note that while we cannot approve your request at this time based on the information provided, we will, of course, review any supplemental information a resident may wish to provide.

Although I continue to see an explosion of purported medical verifications come via the internet (in which someone pays $69.99 or even more if you want a rush), please know that there is absolutely no requirement in the law that Rover or Fluffy be on some national animal registry or receive a fancy certificate. Those websites are just money makers for the people who collect the credit card payments.

Bottom line: if you are legitimately disabled and need a service or emotional support animal, have your treating medical professional write a note confirming you are disabled and there is a need (or nexus) for your animal. That’s all. Many management companies have a form you can use. But if you are just trying to game the system and get a verification over the internet in an effort to avoid pet rent or pet fees, don’t be surprised if management pushes back. Make sense?

Just A Thought.

Last week, the U.S. Department of Justice (DOJ) reported that developers of six multi-family housing communities in Mississippi agreed to pay $350,000 to resolve claims that they violated the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA) by building apartment homes that were inaccessible to persons with disabilities. Pursuant to the terms of the agreement, the defendants promised to make any number of retrofits (including eliminating steps, making bathrooms more usable, installing curb ramps and parking, constructing accessible walks to amenities such as the clubhouse and pool) to remove accessibility barriers – a project that will cover almost 500 units.

In addition to the significant retrofits, the defendants agreed to pay $250,000 to 25 individuals alleged to have been harmed by the inaccessible housing as well as $100,000 in civil money penalties. As is typical in these types of cases, the DOJ also required fair housing training, periodic reporting, and an agreement that any future housing construction complies with the accessibility laws.

DOJ filed the complaint in May 2014, which followed an investigation and an administrative complaint filed with the U.S. Department of Housing & Urban Development (HUD). The case had been set for trial in January 2017.

The takeaway for professional apartment community builders/owners/designers: among other provisions, our FHA requires all multifamily housing constructed after March 13, 1991, to have basic accessibility features, including accessible routes without steps to all ground floor units and units accessible to wheelchair users and others with disabilities. The ADA requires that places of public accommodation, such as rental offices at multifamily housing complexes designed and constructed for first occupancy after January 26, 1993, be accessible to individuals with disabilities. The law also establishes a number of safe harbors will provide a template for how to design and build new multifamily housing.  If you are uncertain how the law works, you might want to consult a lawyer like me in an effort to avoid a potentially large issue after your project is complete.

Just A Thought.

I try to avoid partisan politics here at the Fair Housing Defense Blog. As we have seen over the past year (and particularly over the past month), emotions on both sides can run hot. Nevertheless, I have had a couple of Blog readers ask my opinion about what President-elect Trump will mean for those of us in the professional apartment management world. The answer is: we don’t know.

This morning, the President-elect announced that he would nominate Dr. Ben Carson to serve as Secretary of the United States Department of Housing and Urban Development (HUD). Dr. Carson, who you may remember ran for the 2016 GOP presidential nomination, is a retired surgeon who served as the director of pediatric neurosurgery at Johns Hopkins University Hospital in Baltimore, MD. As a complete aside, the daughter of one of my good friends was operated on by Dr. Carson during his career and they speak very highly of his skills as a physician.

So, while Dr. Carson is literally a brain surgeon (which has to be a good thing), we just do not know his views on housing policy and what his initiatives for HUD might be. In the past, Dr. Carson has challenged efforts of the Obama administration to use its regulatory powers to increase racial integration in housing and he has not typically supported some of the policies put forward by various minority groups. We will certainly monitor Dr. Carson’s comments during his Senate confirmation hearings as well as what other incoming officials say and do related to housing generally and the Fair Housing Act (FHA) specifically.

A new administration will certainly mean change; although that change might not happen immediately. In my role as management’s lawyer, what I want is the ability to know what the law is and what is covered by our FHA and its regulations. From my seat, ambiguity is what I want to avoid. And remember, even if a new administration changes federal policy, we will still need to ensure management complies with various state and/or local anti-discrimination laws.

So, for now – follow the law as you have been. That includes the new 2016 HUD guidance concerning limits on criminal background screens as well as understanding that “disparate impact” remains covered under the FHA.

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.

A couple of weeks ago, the U.S. Department of Justice (DOJ) filed a new Fair Housing Act (FHA) lawsuit against the owner, builder, and designer of a housing complex near Central Washington University in Ellensburg, Washington. In the complaint, the DOJ asserts that the apartment-style homes were constructed without complying with the FHA’s accessibility requirements. The lawsuit states that each of three buildings on the property have nine individually keyed units with their own bathroom and desk as well as a shared living space, a communal kitchen, and two communal laundry rooms.

The specific barriers claimed by the DOJ include: inaccessible building entrances on an inaccessible exterior route, inaccessible knob hardware throughout (including on the building entrances and unit entrances), inaccessible electrical outlets, inaccessible laundry facilities, inaccessible bathrooms, and inaccessible walk-in closet entrances.

As always, I am mindful there are two sides to every case. DOJ made the claims following a complaint filed by a local fair housing group in Washington state after an administrative complaint was brought before the U.S. Department of Housing & Urban Development. Two takeaways here: (a) DOJ will attempt to hold everyone involved in a project accountable if perceived FHA violation exists; and (b) the law contains a number of safe harbors and guidance to help owners, designers, and builders ensure new constructions meets the accessibility criteria.  Make sure your builder/designer/owner is familiar with ensuring a building is considered accessible or find someone who is before your project gets started.  Or you might really need to speak with a lawyer like me.

Just A Thought.

In addition to renting units, many apartment owners/managers rent space for commercial enterprises (such as restaurants and stores) in their properties. Which can make good sense for both – providing a needed service or store with a ready-made group of people living extremely close by. All good, right?

But, remember that when you lease space to a commercial vendor and that tenant modifies the space for a restaurant and/or shop – make sure that the renovated site conforms with the accessibility guidelines in the Americans With Disabilities Act (ADA). While a landlord and a commercial tenant are certainly free to apportion costs as they see fit (including an indemnification clause) – if a disabled individual sues, both the landlord and commercial tenant will be named as defendants and the plaintiff will seek what is known as joint and several liability against them.  An otherwise responsible party will most likely not be able to avoid liability to a plaintiff by simply pointing out that the other party (landlord or tenant) agreed to ensure the space met the accessibility guidelines.  Yes, there will be a cross claim, but that will not get you out of the lawsuit.  The reason for this policy is that it is presumed to be unfair to the disabled individual not to be able to sue a party who should otherwise be responsible for the failure to comply with the ADA.

What this means for property owners/managers is that if we rent space (and even if the cost of the renovation is agreed to be picked up by the tenant), we are still potentially responsible to ensure that the accessibility requirements are complied with. Another reason you might want to speak with a lawyer like me if you start down the path of renting commercial space in your property.

Just A Thought.

In response to regular requests, here is a summary of when the Fair Housing Act (FHA) may not be applicable. Again, if you are a professional property management company or employee, it is extremely likely the FHA (as well as state, city, and/or county anti-discrimination laws) applies. Nevertheless, here are some guidelines:

The FHA does not generally apply to small owner-occupied buildings (a property with four or less units) when the owner resides in one of the units. This is referred to as the “Mrs. Murphy exemption.”

The FHA does not apply to single family homes rented without a broker.

If you are a part of a religious organization leasing apartments at a property that is not being operated for a commercial purpose, it is permissible to limit occupancy (or give preferences) to people of your organization’s religion.  If this exemption applies, however, please note that the FHA makes clear that this provision is only for religion and warns that religious organizations cannot discriminate based on race, color, or national origin.

If you are renting apartments on behalf of a private club and not for a commercial purpose, the FHA permits the club to give a preference or limit occupancy to club members.

If your property qualifies as Housing for Older Persons, you can be exempt from the portion of the FHA that prohibits discrimination against families with children. Exempt properties are those that are designated for age 55 and older or age 62 and older communities. You will want to speak with a lawyer like me to see if your property qualifies as Housing for Older Persons.

That being said, even if your property is exempt from the FHA, you still must follow the FHA’s prohibition on discriminatory statements, notices, or advertising. Similarly, always remember that you must also comply with the state, city, and/or county fair housing laws in which your property is located.

Hope this is helpful.

Just A Thought.

When I started writing this blog, I was afraid that only my family and perhaps a couple of friends would actually read it. I remain gratified as to the number of hits Fair Housing Defense receives every month (I work for a big law firm, we track everything). However, today is my wife’s birthday (Hi Sweetie!) – let’s see if she reads this.

Continuing their efforts to enforce the Fair Housing Act (FHA), last month the U.S. Department of Justice (DOJ) announced that a landlord in western Pennsylvania had agreed to pay $30,000 to resolve a complaint that he discriminated against families with children by refusing to permit families from renting one and two bedroom units at an apartment complex. As is so often the case, results from the use of fair housing testers were used to develop the facts which led to the filing of the complaint. In this case, it was the DOJ’s own testers who developed data showing that the defendant told applicants that children were not allowed to rent one bedroom apartments as well as refusing to inform testers about available two bedroom units until the testers informed him that no children would be living there.

Under the terms of the settlement, the defendant agreed to establish a settlement fund of $20,000 to compensate victims of the alleged discriminatory conduct and will also pay a $10,000 civil money penalty to the United States. As is common in these types of cases, the order prohibits the defendant from engaging in additional acts of discrimination, requires implementation of a non-discrimination policy (to go along with regular reporting) as well as contains a fair housing training component.

Our takeaway remains that management must train our leasing office staff to follow the law and welcome all to our properties. Remember that whether testers work for DOJ, the Department of Housing & Urban Development, or a fair housing advocacy group – know that testers are out there and are looking to bring FHA cases against owners/managers/employees. We cannot be in a situation where someone on our team makes comments that are perceived as unwelcoming (let alone discriminatory) to families with children. Even if it is done with the best of intentions (for example, if the unit is close to a busy street or up a steep flight of stairs) – that is a decision for parents, not the leasing office.

Just A Thought.