Continuing on a theme of late, last week the U.S. Department of Housing & Urban Development (HUD) charged a New York property owner with violating the federal Fair Housing Act (FHA) when he refused to rent an available apartment home to a father with a teenager.

Factually, the property is a mixed-use building with an office on the first floor and two residential units on the second floor. The residential floor contains a two bedroom apartment and a one bedroom apartment. The building also has a parking lot. The apartment in question is allotted one space in the parking lot. HUD’s complaint asserts that the father telephoned the owner to inquire about the one bedroom apartment after seeing an ad for the unit. HUD alleges that the prospective renter believed the apartment would work well and would accommodate his son for the three nights a week that they would be together and that once the son headed off to college, the one bedroom unit would not be too large for him to live in alone.

The applicant completed the necessary paperwork, including a notation that his son would live in the unit part time (in fact, he wrote “1.5” in response to the question of how many people would live in the unit, an answer that vexed the owner). After submitting the application, in a subsequent telephone call between the prospect and the owner, HUD claims the owner said “I don’t want any kids there” and “It is only a one-person apartment” as well as “I don’t want any kids there during the day as I have a dental practice downstairs.” In another call, HUD asserts the owner said he did not more than one person in the unit because he was “concerned with the parking.”

Now, just because HUD makes a factual assertion does not mean it is true. But, for our purposes, this is a useful guide as to what apartment management professionals should never say when discussing housing options with a prospect. Unless the property is designated as housing for older persons, we welcome families with children. Further, while busy parking lots might be perceived as a benign safety reason for not wanting children at a property, that reason will not pass muster with HUD and may get you really needing to speak with a lawyer like me.

Just A Thought.

 

A couple of weeks ago, the U.S. Department of Housing and Urban Development (HUD) charged a couple from Georgia with familial status discrimination pursuant to the Fair Housing Act (FHA). HUD asserts that the couple, who own an apartment building, refused to rent to and made discriminatory statements about families with children.

The case started when a local fair housing group and a mother of two kids filed complaints alleging that the property owners had a policy unlawfully limiting the number of children that could reside in their apartments.  Specifically, HUD claims that the Respondents left a message on their voice mail announcing an occupancy policy to potential renters which permitted only one child in a two-bedroom unit and two children in a three-bedroom unit.

To be sure, occupancy standards are not always one size fits all. Indeed, the 1992 HUD guidance suggesting that a policy of two heartbeats per bedroom was typically reasonable has been superseded such that occupancy standards in 2019 are better evaluated with respect to the number of rooms in the unit generally and size of the bedrooms specifically as opposed to a simple formula. Additionally, some jurisdictions have amended their laws to mandate that 2+1 (or 3) people per bedroom can be appropriate.

As I always make clear, just because HUD has filed a complaint does not mean the allegations are true. But my best advice is not to have a policy on a recorded message which appears to be discriminatory on its face (even if you believe it is for safety or another non-discriminatory purpose). It will be a rare two bedroom apartment home in which only one child is appropriate. Same with a three bedroom apartment in which only two children can live. If you have questions about your occupancy standards and/or the size of your units, it is better to speak with a lawyer like me for advice.

Just A Thought.

I do my level best to be evenhanded when I review emotional support animal (ESA) medical verification letters when I know they have been purchased over the internet after a short self-diagnosis questionnaire and perhaps use of an online assessment tool. There has likely been no legitimate, therapeutic relationship between the patient (who must have a recognized disability) and the individual providing the medical verification. As written here (and elsewhere), anyone can go online and buy what look like a formal letter and/or “certificate” or “registration” from various internet-based providers seeking to make a buck (or more than a buck).  Remember, there is no official ESA registration site or certificate.

While the professional apartment management industry has been doing our best to determine which verifications are legitimate and which are not, our efforts are limited in that the law only permits us to ask certain questions. And, in truth, we have no interest in medical records or other confidential health care information between a therapist and a patient.

Although it was believed the U.S. Department of Housing & Urban Development (HUD) had some new ESA guidance ready last fall, it was never published. And we continue to wait to see what, if anything, is released by HUD or the Department of Justice.

In the interim, a number of states (including at least New York, Virginia, Utah, Texas, North Carolina, New Mexico, New Jersey, New Hampshire, Nevada, Michigan, Maine, and Colorado) have passed various laws or adopted regulations prohibiting the misrepresentation of service animals. The goal, of course, is to discourage those who might otherwise attempt to submit a reasonable accommodation request for an assistance animal that is verified by someone who sells them online.

While I have not seen a list of individuals charged under these laws, the fact that they are now on the books and available for use is a helpful sign as a growing number of state legislatures take fraudulent medical verifications seriously. I will continue to update this list.

Just A Thought.

At the end of last week, the U.S. Department of Housing & Urban Development (HUD) issued a press release announcing that it charged the owner and manager of a condominium community in Colorado with discriminating against families with children under the Fair Housing Act (FHA). In the charge, HUD asserts that the owner and manager refused to rent units to individuals under 35 years of age as well as refused to rent to a fair housing tester who claimed to have a four year old child.

The case came to HUD’s attention when a local fair housing advocacy group challenged a number of newspaper ads which, on their face, appeared to violate the FHA. Specifically, the complaint alleges that the owner and manager placed no less than ten advertisements in a local newspaper offering the property for “1 or 2 people max, both over 40 years of age, no exception.” Other ads promoted the property as a “private, restricted adult…community” requiring renters at least 35 years old.

Now, just because HUD has filed a charge does not mean that the allegations are true. Always remember there are at least two sides to every story. The teaching moment here is simple: do not run advertisements which can be read as discriminatory on their face. A fair housing tester will see the ad as low hanging fruit.

Welcome all to your community, even if you think there is a legitimate, non-discriminatory reason (such as safety) to prohibit children (or to limit children to certain floors, buildings, or areas). If you are uncertain if your ad complies with the law, check with a lawyer like me. We can help with advertising compliance. Indeed, with a few exceptions (and it would not surprise me if the owner and manager here was attempting to designate the property as housing for older persons), the FHA has prohibited “adults only” housing since 1989. And if as is likely here, copies of the questioned ads were kept, it is an easy case for HUD to charge.

Just A Thought.

So, what’s the first thing you should do if your professional apartment management company (or ownership entity or leasing office employee) receives a notice from the U.S. Department of Housing & Urban Development (HUD) or a similar state, city, or county agency informing them that a housing discrimination case has been filed? Of course, the initial answer is to send it to a lawyer like me to ensure an appropriate notice of appearance is prepared and to work on submitting a written response. A lawyer will help to ensure the “other” side of the story is told (and, believe me, I know there are at least two sides to every fair housing complaint). But there is another important step management should take – send the complaint to your insurance carrier to determine if one of your policies includes coverage for discrimination cases.

Sure, some policies specifically exclude this type of coverage, but other policies cover fair housing matters. And finding insurance coverage can be an important step for management. Particularly as you have paid the premium, don’t miss out on potential coverage.

Now, my best advice is to always engage in the interactive process with residents to avoid fair housing complaints (and having to deal with a lawyer like me). But if and when a complaint is filed, always check to determine if an insurance carrier can assist.

Just A Thought.

Pursuant to an agreement released just last week, the U.S. Department of Housing & Urban Development (HUD) announced that it resolved a race discrimination Fair Housing Act (FHA) case for $20,000. The case, involving a property management company with many properties in the Los Angeles area, was filed by a fair housing tester group in southern California, asserting that management provided more information about available units to white fair housing testers than they did to black fair housing testers who all posed as potential residents seeking information about homes.

Under the terms of a conciliation agreement, in which the management company admitted no wrongdoing and denied the allegations, the company agreed to pay $20,000 and participate in fair housing training.

The takeaway for professional apartment management? This case further demonstrates why we must train our leasing office staff members to treat each applicant/guest/prospect in the same manner. To be sure, every interaction with a prospect is different and, of course, our leasing agents always hope to lease our available units to legitimate home seekers. But, as we engage in our leasing operations, we want to avoid a situation in which a fair housing tester can make a claim, like here, that individuals are receiving perceived less preferential treatment because of their race (or any other protected class).

Just A Thought.

A little wonky fair housing policy today. Last week, the U.S. Department of Housing & Urban Development (HUD) issued proposed new rules to amend how HUD interprets “disparate impact” under our federal Fair Housing Act (FHA). Public comment on HUD’s proposal is due on or before October 18, 2019.

I try never to do politics here in the Fair Housing Defense Blog. My goal is to call balls and strikes with the best guidance that is available. Here is where we are in mostly non-legalese: Back in 2013, the Obama Administration sought to clarify that “disparate impact” (policies that appear neutral on their face but which have a significant negative impact on a protected class or classes without a legitimate business justification) was included in the FHA, even though the words “disparate impact” are not in the statute. Since passage of the FHA back in 1968, any number of courts had approved of using “disparate impact” to prove housing discrimination. In a 2015 case (decided by a 5-4 vote), the U.S. Supreme Court approved the use of disparate impact in housing cases, but included certain defenses for management as well as various hurdles a plaintiff must prove. With these new proposed rules, the Trump Administration seeks to pull back from the Obama Administration interpretation.

In short, the new rules will make it harder for a plaintiff’s claim to survive a motion to dismiss and/or a motion for summary judgment. HUD describes its change as intended to ensure the “disparate impact” rules are in “closer alignment” with the Supreme Court’s decision from 2015. In the text, HUD proposes to remove a defendant’s burden to prove a substantial business reason for the challenged policy and instead mandates that a plaintiff prove the policy is unnecessary to achieve a legitimate business interest. Furthermore, the new rule describes how a housing management company or property owner could defend against disparate impact claims by use of an algorithm (fancy word for a computer model) in its housing policies. Finally, another change is that HUD now suggests the burden of proof should be shifted such that a plaintiff will need to prove each element by a preponderance of the evidence.

The takeaway? Even if these new rules go into effect, “disparate impact” claims will still technically be cognizable under the FHA. Professional apartment management will still need to ensure our policies do not have a disproportionate negative impact on a protected class or classes. But if management faces a “disparate impact” case, it is likely there will be more defenses available to assist in defending against the case.

Just A Thought.

Last month, the U.S. Department of Housing & Urban Development (HUD) announced it charged two landlords in Texas with racial discrimination under the federal Fair Housing Act (FHA). In the charge, HUD alleged that the landlords declined to rent a room to a potential resident because she is African American.

Specifically, HUD’s complaint states that the landlords posted an online advertisement for a room in a five bedroom house. The landlords required applicants to list their race and submit a photograph when applying. When this prospective resident responded to the vacancy ad, the landlords again said that the woman needed to provide a photograph. The renter refused. At that point, one of the landlords nevertheless agreed to meet the prospective resident at the house. HUD claims that when the landlord saw the woman was African American, he refused to show her the room and said that her race would make his wife and the other residents uncomfortable.

While a HUD charge does not prove the facts are as asserted, these claims are a textbook of what management must not do when evaluating an applicant.  And ensure race is not a question on your application. (Yes, I know that for affordable properties, HUD requests applicants self-select their race/national origin for government monitoring purposes.  But for a conventional property, don’t seek information on the race of your residents.)

Now, this complaint does bring up a related issue: should management obtain photos of applicants? Here is some general guidance on pictures. Management must have a legitimate, non-discriminatory reason to collect pictures of potential residents. Provided you do it for all, one such legitimate safety/security reason (the protection of your leasing consultant while giving a tour) would be to make a copy of a driver’s license when showing an apartment home. But you must make a copy of all licenses for your applicants and not just some licenses. Trust that makes sense. Or you will really need to speak with a lawyer like me.

Just A Thought.

In a press release issued last week, the U.S. Department of Housing and Urban Development (HUD) reported that a condominium association in New Jersey agreed to pay $30,000 to resolve allegations under the Fair Housing Act (FHA) that it discriminated against a resident with disabilities by restricting where and how she could bring her assistance animal on the property. The FHA, of course, requires most housing providers to allow individuals with disabilities (defined as an impairment that substantially limits a major life activity) to have an assistance animal that performs tasks (a service animal) or that provides disability-related support (an emotional support animal).

The order issued in this case represented the conclusion of a discrimination charge HUD filed against the condominium association in October 2018, asserting that the resident (with multiple disabilities) was discriminated against for having an assistance animal. HUD’s complaint alleged that the association required the resident, who is a person with both hearing and sight disabilities, to cage her animal while in common areas as well as to use the service entrance when entering and exiting the building with the animal.

To resolve the case, the condominium association will pay $30,000 to the resident and adopt a HUD-approved reasonable accommodation policy that follows the FHA. As is common in these cases, various association employees and officials will attend fair housing training.

While acknowledging there are always at least two sides to every story and the published consent order did not contain all the facts, the teaching point here for professional apartment management is to think of assistance animals as an extension of the resident. Of course, while residents must clean up after their assistance animals and animals cannot be a direct threat to other residents, employees, or to the property itself, management cannot relegate assistance animals to the service entrance nor can we (in usual circumstances) require an animal be caged while in common areas.

If you think there is a legitimate reason that an assistance animal at your property must be in a cage or use a back entrance, I suggest you speak with a lawyer like me or you may run the real risk of scrutiny from a federal, state, or local government agency.

Just A Thought.

When I do fair housing training, I always say to my audience that if one of you has a question, I am willing to bet another person in the room has the same question.  Suspecting that is the case with my Fair Housing Defense blog readers, I wanted to answer some recent questions sent to me:

To the best of my knowledge, there is no central database that publishes outcomes of all of the various fair housing cases filed around the country. Historically, HUD used the Title Eight Automated Paperless Office Tracking System (TEAPOTS) to track Fair Housing Act (FHA) cases for the Office of Fair Housing and Equal Opportunity (FHEO). A couple of years ago, HUD’s Enforcement Management System (HEMS) replaced TEAPOTS in an effort to improve security and modernize the database. But, at least to my knowledge, neither TEAPOTS nor HEMS is available to the public. To be sure, I suspect you could file a FOIA (Freedom of Information Act) or other open records request to get a list of the dispositions of agency or department cases

Here are some quick definitions:

  1. A ”service animal” is defined in the Americans with Disabilities Act (ADA) as a dog that is specifically trained to performs tasks for its owner with a disability. Think of a dog that assists someone with a vision disability cross the street. For the most part, the ADA does not apply to residential apartment communities. The exception is that the ADA does apply to the leasing office for the property.
  2. An “assistance animal” is defined in the FHA and Section 504 of the Rehabilitation Act of 1973 as an animal that works, provides assistance or emotional support that alleviates one of more symptoms of a person’s disability. An “assistance animal” is not required to have any training. Think of a dog that soothes or comforts an individual with Post Traumatic Stress Disorder. Also, while dogs are the most common assistance animal, the law recognizes that many other types of animals can qualify – such as cats, ponies, ferrets, and/or even snakes. This list is not exhaustive and I am not making this up.
  3. An ”emotional support animal” is a subset of assistance animals. These animals also provide emotional support to individuals with disabilities. Emotional support animals provide companionship, relieve loneliness, as well as can help with depression and anxiety. Unlike a “service animal,” an “emotional support animal” does not require any special training.
  4. A “companion animal” is another way to describe an “emotional support animal.” The terms “companion animals” and “emotional support animals” are used interchangeably.

No, professional apartment management cannot restrict breeds, sizes, or weights for legitimate assistance animals.  Yes, we can place those types of restrictions on pets.  But not on assistance animals.  If you have specific evidence (not a generalized fear) that a given animal is a “direct threat” — that can and should be documented.

There is no firm number of days (to my knowledge) that management must respond to a reasonable accommodation or reasonable modification request.  My general guideline is as follows:  responding within one week is absolutely reasonable.  Responding within two weeks should be considered reasonable.  Responding within three weeks can be considered reasonable.  Anything more than that risks a finding of not reasonable.

Yes, while I certainly take new fair housing cases, I am a defense lawyer who represents professional apartment owners, management, and management employees.  I do not take plaintiff’s cases as I want my clients to have confidence that an argument I use for them in one case will not be used against them in the next case.  Make no mistake, if you believe you are the victim of discrimination, you can reach out to HUD or a state, city, or county fair housing agency.  Additionally, there are various fair housing advocacy groups around the country providing advice and representing residents in these matters.

Hope that helps.

Just A Thought.