A couple of interesting emotional support animal medical verification questions have hit my desk over the past month. First, recall that case law on the issue of permissible credentials of a medical or health care professional is a bit unclear. Individuals who are licensed by a public regulatory authority (such as a state) to provide medical care, therapy or counseling to persons with disabilities certainly qualify. This includes, of course, medical doctors, physician assistants, psychiatrists, psychologists, and many social workers. Guidance from the Department of Justice (DOJ) and the Department of Housing & Urban Development (HUD) notes that a peer support group or even a non-medical service agency may also provide verifications in appropriate circumstances. As has been written in this space, however, many professional apartment management companies are pushing back against medical verifications that appear to have been simply purchased over the internet without any legitimate medical evaluation or analysis. Those are easier.

But what happens when, for example, a licensed chiropractor from California purports to verify an emotional support animal with a diagnosis of depression for an applicant who lives in Florida? Or when one counselor writes the exact same letter for 12 residents at the same property? Sorry to say there is no cookie cutter response. We do an individualized evaluation of the letters to make a determine (as best we can) if the medical verifications are legitimate within the bounds of what the law permits management to ask. Many times the letters have other defects which permits us to seek further clarification to determine if the verifications are legitimate.

The bottom line is that unless and until DOJ/HUD or the courts give us more guidance, management will continue to review, evaluate, and respond as best we can. That being written, it seems to me to make sense to require that someone have a credential for an area related to that for which he/she purports to give the certification.  And that an individual professionally trained in a health care field actually evaluate the resident to confirm a legitimate disability and need for an emotional support animal.

Just A Thought.

As all of us in the property ownership/management business know, communities get bought and sold from time to time. Indeed, a property can be sold many years (even decades) after it was first designed and constructed. Effective in properties designed and/or constructed from 1991 on, the Fair Housing Act (FHA) requires that all multifamily construction meet a specified level of accessibility for individuals with disabilities. As a part of the law, the FHA has seven “safe harbors” that design and construction firms must follow.  Notably, while the Americans With Disability Act (ADA) and the FHA share some elements, simply following the ADA may not be enough to ensure your project is in compliance with the FHA.

So, what happens to a subsequent owner or purchaser of a property built after the effective date of the statute? Are they on the hook for deficiencies in the design and/or construction that took place long before they bought the property? Most likely not.

There is a very strong appellate opinion from the 11th Circuit Court of Appeals as well as guidance from the U.S. Department of Justice and the U.S. Department of Housing & Urban Development noting that a subsequent property owner who had no involvement in the initial design and construction should not have liability arising from the improper design and/or constructions. That is the good news. The less good news is that in the event the property faces a FHA accessibility lawsuit, the new owner will most likely be named as a nominal defendant required to provide access to the property for what can be costly repairs and/or retrofits.  Even if those repairs are funded by someone else.

What should an individual or entity contemplating buying a community built after 1991 do? My recommendation is to do a FHA accessibility review as a part of your due diligence process. And if you are buying from the original owner/developer, check on the status of their insurance for these types of claims. You will be glad you did.

Just A Thought.

While many apartment communities are “pet friendly” and welcome animals, almost every community has restrictions concerning, for example, certain breeds and/or weight limits for pets. In addition to the community policy on animals, many local jurisdictions similarly ban some dog breeds pursuant to a county or city ordinance. The question that comes to my desk is what happens when a resident submits a request for a service or companion animal as a reasonable accommodation pursuant to the federal Fair Housing Act (FHA) that would otherwise run afoul of the county or city ordinance because of the breed of the dog? Courts have answered this question by concluding that enforcing a city or county ordinance banning certain breeds would violate the FHA by permitting a discriminatory housing practice. In short, the federal statute controls.

Now, there is another step for management to take. We can undertake an analysis to determine if the animal at issue poses a “direct threat” to other residents, to the property, and/or to the leasing office staff. A “direct threat” must be particularized to the specific animal and not based on a generalized stereotype. For example, management could not simply conclude that because pit bulls are generally restricted by a county ordinance, all pit bulls are therefore a “direct threat” and are banned from our property, even as a companion animal. In order to make such a conclusion, management needs to have objective evidence that the specific animal in question has behaved in such a manner to be a “direct threat” (and such behavior likely cannot be remedied) before making such a determination.

You might want to reach out to a lawyer like me if this issue comes up at your property so you can review the appropriate analysis in an effort to avoid needing to defend against a discrimination complaint.

Just A Thought.

 

A legitimate question from leasing office professionals I get from time to time is: “We approved an emotional support animal for a resident two years ago. Does that approval continue indefinitely or can we seek a supplemental medical verification from time to time?” My answer is that there are any number of disabilities for which we grant a reasonable accommodation but for which medicine, treatment, surgery, or even the passage of time can have cured or helped cure such that the condition no longer qualifies as a disability. To that end, it appears reasonable for management to seek a supplemental medical verification for a disability that is not obvious. Do I think you should do this every three months? Certainly not. But there is a legitimate argument to seek a supplement every couple of years or perhaps even at lease renewal time. The point is not to improperly pry into any resident’s medical history, but as we are in an era of, shall we say, questionable medical verifications for certain emotional support animals (yes, I am talking about those simply purchased over the internet with a few computer clicks and a credit card without any legitimate medical evaluation or diagnosis), doing our best to comply with applicable law only makes sense. In addressing this specific issue, one federal judge wrote “[n]o provision in the [Fair Housing Act] purports to make a granted accommodation eternal.”

Might you get some pushback? Yes, but hopefully not from your residents with legitimate disabilities. Indeed, I suspect individuals with real disabilities are disheartened by those attempting to game the system as it does a disservice to those who actually need emotional support animals.

That being said, of course, there are certain obvious disabilities for which management most likely would never need a supplemental verification. Such as if a resident is blind or if a resident uses a wheelchair.

This is a challenging area and one for which management should continually attempt to get it right.

Just A Thought.

 

Earlier this month we noted that a federal court in Colorado ruled that the Fair Housing Act (FHA) prohibits discrimination based on sexual orientation (although sexual orientation is not contained in the text of the statute). In that case, the district court judge concluded that ownership could not deny housing to a resident simply because the resident fails to adhere to gender stereotypes by being attracted to or married to a member of the same sex. As the case then settled, we will not get further review (at least for now) by a United States Court of Appeals as to whether the FHA prohibits sexual orientation discrimination.

So, while we may not get an appellate FHA decision on this point, it is instructive to examine how other appellate courts have ruled in similar cases brought under what is known as Title VII (which covers employment discrimination and is typically treated similarly by the courts as are Title VIII cases [which involve fair housing]). Unsurprisingly, recent trends in Title VII sexual orientation cases demonstrate a rift between the circuit courts.

To illustrate, the Seventh Circuit recently held that Title VII’s protections extend to members of the LGBT community. The case is Hively v. Ivy Tech Community College of Indiana, in which a lesbian alleged that her employer unlawfully discriminated against her because of her sexual orientation by refusing to promote her and by failing to renew her contract. The Seventh Circuit agreed. While it acknowledged that nearly all of the circuit courts, including panels of the Seventh Circuit, previously ruled that Title VII does not prohibit sexual orientation discrimination, the court determined that those rulings were incorrect, especially when viewed in conjunction with the growing number of Supreme Court decisions related to discrimination on the basis of sexual orientation. Noting the growing trend of prohibition against sexual orientation discrimination, the court held that claims arising from discrimination based on sexual orientation are cognizable under Title VII.

However, only one month before Hively, the Eleventh Circuit reached the opposite conclusion in Evans v. Georgia Regional Hospital. In that case, a lesbian employee alleged that her employer unlawfully discriminated against her based on her gender and sexual orientation, because she presented herself in a non-traditional manner by sporting a short hairstyle and wearing a man’s uniform (although she did not otherwise broadcast her sexuality). While the Eleventh Circuit noted that gender nonconformity claims are cognizable under Title VII, it held that precedent bound it to rule that Title VII does not prohibit sexual orientation discrimination. Like the Hively court, the Evans court also noted that nearly every circuit court addressing the issue has explicitly held that sexual orientation discrimination claims are not cognizable under Title VII.

So, what happens next? With a split of opinion between the circuits, there is at least some hope that the Supreme Court may take a case and provide guidance as to the state of the law (at least with regard to Title VII). In the meantime, a best practice for professional apartment management would be to err on the side of caution and avoid discriminating on the basis of sexual orientation or gender identity. As the Seventh Circuit noted, sexual orientation protections have greatly expanded in recent years, and that trend will likely continue to prove true. And, as always, in addition to federal law, you should check the state, city, and/or county laws in your jurisdiction as they may already prohibit sexual orientation discrimination.

Just A Thought.

Article by Christian Moffitt.

Advertising your property is a good way to get apartments filled. But marketing a community can create a handful of fair housing challenges concerning the use of advertising.  First, remember that advertising is covered under the Fair Housing Act (FHA). When you advertise, do it in a way to reach as many demographic groups as possible. For example, when using people, be certain your advertising copy contains individuals of multiple races. Does that mean you cannot show a family of a single race in one shot? Of course not. But it does mean that management will want to avoid the situation of only having one race in all of your advertising photographs. I have no issue with you including shots of individuals, couples, and families.  In short, mix it up.

Particularly if your property is located in an area with a diverse mix of potential applicants, look to advertise (for example, local newspapers or radio stations that reach certain demographic groups) in places that have the chance to reach individuals of different backgrounds who might not see an ad in a traditional news outlet.

Next, I recommend avoiding using religious landmarks (such as churches, mosques, or synagogues) in your ad. Writing that your property is “near Christ the King Church” could be read as favoring one religion over another. If you want to use some type of landmark, try a park, a shopping center, or perhaps a local train/subway line. To be sure, you can absolutely note that the property is conveniently located near public transportation, shopping, and local schools.

If you decide to run a discounted rent special in an effort to drive new residents, remember to offer that incentive to everyone who applies during the time of the promotion. You could well need to speak with a lawyer like me if your leasing office picks and chooses which applicants get offered the promotion.

Finally, put the “Equal Housing Opportunity” logo on your ad. It is easy to find and is a best practice.

Just A Thought.

Back-to-back posts concerning the Fair Housing Act (FHA) and federal courts. Last week, in what I believe is another decision of first impression, a federal district court judge in Colorado concluded that the FHA prohibits discrimination against LGBT individuals. While the FHA prohibits discrimination because of sex (added as a protected class in 1974), familial status (1988), and/or national origin (1968), the statute says nothing about sexual orientation or gender identity and the issue had been in question for some time.

The facts here involved a lesbian couple (one of the women is transgender) with two children who, because of their “unique relationship,” had their application for a rental townhouse denied. They continued to engage with the landlord and were told their family was not welcome to rent because another family was concerned about noise and kids. In a further reply, the landlord allegedly reported that the “status” of the couple “would be the talk of the town” and there would be no opportunity to “keep a low profile.”

The legal question involved in the case was whether “sex” (as written in the FHA) included sexual orientation and gender identity. In answering the question in the affirmative, the Colorado court looked to various employment statutes and cases interpreting those laws and concluded “stereotypical norms are no different from other stereotypes associated with women, such as the way she should dress or act…and are products of sex stereotyping.”

While this is one judge in one district court, given the trend in the law, this decision should not come as a surprise. The FHA (like the laws against employment discrimination) are intended to be applied broadly and courts will look to fill in the gaps when the statute is silent. Such is the case here.

So, what is the impact for professional apartment management? Not that much. My hope is that in 2017 the vast majority of our management offices with apartments or townhomes to rent are certainly not evaluating sexual orientation when determining if an applicant can rent a home. Nevertheless, if we do, there is now at least one judge who has specifically found that LGBT individuals are covered under the FHA.

Just A Thought.

 

In a case of first impression (at least as far as I can tell), in an opinion issued last week, the U.S. Court of Appeals for the Third Circuit evaluated (and answered) the question of whether a Fair Housing Act (FHA) claim survives the death of a party. The facts involved an emotional support animal request and whether the condominium board had appropriately responded to the request. Before reaching the merits, however, the Court addressed an uncommon (and sad) issue that came up: during the pendency of the case, one of the plaintiff’s (who made the emotional support animal request) died. Leaving the question of if the FHA claim remains? The text of the FHA does not address what should happen in such a circumstance.

The District Court judge answered the question in the negative, reading first a federal “gap-filler” statute and then local law. Upon appellate review, however, the Third Circuit looked to federal common law (a doctrine that is not universally well liked) to fulfill what is referred to as the “overall purpose” of the statute. The appellate court concluded that as the FHA was intended by Congress to have “broad remedial intent,” a fair housing claim should survive the death of a party and can be continued by the decedent’s estate.

I must admit I had not thought about this issue prior to reading this new opinion. Had I been asked the question, I think I would have agreed with the Third Circuit, although I do not blame counsel for the defense for raising the issue.

Just A Thought.

In this era of an ever-increasing number of service and/or emotional support animal requests received by professional apartment leasing offices, three of my clients have faced the same issue recently. Here is a common fact pattern: our resident submits a request for an emotional support animal. That request has a medical verification letter or certificate attesting that Rover or Fluffy is “certified” as an assistance animal. Upon review, however, it seems pretty clear that the medical verification was simply purchased over the internet and did not involve any analysis concerning the disability of the resident nor any nexus (link) between the disability and the animal. Management sends a letter noting carefully that while we will absolutely continue to engage with the resident concerning the accommodation request, based on the materials submitted, we cannot approve the animal. What happens next is typically one of three paths: (a) the resident recognizes he/she does not actually need a service animal and drops the request; (b) the resident goes to a health care professional and gets the appropriate diagnosis and letter; or (c) the resident gets angry (sometimes getting a lawyer involved) and declares the leasing office is violating HIPPA (the health care information privacy law) by seeking detailed medical records. And then I get called.

So there is no misunderstanding on this point, management does not seek medical records for our disabled residents. We are not attempting to obtain confidential health care information. We are, however, attempting to just confirm that the resident is actually disabled, that the request is necessary, and related to the disability. Buying a purported verification letter off a web site from a company or individual who promises to “certify” the animal does not meet the test.  Coincidently, as I was writing this post, another client sent me records that a therapist sent to the leasing office about a resident along with the verification form. We had not, of course, requested the records. They will be returned.

Again, we do not want medical records. I don’t want my clients to violate HIPPA.  But I do want residents to appropriately certify their service or emotional support animal requests when their disability is not obvious.

Just A Thought.

Yesterday the Trump Administration submitted its proposed fiscal year 2018 federal budget to Congress. Although any administration’s budget is but a request (as it is Congress that actually sets federal spending levels), included in the document is a proposed 13% cut in funding for the U.S. Department of Housing & Urban Development (HUD). If enacted as presented, HUD’s budget would decrease from $47 billion (in fiscal 2017) to just under $41 billion (in fiscal 2018). In its proposed budget, the administration asserts that “state and local government are better positioned to serve their communities based on local needs and priorities.”

Specific line item cuts include: the Community Development Block Grant Program, the HOME Investment Partnerships Program, the Choice Neighborhoods Program, and the Self-Help Homeownership Opportunity Program. Housing advocates are already arguing that reductions of this magnitude will put a significant strain on the nation’s housing authorities and others who rely on federal funding for their housing.

I have not seen specific cuts directed at fair housing enforcement or fair housing priorities, but we are still early in the process.  So, does this mean management can stop complying with the Fair Housing Act (FHA)? No. Even if the government is less active, it is a fair bet that local housing advocacy groups (who are typically funded, at least in part, with HUD money) will continue to file cases in an effort to take up the slack and demonstrate the need for continued fair housing needs.

Just A Thought.