Fair to report I never thought I would post an entry about a global pandemic and multifamily apartment communities. We are truly in uncharted waters here and need to best navigate the current environment. Everyone is making decisions in real time with imperfect (and possibly changing) information. It goes without saying that the health and safety of our residents, guests, and employees remain paramount. In addition to following guidelines from the Centers for Disease Control as well as state and local authorities (hey, wash your hands regularly with soap for at least 20 seconds), here are some initial thoughts for apartment management companies:

First, don’t panic. Regional Property Managers and Property Managers are on the front lines interacting with employees and residents every day. Let’s try to make the best decisions we can using all the tools available to us. I would suggest streamlining who makes health-related decisions so as to avoid conflicting messaging. If you have not done so already, I suggest you develop a plan which includes items such as:

*Identifying the person to monitor federal, state, and local public health guidance daily. Incorporate new information into communications to staff and residents as appropriate.  If a staff member does not report to work, have someone reach out.

*In our new era of “social distancing” – think about what amenities may need to temporarily close. Do you have a pool? What about a community or meeting room? Game room? Library? What about a playground? Dog park? To be clear, I am not telling you to shut everything down immediately. One intermediate option could be spread out usage such as to limit the number of people in a given area for a given time. But, as we learn more during the coming days and weeks, think about what makes the most sense for your community and your residents based on the most recent health updates. Look, closing public spaces needs to remain an option on the table at this point.

*Review your cleaning procedures. Obviously, keeping areas clean is now a critical function of managing any property. It is time to re-evaluate your cleaning policies and provide residents information concerning what is being done. For example, you will want to increase the frequency of cleaning hard surfaces (such as phones, tables, light switches, elevators, railings, and doorknobs) and offer residents appropriate cleaning wipes and/or alcohol-based hand sanitizer (if you can find such items, I know) so they can wipe down their personal spaces. Probably makes sense to post signage in common areas (including bathrooms) to remind people of best practices.

*If you use third party cleaning or janitorial company, reach out to those entities to discuss the new cleaning protocols. If you use your own employees, tell them to start immediately. Going forward, all restrooms should be thoroughly cleaned nightly with disinfectants including all fixtures, sinks, counter tops, stall handles and floors. If you can find them, all cleaning personnel should wear gloves at this point and they should dispose of gloves frequently.

*Depending on how the pandemic continues, other steps to think about might be limiting the number of entrances in use so you know who is coming and going (and so those coming in can be offered wipes). This is not to prohibit visitors, but we may want to limit meetings/gathering of large numbers of people. Now, this must not be done in such a manner as to preclude our disabled residents from entering their homes.

There will be more to come. Stay clean and safe. Take care of family. And if you see a health care professional going to work in this day and age, tip your cap.

Just A Thought.

 

Earlier this week, the U.S. Department of Housing & Urban Development (HUD) announced the settlement of a housing discrimination case asserting sexual harassment against the owners and managers of an apartment complex in California. The total amount paid by the Respondents to “several women” to resolve the fair housing claim is $14,500.

Although factual details of the alleged misconduct were not provided (and the allegations were denied in the settlement agreement), the claims of sexual harassment were severe enough such that one of the Respondents was “permanently prohibited from directly or indirectly engaging in or conducting any property management responsibilities.” In addition to paying the women who filed the complaint $10,000, the Respondents also agreed to pay two other women $4,500. As a part of the settlement, as is common in these matters, the owners and manager also agreed to fair housing training.

The takeaway: Given that a property manager was barred from the industry because of alleged sexual misconduct, it seems to me that the financial component could have been even higher. Another cautionary tale that professional apartment management must train our team members to follow the law and not engage in prohibited conduct. And if anyone sees or becomes aware of unlawful harassment (involving employees, residents, guests, or applicants) in the apartment management workplace, including sexual harassment (by a colleague, superior, or subordinate) it is important to raise those concerns with a supervisor. If the allegation is against a supervisor, the best practice is to go to the next level supervisor or to human resources (in a medium to larger company) or to the owner (in a smaller shop).

Just A Thought.

In a statement issued last week, the U.S. Department of Housing & Urban Development (HUD) announced that it resolved a familial status fair housing case from California for $10,000.

The complaint, initially filed with HUD by a local fair housing tester group, asserted that families with children were being denied the opportunity to rent homes and/or that families with children were being offered less favorable terms and conditions for their home rentals. Additionally, the fair housing testers claimed that the property owners/managers used a strict two persons per bedroom occupancy standard in contravention of current law at two properties. If proven, these allegations could be found to violate the Fair Housing Act.

While there was a time years ago in which a two person per bedroom rule was considered reasonable, a best practice in 2020 is to not have a rigid occupancy standard, but use one which relies on the size of each respective bedroom as well as if there is, for example, a den or family room in the unit.  Indeed, some jurisdictions have changed their law to make clear that a two plus one (or three persons per bedroom) rule is a better occupancy standard for property management to use.

To be sure, am I writing that management must accept 8 people in a two bedroom unit? Of course not. But, depending on the living space in the home, it may well be appropriate for a family of five. The point is that leasing office team members need training to work through the specifics of how many residents can/should live in a home. But strict enforcement of the old two heartbeats per bedroom guideline can increase the chances that you will need to speak with a lawyer like me.

While the owners and managers involved in this case denied wrongdoing (and I know there are always at least two sides to every story), in addition to the money, the owners also promised to withdraw their two persons per bedroom occupancy standard, change their advertising and marketing materials as well as agree they will send anyone who interacts with applicants and residents to fair housing training.

Just A Thought.

A handful of helpful reminders today in response to questions sent in by blog readers:

  1. If you are going to draft community rules and policies (indeed, a best practice in my view) please remember not to single out members of a protected class. For example, if you want to prohibit running and/or playing in your apartment community parking lot (a good safety practice), don’t write your rule such that it reads “Children are Not Permitted to Run in Our Parking Areas” – because if you do, you run the real risk of being named a Respondent in a fair housing case asserting familial status discrimination. And then really needing to speak with a lawyer like me. Write the rule to read that “Nobody is Permitted to Run in Our Parking Areas” – which addresses the issue you want to highlight while avoiding singling out members of a protected class (families with children). Use the same type of language with respect to your swimming pool – require supervision for anyone who is unable to swim. Don’t single out minors as it can be perceived as discriminatory (and might miss the mark as many kids are excellent swimmers while some adults best take a water safety course before heading into the pool).
  2. I also recommend you use the Equal Housing Opportunity logo and/or include a statement like “We follow the letter and spirit of the federal Fair Housing Act (FHA) and its state and local law counterparts. We operate our community in a manner welcoming to all who meet our non-discriminatory resident selection criteria as well as we will review, evaluate, and respond to any reasonable accommodation or reasonable modification request received on behalf of a resident or applicant with a disability” in your rules and/or advertising. We all have an obligation to follow the law and confirming our commitment to fair housing is another good practice for professional apartment management. Also, when you use pictures with people in advertising – while not every picture needs to have diverse family members or people, ensure that your campaign photos are representative of the population at large.
  3. If your community is in a county or city which, for example, prohibits Pit Bulls as pets – remember you still need to process an assistance animal application from a resident with a Pit Bull. The federal FHA trumps the local no Pit Bull ordinance and we must evaluate and respond to such a reasonable accommodation request.

Just A Thought.

Your humble Fair Housing Defense blog editor appreciated hearing from a number of you concerning the new HUD guidance addressing reasonable accommodation requests for animals under the Fair Housing Act (FHA). In response to your requests, here are a few more thoughts on the guidance:

*As of January 2020, assistance animal complaints now make up almost 60% of all FHA cases and the number of reasonable accommodation requests for assistance animals continues to increase.

*HUD is mindful that some people with pets are attempting to use the FHA to avoid pet rent and fees.

*Under the Americans With Disabilities Act (ADA), a “service animal” is any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability. Other species of animals (whether wild or domestic, trained or untrained) are not service animals.

*If the animal is not a dog, while it may not be a “service animal” under this definition, it may still be another type of assistance animal for which a reasonable accommodation is needed.

*For non-observable disabilities, a housing provider may request information regarding both the disability and the disability-need for the animal.

*While HUD lists a number of medical conditions that “in virtually all cases” are found to result in a determination that the individual is disabled, this does not mean that conditions omitted from HUD’s guidance are not disabilities. In other words, there is no “magic list” containing every possible eligible disability.

*In HUD’s experience, documentation (such as certificates, registrations, and licensing) purchased over the internet by anyone who answers certain questions and/or participates in a short interview are not “sufficient to reliably establish that an individual has a non-observable disability or disability-related need” for an assistance animal.

*Nevertheless, HUD contends that there indeed are “legitimate, licensed health care professionals” who “deliver services remotely, including over the internet.”

*If a resident or applicant seeks approval for more than one assistance animal, the person will need to show a disability-related need for each animal.

*Housing providers may not require use of a particular form for a medical verification. Nor can housing providers require that a medical verification be notarized or made under penalty of perjury.

*As a best practice, HUD suggests that a “reasonable time” to respond to a reasonable accommodation request is 10 days following receipt of the medical verification.

Hope these help. Just A Thought.

In another helpful development for the professional apartment management industry, last week the U.S. Department of Housing & Urban Development (HUD) issued a long-awaited guidance document concerning use of an animal as a reasonable accommodation under the Fair Housing Act (FHA). As your humble blog editor has written many times over the years – I try to call balls and strikes. Having more information from our regulators helps keep everyone on the same page. While the November 2019 letter from HUD Secretary Carson to the Federal Trade Commission (FTC) seeking a federal investigation into entities that sell what I refer to as “click and pay” medical verifications for emotional support animals (ESA’s) was helpful, this new guidance document provides more of HUD’s thoughts concerning the appropriate assistance animal rules of the road.

While the HUD guidance by its own terms does not have the force of law, here are some highlights:

* A “service animal” means a dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability.

* An “assistance animal” can be a dog, cat, small bird, rabbit, hamster, gerbil, other rodent, fish, turtle or other small domesticated animal that is traditionally kept in the home for pleasure rather than for commercial purposes.

*If the individual is seeking to keep a “unique” type of animal that is not typically kept in a house, the requester has what HUD describes as a “substantial burden” of demonstrating a disability-related therapeutic need for the specific type of unique animal.

* HUD makes clear that some websites (what I call “click and pay” entities) sell certificates, registrations, and licensing documents to anyone who answers a quick questionnaire or participates in a short interview and who pays a fee. Under the FHA, housing providers may request “reliable documentation” confirming the need for the animal. HUD wrote that “documentation from the internet is not, by itself, sufficient to reliably establish that an individual has a non-observable disability or disability-related need for an assistance animal.”

*HUD also notes that there are “legitimate, licensed health care professionals” who “deliver services remotely, including over the internet.”

*To that end, housing providers must seek information from a health care provider that confirms a person’s disability and need for the animal – in addition to the fact that the health care provider has personal knowledge of the individual seeking the assistance animal. HUD suggests a best practice is documentation which includes: (a) the patient’s name; (b) the nature of the professional relationship with the person seeking the accommodation; and (c) the type of animal for which the reasonable accommodation is sought. I think it would be extremely helpful to include the number of sessions (or perhaps the length of the provider/patient relationship) in an effort to help confirm the verification is legitimate.

One short takeaway: HUD suggests our industry should not reject – out of hand – each and every medical verification that comes from online care. Yes, we can reject the form letters from the “click and pay” internet sites, but we have an obligation to engage in the interactive process to determine if indeed legitimate health/medical care has been provided over the internet (not one short questionnaire or call) by a licensed provider.

I will include additional comments on the new HUD guidance next week. Just a Thought.


My post from last week concerning the proposed rules authored by U.S. Department of Transportation (DOT) attempting to make certain only legitimate service animals fly with their owners on in the air resulted in a few comments. I always appreciate hearing from readers, even if you disagree with my opinion. To make it clear, I did not write that I think emotional support animals should be cut out of the Fair Housing Act (FHA) with respect to living in an apartment. What I intended to convey is that DOT is proposing to tighten the requirements for service animals on airplanes, and I would like our friends at the U.S. Department of Housing & Urban Development (HUD) to similarly provide supplemental guidance to let the apartment management industry know what type of emotional support animal medical verifications are appropriate and which certificates/registrations bought with a credit card over the internet can safely be questioned.

Also, on a related note, do you think that the “click and pay” online emotional support animal medical verification business has shut down? Well, think again. A client/friend of the Fair Housing Defense blog sent me an article (dated January 21, 2020) from a Brooklyn paper noting at a New Yorker registered his beer (yes, beer) as an emotional support animal (to help manage his social anxiety disorder). Now, the registration does not list a particular type of beer, but the drinker reported he likes IPA’s and local Brooklyn breweries. He used one of the online sites that sells medical verifications – the same type which, from time to time, are presented to professional apartment management in support of an emotional support animal request. So, while the DOT proposed guidelines may be useful to help curb abuse on airplanes, we still have a ways to go here on the ground.

Just A Thought.

In what some think may eventually reach the professional apartment management industry, earlier today the U.S. Department of Transportation (DOT) issued a proposed rule that would allow airlines to no longer accommodate passengers who want to fly with emotional support animals (ESA’s).

The revised rules, which DOT has been working on for years, would narrow the definition of service animal to dogs that have received individualized training to work or perform tasks for a person with a disability. According to the document released earlier today, DOT’s goal is to ensure “safe and accessible” air travel. As we have seen in the apartment industry, the airlines have also watched the definition of service animal expand such that the number of animals flying around the country has significantly increased over the past few years – estimated from 481,000 in 2016 to over 750,000 in 2017.  Many of those animal are “certified” as ESA’s via medical verification letters believed to be purchased over the Internet after a less than comprehensive medical review.

Importantly, at least to me, are the following sentences in the draft DOT rule:

There have also been reports of some online entities that may, for a fee, provide individuals with pets a letter stating that the individual is a person with a mental or emotional disability and that the animal is an emotional support animal or psychiatric service animal, when in fact it is not. While the Department’s current service animal regulation permits airlines to require documentation from a licensed mental health professional for the carriage of emotional support animals, the advent of online entities that may be guaranteeing the required documentation for a fee has made it difficult for airlines to determine whether passengers traveling with animals are traveling with their pets or with legitimate emotional support animals.

The point, and I hope HUD is paying attention, is that yet another federal department (in this case the DOT) has concluded that the short, one page medical verifications we commonly see for ESA’s are not legitimate and are worth scrutinizing.

Again, apartment communities want to approve assistance animals for those disabled Americans with legitimate needs. We just want to stop the online purchase of ESA medical verifications that are bought with a credit card.  There will, I am sure, be more to come here.

Just A Thought.

 

While I regularly report on housing discrimination cases filed (or settled) by the U.S. Department of Housing & Urban Development (HUD), I would be remiss if I did not check in on the U.S. Department of Justice (DOJ). Last fall, DOJ filed a federal lawsuit alleging that owners/managers of residential housing in Hawaii violated the Fair Housing Act (FHA) by refusing to rent to families with children.

The complaint asserts that, at least since 2015, the defendants violated the FHA because they: (a) refused to rent (or to even negotiate for the rental) of three properties because of children; (b) directed prospects with children away from the properties identified in the complaint; and (c) made discouraging and/or discriminatory statement to potential residents with children who asked about housing, including statements such as the units were not “suitable” or that the housing was not the right “fit” for families with children.

The case was brought to DOJ after a local legal aid group conducted a series of fair housing tests which, DOJ claims, demonstrated discrimination against families with children in violation of the FHA. In the complaint, DOJ seeks monetary damages, a civil monetary penalty, and a court order barring future discrimination.

Now, these are just allegations in a complaint and there are always two (if not three) sides to every story. My point by highlighting this action is that, in addition to HUD (as well as state, county, and city agencies), the DOJ can (and will) act against residential property owners and management companies if they believe the facts warrant it. Always remember that litigating against the U.S. government is an expensive place to be for many private property owners. In many cases, the best play is to train leasing office staff on the law such that you will not need a lawyer like me to deal with DOJ.

Just a Thought.

My first (and favorite) Fair Housing Defense blog post of the year.  With apologies to David Letterman, here are the Top Ten read posts from 2019.  Yes, my Firm keeps count.

When I started this blog (quite a few years ago now), I thought only my family (Hi Sweetie!) and a couple of friends would read it.  Turns out, we have found a space that works for quite a few people.  For which I am exceedingly grateful.  Here is the list with links to each page (just click on the title if you are curious):

1.  An Update on Possible HUD Emotional Support Animal Guidance

2.  “Failure to Cooperate” and Internet Purchased Emotional Support Animal Fair Housing Tester Cases

3.  HUD Secretary Carson Seeks Federal Investigation Into Websites That Sell Assistance Animal Medical Verifications

4.  Are There Restrictions On Where Assistance Animals Are Permitted To Go?

5.  Want to Learn the Number of Fair Housing Complaints Filed with HUD in a year? Or the Protected Class With the Highest Percentage of Complaints? Read On.

6.  The Top Ten Fair Housing Defense Blog Posts from 2018 (As Contrasted With the Top Ten Blog Posts From All Time)

7.  Fair Housing Act Sex Discrimination Case Settles for $20,000

8.  HUD Settles Disability Discrimination Case Concerning Mold and Retaliation for $6,000

9.  HUD Proposes to Amend “Disparate Impact” Fair Housing Rule

10.  HUD Settles Disability Housing Discrimination Case For Approximately $11,000

Blog posts addressing assistance animals (including emotional support animals) continue to receive the highest number of reads.  Please know I will continue to work with HUD (as well as state, city, and county agencies) to find the best guidance for the apartment management industry.  We want to get it right and approve legitimate assistance animal reasonable accommodation requests, while at the same time preventing the fraudulent animal medical verifications purchased online from the many “click and pay” websites that exist and only require essentially a self-diagnosis and/or an online assessment.

What can make it harder is that management is limited in what we can seek from our residents.  Please understand we don’t want confidential health care or medical information.  We don’t want information covered by the privacy laws.   We just want to get documentation that is legitimate confirming the resident is disabled and that there is a link between the accommodation request (the animal) and the disability.

Look, I will follow your lead and will keep at it in 2020.  And do my best to post on the issues that matter the most to you.

Just A Thought.