It is clear that just about all (if not all) of the federal, state, and local fair housing agencies are dealing with the exponential growth of online medical verifications for emotional support animals (ESA’s). I have addressed any number of ESA issues in this space. Professional apartment management companies continue to look for the appropriate sweet spot of ensuring that everyone with a legitimate disability is granted the accommodation they need, while at the same time raising appropriate questions about medical verifications that appear to have been purchased online after a few clicks of a computer mouse (or now just on a smart phone) and a $69.99 charge on a credit card (or perhaps $125 if you need the letter overnight).

Many of my clients now seek supplemental information whey they receive what appear to be the online ESA form letters. I have a drawer full of the same letter, signed by some of the same online providers. In return, I get nasty grams from the online providers concluding my clients are violating the fair housing laws because they did not simply accept their verification as presented. I don’t mind taking the heat, but it is always good when a governmental entity blesses our efforts to confirm that medical verifications are legitimate.

To that end, the Virginia Real Estate Board and Fair Housing Board issued a Guidance Document evaluating Reasonable Accommodation Requests for Assistance Animals. Addressing the reliable medical verification concern, the guidance provides that professional apartment management “should not be daunted by the prospect of potential litigation into accepting dubious verifications limited to vague statements of how an assistance animal would benefit the requester, but rather should insist on supplemental credible confirmation of [an] underlying disability. As with any other reasonable accommodation request, housing providers are absolutely within their rights to focus first on establishing the legitimacy of the requesting party’s disability status as defined by fair housing law.” That is all we want.

The Guidance further confirms that housing providers “may request that verifiers authenticate all or some of the following information to help evaluate their reliability and knowledge of the requester’s disability.” As such, I continue to believe we are well within our rights to continue to seek information concerning the:

*General location of where the care was provided as well as the duration of the care (such as the number of in-person sessions within the preceding year);

*Whether the verifier is accountable to or subject to any regulatory body or professional entity for acts of misconduct;

*Whether the verifier is trained in any field or specialty related to persons with disabilities or the particular impairment cited; and/or

*Whether the verifier is recognized by consumers, peers, or the public as a credible provider of therapeutic care.

Will guidance like this stop the highly questionable ESA medical verifications? No. But let’s hope our efforts to seek supplemental information when something looks like it has been purchased online continue to be validated.

Just A Thought.

 

Last fall, the California Department of Fair Employment and Housing (DFEH) resolved a familial status fair housing case that I wanted to highlight. Familial status, of course, is the protected class which covers families with children under the various federal, state, and local fair housing laws. This discrimination complaint asserted that an apartment management company rejected a California family of 12 a chance to rent a 2,583 square foot home because the family had “too many kids.”

Defending against the claim, the management company noted it followed the “two plus one” occupancy standard – which means two persons per bedroom, plus one additional person in the home. Based on the facts here (a family of twelve), that would appear to require at least a four (if not a five or a six bedroom home). The DFEH typically follows the federal guidelines for home occupancy. While the U.S. Department of Housing & Urban Development (HUD) issued guidance back in 1992 confirming that two persons per bedroom would generally be considered reasonable, the guidelines since then have changed. While some states formally adopted a “two plus one” standard, the modern rule is simply that enforcement of occupancy standards depends on what is reasonable for the specific home at issue – which further depends on the size and configuration of the unit (including the number of bedrooms, the size of the bedrooms, the total living space, if there are any physical limitations in the home, the ages of the children, and other relevant factors).

As a part of the settlement, the management company agreed to revise its policies, commit to annual fair housing training as well as submit to quarterly inspections. Curiously, the press release noting the resolution did not include a financial component. Obviously, it is a rare application which comes from a family of 12.  And not many rental units can fit a family of 12.  But I suspect that was part of the reason the DFEH took the case.

The takeaway here: do not out of hand reject an application for housing because it looks like there may be “too many kids” or simply conclude that your company follows the old 1992 HUD guidance. Management companies need to perform a review to determine what is a reasonable number of occupants given the size of the home (use the total living space) – and not just the raw number of bedrooms. Or you may need to speak with a lawyer like me.

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.

Each year it seems that a growing number of states approve the use of medical marijuana (and/or loosen restrictions on the use of marijuana more generally). To that end, professional apartment management will likely receive (if you have not already) a reasonable accommodation request seeking to smoke marijuana at your property. What if your property is smoke free? What if you are concerned about the use of marijuana around children or others who find marijuana smoke offensive? How do you balance the rights of all? Here are some thoughts:

Despite changes in many state and local laws, the federal Controlled Substance Act (“CSA”) continues to categorize marijuana as a Schedule 1 substance. As such, the manufacture, distribution, or possession of marijuana remains a federal criminal offense. Furthermore, the U.S. Department of Housing and Urban Development (“HUD”) has distributed a memorandum which provides that the use of marijuana for medical purposes violates federal law and that federal and state anti-discrimination laws do not require leasing offices to accommodate requests by current or prospective residents with disabilities to use medical marijuana. Specifically, HUD concluded that management may prohibit the use of medical marijuana as a reasonable accommodation because: (a) persons who are currently using illegal drugs (which include medical marijuana) are disqualified from protection under the definition of disability in the law; and (b) such a proposed accommodation is not reasonable under the FHA because it would constitute a fundamental alteration in the nature of the property’s operation.

In addition to the HUD guidance, a federal district court in Michigan faced with a resident’s request for medical marijuana as a reasonable accommodation because of a disability, concluded that as marijuana is still classified as a controlled substance under federal law, the resident was not entitled to a reasonable accommodation for medical marijuana use under the FHA. In so ruling, the judge reasoned that residents seeking accommodations for medical marijuana are categorically disqualified from relief pursuant to the FHA, Section 504 of the Rehabilitation Act of 1973 and/or the Americans with Disabilities Act as the requested accommodation is not reasonable and would constitute a fundamental alteration in the nature of the housing operation.

While every circumstance can be different, the current state of the law does not require approval of medical marijuana as a reasonable accommodation for a disability.

As always, if you have specific questions about how to apply the laws concerning marijuana at your community, I would suggest you reach out to a lawyer like me.

Just A Thought.

Earlier this week, the U.S. Department of Housing and Urban Development (HUD) sent out a press release noting that it awarded over $37 million (yes, $37 million) to combat housing discrimination under its Fair Housing Initiatives Program (FHIP). Add it all up and this money will support more than 150 national and local fair housing organizations, each with a mission (at least in part) to catch professional apartment management violating the federal Fair Housing Act (FHA) or its state, city, and/or local counterparts.

What do these local fair housing groups do with $37 million in taxpayer money? These grants permit fair housing enforcement via testers (individuals hired to compare and contrast how various protected classes are treated when inquiring about housing opportunities), investigations, and ultimately by the filing of discrimination complaints. To be fair, this money also provides for fair housing training and public education on housing matters.

Broken down by category, the HUD grants include: $30 million in Private Enforcement Initiative (PEI) grants; $7.45 million in Education and Outreach Initiative (EOI) grants; and $500,000 in Fair Housing Organizations Initiative (FHOI) money. The PEI funds are used by HUD partners who conduct intake, testing, investigation, and litigation of fair housing complaints. The EOI money is provided to organizations that educate the public about fair housing while the FHOI dollars look to help improve the effectiveness of non-profit fair housing organizations that focus on assisting the needs of underserved groups.

What does this mean for the housing industry? Follow the FHA and the state/city/county laws where your property is located. Ignorance of the law is no excuse. This includes training your leasing office staff. As well as your service team members. Checking your advertising. Reviewing your written materials. Keeping good service records. Evaluating your criminal background screening criteria. Your credit checks. And your waitlists. Your response to reasonable accommodation requests. Your response to reasonable modification requests. There is certainly more, but you see my point.

Can professional apartment management get it right? Absolutely. I see it all the time. But know that my docket is filled with complaints filed by these fair housing advocates, literally from California to Texas to Florida and just about everywhere in between.

Just A Thought.

 

Many times the cases with what look like the most egregious set of facts are the ones that get the most publicity. To that end, a fair housing case in California just settled with the owner of several apartment complexes and rental homes agreeing to pay $100,000 to conclude a disability discrimination action involving emotional support animals.

The complaint (which started as an administrative action with HUD filed by a local fair housing advocacy group) asserted that the apartment owner sent a letter to his residents stating he did “not like to deal with pets of any kind.” The letter contained no exceptions for assistance animals. Next, the defendant sent letters to the residents asserting that a flea problem existed and his solution was to ensure all pets were gone.  Or that the residents had to send letters from a veterinarian certifying that their animals did not have fleas. He then sent eviction notices to a handful of residents with pets and ultimately evicted two residents with emotional support animals.

In addition to the $100,000, the defendant agreed to participate in fair housing training, adopt policies for reviewing reasonable accommodation requests, and provide three years of semi-annual reports to the California Department of Fair Employment and Housing detailing reasonable accommodation requests and the resolution of the requests. The money includes damages to the former residents as well as investigatory costs and attorney’s fees.

The takeaway: Yes, you can prohibit pets at your apartment community. No, you cannot prohibit appropriately medically verified service and/or emotional support animals. If you are uncertain over this provision in the law, I suggest you reach out to a lawyer like me for some fair housing training.

Just A Thought.

 

 

Joining a handful of other states, New York recently enacted a state law making it a criminal offense to misrepresent that someone has a service or emotional support animal. The new statute, effective December 18, 2017, makes it unlawful for any person to knowingly misidentify a dog as a guide, service, therapy, or hearing dog. Violation of the law could result in a fine of up to $100 and up to 15 days in jail.

As permitted by our federal Fair Housing Act and various state, city, and/or county laws, some residents use service and/or emotional support animals (typically, but not always dogs) to help them in performing important tasks or to otherwise assist with receiving the full benefit of their apartment home. Assistance animals play an increasingly important role in our society and can be critical support for some residents.  Service or emotional support animals (which, of course, are not pets) do not pay otherwise due pet fees and pet deposits.

The New York law was passed to help address the concerns that a minority of individuals are taking advantage of these important laws and abusing their protections. New York is attempting to deter individuals from engaging in assistance animal fraud.

As written in this space, almost all professional apartment management companies do it right and welcome assistance animals at our properties. What we have seen, however, is an unfortunate spike in the number of applicants and residents who go online and purchase an emotional support animal verification over the internet with a few clicks and a credit card. New York has now joined a few states in working to prevent abuse of an important law which assists those Americans with legitimate disabilities and who rely on  animals every day.

A good practice is to work with your residents and applicants in preparing their reasonable accommodation request in an effort to ensure that all medical verifications are valid and were not purchased over the internet. This will help us get the request approved faster.

Just A Thought.

 

My favorite Fair Housing Defense blog post is always the first entry of each new year.  That is because I ask my Firm to compile a list of the most read entries from the previous year.  To that end, here we go with the Top Ten 2017 Fair Housing Defense posts (you can click on each link if you want to take a closer look):

#1: HUD Files New Emotional Support Animal Fair Housing Disability Discrimination Case (February 10, 2017) 

#2: Occupancy Standards and Fair Housing: A Short Summary (June 9, 2017)

#3: What’s the Difference Between a “Service Animal,” an “Assistance Animal,” and an “Emotional Support Animal”? (July 30, 2017)

#4: Do Emotional Support Animal Medical Verifications Last Forever? (May 5, 2017)

#5: U.S. District Court Issues Important Emotional Support Animal Medical Verification Opinion (October 24, 2017)

#6: Issues With Online Emotional Support Animals Medical Verifications (August 18, 2017)

#7: DOJ Settles Sexual Harassment Fair Housing Act Lawsuit for $600,000 (August 3, 2017)

#8: Some Further Thoughts on Medical Verifications for Emotional Support Animals (May 26, 2017)

#9: HUD Resolves Fair Housing Case Against the State of Maryland for $225,000 (October 13, 2017)

#10: HUD Files New Familial Status Fair Housing Case (February 3, 2017)

As always, I very much appreciate each of you taking the time to take a look at this blog.  I try to address topics that have the most interest to my readers.  If there is something related to apartment management and/or fair housing that you would like me to comment on, feel free to send me a comment and I will be happy to try to address your issue in a future entry.

Just A Thought.

 

 

 

 

Continuing down a path that has been highlighted in the news lately, last week the U.S. Department of Justice (DOJ) filed a lawsuit in U.S. District Court in Kansas alleging sexual discrimination under the Fair Housing Act (FHA). In the new complaint, DOJ asserted that female residents at a handful of rental properties in Kansas were subjected to egregious sexual harassment and retaliation.  DOJ’s complaint named four defendants (as the properties were owned by one or more of the individuals) where the illegal conduct allegedly took place from 2010 through 2014.

This litigation started when two former residents filed administrative complaints with the U.S. Department of Housing & Urban Development (HUD). The residents asserted that one of the defendants sexually harassed them by making unwelcome advances and comments, engaging in unwanted sexual touching, and evicting residents who refused to engage in sexual conduct with him.

While the complaint still needs to be proven in court (and there are always two sides to every story), the allegations remind us that DOJ and HUD remain willing to bring actions in which this type of conduct is alleged. As apartment management professionals, we need to ensure our staff members (from ownership on down) are trained to follow the FHA, which includes a component on preventing sexual misconduct. Indeed, in October 2017, DOJ announced a new Sex Harassment Initiative. The initiative specifically seeks to increase DOJ’s efforts to protect individuals from harassment by landlords, property managers, maintenance workers, security guards, and other employees and representatives of rental property owners.  DOJ also noted that it has filed or settled six sexual harassment cases since January 20, 2017, and has recovered over $1 million for victims of sexual harassment in housing.

What does this mean for property management professionals? Ensure your team members (from ownership on down) are trained to identify and prevent sexual misconduct. Don’t be the next management company or ownership group named as a defendant by DOJ or HUD following possibly inappropriate conduct by staff members.

Just A Thought.

 

Last week, the U.S. Department of Housing & Urban Development (HUD) announced that it settled a fair housing case alleging disability discrimination involving a live-in aid. Specifically, HUD reached an agreement with the owner and manager of a townhome community in California.

The settlement concludes a case filed by a resident with a mobility impairment asserting that she sought two reasonable accommodations: (1) a live-in aide; and (2) a key to a locked gate near her unit that would make it easier for her to come and go. The complaint alleged that with respect to both requests, the owner and manager asked inappropriate questions about her condition, challenged whether she really had a disability, and stated that the community was only for individuals who could live independently. After asking the intrusive questions, management denied the reasonable accommodation requests. The resident was then assisted by a fair housing advocacy group which filed a second complaint asserting discrimination.

Pursuant to the terms of the agreement, the owner and property manager will pay $4,000 to the resident and $7,000 to the fair housing group. The settlement further mandates the property owner keep the gate near the resident’s unit unlocked or provide her with a key, allows the resident to have a live-in caregiver, and requires management to participate in fair housing training.

The takeaway here is to ensure our leasing office team members know the law concerning what we can (and importantly what we cannot) ask when a resident submits a reasonable accommodation or reasonable modification request. I work with my clients to develop the appropriate forms to help prevent these types of cases from ever being filed. And if a complaint is filed, my goal is to have a paper trail (or an electronic file as we are in 2017) to permit me to defend against these types of allegations.

Just A Thought.