In a press release issued last week, the U.S. Department of Housing and Urban Development (HUD) reported that a condominium association in New Jersey agreed to pay $30,000 to resolve allegations under the Fair Housing Act (FHA) that it discriminated against a resident with disabilities by restricting where and how she could bring her assistance animal on the property. The FHA, of course, requires most housing providers to allow individuals with disabilities (defined as an impairment that substantially limits a major life activity) to have an assistance animal that performs tasks (a service animal) or that provides disability-related support (an emotional support animal).

The order issued in this case represented the conclusion of a discrimination charge HUD filed against the condominium association in October 2018, asserting that the resident (with multiple disabilities) was discriminated against for having an assistance animal. HUD’s complaint alleged that the association required the resident, who is a person with both hearing and sight disabilities, to cage her animal while in common areas as well as to use the service entrance when entering and exiting the building with the animal.

To resolve the case, the condominium association will pay $30,000 to the resident and adopt a HUD-approved reasonable accommodation policy that follows the FHA. As is common in these cases, various association employees and officials will attend fair housing training.

While acknowledging there are always at least two sides to every story and the published consent order did not contain all the facts, the teaching point here for professional apartment management is to think of assistance animals as an extension of the resident. Of course, while residents must clean up after their assistance animals and animals cannot be a direct threat to other residents, employees, or to the property itself, management cannot relegate assistance animals to the service entrance nor can we (in usual circumstances) require an animal be caged while in common areas.

If you think there is a legitimate reason that an assistance animal at your property must be in a cage or use a back entrance, I suggest you speak with a lawyer like me or you may run the real risk of scrutiny from a federal, state, or local government agency.

Just A Thought.

When I do fair housing training, I always say to my audience that if one of you has a question, I am willing to bet another person in the room has the same question.  Suspecting that is the case with my Fair Housing Defense blog readers, I wanted to answer some recent questions sent to me:

To the best of my knowledge, there is no central database that publishes outcomes of all of the various fair housing cases filed around the country. Historically, HUD used the Title Eight Automated Paperless Office Tracking System (TEAPOTS) to track Fair Housing Act (FHA) cases for the Office of Fair Housing and Equal Opportunity (FHEO). A couple of years ago, HUD’s Enforcement Management System (HEMS) replaced TEAPOTS in an effort to improve security and modernize the database. But, at least to my knowledge, neither TEAPOTS nor HEMS is available to the public. To be sure, I suspect you could file a FOIA (Freedom of Information Act) or other open records request to get a list of the dispositions of agency or department cases

Here are some quick definitions:

  1. A ”service animal” is defined in the Americans with Disabilities Act (ADA) as a dog that is specifically trained to performs tasks for its owner with a disability. Think of a dog that assists someone with a vision disability cross the street. For the most part, the ADA does not apply to residential apartment communities. The exception is that the ADA does apply to the leasing office for the property.
  2. An “assistance animal” is defined in the FHA and Section 504 of the Rehabilitation Act of 1973 as an animal that works, provides assistance or emotional support that alleviates one of more symptoms of a person’s disability. An “assistance animal” is not required to have any training. Think of a dog that soothes or comforts an individual with Post Traumatic Stress Disorder. Also, while dogs are the most common assistance animal, the law recognizes that many other types of animals can qualify – such as cats, ponies, ferrets, and/or even snakes. This list is not exhaustive and I am not making this up.
  3. An ”emotional support animal” is a subset of assistance animals. These animals also provide emotional support to individuals with disabilities. Emotional support animals provide companionship, relieve loneliness, as well as can help with depression and anxiety. Unlike a “service animal,” an “emotional support animal” does not require any special training.
  4. A “companion animal” is another way to describe an “emotional support animal.” The terms “companion animals” and “emotional support animals” are used interchangeably.

No, professional apartment management cannot restrict breeds, sizes, or weights for legitimate assistance animals.  Yes, we can place those types of restrictions on pets.  But not on assistance animals.  If you have specific evidence (not a generalized fear) that a given animal is a “direct threat” — that can and should be documented.

There is no firm number of days (to my knowledge) that management must respond to a reasonable accommodation or reasonable modification request.  My general guideline is as follows:  responding within one week is absolutely reasonable.  Responding within two weeks should be considered reasonable.  Responding within three weeks can be considered reasonable.  Anything more than that risks a finding of not reasonable.

Yes, while I certainly take new fair housing cases, I am a defense lawyer who represents professional apartment owners, management, and management employees.  I do not take plaintiff’s cases as I want my clients to have confidence that an argument I use for them in one case will not be used against them in the next case.  Make no mistake, if you believe you are the victim of discrimination, you can reach out to HUD or a state, city, or county fair housing agency.  Additionally, there are various fair housing advocacy groups around the country providing advice and representing residents in these matters.

Hope that helps.

Just A Thought.

In a press release dated yesterday, the U.S. Department of Housing & Urban Development (HUD) stated that it charged a residential property owner (and an agent) in Maine with violating the Fair Housing Act (FHA) related to an assistance animal for a disabled veteran.

Factually, HUD asserts the veteran has had an assistance dog since 2015. The prospective resident saw an online advertisement for a home and called to discuss terms and finances. During a second telephone call, the complainant noted he has an assistance animal because of a disability. The complaint alleges the manager said “absolutely not” as she regretted permitting a prior tenant to have an assistance animal because other residents then wanted to get an animal for a pet. Once a local fair housing group got involved, a subsequent test was conducted at the property. At which time the manager stated having an assistance animal would be grounds for eviction. And the telephone call during the test, HUD claims, was recorded and corroborates the allegations.

There are, of course, two sides to every story and I read fair housing complaints regularly. But it is typically cases with strong facts that get charged. Here, the complaint claims a property manager flatly refused to consider assistance animals for individuals with disabilities because other residents would want a pet and further that assistance animals are grounds for eviction. Making the facts even more difficult for management is that the prospective renter here was a veteran. That can be a challenging look.

As has been written here before, professional apartment management cannot simply reject assistance animals out of hand. We must go through the process. Am I writing that every accommodation request must necessarily be approved? Of course not. But every request must be evaluated and responded to – in such a manner that if our actions are subjected to scrutiny, we can be comfortable that we followed the law.

Just A Thought.

Once a year (or so), your humble Fair Housing Defense Blog editor goes off topic.

Tomorrow is the Fourth of July. Potential for a long holiday weekend. Family outings, barbeques, and fireworks. All good. Indeed, I will be at a three day little league baseball tournament ready to cheer.

Earlier this year, my wife (Hi Sweetie!) and I took the tour of Independence Hall in Philadelphia in which our Declaration of Independence was signed some 243 years ago this week.  It is worth your while if you are ever in the area.

I know we are all busy and schedules get upside down from time to time. But let’s take a minute on July 4th to reflect on just how lucky we really are. Couple of thoughts to pass on:

If you see someone you know is a teacher, thank him or her for working with our kids. Is there anything more important than educating the next generation?

If you see someone you know is a first responder, thank him or her for saving lives. Remember these brave souls run into buildings when the rest of us are running out.

If you see someone you know is a member of our armed forces, thank him or her for volunteering to serve and keeping us safe in an ever dangerous world.

If you have a minute, call a family member who lives in another state or across the country. Just to say hello.

Wherever you are and whatever you are doing: Be present. Don’t be distracted. Put down your phone.

You will be glad you did.

Back to fair housing next week.

Just A Thought.

Highlighting the interplay between the federal Fair Housing Act (FHA) and state anti-discrimination laws, earlier this year the California Department of Fair Employment and Housing (DFEH) announced it resolved a housing discrimination case asserting that property owners (who were a married couple) refused to rent a guesthouse to another couple because they were married and the wife was pregnant.

After viewing (and responding to) ads for housing on various internet sites, the complaint alleges the owners failed to rent the property to the couple as the landlords told them the guesthouse was for only one person. The DFEH investigation revealed that the ads noted the unit was for “ONE person ONLY, NO couples, only ONE person…” DFEH further claimed that the landlords ran an advertisement on a different online site noting a preference for “Straight men, Straight women” as tenants and no children.

After informal mediation was unsuccessful, DFEH initiated a lawsuit in December 2018, including claims of discrimination based on marital status, familial status, and sexual orientation. As such, this case demonstrates how management must know the specific laws in the jurisdictions in which we have properties. For example, while sexual orientation is not generally a protected class under the federal FHA, it is an additional protected class under California law and the alleged discriminatory language in the internet ad was used to bring an additional count in the complaint.

The case ultimately settled with the owners agreeing to pay $15,000, including damages to the potential tenants as well as attorney’s fees and costs to DFEH. As is typical in these types of cases, the owners will also be required to draft anti-discrimination policies, attend fair housing training, and submit regular fair housing compliance reports for the next three years.

In this day and age, we have to ensure our housing ads – which are now largely online – comply with the law as anyone (including fair housing testers as well as potential renters) has easy access to them. And while I know there are two sides to every story, the ads will typically be found to speak for themselves and management’s efforts to explain them away will be subject to scrutiny.

Just A Thought.

Yesterday, the U.S. Department of Housing & Urban Development (HUD) issued a press released stating it formally charged a New York property owner and manager with violating the Fair Housing Act (FHA). In its charging documents, HUD claims that the Respondents failed to permit a mother to have an assistance animal for her son (as the son has a mental disability). Additionally, HUD asserts that the owner and manager retaliated against the renters for exercising their fair housing rights.

Factually, the mother filed a complaint stating that the property manager refused to permit her son to have an assistance animal and further stated that the manager attempted to evict them because the mother and son asserted rights under the FHA. HUD also claims that even after learning from local county officials that the FHA does not require or limit dog sizes, the property manager nevertheless mandated the resident provide documentation that the assistance animal was an adult dog and confirm that the animal was under 20 pounds.

Now, just because HUD issued a charge of discrimination does not mean the facts are as asserted in the complaint. As I have written multiple times, I know there are always at least two sides to every story. But this complaint illustrates a consistent pattern I have seen from HUD over the years: the Department takes an exceedingly dim view of what they perceive as retaliation against residents who raise fair housing concerns or file housing discrimination complaints. The law is very clear that filing a discrimination complaint is protected activity and the government will act if it can show management is interfering. Also, HUD’s position is that there can be no canine breed or size restrictions with respect to assistance animals, even if a local ordinance is to the contrary.

If you have questions concerning issues like this, you might want to check with a lawyer like me.

Just A Thought.

In a press release issued at the end of last month, HUD announced that it awarded another $1.2 million to combat housing discrimination. The grants, sent to 11 different organizations around the country, are tax dollars used to “educate the public and housing providers about their rights and responsibilities under the Fair Housing Act.” Fair enough.

While that is not wrong, it is also money used to fund fair housing testers to seek out what are then claimed to be discriminatory policies or conduct. My concern is that while the professional apartment management community absolutely supports fair housing and works to get it right, I am troubled by someone surfing the internet and looking to create a violation (and be awarded legal fees and costs) as contrasted with a legitimate effort to locate housing that is blocked because of unlawful conduct. I see a real difference there. Hope you do as well.

These grants by HUD, of course, are yet another reason for leasing offices and property management teams to document our contacts in writing (guest cards, contact cards, email, or any other way) and do our best to ensure all inquiries are handled in an appropriate and professional manner. We can never be sure which visit is a legitimate home seeker and/or which call is a from a tester, not telling you the truth about interest in your property, but someone seeking to build a discrimination complaint against you.

Just A Thought.

Last week, the U.S. Department of Housing & Urban Development (HUD) stated it decided to charge the owners/manager of a rental home in Idaho with violation of the familial status discrimination provision in the Fair Housing Act (FHA). HUD will assert that a couple (and their seven children) were not permitted to rent a home (with four bedrooms and supplemental living space) because of the number of kids.

The case was charged after HUD learned that the mother viewed an online ad for a rental house with 2,600 square feet, four bedrooms, three bathrooms, two living rooms, and two additional rooms. The advertised monthly rental price was $1,200. HUD claims that when the mother called the property manager (who is the son of the owner) to ask about the rental property, she was told that the house was available, various lease terms, as well as what were the required deposits.

The next day, the couple (accompanied by two of their children) went to tour the house, complete an application, and pay the various deposits. At that time, the property manager inquired if the two kids were the only children who would be living in the home. The mother replied that, in fact, she has seven children. HUD alleges at that point, the property manager immediately told her to stop completing the application as the owner has a limit of four children for the property. Although the mother reached out again later in an effort to continue discussions about the rental, the manager declined to further engage.

As always, there are at least two sides to every story and because HUD charges a case does not mean the allegations are accurate. But for the property management industry, reflexively rejecting a family with children can subject that action to scrutiny. While the old standard was a general “two heartbeats per bedroom” – the more modern look requires an evaluation of the size of the property as well as the amount of living space. Also, certain states and local governments have adopted laws essentially ensuring that a home can be “two plus one per bedroom.”

So, while I do believe occupancy standards make good sense and remain a best practice, those standards need to be flexible to evaluate the number of bedrooms as well as the size of the living space.

Just A Thought.

A man allegedly attacked by an emotional support animal (ESA) on a Delta Airlines flight back in 2017 has now sued the airline and the animal’s owner for negligence.

The incident took place on a flight from Atlanta to San Diego.  The plaintiff alleges the ESA was sitting on its owner’s lap and began to growl.  Next, it is claimed that the animal pinned the plaintiff against the window and bit his face multiple times.  While the owner initially regained control of the dog, the animal broke free and bit the passenger again.  The complaint asserts the airline was negligent in not ensuring the animal was restrained while in the seat and caused significant injuries.

These incidents are going to happen more often as ESA’s are placed in exceedingly close quarters on airplanes. No way around it. I see more and more ESA’s as I travel through airports.

My hope is that the federal government will provide additional guidance so airlines (and professional apartment management) can make the best decisions we can in evaluating the ESA medical verifications we receive each and every week. Alternatively, the courts will make the law for us.

Just A Thought.

Yesterday, the U.S. Department of Housing & Urban Development (HUD) announced the resolution of a Fair Housing Act (FHA) sex discrimination case for a total of $37,000 pursuant to an agreement brought against a property owner from Minnesota. Allegations included that a male property manager solicited sex multiple times from a female resident in exchange for a reduction in her rent.

While denying the allegations of misconduct, the property manager agreed to pay $30,000 to the resident and $7,000 to the resident’s attorney to conclude the matter. Additionally, for the next five years, the property owner consented to using a licensed, independent third party real estate management firm to manage all of his residential properties.

While I was not involved with this complaint and I always know there are at least two sides to every story, allegations like this – repeated solicitations of sex in return for reduced rent – go to the heart of FHA compliance and will get HUD’s attention. When I am involved in cases which include assertions of sexual misconduct, it is important to do an independent inquiry as promptly as possible to compile facts in a professional and caring manner. Ensure no one is retaliated against because a resident filed a discrimination action. Once the review is complete, I can then be in a better position to advise my clients as to what we think took place and to present a plan to move forward.

Just A Thought.