Fair Housing Defense

More on Service Animals...

Scott M. Badami — Mon, 08 Feb 2010 10:56:23 -0500

A recent blog post on service animals has caused some readers to chastise your humble editor about the state of the law concerning service animals. To be sure, we here at the Fair Housing Defense blog want to get it right. Otherwise, what’s the point? That being said, I would probably vote against some of the colorful language in the comments as they are a little over the top and unnecessary. Like politics and religion, it seems service animal issues have touched a nerve. I guess that is good.

First, a little background. While reasonable accommodation requests seeking recognition for a service or companion animal are not rare, it is not a request that comes across my desk each week. What prompted the post was about 20 service animal requests submitted to a single community manager at one property – all about the same time. While I am certainly not implying that 20 residents at one community might not all make the same request for their respective legitimate disabilities all at the same time, I cannot rule out that at least some of these people wanted to avoid paying a pet deposit or monthly pet charge. Again, let me be clear that management should grant service animal reasonable accommodation requests when then arise in almost all circumstances.

To be sure, in the initial post I did not appropriately distinguish the difference between a service animal and a companion animal. And I should have. Again, that was not the purpose of the post, but some readers were correct to point out that formal training is not in the law, particularly for companion animals. Nevertheless, I do think it makes sense for service or companion animals to be well mannered in public.

Also, while I do think it makes good sense for a service or companion animal to be identified – so as to reduce the number of children who might reach out to pet the animal, there is no requirement that it be done. I appreciate that correction.

Hope that straightens it out. To paraphrase Tony Kornheiser, I will try to do better next time.

Just A Thought.

A Cautionary (and Expensive) Tale

Scott M. Badami — Thu, 04 Feb 2010 11:24:39 -0500

The Fair Housing Act (FHA) has been on the books for decades. Professional apartment community owners know the law and we train our employees to follow the law. Providing housing in a non-discriminatory manner is not just required by the FHA, it makes good business sense: we want all qualified applicants to move into (and then to renew their leases at) our communities.

The U.S. Department of Justice (DOJ), the U.S. Department of Housing and Urban Development (HUD), along with various state, county, and city agencies, enforce the FHA. Periodically, there are reminders about what can happen when the FHA is not complied with. For example, in November 2009, the Justice Department announced that it obtained the largest monetary payment ever obtained by the DOJ to settle a case of alleged housing discrimination in the rental of apartments. Los Angeles-based apartment owner Donald T. Sterling agreed to pay $2.725 million to settle allegations of discrimination against African Americans, Hispanics, and families with children.

Specifically, the lawsuit alleged that Sterling, his wife and the Sterling Family Trust deliberately engaged in discriminatory renting practices targeted at tenants and prospective tenants who were not of Korean descent. The DOJ presented evidence that Sterling’s employees prepared internal reports that identified the race and/or national origin of tenants at properties that the defendants had purchased in certain sections of Los Angeles. There was also evidence that the defendants made statements to their employees indicating that African Americans and Hispanics were undesirable tenants.

Under the terms of the settlement, which were memorialized in a consent order:

The defendants would pay a $100,000 civil penalty to the United States;

The defendants would pay $2.625 million into a fund that would be used to pay monetary damages to persons who suffered discriminatory treatment as a result of the defendants’ conduct. The remaining balance would be used for further FHA education in the Los Angeles area;

The defendants would be enjoined from discriminating on the basis of race, national origin or family status;

The defendants would be required to implement a self-testing program over the next three years to monitor employee compliance with the FHA;

The defendants would be forced to maintain non-discriminatory practices and procedures; and

The defendants and their employees would be forced to undergo fair housing training through an independent contractor.

Management should always want to get it right. This is what can happen if something goes seriously wrong.

Just A Thought.

Article by Christian Moffitt.

Service Animals

Scott M. Badami — Wed, 27 Jan 2010 16:18:03 -0500

More and more professional apartment management companies receive requests for service or companion animals. When you receive such a request, management must respond to it. Here are a few thoughts to keep in mind:

Both the Americans with Disabilities Act (ADA) and the Fair Housing Act (FHA) apply in situations involving a disabled resident's request for a service animal. Management simply needs some formal notice to acknowledge the animal as a service animal. While most service animals are dogs, there is no requirement that the animal be a dog.

Pet deposits and pet fees should not be charged to residents with service animals.

When the resident's disability is not apparent, the better practice is for management to request a note from a medical/health care professional confirming the need for the service animal. It is not, however, management's place to inquire into the specifics of the claimed disability. The ADA and the Department of Justice have established two training requirements for an animal to be considered a service animal: (1) a service animal must be individually trained to perform tasks or work for the benefit of a disabled individual; and (2) a service animal must be trained to behave properly in places of public accommodation. Management can request information to ensure the animal meets minimum training standards from a recognized school for service animals, including public access training, particularly when there is a concern about the size/breed of the animal. Also, the animal should wear some type of easily recognized identification symbol (i.e., harness, backpack).

The owner of the service animal should:

obtain required licensure, health and training verification;
provide care, feeding, and supervision of their animal;
keep animal on leash at all times. The animal should never be permitted to wander around off leash except if the animal is working;
maintain control of the animal at all times;
assume responsibility for any damages caused by the animal;
maintain the good health of the animal;
keep the animal well groomed and measures should be taken, at all times to maintain flea and odor control; and
clean up animal waste and properly dispose of it.

Again, service animals should be welcomed at residential properties. Residents and management can easily work together to document the appropriate paperwork.

Just A Thought.

What Should You Look For in Reasonable Accommodation Requests

Scott M. Badami — Mon, 11 Jan 2010 09:38:34 -0500

As I have discussed in prior posts, federal and state fair housing and anti-discrimination laws are designed to ensure that people with disabilities have an equal opportunity to access and enjoy their homes. Owners and property management companies can be required to make a reasonable accommodation or a reasonable modification as a result of a disability. An accommodation is a change in a policy or a procedure at the community. An easy example is a request to waive a no-pet policy for a hearing impaired resident who has a service animal. A modification, for example, is to lower a mailbox to assist a resident with a mobility impairment.

It is the responsibility of the resident (or applicant) with the disability to make the request for an accommodation to management. Owners are not obligated to seek out a resident and make accommodations or modifications.

Although not required, the best practice is for reasonable accommodation and modification requests (as well as all subsequent correspondence) to be in writing. Management should keep those letters in the resident’s file. Having the requests in writing facilitates clear communication and creates a "paper trail" in case the issues are not resolved and we have to defend a subsequent fair housing claim.

As a part of an accommodation request (particularly when the disability is latent), the resident should include a note from a medical professional concerning the condition and the accommodation or modification request. Management is not required to grant a reasonable accommodation or modification request unless we know or should have known about the disability. Again, in cases where the condition is not always obvious, the letter serves as notice of the disability. Moreover, a note from a medical professional answers many, if not all, of management’s legitimate medical questions in the least intrusive manner possible.

Make no mistake, management knows and understands the law. We want to get it right. In my experience (which is now confirmed by HUD) fair housing complaints concerning disabilities and reasonable accommodations/modifications related to disabilities are now the most common complaints being filed. Let’s not unnecessarily add to that stack of complaints. Then you will not just need to read my blog, but you will need to contact me to defend a claim.

Just A Thought

What To Do About Second Hand Smoke Accommodation Requests?

Scott M. Badami — Mon, 04 Jan 2010 14:18:33 -0500

Professional apartment community owners and management companies know we have to respond to reasonable accommodation requests in order to ensure our compliance with the federal Fair Housing Act as well as various state laws. Accommodation requests come in all shapes and sizes. And we must respond to all of them.

I recently had two separate cases involving requests to live in a non-smoking building. In other words, the residents requested as an accommodation for their allergy or sensitivity to second hand smoke that we prohibit smoking in and around their apartments. These requests raise challenging issues because if we grant the request we are potentially infringing on the rights of other residents and guests to smoke in their personal homes. While we all may have different views on smoking, it is absolutely legal for adults to smoke – especially in their own living room.

Federal and state fair housing and disability laws, of course, are designed to ensure that people with disabilities have an equal opportunity to access and enjoy their homes. Owners and property management companies can be required to make changes to the rules or policies of the community as a reasonable accommodation to a disability. Easy examples include requests to waive a no-pet policy to assist with a service animal or to attach grab bars in a bathroom. It is just not practical to declare an entire building “non-smoking” and I am aware of no requirement that management make such a change. That being said, here are a few ways to respond to this request:

• Management could potentially prohibit smoking in the common areas of the community.

• Management could offer to transfer the resident to a vacant unit in the complex, away from the drifting smoke. To be sure, management could not guarantee that a future resident might not smoke. Also, there would likely be some negotiation concerning how the moving/transfer expenses would be taken care of. Management could not, of course, evict another resident just to create a vacancy.

• Management could offer to permit the resident to break his or her lease without penalty in order to find another apartment community in which smoke does not appear to be a problem.

• Management could offer to put additional weather stripping or caulk around the windows and doors. Alternatively, management could offer a fan or air purifier.

I have not seen any court decision requiring management to declare that residents cannot smoke in their own homes. I am, however, aware of efforts by residents to make these no smoking requests. Management must appropriately respond to protect itself and all of our residents -- even those who smoke.

Just A Thought.

Who Pays for Reasonable Modification or Reasonable Accommodation Requests?

Scott M. Badami — Tue, 03 Nov 2009 15:57:39 -0500

A question I regularly get asked is who is responsible for paying for a reasonable accommodation or a reasonable modification. Here is a brief summary.

A reasonable modification is a structural change made to an existing premises occupied by a person with a disability (and disability is typically defined as an individual with a physical or mental impairment that substantially limits one or more major life activity) in order to afford such a person the full enjoyment of the premises. Reasonable modifications can include structural changes to interiors and exteriors of a unit as well as common areas. A reasonable accommodation is a change, exception, or adjustment to a rule, policy or practice used in running a community. A person with a disability can request either a reasonable accommodation or reasonable modification. It is good practice to solicit written accommodation requests, but there is no requirement in the law that the requests come in writing.

For conventional communities, the general rule is that management is responsible for absorbing the cost of a reasonable accommodation (to the extent there is a cost associated with changing a policy or procedure) but that the resident is responsible for paying for the costs related to a modification of a unit or common area. In practice, management will often agree to some type of cost sharing with the resident as a part of the interactive process expected under the Fair Housing Act (FHA).

That being said, housing that receives federal financial assistance is covered by both the FHA and Section 504 of the Rehabilitation Act of 1973. Under the Section 504 implementing regulations, structural changes (reasonable modifications) needed by a resident with a disability must be paid for by the housing provider (management) unless providing them would be an undue financial and administrative burden or would represent a fundamental alteration of the program. Indeed, there are also times when management can also offer to meet the resident's needs through a different accommodation.

Requests for accommodations or modifications can be made at any time. It is important that management respond to requests in a timely manner. Failing to respond (or an undue delay in responding) can lead to a housing discrimination complaint and a probable cause finding which never should have been issued. Don’t let that unnecessarily happen to you.

Just a Thought.

Up and Running

Scott M. Badami — Fri, 23 Oct 2009 15:43:07 -0500

This blog has been up and running for a few months now. To be honest, I did not know what to expect. Would anyone (in addition to my Mom – by the way, Hi Mom!) actually want to read it? Would anyone think issues related to housing discrimination and compliance with the Fair Housing Act are worth learning about?

Well, the verdict is in. And I have to say I am gratified. On a regular basis I receive correspondence and/or messages for individuals with questions related to fair housing and housing discrimination. I am very pleased and will continue to post issues of interest related to fair housing on this blog.

That being said, I do need to make clear that I represent apartment owners and professional apartment management companies. In other words, I do not represent residents, applicants, and former residents who believe they have been discriminated against. It is not because of a true legal conflict of interest (which would be the case if I took a case against one of my clients), but because I want my clients to know that I will not take the opposing side of an issue in my next case.

I trust you will understand. And I very much appreciate you checking in on this blog.

Mobile Home Park Pays Large Settlement to Settle Charges of Discrimination Based on Familial Status

Scott M. Badami — Wed, 23 Sep 2009 18:15:05 -0500

We’ve talked a bit on this blog about the different classes that are protected under the Fair Housing Act ( "FHA") -- including race, national origin, sex, color, disability and familial status. Today, the Justice Department’s Civil Rights Division, along with the U.S. Attorney’s Office for the Southern District of Alabama and HUD made a joint announcement underscoring the consequences that arise when a property owner appears to discriminate against actual and prospective tenants on the basis of their familial status, and specifically based on whether those tenants have children. The government entered into a settlement agreement and the court issued a consent decree with the owners and managers of Pina’s Mobile Home Park to settle charges of discrimination against families with children. In settling the action, the defendants agreed to pay up to $104,130 to the victims of their discriminatory tactics, along with a $30,000 civil penalty to be paid to the federal government.

The lawsuit arose when HUD filed a charge on behalf of a prospective tenant who attempted to rent a home at the mobile home park, and was denied because the applicant was told she had too many children to live in the park. During the owner’s initial meeting with the Complainant, the owner allegedly indicated that there were vacancies in the park, but that families with children under the age of 18 were required to pay an additional $15 per month. Once the child reached 18 years of age, that fee would increase to $30 per month. In a second meeting, the owner of the park allegedly told the Complainant that the property’s rules only permitted families with two or fewer children to reside in the mobile homes. The Complainant, however, had three children.

During HUD’s investigation, the owner stated that the park refused families with more children because “[i]f you have too many children, you have too many problems.”

As we’ve stated before: as a property owner, you cannot discriminate against any of the classes protected by the FHA and its state counterparts. Although you may have legitimate concerns that a large number of children concentrated in one unit of your property may cause “too may problems,” such as elevated noise levels, potential property damage, and an increased number of general liability issues, as a landlord, you cannot turn away a family based on their number of children if it meets the occupancy standards.

Furthermore, you cannot charge families with children additional rental fees to offset the additional repair costs that you fear may arise. What you can and should do is determine what the applicable laws are concerning occupancy standards where your property located and ensure management follows that law.

Just A Thought.

Article by Christian Moffitt.

Occupancy Standards -- Why They Matter

Scott M. Badami — Thu, 03 Sep 2009 15:01:45 -0500

When dealing with occupancy standards, it used to be easy. The traditional rule of “two heartbeats per bedroom” was perceived as the way to go. HUD published what was referred to as the Keating Memorandum back in the early 1990s which detailed this standard and it was considered generally reasonable. Over the years, I successfully defended any number of cases based on the Keating Memorandum and the two person per bedroom guideline. Many professional apartment management companies, including those I represent, adopted that standard. But that is not, of course, the end of the story.

Occupancy standards are useful because management has an absolute right to set reasonable, non-discriminatory limits as to how many people can live in a specific apartment. Yet management must be careful so as to not discriminate against a family with children. Those rational goals sometimes conflict.

Issues come up when a tenant gets pregnant and a family increases in size. Is it appropriate to ask a family to move to a larger unit? When is it appropriate to ask the family to move? What if the family cannot afford a larger unit? What if there are no larger units available? What if a family has twins? What should you ask an applicant about a pregnancy?

To be sure, the Keating Memorandum also made clear that there could be other factors which might change the analysis. Factors such as the size of the bedroom and the age of any children living in an apartment need to be taken into account. For example, if two bedrooms are large and/or if there is a spacious living area or study, a two person per bedroom standard might be unreasonably restrictive.

Additionally, some states (like California) and even cities (like Austin, Texas) have amended their laws such that in essence “two plus one per bedroom” is the new standard.

What should management do? First, check the law in your jurisdiction. If you don’t know where to find the standard, ask a lawyer. Then examine the size and configuration of your apartment units and develop a reasonable occupancy policy that does not unfairly discriminate against families with children. Again, if your bedrooms are large or there is additional living space, you may consider adding more than just two heartbeats per bedroom.

Always be consistent in applying your occupancy standards. Management cannot make exceptions.

You cannot ask an applicant (or a current resident) about how many children they plan on having. You can certainly ask how many people will be living in the unit. When you ask, I recommend phrasing the question in terms of “people” as opposed to “children” so there will be less confusion about management’s intent. In my view, occupancy standards which limit the number of children per unit will be view more harshly than a standard which only refers to people living in a unit.

Management cannot discriminate against families with children. I have seen many discrimination cases based on familial status. They are never fun to defend against because any number of very cute children are involved. Setting reasonable standards – and informing applicants and residents of those standards – can help ensure that such a case never gets filed.

Just A Thought.

Welcome to The Fair Housing Defense Blog

Scott M. Badami — Thu, 06 Aug 2009 19:28:08 -0500

I have been defending housing discrimination cases for over ten years. I have a docket of cases stretching from Alaska to Florida and just about everywhere in between. My cases get investigated by the U.S. Department of Housing and Urban Development ("HUD") in addition to many state, city, and county agencies.

The goal of this blog is to provide a forum for issues of interest to apartment owners and management companies as well as professional management employees. I also hope we can share available resources.

If you are in the apartment ownership or management arena, you are committed to following the federal Fair Housing Act ("FHA") as well as the many state and local laws which prohibit discrimination in housing. Noting that you do not discriminate on the basis of race, color, sex, disability, national origin or familial status is only a good start.

On its face, the law seems simple enough: don’t discriminate. All applicants and residents should be treated equally and with respect. But, each situation is fact intensive and requires an individualized review of the circumstances. Plus, not every jurisdiction is the same:

what about those which add source of income as a protected class?
Should you accept vouchers?
Do you know the difference between a reasonable accommodation and a reasonable modification?
Who pays for a reasonable modification?
Does a request for a reasonable accommodation have to be related to the claimed disability?
What is Section 504 of the Rehabilitation Act of 1973 and why are two agencies investigating the same complaint?
Can I have occupancy standards for my apartments?
How can you confirm that a complaint has been filed by a disgruntled resident seeking to prevent an eviction?
What do you do when the investigator asks you to halt eviction proceedings in an effort to settle the case?
How do you handle an investigator who wants to interview all of your employees? Or review all your files?
What about when the investigator who wants to knock on the doors of your residents?
Should you still evict a resident even after he has filed a fair housing complaint?
Should you place an advertisement in a church flyer?

Those are just some of the issues I hope to explore. I will do my best to give some insight based on my experience and offer solutions.

There will be no lectures here, but I will try to leave you with --

Just A Thought.

HUD Spends That Much on Fair Housing? Yes, it Does.

Scott M. Badami — Thu, 06 Aug 2009 19:22:59 -0500

No one in the professional apartment management business supports housing discrimination. We support the federal Fair Housing Act (“FHA”) as well as the many similar state statutes and regulations. We train our employees to both follow the letter and spirit of the law.

We are in the business of leasing quality apartment homes to all applicants who meet the non-discriminatory resident selection criteria for a particular property. In addition to being against the law, our management teams are evaluated and compensated (at least in part) on obtaining the highest possible occupancy percentage they can. In other words, in addition to being against the law, discriminating against otherwise qualified applicants would cost property management staff money. Nevertheless, the U.S. Department of Housing and Urban Development’s (HUD) staff (as well as the staffs at various state, county, and city agencies) monitor our work and investigate allegations of discrimination.

To illustrate, in fiscal year 2008, there were 470 HUD employees in regional and field offices as well as 113 employees in HUD’s headquarters. As such, HUD’s fair housing staff last year was just under 600 employees.

HUD’s fair housing budget for salaries and expenses last year was just under $67 million dollars. Additionally, HUD's Fair Housing Assistance Program (FHAP) – which is a made up of state and local government agencies tasked to investigate allegations of housing discrimination – grants totaled over $25 million in fiscal 2008. The budget for HUD’s Fair Housing Initiatives Program (FHIP) – which was created to increase compliance with the FHA through the use of private enforcement and educational activities – was another $24 million last year.

In short, HUD spent over $116 million investigating housing discrimination last year. HUD’s budget for its Office of Fair Housing and Equal Opportunity has generally increased over the years. I see no change in 2009 going forward.

We need to follow the law and get it right when dealing with our residents and applicants. If we don’t, then the knock on the door will be a fair housing investigator. And then you may really need to call me.

Just A Thought.

Who Gets Protection From Liability for On-Line Advertisements?

Scott M. Badami — Fri, 24 Jul 2009 10:03:26 -0500

What happens if management posts an on line advertisement for housing with a website provider if the content of that advertisement possibly contains a discriminatory preference or a limitation based on a protected class? Two recent cases provide important guidance.

In Chicago Lawyers Comm. For Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666 (7^th Cir. 2008) the court issued a decision impacting how the Communications Decency Act (“CDA”) interacts with the Fair Housing Act (“FHA”). Specifically, can a website operator be held liable for a FHA violation because of allegedly discriminatory statements in an online advertisement for housing? In this case, the appellate panel concluded that the CDA protects website operators and was not subject to the FHA since it did not post the statements or cause them to be posted.

On facts with a slight – but significant – difference, in Fair Housing Council of San Fernando Valley, Inc. v. Roommates.com, LLC, 521 F.3d 1157 (9^th Cir. 2008) (en banc), the court held that Roommates.com violated the FHA by contributing to the creation or development of discriminatory statements and advertisements on its web site. While the Ninth Circuit agreed with the Seventh Circuit that websites are protected from FHA liability based on advertising content provided by others, because Roommates.com required advertisers to fill in a questionnaire stating their preferences and by directing them to other advertisers whose preferences matched their own, the court held that Roommates.com was not entitled to immunity under the CDA and would be subject to FHA liability.

As is always the case in these circumstances, when you use any online advertisement for housing: follow the anti-discrimination provisions in the FHA so you will not need to have an appellate court review your ad.

Just A Thought.

Think the Number of Housing Discrimination Complaints is Going Down? Think Again.

Scott M. Badami — Sat, 04 Jul 2009 11:41:31 -0500

According to the U.S. Department of Housing and Urban Development’s (“HUD’s”) annual report, 10,552 fair housing discrimination complaints were filed in fiscal year 2008. That is an all time record. Some other notes from HUD’s report include:

Allegations based on disability remain the most common basis for a complaint – in fiscal 2008, 4,675 disability complaints (or 44 percent of the total) were filed.
Allegations based on race were the second most frequent basis for a complaint – 3,669 race complaints (or 35 percent of the total) were filed.
Interestingly, the approximate percentage of complaints filed under each of the seven characteristics protected under federal fair housing law has remained relatively stable during the past four fiscal years.
After disability and race, familial status (1,690 complaints or 16 percent of the total) and national origin (1,364 complaints or 13 percent of the total) were the most common bases of complaints.
Retaliation, religion, and color were the least common bases of complaints filed with fair housing agencies in the past four fiscal years. In fiscal 2008, retaliation was cited as a basis for 575 complaints (or 5 percent of the total). Religion was alleged as a basis for 339 complaints (or 3 percent of the total). Color was cited as a basis for 262 complaints (or 2 percent of the total).
Also, the number of complaints based on “failure to make a reasonable accommodation” jumped 5 percent during the last four years. In fiscal 2008, “failure to make a reasonable accommodation” was alleged in 2,401 complaints, or 23 percent of the overall total—the third most common issue.

These figures continue to show us that management must remain vigilant. We must always train our employees to know and follow the law. We must appropriately document our resident and community files. I see no meaningful reduction in the number of fair housing complaints in 2009. Significantly, always remember that while management is alleged to have done something wrong when a complaint gets filed, it is up to us to prove our innocence in these cases. Doing so requires good education and documentation. One last point: while the number of retaliation cases is not statistically large, agencies and investigators always take retaliation cases seriously and we must clearly demonstrate that management did not retaliate against anyone because he or she filed a fair housing complaint.

Just A Thought.

Always Be Consistent

Scott M. Badami — Thu, 25 Jun 2009 16:34:21 -0500

The Fair Housing Act (as well as various state and local anti discrimination laws) sets some limits with respect to what management can and cannot do in the applicant selection process. As you evaluate applications, always be cognizant of what you can – and importantly what you cannot say. Prepare a resident selection criteria. And follow it. With every prospect and applicant.

It is absolutely appropriate to run a criminal background check and to set reasonable standards for what types of prior offense record will disqualify an applicant from your community. While HUD’s guidelines suggest management only look back five years for certain offenses, the regulations make clear that management has discretion to look farther back in time. Also, be aware that certain jurisdictions also limit how far back management can look. It is imperative, however, to run the same background check on each applicant and to score each applicant in the same manner. Many management companies contract with a third party vendor to perform this service. It is obviously never appropriate to only run background checks on applicants believed to be of certain races or national origins.

Similarly, you can and should check an applicant’s income, credit, and references. As with criminal background screenings, be consistent. Run the same check on every applicant. While it is not a protected class under the Fair Housing Act, an ever growing number of states and localities have included source of income as a protected class. That means you cannot discriminate against an applicant if he or she has a housing voucher. In such a jurisdiction, management should factor in the voucher and adjust the scoring criteria. Other protected classes in certain jurisdictions are marital status and sexual orientation. As such, knowing the laws in your jurisdiction can help reduce the chance of a housing discrimination complaint.

Rental decisions need to be made on legitimate, non-discriminatory criteria. The decision to rent an apartment, in part, reflects an assessment of risk. Management should engage in an “interactive process” with applicants in an effort to ensure everyone is treated appropriately.

All members of the leasing office staff must be trained in fair housing. Additionally, it is also important to ensure your maintenance staff is trained as well as service professionals regularly interact with residents. Importantly, the owner and/or management company can be held liable for discriminatory conduct done by employees.

It may seem self evident, but it is crucial to be consistent when dealing with applicants and residents. For example, if management arbitrarily sets higher standards when renting to members of a racial minority – the door is open for a lawsuit. Similarly, if you give one person a break (such as lowering the security deposit for a single mother but not other residents), you will unnecessarily risk a charge of discrimination from other applicants or residents.

Just A Thought.

Understanding Fair Housing Defense

Scott M. Badami — Tue, 09 Jun 2009 14:00:00 -0500

what about those which add source of income as a protected class?
Should you accept vouchers?
Do you know the difference between a reasonable accommodation and a reasonable modification?
Who pays for a reasonable modification?
Does a request for a reasonable accommodation have to be related to the claimed disability?
What is Section 504 of the Rehabilitation Act of 1973 and why are two agencies investigating the same complaint?
Can I have occupancy standards for my apartments?
How can you confirm that a complaint has been filed by a disgruntled resident seeking to prevent an eviction?
What do you do when the investigator asks you to halt eviction proceedings in an effort to settle the case?
How do you handle an investigator who wants to interview all of your employees? Or review all your files?
What about when the investigator who wants to knock on the doors of your residents?
Should you still evict a resident even after he has filed a fair housing complaint?
Should you place an advertisement in a church flyer?

Those are just some of the issues I hope to explore. I will do my best to give some insight based on my experience and offer solutions.

There will be no lectures here, but I will try to leave you with --

Just A Thought.

Welcome.

Possible Defenses to FHA Actions

Karin Corbett — Tue, 09 Jun 2009 13:11:43 -0500

Is it Housing Discrimination if the Buyer Does Not Meet All of the Seller’s Terms?

Not When There Was a Financing Change Which Made the Offer Not Consistent with the Listing Terms

Pamela McDonald, an African-American, wanted to buy a house in the Shasta-Redding, California area. Her real estate agent, who was also African-American, telephoned First Shasta Real Estate, a Coldwell Banker franchisee, and spoke with a Caucasian representative, about houses for McDonald to view. The agent prepared a pre-approval letter indicating that McDonald qualified for a loan of up to $180,000.

Coleman and her agent described the Coldwell Banker representative’s attitude after he saw them as unenthusiastic. He showed McDonald a number of listings her agent had selected, including 2075 Galaxy Way, but then suggested that McDonald look at homes “less upscale” that were more “suitable” for McDonald.

McDonald wanted to make an offer on 2075 Galaxy Way that was higher than the asking price, but included a seller carry-back. The Coldwell Banker representative discouraged her from making the offer after consulting with the seller’s agent allegedly because of the unusual carry-back financing. Nevertheless, Coleman faxed the offer herself to the seller’s agent, who did not respond. The seller (also Caucasian) thereafter sold the property to another buyer (another Caucasian) for a lesser amount but with no carry-back financing.

McDonald sued Coldwell Banker and various other parties in U.S. District Court (N.D. Calif.), asserting discrimination claims under California’s Fair Employment and Housing Act (FEHA) and the federal Fair Housing Act (FHA). The District Court granted summary judgment in favor of the defendants and McDonald appealed.

The Court of Appeals started its analysis by reviewing the requirements for a prima facie case under the FEHA, which, as the Court pointed noted, are identical to the requirements under the FHA. The plaintiff must show membership in a protect class, application and qualification for housing, denial of housing, and that non-protected similarly situated individuals did obtain housing.

The Court focused on the carry-back financing in McDonald’s offer. It explained that the provision did not meet the seller’s listed terms, and therefore McDonald did not demonstrate “qualification” within the meaning of the statute. It also said that the carry-back distinguished McDonald from the eventual purchaser such that they were not similarly situated.

The FEHA and FHA also allow a plaintiff to establish by circumstantial evidence discriminatory motive in refusing the housing accommodation. The Court found no evidence that the defendants took any action to secure the sale of the house to a person who was of a different race than McDonald. It found no evidence that the agents ever disparaged McDonald or treated her differently based on their race. Summary judgment for the defendants was affirmed.

Although the plaintiff was not successful here, this case provides an important reminder that every applicant should be treated the same and that management agents should refrain from commenting on specific choices made by applicants or buyers. Even if those comments may seem benign, an applicant may be offended by those remarks as was the situation in this matter.

Just A Thought.

Article by Karin Corbett

FHA and the Statute of Limitations

Christian Moffitt — Tue, 09 Jun 2009 13:00:50 -0500

Does the Statute of Limitations for FHA Claims Arising from Design and Construction Claims Expire Two Years After the Last Certificate of Occupancy is Filed?

Not Always.

A recent case from the U.S. District Court for the Western District of Washington serves as a healthy reminder to all involved in the design, construction, and operation of multifamily dwellings covered by the Fair Housing Act (“FHA”). The case explored how the statute of limitations for FHA claims arising from the design and construction of such buildings does not always expire when you think it should.

Generally, civil court actions under the FHA are subject to a two year statute of limitations, which begins to run on the date of the last occurrence of discrimination. ¹ For claims arising from design and construction, courts have ruled that the “last occurrence of discrimination” is the date of the issuance of the last applicable certificate of occupancy. See e.g. Garcia v. Brockway, 526 F.3d 456, 460-461 (9th Cir. 2008).

In Fair Housing Counsel of Oregon v. Cross Water Development, LLC, et al., 2009 U.S. Dist. LEXIS 24542, the plaintiff first filed a complaint with HUD on May 9, 2005, more than one year from the date of the issuance of the last applicable certificate of occupancy of September 23, 2003. HUD dismissed the complaint because the applicable statute of limitations had clearly passed. Subsequently, the plaintiff filed a complaint in U.S. District Court on December 17, 2008, asserting that the statue of limitations was tolled while the HUD proceedings were pending. The court found that there was no basis for application for the statutory tolling provision because the plaintiff failed to timely file its administrative complaint with HUD. Although this case correctly resulted in a favorable outcome for the developers, the court was quick to note that there are two circumstances where the two year statue of limitations may be tolled.

First, the statute of limitations may be tolled under a theory known as “equitable tolling,” which allows the court to determine if the plaintiff’s delay was excusable. This doctrine applies when “a plaintiff is unable to obtain vital information bearing on the existence of his claim.” Garciaat 465. The court in such a circumstance examines whether “a reasonable plaintiff would not have known of the existence of a possible claim within the limitations period.” Fair Housing Counsel of Or. at *8. If the court finds delay excusable, the statute is tolled until the plaintiff can gather what information he needs.

Second, the doctrine of “equitable estoppel” or “fraudulent concealment” will toll the statute of limitations when the defendant, in this case a party involved in the design, construction or operation of a multifamily structure covered by the FHA, takes action to prevent a plaintiff from filing suit by misleading the plaintiff in some way.

So, what should we take from all of this? In most circumstances, a complainant will indeed either file soon after the alleged discriminatory incident took place. However, if a complainant misses the date, it can be a challenge to get the non-lawyer investigators at an agency to pay attention to a missed deadline. We always raise the issue and you should as well.

Just A Thought.

Article by Christian Moffitt

[1] A collateral statute of limitations applies when an aggrieved party opts to file a complaint with the United States Department of Housing and Urban Development (“HUD”), rather than initially file suit in court. That rule provides that a person filing an administrative complaint with HUD must do so within one year after the alleged discriminatory housing practice occurred or terminated. 42 U.S.C. § 3610(a). While such a complaint is pending with HUD, the two year statute of limitations on FHA claims is tolled by statute. 42 U.S.C. § 3613(a)(1)(B).

A few Fair Housing Act basics worth reviewing

Scott M. Badami — Mon, 11 May 2009 17:14:04 -0500

The Fair Housing Act ("FHA") was adopted in 1968 and later amended to add additional protected classes. The original 1968 law was designed to prevent discrimination based on: race, color, religion, and national origin. In 1974, the FHA was amended to prevent discrimination based on sex. In 1988, the FHA was again amended to add handicap (disability) and familial status as protected classes.

In addition to federal law, some state laws and local ordinances provide additional protections based on categories including: source of income, marital status, sexual orientation, occupation, age, and criminal history.

The FHA covers most housing. In some circumstances, the FHA exempts owner-occupied buildings with no more than four units, single family housing sold or rented without the use of a broker, and housing operated by organizations and private clubs that limit occupancy to members.

The FHA protects:

residents,
applicants,
and prospective applicants.

Those are easy. The FHA, however, also protects:

the guests of your residents,
fair housing testers,
and management company employees.

Under the law, it is illegal to retaliate against an employee who helped a resident, applicant or prospective applicant to exercise his or her rights under the FHA.

Indeed, from my experience, HUD remains very concerned when they believe any type of retaliation has taken place. If such an allegation comes up, do your best to confront it first. If you do not and a complaint gets filed, I will have to deal with it later.

Just A Thought.

A primer on reasonable accommodations and reasonable modifications

Scott M. Badami — Sun, 10 May 2009 17:20:09 -0500

A "reasonable accommodation" is a change, exception, or adjustment to a rule, policy, practice or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling. To show that a requested accommodation may be necessary, there must be an identifiable relationship – or nexus – between the requested accommodation and the individual’s disability.

Relatively simple reasonable accommodation requests are those that seek a designated handicapped parking spot or waiver of a "no pets" policy.

The harder decisions come when a request has nothing whatsoever to do with the claimed disability. Additionally, a reasonable accommodation can be denied if providing the accommodation is not reasonable – for example, if it would impose an undue financial or administrative burden on the housing provider or if it would fundamentally alter the nature of the provider’s services.

Also, a housing provider has an obligation to provide prompt responses to a request for a reasonable accommodation. An undue delay in responding to a requested accommodation may be deemed to be a failure to provide that reasonable accommodation.

A reasonable modification is a structural change made to existing premises occupied (or to be occupied) to a person with a disability in order to afford such a person full enjoyment of the premises. Reasonable modifications can include structural changes to interiors and exteriors of communities as well as to common and public use areas. A request for a reasonable modification can be made at any time during a residency.

As with a reasonable accommodation, to show that a requested modification may be necessary, there must be an identifiable relationship – or nexus – between the requested modification and the individual’s disability. Furthermore, the requested modification must be reasonable. Examples of modifications includes grab bars in bathrooms or lowering of kitchen cabinets to a height suitable for persons in a wheelchair.

The general rule concerning costs involving reasonable modifications is that the resident is required to pay for them at conventional communities and that management is required to pay for them at affordable communities. To be sure, there are many times when management at a conventional property will work with a resident and engage in some type of cost sharing in an effort to further attempt to meet the needs of our valued residents.

The bottom line is to work with your residents and engage in the interactive process contemplated under the FHA and its implementing regulations. If management cannot grant the request for an accommodation or modification, is there an alternative accommodation or modification that would effectively address the requester’s disability-related needs? If there is, you should propose it. And you should document in writing your proposed solution.

Just A Thought.

Is it religious discrimination to implement a ban on doorway objects?

Scott M. Badami — Sat, 09 May 2009 18:00:10 -0500

Not necessarily. The Fair Housing Act provides no remedy for neutral restrictions.

In September 2001, the Shoreline Towers Condominium Association adopted rules prohibiting mats, boots or objects of any sort be left sitting outside owners’ unit entry doors. The rules also banned signs on doors or in hallways. The rules were not initially enforced against religious symbols. When the hallways were repainted in 2004, all religious objects were removed in preparation for the painting. At that time, the association’s board interpreted the rules to prohibit religious (as well as other) items and ordered the maintenance staff to keep the hallways and doors clear.

When the hallway painting was completed, the residents replaced their mezuzah on the doorpost, according to Jewish tradition. The mezuzah was removed by the association because of the rule.

The residents filed suit under §§804 and 817 of the Fair Housing Act, 42 U.S.C. §§3604, 3617, and one of the implementing regulations, 24 C.F.R. §100.400(c)(2). By the time of their lawsuit, the association had adopted a religious exception to the rules, but the residents sought damages for distress they claimed in the interim, plus an injunction to prevent the association from removing religious symbols in the future. The District Court (N.D. Ill.) granted summary judgment to the condominium association. The residents appealed.

The Seventh Circuit noted that the Fair Housing Act addresses discrimination in the sale or rental of a dwelling, not discrimination after the sale. Religiously motivated harassment must be addressed, if at all, under different laws. The Court concluded that religious harassment so severe as to make a dwelling unavailable on religious grounds might be actionable under the Fair Housing Act, but here the rules were religion neutral—they targeted all objects, not just religious objects.

The residents sought a religious exception to the rules, which they described as an accommodation. According to the Court, however, the Fair Housing Act does not provide a remedy for the failure to make accommodations on the basis of a particular religion.

The majority held that deciding whether a religious accommodation must be required and how far the obligation extends is a task for the legislature. The Religious Land Use and Institutionalized Persons Acts stops with land use and prisons.

The Seventh Circuit affirmed the judgment of the District Court. The case is Bloch v. Frischholz, 533 F.3d 562 (7th Cir. 2008). According to this Court, the Fair Housing Act requires accommodations for disabilities but not for religious beliefs and practices.

As this case proves once again, issues dealing with religion are among the most personal and emotional. Apartment management companies and their employees must work to ensure that all religions are respected and treated appropriately.

Just A Thought.