Just this week, the California Department of Fair Employment and Housing (DFEH) announced that it settled a housing discrimination case involving a condominium owner who alleged her homeowners association and management company violated the law by refusing to permit the resident to display a mezuzah (a small religious object placed on the door of many Jewish homes in fulfillment of a religious obligation) on her unit door. The condo association took the position that the mezuzah violated the condominium’s conditions and restriction documents.

The complaint, filed in June 2019, asserted that the association and management company refused to permit a mezuzah to be place on her door. According to the complaint, the association and management company flat refused to change their policy, even after learning of the religious nature of the mezuzah and the reasons for the request. Furthermore, the complaint asserted that someone forcibly took the mezuzah off the door in July 2018.

Following a mediation sponsored by the DFEH, the parties agreed to a $40,000 settlement (including damages, attorney’s fees and costs). In addition to the financial component, the condo association agreed to amend its documents, to specifically permit residents to display one or more religious items on the entry door or on the entry door frame of their units.

From the DFEH’s perspective, the agency believed that by failing to permit a small mezuzah, the condo association was making housing unavailable to members of a certain religion.  I suspect HUD would take the same view. The takeaway here is that management can certainly have rules concerning decorations on unit doors and door frames – but we need to be nimble about religious articles. And if a question is raised or an accommodation is requested, we need to engage in the interactive process and look for a solution.

Just A Thought.

With the calendar firmly in December, I have now received multiple requests from Fair Housing Defense blog readers (thank you for checking in) for my annual apartment community holiday decoration guide. 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.

Earlier this month, the U.S. Department of Housing & Urban Development (HUD) announced that it settled a disability and retaliation Fair Housing Act (FHA) case for over $23,000 filed by two residents against housing providers in California. The residents claimed management refused to install grab bars in their shower as well as that management retaliated against the residents for making the reasonable modification request.

The case started when a couple with disabilities filed a complaint alleging that management of their housing community refused to install grab bars in their bathroom. In addition to failing to install the grab bars, the residents were issued a notice claiming they created a noise disturbance. Although management denied the allegations, the housing providers agreed to settle the complaint. Included in the terms of the agreement are that the housing providers will pay just under $20,000 to the residents in addition to over $3,500 in legal fees. Along with fair housing and reasonable accommodation training, as a part of the settlement, management agreed to notify all residents at the property that the housing providers will install grab bars in bathrooms at no cost to the residents.

While HUD did not provide many details related to the facts, in my experience, a request for grab bars – particularly when it comes from an elderly and/or disabled resident – is typically not one that makes it to my desk. Now, the property involved in this case receives federal financial assistance, which means that the cost of the reasonable modification sought here (grab bars) is the responsibility of the owner/management company. In the scope of costs for reasonable modifications, grab bars are typically minor. Now, I know there is another side to the story concerning the alleged retaliation – but it is a bad look for the leasing office to make up a noise complaint against residents because they submitted a reasonable modification (or reasonable accommodation) request. An expensive lesson here.

Just A Thought.

In a press release issued last week, the U.S. Department of Housing & Urban Development (HUD) revealed it settled a racial discrimination Fair Housing Act (FHA) claim for $80,000 pursuant to the terms of a voluntary compliance agreement directed toward an apartment community in Georgia. The $80,000 is being divided up between three lead complainants (at $20,000 each) and the establishment of a $20,000 fund to compensate other residents who may have been subjected to unlawful racial harassment.

The case started when three African American residents at the property filed complaints asserting the owners of the apartment complex refused to investigate claims that Caucasian residents subjected them to racial harassment as well as verbal and physical assaults (including attacks by dogs). Additionally, the complainants claimed management failed to timely respond to maintenance requests of African American residents generally and that management ignored their maintenance requests specifically.

Although I do not have much in the way of facts and mindful the Respondents denied the allegations, it remains a combustible mix when residents make allegations of racial misconduct against other residents. In a typical circumstance, management should investigate – without immediately taking sides – any allegations of discrimination raised by one resident against another. Particularly here in a circumstance in which the claims included alleged physical assaults and attacks by dogs. An important component is speaking to other residents (who were not involved) in an effort to determine what took place. In more serious cases (as would appear to be the case here), management might want to call the police in an effort to determine if criminal charges could be appropriate. And if the matter involves the police, it might be time to get a lawyer like me involved to decide how best to ensure management does its investigation in a manner which respects the rights of all and while ensuring no resident is retaliated against. Indeed, there have been matters in which I was involved where management made a determination of which resident was at fault. Other times we have been unable to make a factual determination as the available evidence was inconclusive. I suspect (but do not know for certain) that part of the issue here was the perceived refusal of management to conduct an inquiry.

Finally, issues regarding maintenance requests and the timely completion of maintenance requests can typically be rebutted by running a service log. Obviously, while emergencies (such as serious water leaks) take priority and can get routed to the head of the line, routine maintenance requests should be performed in the order they are received.

Just A Thought.

In a letter that is good news to those in the professional apartment ownership/management business, HUD Secretary Ben Carson wrote to the Chairman of the U.S. Federal Trade Commission (FTC) earlier this month asking that the FTC investigate websites that sell assistance animal medical verifications to individuals in an effort to permit those individuals to assert their pets are emotional support animals in order to avoid paying otherwise due pet rent and pet fees. In his letter, Secretary Carson wrote that “HUD shares these concerns” over what your humble Fair Housing Defense Blog Editor refers to as “click and pay” emotional support animal medical verification sites.

In addition to misleading Americans, HUD’s position is that the online sellers also “take advantage of persons with disabilities who need a reasonable accommodation to keep their assistance animals in housing. This request for the FTC action reflects HUD’s ongoing commitment to protecting the housing rights of persons with disabilities.” Additionally, HUD noted that some of these providers sell what appear to be certificates which look like they are affiliated with a governmental agency or are otherwise official U.S. government documents. HUD confirmed that there is no government-sponsored animal registration list nor are assistance animals certified.

Again, as I have written many times before, apartment management and our leasing office professionals will engage with residents to review their assistance animal requests. We approve requests literally every week. For disabilities that are not obvious, as the law permits, we seek only a legitimate medical verification – and something that was not purchased from an internet “click and pay” website.

As described by Secretary Carson in his letter, if an individual purports to provide a medical verification based on treatment given over the internet, that provider must have “personal knowledge of the individual’s disability-related need for the animal.” HUD describes “personal knowledge” as “knowledge of the type that health care provers ordinarily use for diagnosis and treatment,” as contrasted with simply self-selecting from an online questionnaire and assessment tool.

My clients and I welcome Secretary Carson’s comments and I hope the FTC acts against those who do a disservice to legitimately disabled Americans who need a service or emotional support animal. There will be more to come here.

Just A Thought.

A California fair housing case that settled last month provides a cautionary tale for all in the property management arena concerning lease termination and disability. None of us in the professional apartment business would knowingly end a tenancy because a resident has a disability, right? And further we would not move against someone because he or she needed an ambulance or other medical care, right?

Here is what is claimed to have happened in this case: The resident asserted that her lease was unlawfully terminated because of her disability. Specifically, the complaint alleged that because of various medical emergencies (that required the assistance of an ambulance on more than one occasion) as well as complaints from other residents about the visits from the first responders, the property manager terminated her residential lease.

While I always report there are two sides to every story (and I was not involved here), the California Department of Fair Employment and Housing (DFEH) found probable cause to believe discrimination occurred and that, in fact, management ended the lease because “they disfavor tenants with disabilities.” The apartment complex owner paid $50,000 to settle the case.

The key here, of course, is the reason for the medical emergencies and did the property manager know about the disability? I was recently involved in another matter in which the allegations were similar – except that the reasons for the multiple ambulance and police visits to the property were because of repeated fighting and violence – not because of a legitimate disability. Every resident can be required to follow community rules and a good neighbor policy. And no resident with a legitimate disability should have his or her lease terminated because of that disability. But, similarly, no resident should call 911 night after night because of fighting and not expect management to enforce its community rules.  There is a line there that we have to follow.

Just A Thought.

Over the past couple of weeks, two Fair Housing Defense blog readers asked similar questions about the processing of administrative fair housing complaints. I thought it best to answer the questions together.

Administrative housing discrimination cases can be filed with the U.S. Department of Housing & Urban Development (HUD) or with various state, city, or county anti-discrimination agencies. Pursuant to the Fair Housing Act (FHA), complaints are to be investigated within 100 days of filing. Indeed, for complaints that get referred pursuant to a state, city or county agency, their contract with HUD similarly requires the complaint to be processed within 100 days.

But, what happens if the 100 day clock is missed? Unfortunately, nothing. The investigating agency will typically send out what is known as a “100 day letter” – a form containing a number of reasons as to why the investigation is not yet complete and, sometimes, including a date as to when the determination is expected to be made.  The investigator will check a box or two as to why the complaint needs more time.  Typical responses are “because interviews still need to take place” or “the investigation to date reflects a need for more investigation.”  There are about ten choices for the investigator to choose from.

I write “unfortunately” because even though the FHA requires discrimination complaints to be investigated with the 100 day time frame, the law also provides the 100 day deadline is to be followed “unless it is impractical to do so.” And if the investigating agency is not ready to make a determination, the parties will receive the 100 day letter. Indeed, I have a drawer full of them.

Hope that helps.

Just A Thought.

Readers from California (thank you very much) sent me comments asking for more details about the new rental housing laws in their state. Here are some highlights of the Tenant Protection Act of 2019. In short, California now has a type of statewide rent control and mandates “just cause” to terminate a tenancy.  Some details:

Rent Control.

With respect to rent control (which is subject to some exceptions), the new law prohibits a housing provider from increasing the rental rate by more than 5% plus the percentage change in the cost of living, or 10%, whichever is lower, over the course of a 12 month period.

Just Cause Termination.

The new law requires California property owners show “just cause” to terminate a residential lease, provided a tenant has continuously occupied a residential property for 12 months. “Just cause” can be either “no fault” or “at fault.”

“At fault” just cause includes: default in payment of rent, breach of a material term of the lease (including a violation of a provision of the lease after being issued a written notice to correct the violation), committing or permitting a nuisance; waste; certain criminal activity; assigning or subletting the rental property; refusing to permit the landlord to enter the property; using the property for an unlawful purpose; and failure to deliver possession of the unit after notice.

“No fault” just cause includes: an intent by the owner (or a close family member) to occupy the property (for leases entered into after July 1, 2020, this provision applies only if the resident agrees in writing to the termination or if this type of provision is included in the terms of the lease); withdrawal of the residential property from the rental market; and if the landlord is complying with any of the following—(1) an order issued by a government agency or court relating to habitability that necessitates vacating the residential real property; (2) an order issued by a government agency or court to vacate the residential real property; (3) a local ordinance that necessitates vacating the residential real property; or (4) intent to demolish or to substantially remodel the residential real property.

Property owners desiring to use a “no-fault” lease termination must either waive payment of the last month’s rent or pay for the resident’s relocation.

Again, there are a number of exceptions built into the laws, but these are the highlights. There will be more to come here in California. Hope this helps.

Just A Thought.

In a significant development for housing providers in California, the state legislature passed and the Governor signed a bill (now a law) designed to prohibit property management from discriminating against residents and potential residents who use housing vouchers to pay their rent. The new law expands the definition of “source of income” under California law.

To briefly review, the federal Fair Housing Act (FHA) has seven protected classes, which include: race, color, religion, national origin, sex, disability, and familial status. In addition to those covered under the FHA, California’s anti-discrimination laws include protections for the following additional protected classes: sexual orientation, gender identity and gender expression, marital status, medical condition, ancestry, source of income, age (over 40), genetic information as well as a catch-all class known as protection from discrimination for any arbitrary reason.

This new law expands the definition of “source of income” as a protected class under California law. It provides that property management must now accept a voucher from a local housing authority or other government agency (with the resident paying any balance if the rent is more than the voucher). Now, management is still permitted to use the same credit and criminal background checks as we have done in the past and this is not an effort to force management to lower our rents. Your humble Fair Housing Defense blog editor will continue to review the new law, but it appears the Governor signed the bill to go along with a handful of other resident protection measures, including one to cap annual rent increases at 5 percent (plus inflation) and to prevent management from evicting residents without “just cause.”

At this point, a best practice would be to work with a lawyer like me to ensure that all leasing office team members are trained and have a script to respond to a prospect (or a fair housing tester) calling, emailing, or visiting your California properties with questions about paying their rent with vouchers.

Just A Thought.

In a statement issued at the end of last week, the U.S. Department of Housing & Urban Development (HUD) announced it resolved a disability discrimination Fair Housing Act (FHA) case in California asserting that various housing providers in and around Los Angeles failed to permit assistance animals for residents with disabilities. The settlement includes a payment of $15,000 as well as mandating various training, recordkeeping, and drafting of new anti-discrimination policies.

Factually, a local fair housing tester group filed a complaint after allegedly conducting tests at six Los Angeles area properties in an effort to demonstrate that the housing providers failed to permit residents with disabilities to have assistance animals. The complaint also asserted that employees of the housing providers refused to give individuals with disabilities appropriate information concerning assistance animals. The housing providers denied the allegations, but agreed to amicably resolve the case.

Neither HUD’s press release nor the text of the agreement provide any level of detail to determine what specific facts were contested or conceded. It does appear there were concerns over a perceived lack of ability to communicate in English as well as in other languages, as part of the agreement requires language assistance to those who may need it. There was nothing in the agreement identifying if there were medical verification concerns or if management was unaware of the disabilities of the residents.  I also suspect (but cannot confirm) there was a refusal by the housing providers to permit service and/or emotional support animals altogether, which is a FHA red flag in 2019.

Just A Thought.