I get questions from time to time about the status of evictions during the pandemic. In short, there are no easy answers and guidance changes monthly (or even weekly). Displacing anyone from their home is unpleasant at any time. And the pandemic makes it even worse. While I certainly understand the reasoning around stopping evictions during the pandemic, I also want to speak up at the same time for a pause in multi-family property foreclosures as the rent paid by residents goes to help pay the mortgage on the building/community.

As the COVID era continues, last week the president signed an executive order which he claimed was “stopping evictions” and/or “protecting people from evictions” but readers have asked me if that is indeed true.

From my reading, the executive order requires certain federal government agencies to review if indeed a halt on evictions is necessary and directs other government officials to study if they can spend money on rental assistance for tenants. As such, commentators (including your humble Fair Housing Defense Blog editor) suggest that the executive order signed last week does not actually cease evictions and further that it is uncertain if the administration can legally appropriate money that is not approved by Congress.

Now, remember – typically it is a state court judge who decides local eviction cases. It is likely more productive to check with each state concerning the status of eviction cases. And each individual state (or in some cases, cities and/or counties) has its own policies concerning eviction moratoriums. For example, I believe Virginia and Florida have extended eviction prohibitions until next month. New York’s eviction pause continues and it looks like the hold in Pennsylvania remains in place through the end of August.  In California, the governor permitted cities and counties to enact individual protections for renters and to extend those holds through the end of September.   Eviction pauses in other states, however, have expired and new cases are permitted to be filed.

My best advice right now is to check with a lawyer like me to determine what is permitted (or prohibited) in your local jurisdiction. And continue to work with tenants on an individual basis to address rent shortfalls, payment plans, utilities, deposits, and ways to minimize the impact of financial losses during 2020.

Just A Thought.

With the 2020 presidential election less than three months away, I had an interesting question hit my desk: can a property management company restrict residents from placing political signs on their exterior windows, doors, and/or balconies? With some exceptions (noted below), the answer looks to generally be yes. Now, of course residents have First Amendment rights and leasing offices are not trying to take those away – unless the resident has agreed to a provision in the lease (or community policies made a part of the lease) which prohibits signs of any type. Management also should avoid prohibiting signs for candidates in one political party while permitting signs for candidates in another political party.

Available law and guidance out there seems to be that while a resident may have a First Amendment right to put up a political sign (with some reasonable restrictions related to size and timing), those rights can be limited by language in a lease (or in community policies which are made a part of the lease) in which the management company restricts signs of all types/sides. For example, in this election cycle, it would be problematic for a leasing office to permit Biden signs but restrict Trump signs. I also reviewed some commentary intimating that if you attempt to restrict signs related to a particular concern (such as Black Lives Matter) you could unintentionally walk yourself into a fair housing disparate impact claim as a large percentage of a protected class might be negatively impacted by such a prohibition. Because there is always an exception, it looks like California passed a statute in around 2012 which specifically allows political signs — notwithstanding what may be in a residential lease. There are limits in the law about how big the sign can be and how long it can stay up after the election. I have not done a 50 state survey and it would make sense to have a lawyer like me check the law in your specific jurisdiction.

Accordingly, If you wish to avoid getting in the middle of elections or political causes at your multi-family property (and to be clear, there is no requirement for you to do so), a best practice could be to include a provision in your lease prohibiting all signs (and having all residents agree to that policy at move in or at lease renewal time), courts will generally enforce it. It is less clear if there is no restriction in the lease.

Just A Thought.

 

Here is a fact pattern professional apartment management should work to avoid. An applicant signs a lease for an apartment home. Rent is due on the first of the month. As is typical in many residential leases, late fees are due if the rent is not paid after a few days. The resident is disabled and receives a disability check later in the month (but the check indeed comes each month). He asks the leasing office for a reasonable accommodation – specifically to change the date his rent is due to match when his monthly disability check arrives. The request was made orally. For a few years, there is no problem. The apartment is then sold and new management takes over. New management starts assessing late fees. After quite a bit of back and forth, including the late charges, the new management company moves to evict the resident.

I did not make up the above fact pattern. This is taken from a formal charge of discrimination filed by the U.S. Department of Housing & Urban Development (HUD) against a Georgia property owner/manager earlier this week. Now, I know there are always at least two sides to every story and I make no judgment on the facts here. I just want to note that if you have a resident with a disability and he/she receives a regular monthly disability check (even if the check arrives later in the month), if the resident seeks a reasonable accommodation to change the due date of his/her rent owing to the date the disability-related check is received, you might want to reach out to a lawyer like me before denying that request. I suspect management will defend this case by arguing that this reflects a financial accommodation (not necessarily required under the law) as opposed to a reasonable accommodation related to the disability (which is likely required under the law).

I get that the accounting is not clean and a rent ledger can look askew with rent paid, for example, on the 10th of every month. But, in the circumstance of a disabled resident receiving a monthly disability check used to pay rent, moving his/her due date in response to a reasonable accommodation request can potentially avoid exposure such as faced here by this property owner.

Just A Thought.

Catching up with some Fair Housing Defense reader email this week. With the caveat that this blog entry does not constitute legal advice, here we go:

  1. Am I part of the problem? Sure hope not. A reader indicated that because I defend those accused of housing discrimination (and specifically that I have previously written I will defend a case until I obtain a No Probable Cause Dismissal in certain circumstances), I am part of the problem because he has a legitimate discrimination action and nowhere to turn for representation. Let me be clear about a couple of points: (a) I have broad shoulders and have no issue with criticism; (b) my line about defending cases until the end was in reference to a plaintiff who seeks lottery-sized winnings on a meritless claim; (c) my experience teaches that fair housing cases are both under filed and over filed – by that I mean many cases which have merit never get brought but a corresponding number of cases without merit are filed. I have not done a study to determine which side of that scale weighs more; (d) yes, I only defend cases – I have taken this positional conflict because I don’t want my clients to feel that arguments and positons I take in one case I oppose in another case. It is not a true legal conflict, just a positional determination that I have chosen to make. There are many local legal aid and fair housing advocacy groups available across the country to assist residents with enforcing their fair housing rights. Indeed, tenants can also go directly to HUD as well as state, city, or county agencies to file a complaint without need of counsel.  I’m here for the other side.
  2. Can a private apartment owner/landlord be considered a “state actor” for purposes of a federal civil rights claim? The statute, 42 U.S.C. § 1983, allows people to sue when someone acting “under color of” state or local law has deprived him or her of rights created by the U.S. Constitution or federal statutes. In our housing discrimination world, a private multi-family apartment owner/landlord is typically not considered a state actor (including even a landlord who participates in government-assisted housing programs) and cannot be sued under § 1983. There are a number of cases on this point.
  3. Can management require a resident to recertify an assistance animal at lease renewal time? This is a hot button issue. If a disability is obvious, the answer is a clear no. For example, if a resident with a sight disability uses a guide dog, we would not seek to recertify the disability and/or need for the animal. If the disability is not obvious, the answer is murkier. I have a federal court decision noting that for certain emotional support animals addressing disabilities which may not be permanent, recertification at, for example, lease renewal time, is in and of itself is not improper. However, many HUD officials take a contrary view – in that once management has approved an assistance animal, there is no need to ever take a second look. HUD has issued various assistance animal guidance over the past few years, but none has specifically addressed this point. I’ve defended a handful of these cases – but none have gotten to the point of a formal determination/opinion. At least not yet.

Just A Thought.

As written here and elsewhere, navigating traditional landlord/tenant legal matters during the past few months has been complicated. Management wants and needs to have compassion for all of our residents who have been impacted by the global pandemic. I know many leasing offices and legal departments have been evaluating hardships and literally working side by side with residents to find solutions to keep Americans in their homes. As a part of that process, the federal government (as well as state, city, and county governments) have paused/halted/ceased eviction actions. There are also provisions to stop utility cutoffs. Other courts permit new filings, but have postponed hearings and/or trials related to those new complaints. As the summer of 2020 continues, however, many of those temporary stops are being lifted. At the same time, we need to ensure that property ownership can pay the mortgage and related bills on our multifamily properties. Which is why I have spoken in support of both eviction and foreclosure assistance.

I have been asked to track down the status for some local courts. My best advice is to check with a lawyer like me to determine if your local court is accepting new cases and what will happen to that new complaint if it is filed. While HUD’s eviction moratorium (for affordable properties) is slated to expire on July 25, 2020, each state (and sometimes each local jurisdiction) has different rules. Some still have a pause in place. Others are permitting new filings. And the rules change – either weekly or daily. For example, the Pennsylvania statewide eviction and foreclosure moratorium, which had been set to expire last week, will now run through August 31, 2020 pursuant to an order from the Governor. Various statewide housing assistance programs are being developed as well.

Some fear there will be a tornado of new filings once the restrictions are lifted. And nobody is exactly sure how local judges are going to deal with all of these new cases. As such, the best play could still be to continue to work with each resident with a COVID medical or economic issue on an individual basis on a payment plan or other solution to avoid the need to file a complaint in what can only be described as uncertain times.

Just A Thought.

If professional apartment management thought that fair housing enforcement would stop because of a global pandemic, well – think again. Last week, the U.S. Department of Housing & Urban Development (HUD) announced over $40 million in grants to local fair housing advocacy groups from coast to coast. These individual grants, running in the hundreds of thousands of dollars each, are designed to assist individuals who believe they have been victims of housing discrimination as well as to provide funding for fair housing testers and investigations. The money comes from HUD’s Fair Housing Initiatives Program (FHIP) and is distributed to eligible fair housing advocacy groups who meet criteria established by the federal government.

HUD views these local fair housing groups as partners who test (and essentially investigate) claims of housing discrimination. And as a part of their joint efforts, HUD provides taxpayer dollars to fund the process. To be sure, many of these groups also do fair housing training and education.

My point in highlighting these grants is to ensure we continue to train our leasing office staff to comply with the federal Fair Housing Act and its state (and/or city or county) counterparts. It is up to us to know the protected classes in each jurisdiction where we manage properties and to make clear our front office employees appropriately handle reasonable accommodation and/or reasonable modification requests. In my experience, the best way to avoid having to deal with a lawyer like me is to educate your team members to engage with prospects, applicants, and residents to address concerns before something hits my desk.

Just A Thought.

 

Pursuant to a release issued last week, the U.S. Department of Housing & Urban Development (HUD) stated it charged the owner and manager of apartment homes in Wisconsin with housing discrimination for allegedly refusing to rent to two individuals because of a claimed disability and related need for an assistance animal.

The HUD charge asserts that prospects found an ad for an apartment online and then toured the potential new home after meeting the property manager. After the tour, the property manager directed the individuals to complete an application. Once the application was approved, the manager sent a link to a lease. The lease had a “no pets” provision and noted violations of the “no pets” clause would result in a $250 fine. The lease did not contain an exception for assistance animals nor did it include any information about making a reasonable accommodation request.

After viewing another unit (a visit that was videotaped), the applicants raised the issue of the assistance animal and made a reasonable accommodation request. The property manager allegedly did not permit the applicants to sign the lease as well as he required an allergy test on the animal from a veterinarian to determine if the property manager could “tolerate the dog” and if he could not, the accommodation would not be approved. According to the complaint, the manager then acknowledged this was a “sticky legal issue” and that it was unclear whose legal rights were more important – the manager’s or the prospective residents. After some further back and forth, HUD claims the property manager revoked access to the lease, denied the reasonable accommodation request, and as such, failed to make housing available. As an aside, It will be a tough sell to argue to HUD that an assistance animal must be screened to confirm if it is hypoallergenic. Now, if management wishes to assert the specific animal is a “direct threat” and thus should not be permitted in the apartment, management must go through the “direct threat” analysis (an evaluation HUD claims was not done here).

While I know there are always two sides to every story, these are the types of facts that raise yellow (or even red) flags with HUD investigators. Remember – you can absolutely have a “no pets” provision in your leases. That is a property owner’s choice. But, if your property is covered under the Fair Housing Act, you are required to review and evaluate any reasonable accommodation request (such as for an assistance animal needed by an applicant/resident with a disability). You cannot simply revoke a potential lease after learning of a reasonable accommodation request without potentially needing to speak with a lawyer like me.

Just A Thought

Yesterday, the U.S. Department of Housing and Urban Development (HUD) approved a $35,000 settlement agreement resolving a fair housing complaint filed against the owner and manager of apartment communities on Long Island (in New York) addressing allegations that various employees discriminated against applicants based on their race. As described in the complaint and conciliation agreement, the allegations were that certain employees treated white fair housing testers posing as prospective residents more favorably than African American fair housing testers posing as potential tenants.

The case started when a local fair housing tester group filed a complaint after several African Americans asserted they thought African Americans were denied the opportunity to rent apartments at a specific property because of their race. After receiving the report, the fair housing group claimed it conducted fair housing tests using individual testers of multiple races who all posed as potential residents. The HUD complaint claimed the tests showed that white testers received more favorable treatment (such as being told about the upcoming availability of units), while African American testers received less favorable treatment (such as being told there was a long waiting list and that no units were available). The property owners denied discrimination of any type, but nevertheless agreed to settle the complaint.

Pursuant to the HUD agreement, the property owners will pay $25,000 to the local fair housing tester group, develop and maintain a non-discrimination policy, as well as provide fair housing training for employees at the property who have contact with prospects, applicants, and residents. Furthermore, ownership agreed to create a $10,000 compensation fund for individuals who were denied housing or received misinformation about the availability of housing at the community because of their race.

Although I was not involved in this case and I have not seen the tester contact reports, management should tread carefully when evaluating facts like this. On the one hand, if multiple individuals report the same type of possible discrimination, that is a red flag. Make no mistake, applicants and prospects must be told the same information concerning availability of units and what the waiting list looks like. To that end, a best practice is to always have a prospect card (old school) or electronic chart (new school) that records the time and date of the contact. Remember, as apartment homes are rented and vacated, your availability register can (and will) change from time to time (including daily if your property is large enough). Also, make clear to track what type of unit a prospect seeks and their desired move in date – for example, you may have a long waiting list for one and two bedroom apartment homes but efficiency units available right now.  Those facts might explain some differences in the testing. Indeed, these are some of the types of questions I ask when I see a general tester complaint. In short, these differences can be absolutely benign. And we will need to prove it up. Or they could reflect a record that something has taken place (or is taking place) such that you might want to speak with a lawyer like me.

Just A Thought.

In a decision which will likely expand the scope of the federal Fair Housing Act (FHA) by analogy, the U.S. Supreme Court concluded earlier today that a 1960’s era civil rights statute protects gay and transgender workers. By a 6-3 vote, the Supreme Court held that Title VII of the Civil Rights Act of 1964, which prohibits discrimination “because of sex,” includes protection for gay and transgender employees. Our FHA, which is Title VIII of the Civil Rights Act, was patterned after the employment law and typically courts construe the protections in both statutes similarly.

As written here many times, sex was added as an additional protected class to the FHA back in 1974. Accordingly, I suspect over time courts will now read the federal anti-housing discrimination law to include LGBTQ residents and applicants. To be sure, while the FHA has seven protected classes (race, color, national origin, religion, sex, familial status, and disability) many states (as well as cities and counties) have their own housing discrimination laws which include additional protected classes (some of which already include LGBTQ individuals). But this decision – for now in the employment context but which I expect will expand to including housing – was the first to mandate nationwide protection for LGBTQ employees.

To be clear, I do not expect this change in the FHA to take place overnight. It will take a little time for a judge to expand the scope of the FHA when faced with a court challenge. But our professional apartment management industry should take a look at our anti-discrimination policies to ensure we do not unintentionally discriminate in housing against those individuals now covered by the federal anti-discrimination employment laws.

Just A Thought.

I wanted to offer up two related COVID-19 fair housing scenarios I have seen recently in my discussions with apartment management clients.

As written here (and elsewhere) regularly, our Fair Housing Act (FHA) requires management to make what is known as a “reasonable accommodation” in our rules, policies or practices as needed to permit an individual with a disability to fully use and get the benefit of his/her housing. One such accommodation is a request to terminate a lease early (and without penalty) because of a disability. In a pre-pandemic world, that request came up from time to time. But in today’s world – what happens when a resident requests to break his lease early because he contracted COVID-19 and goes to the hospital for an extended period of time? And the related question is what happens if someone who has lost her job because of the pandemic requests to break her lease early because of unfortunate economic circumstances?

While each circumstance requires an individual analysis, if a resident contracts the virus and goes to the hospital for an extended period of time, it is likely he would be considered disabled and granting the early termination request (without penalty) could be an appropriate reasonable accommodation. On the other hand, for your resident who lost her job, she is not disabled – and, as such, is not eligible for a reasonable accommodation under the FHA. To be sure, I have referred to these situations as a request for a compassionate early lease termination because of the pandemic. And there are circumstances in which I have recommended this type of request be approved.

A couple of issues that I had never thought about before March.

Just A Thought.