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.

 

Earlier this week, the Department of Justice (DOJ) filed a lawsuit in federal district court alleging that the owners and managers of three apartment buildings in Washington state violated the Fair Housing Act (FHA) by refusing to rent their units to families with children. The DOJ asserts that in March 2014, one of the apartment managers told a family (which included a one year old child) that the units were “adult only” and not available to rent. The complaint further states that throughout 2014 the defendants advertised their apartments as being available only to adults. The family initially filed an administrative complaint with the Department of Housing & Urban Development (HUD). HUD found that the complaint had merit and referred the case to DOJ.

While I express no opinion as to the facts of the case and remain mindful that there are always two sides to every story, professional apartment owners/managers must be certain not to advertise apartments as “adults only” unless your property is designed as housing for those over age 55 or age 62 (which require that they meet certain conditions). In addition to advertising issues, we need to train our leasing office employees to make certain no applicant feels as if his or her family is somehow not welcome. Indeed, many times management may feel that for safety or other legitimate reasons (such as multiple flights of stairs) it would be better for a young child to not live in a certain unit or specific area of an apartment community. Remember, however, that is not management’s choice to make. Offer all available apartments that the applicants qualify for and let the parent make the choice. To be sure, an applicant could also be a fair housing tester attempting to catch a leasing office staff member violating the law with an allegation of discrimination as in this case or that we are improperly “steering” applicants to parts of the community perceived as less desirable.

Just A Thought.

Earlier today, the U.S. Senate confirmed Dr. Ben Carson as our next Secretary of the Department of Housing & Urban Development (HUD). The vote (58-41) was mostly along party lines. Frankly, given how well his confirmation hearing went, I am a bit surprised the vote was as close as it was and that it took until the first week in March to clear the nomination. Nevertheless, we now have a new leader at HUD. From my seat as management’s lawyer, we will now at least begin to learn about Carson’s initiatives and how he plans to direct HUD to enforce the Fair Housing Act (FHA). During his confirmation hearing, Dr. Carson stated he would continue to aggressively enforce the law, although he acknowledged little or no experience in the housing arena.

Now confirmed by the Senate, Carson said he would take a “listening tour” to hear from career HUD officials and others involved in housing to help learn about concerns and how best to use HUD’s $49 billion dollar budget for 2017.

My initial prediction: a Carson led HUD will continue to investigate and file housing discrimination cases based on the seven protected classes in the FHA as have previous administrations (both Republican and Democratic). But I would not be surprised to see some of HUD’s other recent initiatives (such as rules designed to “affirmatively further fair housing” and/or rules concerning LGBT individuals) to get additional scrutiny.  I would also guess that HUD will look to expand partnerships with the private sector and various religious groups in an effort to transition individuals out of public housing.

Just A Thought.

A Fair Housing Defense reader sent in a question about emotional support animal medical verifications that I want to address. Because our industry has seen such an increase in the number of service and/or emotional support animal reasonable accommodation requests, my reader wanted to know if one way to curb potential abuse of the medical verification process might be to require health care providers to have the verification notarized.

As a lawyer for the management company/apartment owner, I am all for coming up with any solution which could help ensure that service and emotional support animals are appropriately permitted for our residents with a legitimate disability while finding a way to reject reasonable accommodation requests that come from residents who are not disabled and who simply wish to avoid pet rent or pet fees. As I have written in this space before, many of my clients are now pushing back against medical verifications that are purchased over the internet with a credit card following no legitimate medical evaluation.

That being said, I have not seen any case or guidance which would permit management to mandate that medical verifications be notarized. The Fair Housing Act and health care privacy laws limit what management can collect from our residents. Now, you could certainly request the verification be notarized (and/or have space for a notary on your reasonable accommodation form). It is possible that some medical professionals would indeed have the form (or their letter) notarized. But if a resident objected to the requirement for a notarized signature (and management denied the request solely because the medical verification lacked a notary) and filed a complaint, while I would absolutely do my best to defend the complaint, I am not sure we could mandate the notary requirement under current law. An interesting idea. But I think a best practice is to continue to review and evaluate all medical verifications to do our best to ensure it was not obtained from a less than legitimate source.

Hope that helps. Just A Thought.

I am always gratified to receive comments from Fair Housing Defense blog readers. Many enjoy the light and breezy writing style involving what could be, shall we say, a dry topic. Some, however, are a little less kind – one reader last week thought I didn’t know what I was talking about, and used a colorful metaphor. Which is fine and why I don’t publish the comments. Got to love the internet. In any event, several readers have asked me similar questions, so I thought I would try to use this post to provide some answers:

  1. I represent apartment management, ownership, trade associations, and/or apartment leasing professional employees. I have taken what is called a “positional conflict” to only represent one side. My point is that I want my clients to know that while I am defending them against allegations of discrimination in one matter, I am not pressing similar claims for another client in a different case. Residents needing representation can look to local fair housing advocacy groups as well as HUD, state, or city officials.
  2. Yes, in addition to defending cases, I also do fair housing training and compliance. Ensuring our employees know and follow the law is one of the best ways to really avoid needing to speak with a lawyer like me after a formal discrimination complaint is filed. Saying “I did not know the law” never works as a defense to a claim. Trust me on that.
  3. Even if a resident has provided you with appropriate medical verification in support of a service or emotional support animal, that animal (and its owner) must still follow the rules of your community. A service or emotional support animal is not permitted to howl long into the night, bite other residents, and/or urinate (or worse!) throughout the property. A resident may indeed be entitled to a service animal, but that resident is still required to clean up after the dog. In short, no animal can be a direct threat to other residents, property employees, or to the community itself. Also, remember that while there are no breed or size restrictions on service or companion animals, always engage with your residents in an effort to solve any issues before they become formal problems.
  4. Many of my clients are continuing to question emotional support animal verifications that appear to be purchased with a credit card over the internet without any legitimate medical evaluation. Indeed, I have had a couple of doctors let me know that they will not write medical verifications for patients simply attempting to avoid pet fees. An interesting trend, but I am sure there will be much more to come on this point.
  5. While a number of President Trump’s cabinet selections have been confirmed, there are other nominations (including that of Dr. Ben Carson to lead the U.S. Department of Housing and Urban Development) that remain pending. As the Senate will be in recess next week, it appears likely Dr. Carson will have to wait until the end of February or even early March for a final vote by the Senate. I have not seen active opposition to Dr. Carson such that his nomination is in trouble, only that it is taking longer than I would have expected following his confirmation hearing.

Just A Thought.

Earlier this week, the U.S. Department of Housing and Urban Development (HUD) issued a press release concerning a new case HUD charged in Oklahoma. Specifically, HUD alleged that the landlords of a rental property violated the Fair Housing Act (FHA) by rejecting the emotional support animal request submitted with a veteran with disabilities. As I have written many times, responding to reasonable accommodation requests from disabled residents is a critical part of apartment (or in this case, rental home) management. As far as I can tell, this is the first complaint brought by HUD since the new administration took over last month.

Here, it is claimed that a combat veteran with a mental disability, and who has an emotional support animal, submitted a request for a reasonable accommodation. As a part of the accommodation request, the resident also submitted a medical verification for the animal. The complaint asserts that the landlord refused to waive the otherwise due and payable $250 pet fee. Under applicable law, of course, service and/or emotional support animals are not pets and those fees are to be waived as a reasonable accommodation in order to permit the disabled resident to fully enjoy his or her home.

Now, always remember there are two sides to every story and I am making no judgment on the merits here. Also, I have not seen if the medical verification was likely legitimate (as contrasted to something simply purchased over the internet with a credit card). Nevertheless, recall that disability remains the most common basis of fair housing complaint filed with HUD (and its fair housing partner groups). Indeed, in 2016, HUD and its partners reviewed just under 5,000 disability-related complaints, or more than 58 percent of all fair housing complaints. Let’s work to ensure your community is not next.

So, does that mean you have a approve every reasonable accommodation or reasonable modification request? No. But it does mean that every request needs to be evaluated and responded to.

Just A Thought.

A couple of weeks ago, the U.S. Department of Housing & Urban Development (HUD) announced that it was charging two property owners and two employees at a multifamily property in Kansas with violating the Fair Housing Act (FHA). In the case, HUD asserts that the defendants engaged in familial status discrimination by terminating the lease of a resident who asked if her grandchild could be permitted to live with her.

HUD learned of the case when a female resident filed a complaint asserting the owners of her apartment complex in Wichita terminated her lease after asking if she could add a granddaughter to the lease. The grandmother, it is claimed, had only recently obtained custody of the child. HUD’s complaint alleges that the property manager said that the request “may be a problem” and that the owners “doesn’t want kids on the property.” Finally, HUD asserts that the owners gave notice that the apartment complex was going to terminate the lease of another family with a child at approximately the same time.

As I acknowledge when reporting on new cases, there are always two sides to every story and just because a complaint has been filed does not mean that the defendant is liable for any conduct. What this complaint teaches, however, is that in most multifamily circumstances, management cannot simply terminate a lease because a resident either has a child or obtains custody of a child. If you feel like a unit at your community is too small to add another occupant, I suggest you speak with a lawyer like me to review the federal law concerning occupancy standards as well as any state, city, or county ordinances.

Now, this new case was filed on January 17, 2017. I am checking to see what gets filed by the new administration.  I will be certain to report back.

Just A Thought.

A Fair Housing Defense blog reader sent in a question concerning the number of housing discrimination cases filed and if there was a breakdown with respect to those filed against management as contrasted with those filed against maintenance personnel. To my knowledge, while HUD absolutely tracks the annual number of cases filed and further breaks down the complaints by the protected class of the person bringing the action, I am not aware of any data concerning claims filed against service personnel as compared to those who work in the leasing office. In my experience, while it is the conduct of leasing office personnel which make up a significant majority of the complaints, I have any number of cases in which a service team member is asserted to have either done something (or not done something) in a discriminatory manner.

Remember, many times it is HUD (or a state, city, or county agency or even a local fair housing advocacy group) who works with a potential complainant and it is the agency who actually identifies those to be named as Respondents. Sometimes it is just the ownership entity. Sometimes it is the management company. Sometimes it is the apartment community. Sometimes it is individuals who are named – a community manager, a regional manager, a leasing office associate, a service manager, and/or even the company’s president who are joined along with the entity.

Now, make no mistake, as a best practice – ownership/management should absolutely train both our leasing office staff as well as our maintenance employees in fair housing and we should update that training at least annually. Remember, all of our leasing office and service teams interact with residents. And both can cause liability if we do not do it right.

So, remember to train both your leasing office and service team members. The actions of any employee can cause fair housing liability. Saying “my service technician did not know the law” will not work as a defense in a fair housing case. Trust me.

Hope that helps. Thanks for the question.

Just A Thought.

The beginning of the year is always a good time to check in to see how many and what type of housing discrimination complaints were filed in the previous year. While HUD has not released final numbers for 2016, the most recent annual data reveals:

HUD’s annual fair housing budget remains well over $60 million. In 2015, HUD (and its partner agencies) completed 8,249 fair housing investigations, which was essentially flat as compared with 8,361 investigations in 2014. Of those complaints, allegations based on disability discrimination accounted for more than 55% of all the claims filed. Racial discrimination claims are the second most frequent, making up over 25% of the filed complaints. Discrimination based on familial status, sex, national origin, and retaliation come next, representing between 8% and 11% respectively. Complaints involving religion (less than 3%) and color (less than 2%) are the least frequently filed. (Yes, the numbers add up to over 100% because some complainants assert more than one protected class).

Now, while our federal Fair Housing Act (FHA) contains seven protected classes, remember that various state, city, and county fair housing laws can (and do) contain additional protected classes – including source of income, age, marital status, sexual orientation, and the like. As such, even if conduct is not covered by the FHA, you need to know the laws of the jurisdiction in which your property sits.  Literally millions of dollars were paid to complainants (as well as civil money penalties were paid to the United States) by apartment owners/managers resolving these complaints.

What do these figures mean to the professional apartment management business? HUD, state, city, and county agencies (along with their private fair housing partner advocacy groups) are out there checking to ensure we do it right. Something as simple as putting an advertisement on the internet has been the source of three complaints sent to me over the past year. One state agency and two fair housing groups were searching various apartment listing sites online looking for potential violations of the law. In 2016, I also saw an explosion of service/companion animal inquiries. Some are absolutely valid. Others are fraudulent. I have a number of clients who are now appropriately pushing back against companion animal verifications/registrations which are simply purchased over the internet to anyone with a credit card for the low, low price of $69.99 (or more if you need a letter in a rush).

Finally, we still do not know how fair housing compliance will change with a new administration. As I wrote last week, I expect Dr. Ben Carson to be confirmed as the next Secretary of the Department of Housing and Urban Development. Perhaps once he takes office we will get a better read on his fair housing enforcement priorities.

How can you best avoid fair housing complaints? Always remember to engage in the interactive process with your residents/applicants. That is, in my experience, the best way not to need to speak with a lawyer like me. Many issues can be involved with some time and attention. Fair housing training is also important to help catch problems before they occur.

Just A Thought.