Earlier this week, the U.S. Department of Housing and Urban Development (HUD) reported that a Minnesota housing provider agreed to pay $74,000 under the terms of a consent order to conclude a discrimination action asserting a housing provider failed to rent a home to a family of five adults and six minor children because they were Native Americans and Hispanic as well as because they had minor children. The property in question is a six-bedroom, five-bathroom home with over 7,000 square feet of living space, two kitchens, a sauna, a sunroom, a fitness room, and a library in addition to other amenities.

While the complainants alleged discrimination based on race/national origin and familial status, the Respondents claimed the denial of housing was because the number of individuals exceeded the functional capacity of the residence generally and that 11 people living in the property would have caused damage to the home’s septic system. Our federal Fair Housing Act (FHA), of course, includes prohibitions on discrimination in housing because of race, national origin, and familial status.

Following an administrative complaint, HUD filed a charge of discrimination in August 2018, after the owners of the property declined to rent the six-bedroom residence to the family. HUD believed that the property owners and broker discouraged the family from renting the home by offering them less favorable rental terms, including increasing the requested monthly rent by $1,000.

Under the terms of the settlement, the respondents will pay $74,000 to the families involved, place a fair housing advertisement in the local newspaper, and the real estate broker will take fair housing and multicultural sensitivity training.

As discussed periodically in this space, reasonable occupancy standards can certainly be appropriate. Indeed, at first glance, 11 people in one house appears to be a bit much. Until learning that the home in question had six bedrooms, five bathrooms, and over 7,000 square feet of living space.

Just A Thought.

In a case resolved last month, the California Department of Fair Employment and Housing (“DFEH”) announced it settled a housing discrimination complaint for $16,000 against a property management company asserting familial status discrimination.

The complaint was filed by a family of four who alleged that management did not allow them to rent an apartment in a building because the property manager did not consider children to be appropriate residents. Specifically, the manager was alleged to have stated that the apartment home might be overcrowded with four people, that neighbors might have issues with noise because of kids, and that the building was for “business people.”

After its investigation, DFEH found probable cause to believe discrimination took place and a civil complaint was filed in California state court. The case settled prior to trial, with the defendant agreeing to pay $12,500 to the family and $3,500 to DFEH for litigation costs. As is common in these cases, a provision in the settlement agreement requires that property management employees enroll in fair housing training and that management prepare an equal housing opportunity policy.

This case is yet another reminder that in most circumstances, leasing office team members must welcome families with children. Can there be reasonable occupancy requirements? Sure. Can eight people fit in a one bedroom apartment home?  Most likely not.  Can you limit your building to “adults only” as existed in the past? No.

Now, when a case like this is filed, I get questions concerning if there is an exception in the law.  To that end, I will post a Fair Housing Defense blog entry next month with a short primer on the Housing for Older Persons Act (HOPA) and provide a short outline of the law surrounding HOPA and buildings that operate under HOPA for those age 55 and up.

Just A Thought.

A nugget for our professional apartment management colleagues on the affordable side today. Earlier this week, the U.S. Department of Housing and Urban Development (HUD) issued a press release stating it was significantly reducing the advance notice the government gives to public housing authorities (PHAs) and private owners of HUD-subsidized apartment communities before their housing is inspected to ensure it remains safe, decent, and healthy.

HUD’s announcement (effective 30 days after publication) gives affordable property owners 14 calendar days’ notice before an inspection, a reduction from the current notice which can frequently extend up to four months. The way it currently works is that HUD’s Real Estate Assessment Center (REAC) gives management advance notice before a scheduled inspection. That notice can go for as long as 120 days.

HUD’s view is if a property owner knows an inspection is coming in, for example, three months, a less than scrupulous owner could perform cosmetic maintenance and repairs rather than adopting appropriate year-round maintenance practices. REAC inspectors review properties run by approximately 3,700 local public housing authorities across the country as well as about 23,000 privately owned apartment buildings. HUD data confirms that 96 percent of these properties pass their REAC inspections.

As such, starting in the third week in March 2019, HUD employees and REAC contract inspectors will only give affordable property owners 14 calendar days of notice prior to their inspection. If an owner declines, cancels or refuses entry for an inspection, a presumptive score of zero will be recorded. If a second attempt results in a successful inspection within seven calendar days, the score from the second inspection will be recorded.

Again, this is for property ownership/management on the affordable side. The takeaway, of course, is that HUD wants you to perform regular maintenance on your property and do repairs year round. And not just because a REAC inspector is on the way. Let’s see if the 96% pass rate changes in a year or so.

Just A Thought.

 

 

Our friends at the U.S. Department of Housing & Urban Development (HUD) publish a myriad of reports concerning the Fair Housing Act (FHA) and the efforts of the Department to enforce the law. One of the reports I like to review is a compilation of the number of discrimination complaints filed each year as well as the percentage of cases filed for each of the seven protected classes under federal law. Although the report is a year or so behind, here is what HUD discloses concerning the number of and percentage of fair housing cases filed with the Department and its partner agencies.

First, the total number of fair housing complaints filed in fiscal year 2017 was 8,186 (6,878 with HUD and 1,308 with HUD partners). My point here is that if a discrimination complaint was filed against your company, well, you are not alone. Does not make you feel any better, but thousands of complaints get filed each year. Which means lots of companies need to speak with a lawyer like me. Sorry about that.

With respect to percentages:

Protected Class                Number of Complaints                  Percentage of Complaints

Disability                             4,865                                                  59.4%

Race                                    2,132                                                   26%

Familial Status                     871                                                    10.6%

Retaliation                           834                                                    10.2%

National Origin                   826                                                    10.1%

Sex                                       800                                                     9.8%

Religion                               232                                                     2.8%

Color                                   192                                                     2.3%

Now, sharp followers of the FHA will note that retaliation is not one of the seven protected classes in the law. It is, however, covered under Section 818 of the FHA and is a growing percentage of cases I defend each year.

These figures confirm a rather dramatic trend for discrimination complaints: for the last five reported fiscal years, the number of disability discrimination complaints continues a rapid increase. The trend runs from: 52.6%, to 53.7%, to 55%, to 58.5%, and then a jump to 59.4%. I suspect next year disability complaints will cross the 60% threshold. And a big portion of these numbers are emotional support animal cases. Some of which may be legitimate. Many of which use medical verifications that were purchased over the internet with a credit card.

I continue to hear statements of sympathy from various fair housing investigators when I get yet another emotional support animal complaint. Like me, they are waiting for HUD to help with some new guidance. In the interim, I will keep knocking them off – going one at a time.

Just A Thought.

 

 

Loyal Fair Housing Defense blog readers (thank you very much) know that I defend (and report on) what seems like a never ending stream of emotional support animal (ESA) housing discrimination cases these days. The typical run of the mill case comes with a medical verification that looks like it was purchased over the internet with a credit card (as opposed to from a legitimate health care or medical professional who has an actual relationship with a disabled patient). My Firm’s accounting department likes these cases; although my clients are certainly irritated by the continuing cost.

Among my goals for the past couple of years has been to compile a thick stack of dismissals on the merits from cases involving internet purchased ESA letters to use as precedent as more and more get filed. To date, I have a few. And I cite to them in my responses. But, I am seeing a trend. In a number of these cases (particularly those filed by certain fair housing tester groups, you know who you are), once I push back and assert that the medical verification is, at best, questionable and subject to further scrutiny, the complainant stops cooperating with the investigator. While at the end of the day I get my no probable cause dismissal (which is always good), it can be for “failure to cooperate” with the investigator as opposed to on the merits. Which is less useful to our industry.

I continue to hope the U.S. Department of Housing & Urban Development (HUD) and/or the U.S. Department of Justice (DOJ) issues supplemental guidance that helps professional apartment management defend against these internet letters and the cases derived from them. From time to time I hear unofficial rumblings that something is being discussed, but I have nothing with respect to if or when new guidance will be published. In the interim, I still have a number of what I suspect are fraudulent ESA cases and I will continue to wait for more and more dismissals on the merits. Which will help all of us who work to comply with the letter and spirit of the fair housing laws.

Just A Thought.

I received two related questions concerning assistance animals that I thought easier to answer in a blog post. In essence, readers asked if there can be any restrictions on where an assistance animal is permitted to go in an apartment community. As is so often in the law, the answer depends on if the animal is designated as a “service animal” or as an “emotional support animal.”

A “service animal” (think of a guide dog that is specifically trained to assist someone with a vision impairment) is permitted in all areas of an apartment home, community common areas, as well as places of public accommodation within the property (such as the leasing office).

An “emotional support animal” (think of an assistance animal that is not specifically trained to assist, for example, someone suffering from PTSD) is permitted in all areas of an apartment home and in the community common areas.

Now, I just had a case in which a fair housing tester asserted management discriminated against him because we would not permit an assistance animal in our community pool. The confusion (which I was able to clear up) was that the plaintiff claimed we prohibited assistance animals anywhere in our pool area. In fact, management welcomes assistance animals in our pool area (think of the pool deck) – but for obvious legitimate health and safety reasons, we do not permit any animals actually in the water.  Once I proved that to the satisfaction of the state agency, the complaint was dismissed.

Hope that helps.

Just A Thought.

The partial federal government shutdown is in its 30th day as I type this. It is going on longer than most people (including me) thought. No resolution seems to be in sight. The U.S. Department of Housing & Urban Development (HUD) is one of the federal entities largely closed until the administration and Congress solve the current funding impasse.

So, what happens to our housing discrimination cases pending with HUD during the shutdown? The short answer is your case is on hold. I got emails from a handful of investigators when the shutdown went into effect noting they have been instructed not to report to the office and they are not permitted to work on their pending matters. Indeed, two of my cases had interviews scheduled that were postponed. No way to know how quickly they will get rescheduled once the government reopens.

Another three cases have responses due. My best advice is to prepare your response and send it in so there can be no allegation that we missed a deadline, although I typically like to introduce myself to the investigator and briefly discuss the issues in an effort to determine just what HUD really needs to complete its inquiry. It is, however, unclear what happens to the 100 day clock during which HUD is tasked to complete its investigation. Now, as the 100 day limit is routinely missed, I suspect pending cases will receive what I call a “100 Day Letter” noting the case needs more time and usually providing a new expected completion date.

For cases pending in federal court, the various districts are doing their best to stay open (using court fees and juggling funds previously appropriated). Best guess is there is enough money to last until around February 9, 2019. We are now seeing individual districts deciding how to prioritize cases and staff. Some courts have issued stays (legalese for a pause) in civil cases in which the United States is a party. I suspect if the shutdown lasts into the second week of February, civil case processing will stop or severely slow down.

And no — the shutdown does not mean the Fair Housing Act has lapsed.

Now, remember – the shutdown impacts HUD and the Department of Justice. If your case is pending before a state, county, or city civil rights agency/commission – it is being processed as usual.

Just A Thought.

A dutiful Fair Housing Defense reader (thanks for taking the time to visit) pinged me with a question concerning the annual Top Ten list of blog posts.   Apparently after clicking on at least one entry, my reader noticed that the post was from a few years back.  Fair point.  The list I circulated in the last post was the Top Ten Fair Housing Defense blog posts of all time.  Apparently my Firm tracks everything.  Printed below are the Top Ten Fair Housing Defense blog posts (with links) from 2018.  Because I know that distinction makes a difference to many of you:

  1. Medical Marijuana, Reasonable Accommodation Requests, and the Fair Housing Act – February 6
  2. Virginia Offers Guidance For Confirming That Medical Verifications for Emotional Support Animals Are Legitimate – February 27
  3. These Types of Housing Are Covered Under the Fair Housing Act. And These Types of Housing Are Not. – April 6
  4. Federal Court Concludes Social Security Disability Should Count As Income Under the Fair Housing Act – October 30
  5. Familial Status Discrimination Case (Concerning a Family With 12 People) Settles in California – February 22
  6. Assistance Animals and Guests? Here Are Some General Guidelines. – March 29
  7. The Top Ten Fair Housing Defense Blog Posts From 2017 – January 2
  8. California Apartment Owner Pays $100,000 to Settle Emotional Support Animal Fair Housing Case – January 22
  9. Court Issues Guidance Concerning Evaluating When an Animal Might Be a “Direct Threat” – March 16
  10. This is the First Step Necessary to Qualify for a Reasonable Accommodation or Reasonable Modification – April 13

Upon review, I am pleased that the list includes a handful of front burner fair housing issues (assistance animals, medical marijuana, reasonable accommodations/modifications, familial status) that professional apartment management and our leasing offices staff members deal with on a daily basis.

Just A Thought.

 

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.