My favorite blog entry of the year. With annual apologies to David Letterman, here are the Top Ten Fair Housing Defense Blog posts from 2018 (ranked in order of how many people viewed each entry):

1. Exemptions to the Fair Housing Act? Not Many — But Here Are Some.

2. Who Pays for Reasonable Modification or Reasonable Accommodation Requests?
3. The “Mrs. Murphy” Exemption to the Fair Housing Act|
4. The FHA’s “Mrs. Murphy” Exemption — A 50 State Guide
5. The Statute of Limitations and the Fair Housing Act
6. Fair Housing Defense | Pennsylvania Fair Housing Lawyer
7. Should the Fair Housing/Equal Housing Opportunity Logo Be Used in Advertising? Yes.
8. Are Rental Roommates Covered Under the FHA?
9. Just What is “Steering” in Housing?

10. Occupancy Standards — Why They Matter

As we go through 2019, I will try to focus on these topics (as well as my running guide on the latest in assistance animals and the Fair Housing Act).

Just A Thought.

 

Last week, the U.S. Department of Housing & Urban Development (HUD) issued a press release to announce it resolved a disability discrimination case in November 2018 filed against a New Jersey age 55 and over condominium association involving claims that the condo association violated the Fair Housing Act (FHA) by refusing to sell a couple a home because the couple intended to have their disabled adult daughter live with them.

As a part of the consent order concluding the case, the condo association agreed to play a $9,000 civil monetary penalty as well as adopt various anti-discrimination policies and take at least two hours of fair housing training.

While the HUD press release and consent order concerning this case do not provide many facts, it is likely the condo association felt stuck between two competing interests: its formation documents requiring that residents in the condominium be age 55 and over and the FHA, which requires reasonable accommodations when appropriate to individuals who are disabled. The lesson here is to speak with a lawyer like me when confronted with what are believed to be conflicting fair housing related laws so we can make the best decision and reduce the risk of a complaint such as was filed here.

Happy New Year to all (including my wife…let’s see if she actually reads this post). Your humble Fair Housing Defense blog editor will be back next week with my favorite annual post: The Top Ten Fair Housing Defense Blog posts of the preceding year.

Just A Thought.

You can’t make this up.  In an effort to help reduce holiday travel stress, Popeyes (the chicken restaurant chain, not the cartoon character) launched an “Emotional Support Chicken” to provide a quick laugh to travelers (at least to those at the airport in Philadelphia).  The next box is designed to bring fried chicken on holiday flights.

All kidding aside, this is the problem now faced by those with legitimate disabilities (including our veterans) and who need assistance animals.  Because there is so much abuse on the internet and elsewhere, the Emotional Support Chicken is out there for a laugh.

While 2018 closes with a little humor, professional apartment leasing office staff members will still engage with our residents in 2019 to simply confirm their emotional support animal requests are legitimate and were not purchased over the internet.  Or from Popeyes.

Happy Holidays to all.

Just A Thought.

 

 

Last week we wrote generally about the impact of fair housing laws on holiday decorations and displays and the challenging balancing act that management must undertake when considering what, if any, holiday displays they will permit in their communities. A recent judgment from the U.S. District Court for the District of Idaho demonstrates just what can happen if management (or a homeowners’ association) fails to address issues that members of the community might have with their neighborhood’s aspiring heir to the mantle of Clark Griswold. As the Homeowners Association learned, nothing quite puts a damper on the holidays like having a $75,000 judgment entered against you over some Christmas lights.

The matter had its genesis in late 2014, when the plaintiffs held a religious based program in a home that they were renting at the time, ostensibly for the purpose of spreading a religious message and raising money for charity. Shortly thereafter and allegedly with the specific intent of purchasing a home that would be ideal for this Christmas program, the family made an offer on a home in the community governed by the Association. The family promptly contacted the Association and informed the Association’s President of their intent to host an annual event for five days each holiday season. The event, of course, would be centered on their home, which would be festooned with approximately 200,000 lights, and would also feature a live nativity, camel and all, live music, hot chocolate, photos with Santa, and portable restrooms.

Unsurprisingly, the Association balked and did not take our fair housing laws, which forbid discrimination on the basis of religion, into account. Now, wait, you might say, nowhere in any Christian religious text is there any mention of Christmas lights, live nativity scenes, or having your picture taken with a man dressed as a modern amalgamation of St. Nicholas, Father Christmas, and the Norse god Odin first dreamt up and popularized in the early 1900s. How on earth could a homeowners’ association refusing to allow such a garish display constitute religious discrimination under fair housing laws? The answer is simple: the Association said exactly the wrong things in its letter refusing the family’s request.

Initially, the Association’s refusal cited three sections of its governing documents that prohibited the proposed display and program: (1) the property could only be used for single family residential purposes; (2) the Association’s documents prohibited nuisances, including speakers, bells, whistles, and other sound emitting devices; and (3) the Association’s documents require lighting to be restrained in design and to avoid excessive brightness. Whether the Association was right or wrong, it was correct to rely on its governing documents, which were presumably drafted and implemented in a religiously neutral manner. The Association next raised more practical concerns, all of which are valid, including concerns that the community’s elderly population would be put at risk if the festival’s traffic and parking impeded first responders from accessing the neighborhood during an emergency.

Had the Association stopped there, they would have put themselves in a good position in the event that the homeowner (a lawyer who ultimately ended up representing himself pro se), had ever sued. As you might guess, though, the Association did not stop there, and went on to write:

And finally, I am somewhat hesitant in bringing up the fact that some of our residents are non-Christians or of another faith and I don’t even want to think of the problems that could bring up.

By specifically bringing religion into it, the Association handed the family a fair housing case on a silver platter. The judge, in fact, specifically refused to grant the Association’s motion for summary judgment because of that portion of the letter. At the end of the day, after nearly two years of litigation, a federal jury found in favor of the plaintiffs, awarding them $60,000 in compensatory damages and $15,000 in punitive damages. And it could have been worse. Had the plaintiffs not proceeded pro se, the Association could easily have been forced to pay double that amount in attorneys’ fees.

Just A Thought.

Article by Christian Moffitt.

Every year in December I get questions about holiday decorations in apartment communities. How do we respect the Christmas celebrations of some, Hanukkah beliefs of others, as well as festive traditions of various other cultures? Can we put up decorations involving Santa Claus? What about Christmas trees? Rudolph? Menorahs? And what to do if some residents celebrate nothing during this time of year?

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.

To that end, 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 confirm 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.

Acting on a complaint initially filed back in 2016, just yesterday the U.S. Department of Housing and Urban Development (HUD) formally charged the owners, architect, and builder of an apartment building (with 164 units on six floors) in Denver, Colorado with housing discrimination for failing to make the property accessible to residents with disabilities. In addition to the seven protected classes in the federal Fair Housing Act (FHA), covered multifamily housing must be designed and constructed to ensure it is accessible and usable for people with disabilities.

The case started after a local Denver fair housing group conducted tests on the property and filed a disability discrimination complaint. Finding merit to the complaint, HUD’s charge asserts that the owners and builders did not design and construct the complex in accordance with the FHA as specific areas of the building remain inaccessible to people with mobility impairments. While all of the individual units are reachable by elevator, the complaint notes issues with accessible routes to the swimming pool and hot tub located in a courtyard. Specifically, the charge alleges the thresholds for the doorways are too high (by half an inch) and the door-opening force required to enter exceeds the maximum allowable force in the guidelines. Furthermore, HUD claims six of the seven parking spots designated for accessible parking are out of compliance with the applicable standards.

Now, there are always two sides to every story, and just because a plaintiff asserts a claim does not mean it is true. One takeaway here, of course, is to ensure multifamily properties are designed and built in accordance with the applicable standards. Indeed, the law contains seven safe harbors that must be complied with.  Or property owners will need to speak with a lawyer like me.

Another takeaway is that property owners must be understand that fair housing testers (many of who are funded at least in part by HUD) are out there looking for FHA violations.  Even technical ones like those included in this discrimination charge.

Just A Thought.

Late last month, the U.S. Department of Housing & Urban Development (HUD) charged a condominium association in New Jersey with disability discrimination in violation of the federal Fair Housing Act (FHA). According to HUD, the complaint asserts that the condominium required that a resident (with vision and hearing impairments) use the service door (as opposed to the main entrance to the development) when she was accompanied by her assistance animal. Additionally, HUD alleged that the association charged the resident’s daughter a fee because she wanted to walk her mother’s assistance animal in the development’s common areas.

Factually, HUD got the case when the resident’s daughter brought a discrimination complaint asserting that the property declined to waive its requirement that residents transport pets in carriers when in common areas and in that the association fined the resident $100 for walking the animal in the common areas. According to HUD, the daughter primarily walked the dog because of her mother’s mobility impairments and was prohibited from using the main entrance to the community.

While I know there are always two sides to every case, this one at first blush presents facts that just do not look great for the property. We should not restrict assistance animals to service door or back entrances.  Additionally, always remember not to charge your residents any pet fees or pet rent for assistance animals. Remember, legitimate assistance animals are not pets and pet restrictions do not apply.  Although I am not involved here, I suspect the association simply attempted to apply its rules related to pets to this assistance animal.  Which HUD is now contesting violates the FHA.

Just A Thought.

Last week, the U.S. Department of Housing & Urban Development (HUD) charged a rental property owner in New Jersey with racial discrimination under the federal Fair Housing Act (FHA). In the charging document, HUD asserts that the property owner declined to rent an apartment to an African American woman because of her race. HUD also alleges the owner used racial slurs in various text messages when informing the prospective renter that she was not chosen for the apartment.

Factually, the charge is that the property owner listed an apartment for rent via an online site. Responding to the ad the same day it was posted, the applicant noted she and her son were anxious to move because the unit they were currently living in did not have heat. She reached out via telephone and left a message which was not returned.  Next, the applicant sent a text message to the number in the ad. In response, the property owner allegedly used a series of racial slurs when declining to show the unit to the prospect. Those slurs, of course, were captured on the applicant’s phone and turned over to HUD during the investigation. Following its inquiry, HUD found probable cause to believe the discrimination took place and issued the charge alleging a violation of the FHA.

Obviously, declining to rent a home to a prospect based on race has been against the law for more than 50 years now. Additionally, might I suggest it makes even less sense to send text messages explaining the racial animus behind the decision. Even if the property owner may subsequently contend he was joking and/or not being serious (and I am not involved with this case), using repeated racial slurs with a prospect while declining an application for an apartment is a recipe for disaster in the fair housing arena.

Just A Thought.

A little housing policy inside baseball today. Those of us in the multifamily housing space are waiting for our friends at HUD to act on two matters of interest:

First, as previously noted, HUD issued an advance notice of proposed rulemaking back in June 2018, seeking public comment on whether its 2013 disparate impact rule should be changed in light of the 2015 Inclusive Communities decision issued by the U.S. Supreme Court. In English, the belief is that the Trump Administration will indeed attempt to modify/rescind/alter the disparate impact rule enacted by the Obama Administration five years ago.   Based on an order issued by a federal judge last month in a case challenging the Obama-era disparate impact rule, there is a belief that HUD’s new rule will be published on or before December 18, 2018. I will, of course, be following along as to the progress of the underlying litigation as well as what HUD decides.

Also, I have heard from a handful of HUD (and other fair housing officials) that the Department is “working on” new guidance related to assistance animals. As anyone involved in rental housing is aware, the number of emotional support animal reasonable accommodation requests continues to increase significantly, along with the percentage of those accommodation requests that are medically verified by an online health care provider. Again, we want to get it right. We want to approve legitimate assistance animals needed by residents who are truly disabled. We do not, however, want to approve an animal that was “verified” or “registered” pursuant to a certificate purchased over the internet for the low, low price of $69.99 (or $125 if you need it overnight) in an effort to avoid pet fees. The belief in the industry is that HUD is preparing guidance. I don’t have an expected release date, but you will know as soon as I see it.

My point on both of these issues is that the professional apartment industry just wants to confirm the rules of the road. If disparate impact is indeed covered under the law, so be it.  I am happy to provide that advice.  If HUD confirms that management is permitted to seek supplemental information from an applicant after receipt of what looks like a medical verification purchased with a credit card and doing so does not run afoul of the Fair Housing Act, all the better. And we will continue to proceed on that basis.  But uncertainty is not helpful. For anyone.

Just A Thought.

In a decision published earlier this month, the U.S. Court of Appeals for the Eighth Circuit concluded that a disabled plaintiff has the ability to file a complaint under the federal Fair Housing Act (FHA) against a property management company when management allegedly declined to accept a disability benefits check as an acceptable source of income from the applicants.

The case involved a mother with a disabled adult daughter. The pair submitted an application to rent a unit using disability payments as income. The management company’s income guidelines, however, required pay stubs, an offer letter, or tax returns to verify income. The applicants could not meet that test as their income consisted solely of a disability check, social security, retirement benefits, and some rental income. As the parties engaged in the interactive process, the leasing office suggested it would accept a co-signer who was income qualified. The renters attempted to provide proof of their sources of income. When the parties could not come to an agreement, the plaintiffs sued.

The district court dismissed the complaint, holding that a reasonable accommodation was unnecessary because the defendants offered a solution which the plaintiffs refused. The appellate panel, however, reversed that decision, finding that a reasonable accommodation was indeed necessary because the offered alternative was not a substitute for a “level playing field in housing for the disabled” and that the co-signer option put forward by the defendant instituted “an additional burden on the disabled applicant.”

So, should professional apartment management have income qualification guidelines for your units? Absolutely. Along with a credit and criminal background screening policy, it is a best practice. But, as this court opinion holds, disability payments should be included as an appropriate source of income when running an application.

Just A Thought.