Fair Housing Defense

A $2 Million Fair Housing Settlement? Yes -- Believed to Be the Largest on Record

Scott M. Badami — Tue, 15 May 2012 15:34:49 -0500

In what is believed to be the largest recovery ever under the federal Fair Housing Act (FHA), last week the U.S. Department of Justice (DOJ) announced a settlement with the owners and former manager of an apartment building located in New York City. The DOJ’s lawsuit contended that the defendants violated the FHA by discriminating on the basis of sex and subjecting numerous female tenants to severe, unwelcome, and pervasive sexual harassment. Under the terms of the agreement, the defendants will pay more than $2 million to the tenants who were alleged to have been the victims of the harassment. Furthermore, the defendants will pay $55,000 in civil penalties, the maximum penalty available under the FHA.

The DOJ alleged that the owners hired a register sex offender to serve as the superintendent of the building and that the superintendent sexually harassed female residents. With respect to specifics of the misconduct, let’s just report that the alleged conduct was unwelcome and not appropriate for a family blog. Additionally, the manager of the building was further alleged to have created a hostile environment and the owner was aware and did nothing to stop the offensive actions against the female residents.

In addition to the financial penalty, there were other prohibitions and training requirements put in place to help ensure this conduct is not repeated.

While this case reflects severe conduct, it is a useful reminder that a good business practice is to ensure that all of our management, leasing office and maintenance employees go through a background check prior to being hired. Also, document and follow up on complaints from residents. Being proactive in hiring is one way to help avoid really needing a lawyer like me.

Just A Thought.

Can An Apartment Community Advertise a "No Pets" Policy? Yes -- BUT Don't Forget About Service Animals

Scott M. Badami — Tue, 08 May 2012 09:42:10 -0500

One of my recent posts concerning service animals sparked a good question that deserves a response. Is it lawful under the Fair Housing Act (FHA) for management to advertise an apartment building or community as a “No Pets” property? And, if so, how does that fit in with a request for a service animal?

The answer is: Yes – management may restrict the presence of animals as pets in an apartment community. Under the FHA, it is not unlawful to advertise that pets are not welcome in a building or community. In making such a choice, management could legitimately be noting concern over excess damage or noise caused by animals. Such a decision, however, may well shrink the resident pool for your community as many potential renters love their animals.

So, while a “No Pets” policy is not necessarily a violation of the FHA – management at such a property must still ensure that reasonable accommodation requests for service animals by residents or applicants with disabilities are correctly evaluated and responded to. Let me repeat: even if a community is a “No Pets” property, management will still need to review and permit service animals in appropriate circumstances. Owners of service animals, of course, are not charged a pet fee, pet rent, or a pet deposit. Their animals should be welcomed.

A good question. And I hope this post might help avoid you needing to hire a lawyer like me.

Just A Thought.

Familial Status and Designated Housing For Older Persons -- A Brief Guide

Scott M. Badami — Mon, 07 May 2012 11:00:08 -0500

Time for a quick refresher. Unless a community qualifies as designated housing for older persons, a housing provider may not discriminate based on familial status. "Familial status” is one of the protected classes contained in the Fair Housing Act (FHA). Under the law, familial status is any household with one or more children under 18 including:

Pregnant women;
Women who may become pregnant;
Foster children;
Adopted children;
Grandparents raising their grandchildren;
Children who share time between parents' homes and only live there part-time;
A legal custodian/guardian; or
Anyone securing legal custody of a child under 18

Under the FHA, it is unlawful to treat families with children under the age of 18 differently in housing transactions. This includes a prohibition on advertising – such as “Adults Only” signs – or a policy of rejecting families with children or treating families with children differently (including segregating families with children to certain areas of a community or floors in a building).

There is an exemption in the law regarding familial status. It concerns housing which is designated for older persons. The exclusion is defined as a community in which:

100% of the units are occupied by those 62 or older, or
80% or more of units are occupied by at least one person who is 55 or older,
and the community adheres to a policy that demonstrates an intent to house older persons
and the community complies with rules established by the Department of Housing and Urban Development for verification of occupancy

What this means is that most apartment communities must ensure that families with children are not discriminated against. If you do, then you may really need a lawyer like me.

Just A Thought.

Please Do Not Attempt to Classify Your Pet As a Service Animal. Such Efforts Make Us All Look Bad.

Scott M. Badami — Mon, 30 Apr 2012 09:41:57 -0500

I feel like the Fair Housing Defense blog is turning into the service animal question line. I am fine with that as it remains important to ensure management knows the difference between a service animal and a pet.

To review, a service animal is not a pet. A individual who is disabled uses a service animal as an auxiliary aid -- think of it as similar to a cane, a wheelchair, or crutches. Service animals are essentially medical devices necessary for an individual to enjoy the full use or his/her home. As such, our fair housing laws mandate that management make modifications to "No Pet" policies and permit the use of a service animal by any person with a disability who submits a reasonable accommodation request. My preference is for service animals to wear a collar or special harness for identification -- although there is no rule that mandates that service animals be visibly identified.

Similarly, a companion animal (sometimes referred to as an emotion support animal) assists people with psychological disabilities. Emotional support animals can help soothe symptoms such as anxiety, depression, or stress by allowing residents to live independently and full enjoying their home environment.

Service animals are not charged a pet deposit or extra fees for rent. Nevertheless, service animals owners must still ensure the animals behave and the resident is responsible if the animal causes excessive damage to a unit or common area.

Management may ask you to medically verify your service animal. We are not doing this is to intrude on your privacy -- it is simply to ensure there is a medical need for the animal. Unfortunately, I am seeing more individuals with pets trying to get the pet classified as a service animal in order to avoid paying a pet deposit and/or to avoid "No Pet" policies at certain communities. Such conduct makes the pet owner look bad and denigrates the work done by service animals to assist those individuals with real needs.

Just a thought.

Always Respond to Reasonable Accommodation/Modification Requests. Please.

Scott M. Badami — Thu, 19 Apr 2012 10:10:53 -0500

Anybody remember the 1981 classic Bill Murray movie Stripes? It is one of my favorites. Remember the scene near the beginning of the film (before he joins the Army) when Murray's John Winger notes that over the past few hours he has: lost his job, lost his girlfriend, lost his car, and lost his apartment? And then he gives the punch line: "And then depression set in." I know how Murray/Winger felt. Okay, I am exaggerating just a bit, but I did feel like snapping a pencil.

I was doing some fair housing compliance for a client. We were reviewing reasonable accommodation and reasonable modification requests from residents. We came to one reasonable accommodation transfer request that was received from a resident in January 2012. And we could not find any notation in the file that the request had been responded to and/or considered. And we are now close to three months later. That just cannot happen. HUD and various state agencies can and will conclude that a failure by management to respond to a reasonable accommodation request is essentially a denial of that request. While there is no bright line test for how much delay is too much -- the point is that there should be no delay in at least sending our residents an interim letter and noting we are reviewing the request.

I have written any number of times in this space the sequence of events that should take place when management receives a reasonable accommodation or reasonable modification request. First, ask for it in writing so the file can be appropriately noted. Send the resident an interim letter acknowledging the request and seeking appropriate medical/health care documentation (if necessary). Evaluate and decide what management can do. Once the decision is made, inform the resident in writing. Keep copies of all documents in the file. Note any oral conversations to further demonstrate management is working through the request with the resident.

Am I writing that management must grant each and every request received from a resident? Absolutely not. But, management MUST respond to each request and management is required to engage in the interactive process to evaluate every request. Again, not responding will put management in an unnecessarily weak position if and when a fair housing complaint gets filed.

Do I want you to hire me to draft your reasonable accommodation and reasonable modification forms? Sure. Can I provide you with the appropriate letters? Of course. But if you don't want to hire me, hire someone else. The important point is to ensure that management does not ignore reasonable accommodation and modification requests from your residents. If you do that, then you will really need to find a lawyer like me.

Just A Thought.

Should You Really Do Fair Housing Training? Yes.

Scott M. Badami — Tue, 17 Apr 2012 14:58:24 -0500

Many of the questions I get here at the Fair Housing Defense Blog cannot be answered with a simple yes or no. Applicable law can at times require an evaluation of specific facts or some type of balancing test. However, one question I can easily answer is: should my company really do fair housing training for its employees? In a word: yes.

As management, we have a responsibility for training employees to know and follow the law. Fair housing training is also an essential component of defending against (and preventing) fair housing complaints.

Indeed, a portion of my work involves doing fair housing training sessions for employees of professional apartment management companies. In addition to fair housing, sometimes I get asked to speak about respect in the workplace as well as diversity. These training sessions are designed to provide insight into current topics in our field as well as provide steps to take to reduce the chances of a fair housing complaint -- and then really needing to deal with a lawyer like me.

Are we always going to get it right? No, of course not. But, we can try to ensure our employees know the law and engage in the interactive process with our residents. Training is an important component of fair housing compliance.

And yes, here is your humble Fair Housing Defense blog editor conducting a training session in late 2011. Now that is a face for the radio!

Just a Thought.

Restricted Breeds and Service Animals: How Should Management Evaluate These Requests?

Scott M. Badami — Thu, 05 Apr 2012 16:08:04 -0500

As aptly pointed out by Debra McGhee, the Director of the Baltimore Fair Housing and Equal Opportunity (FHEO) office, a related animal issue is how rules concerning restricted breeds for pets apply for service animals. The most recent guidance from FHEO is that the office does not believe that restricted breed pet rules apply to assistance animals. The logic here is the same as the reasoning that leads HUD to conclude that pet deposits don’t apply to assistance animals.

According to Ms. McGhee, while HUD and DOJ have yet to issue a “Joint Statement” specifically addressing assistance animals in housing, we might look to the Preamble to HUD’s Final Rule, “Pet Ownership for the Elderly and Persons With Disabilities [24 C.F.R. Part 5]”, which was published in the Federal Register on October 27, 2008 [see pages 63835-63837] for additional guidance when confronted with a restricted breed rule. Specifically, the Preamble guidance states that the Fair Housing Act’s “direct threat” analysis also applies to “reasonable accommodations” assessments of assistive animals:

“The determination of whether an assistance animal poses a direct threat must rely on an individualized assessment that is based on objective evidence about the specific animal in question, such as the animal’s current conduct or a recent history of overt acts. The assessment must consider nature, duration, and severity of the risk of injury; the probability that the potential injury will actually occur; and whether reasonable modifications of rules, policies, practices, procedures, or services will reduce the risk…..”

In practice, this means that management needs to carefully evaluate all service animal requests and not reflectively reject a request solely because the animal is on a restricted breed list.

Just A Thought.

Are Rental Roommates Covered Under the FHA?

Scott M. Badami — Tue, 27 Mar 2012 17:06:21 -0500

We here at the Fair Housing Defense blog have written many times that apartment owners and management cannot discriminate against an applicant because of his or her membership in a protected class. But what about a person who rents a property and, looking to share costs, seeks a roommate through an online advertisement? If a tenant seeking a roommate expresses a preference in an advertisement for a female roommate or a roommate without children, does that person violate the Fair Housing Act (FHA)? And what about the service who solicits information to create the advertisement and subsequently publishes the ad on behalf of the erstwhile roommate seeker? Those were exactly the questions addressed by the Ninth Circuit in the recently published Fair Housing Council of San Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216 (9th Cir. 2012).

In this case, the defendant operated an online service that assists individuals in locating roommates. The website required users to fill out a profile by answering questions regarding their sex, sexual orientation, familial status, and pet ownership. Users are specifically permitted to list their preference for roommate characteristics based on those categories. Two protected classes, of course, are sex and familial status. Also, in certain circumstances, landlords and property owners often have to make reasonable accommodations for people with, for example, service animals. In addition to the FHA, many state and local fair housing laws prevent discrimination against people based upon their sexual orientation. So, understandably, the online service's questionnaire raises some potential issues. But does it violate the FHA?

In this circumstance: No. The Ninth Circuit concluded that the roommate relationship is so personal and intimate that potential government interference with that relationship raises significant Constitution concerns, and is unwarranted. The Court reasoned that the roommate relationship falls under the ambit of the fundamental right of intimate association, which, necessarily, also includes the right not to associate. The Court extended to roommate selection the same level of Constitutional protection afforded to “marriage, child bearing, child rearing and cohabitation with relatives.” Our roommates, the Court reasoned, have unique access to every aspect of our personal home lives, and, we, likewise, have unfettered access to every aspect of theirs. We have a right, therefore, to select our roommates based upon our personal beliefs and opinions regarding things that may be offensive, dangerous, annoying, or otherwise incompatible with our own lifestyles. Extending the FHA anti-discrimination provisions to apply to the roommate relationship would permit the government to intrude into our homes, which are “entitled to special protection as the center of the private lives of our people.” Accordingly, it is perfectly reasonable for a woman to seek only female roommates, or for an orthodox Jew who may choose to keep a kosher home to seek only roommates who have the same beliefs as they do.

Ultimately, the Court held that the online service could not be held liable for collecting and publishing information related to the roommate selection process because the roommate selection process is not governed by the FHA.

The caveat here: this case provides guidance for renter's seeking roommates -- not management companies who are leasing apartment communities.

Just A Thought.

Article by Christian Moffitt.

A Few Comments on Balancing Religious Issues Under the Fair Housing Act

Scott M. Badami — Wed, 21 Mar 2012 08:55:16 -0500

I hesitate to post this entry. Two issues seem to spike the most interest: service animals and religion. But, I got this question yesterday. So, here I go again.

Dealing with religion in our fair housing world can be difficult because religious issues are so emotional. Management is required to balance the religious requests of all, while showing a preference to none. What might be benign to some can be perceived as offensive to others. HUD has made clear that while the Fair Housing Act (“FHA”) does not prohibit religious expression, all residents must be treated equally and without regard to their particular religion.

The FHA makes clear that management cannot publish any notice, statement, or advertisement with indicates a preference, limitation, or any type of discrimination based on religion. 42 U.S.C. 3604(c). Furthermore, the regulations prohibit management from engaging in “inherently religious activities” when participating in any activities funded by HUD. 24 C.F.R. 5.109(c). “Inherently religious activities” include worship, religious instruction, or proselytism. 24 C.F.R. 5.109(c). To be sure, this prohibition is tempered by the qualification that these types of “inherently religious activities” may be offered separately “in time or location” from the programs, activities, or services supported by HUD funds and that participation in these programs must be voluntary for the beneficiaries of the program. 24 C.F.R. 5.109(c). As such, we are tasked to protect the rights of those residents who wish to participate in certain activities as well as the rights of those residents who are of a different faith (or those who have no religion).

In 2006, HUD released a letter from its General Counsel’s office which concluded that offering a bible study that regularly meets in a property’s community room was permitted, provided that participation was strictly voluntary and the leasing office staff entertained/scheduled requests from residents without regard to their specific religion. Furthermore, these types of religious activities (along with other secular activities) may be publicized in the community newsletter. As a general rule, management should have no issue with this type of bible study and residents are welcome to schedule use of a community room for this purpose. Again, any community room should be open to all faiths (and those of no faith) to reserve and use for meetings.

That being said, if there is an “all tenant” meeting or something for the entire community that is sponsored by management, the issue is not quite as simple as there are likely going to be residents of multiple faiths who attend and the rights of all need to be addressed. In a circumstance such as this, I think the better practice is not to start with a specific prayer or other type of overt religious activity from one faith. Doing so could well be perceived as favoring one religion over another.

Just A Thought.

Missing One Important Reader

Scott M. Badami — Mon, 12 Mar 2012 16:34:32 -0500

When I started this Fair Housing Defense blog, I had no idea if anyone would actually read it. Well, that's not exactly true. I knew my Mom would read it. One of my early entries (okay, since you asked -- from October 23, 2009) noted that we have been Up and Running for a few months. And I gave my mother a "Hi Mom!" shout out. Of course, a couple of days later my Mom called, roaring with laughter and very excited that I mentioned her in my new blog.

Mom has since passed away. I did not write about it at the time she died, as I wanted to keep this professional. However, upon reflection, that may have been a mistake. While my Mom was my first (and most important) reader, I am gratified that so many of you read this space every month.

As such, while I am down one reader -- I will keep writing in her memory. And, if I might go off topic for a minute, for those of you with Mom's and Dad's still alive -- why not pick up the phone just to say hello right now? You will be glad you did.

Just A Thought.

A Service Animal Refresher

Scott M. Badami — Mon, 12 Mar 2012 16:17:22 -0500

One of the most popular topics here at the Fair Housing Defense blog has to do with animals -- and the difference between a pet and a service animal. As such, I thought this might be a good time for a short refresher. An assistance animal performs functions for an individual with a disability that help compensate for his or her disability. Under our fair housing laws, the terms "assistance animal," "emotional support animal," and "service animal" have the same meaning.

Generally, the criteria for a service animal is: (a) the person must have a disability; (b) the animal must serve a function directly related to the person’s disability; and (c) the animal must be necessary to allow the person to use and enjoy the housing.

Most people are familiar with dogs used by individuals who are blind. Similarly, signal dogs alert individuals with hearing impairments to sounds like smoke detector alarms and knocks at the door. Additionally, cats, dogs and many other kinds of animals can provide emotional support to individuals with mental disabilities, alleviating anxiety, depression, stress and other symptoms that can interfere with an individual’s ability to live independently. In a circumstance like this, it is necessary to demonstrate the relationship between an individual’s ability to function and the companionship of the animal. For example, an assistance animal offering psychological support to a person with post-traumatic stress disorder is equivalent to a caregiver providing housekeeping services to a person with a condition that limits mobility.

A couple of other points: A service animal does not require certification or any kind of special equipment or identification (although many suggest that a vest or other identification makes practical sense). Assistance animals are not pets under fair housing law and therefore a housing provider’s pet rules do not apply (in other words -- management cannot charge a pet fee for a service animal). That being said, if an assistance animal causes damage to an apartment beyond regular wear and tear, the resident will have to cover the damage out of the standard security deposit charged to everyone.

If you have a service animal, I recommend you make a reasonable accommodation request to your management office. While there is no requirement that the request be in writing, I believe it good practice to create a documented record. The same advice goes to management when responding to reasonable accommodation requests -- send it in writing and put a copy in the resident's file. Engaging in the interactive process works best for everyone and helps avoid needing to visit with a lawyer like me.

Just a thought.

A $20,000 Decision -- Is it a Pet or an Assistance Animal

Scott M. Badami — Tue, 28 Feb 2012 17:36:34 -0500

Do you know the difference between a pet and an emotional assistance animal? As an apartment management professional, you should. Or you might find yourself in a Fair Housing Act (FHA) lawsuit with the Department of Justice. That is what happened to a community in Utah which it was alleged refused to grant a reasonable accommodation request to a resident. In a case that settled earlier this week, the DOJ announced a $20,000 payment to the resident along with a consent decree that resolves a lawsuit alleging that a Park City, Utah condominium association and its management company violated the FHA by refusing to grant the resident’s request for a reasonable accommodation.

The action, filed on Nov. 21, 2011, in U.S. District Court for the District of Utah, alleged that the community and property manager refused to grant a reasonable accommodation request so that the resident, a disabled combat veteran of the first Gulf War, could keep a small dog in the condominium he rented to help him cope with the effects of depression and anxiety disorder. The lawsuit further alleged that the defendants refused to waive their pet fees and insurance requirements and issued multiple fines that eventually led to the non-renewal of the resident's lease.

Under the consent decree, the defendants will pay $20,000 in monetary damages as well as attend fair housing training, implement a new reasonable accommodation policy that does not charge pet fees to owners of service or assistance animals and does not require them to purchase liability insurance, in addition to extra notice, monitoring and reporting requirements.

The lawsuit arose as a result of a discrimination complaint filed by with HUD. After an investigation, HUD issued a charge of discrimination, and the defendants opted to have the case brought in U.S. District Court.

This case is another example that management must know the difference between a pet and a service animal. We must, of course, always evaluate and respond to requests for reasonable accommodations or reasonable modifications. And we need to get it right.

Just A Thought.

Welcome to the Fair Housing Defense Blog

Scott M. Badami — Wed, 22 Feb 2012 09:51:26 -0500

I have been defending housing discrimination cases for over 13 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. On balance, we always try to get it right.

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

Just A Thought

A Recent Familial Status Case: Management Did Not Really Do That -- Right?

Scott M. Badami — Mon, 13 Feb 2012 16:28:38 -0500

I have written any number of times about the perils of "familial status" discrimination. Again, in our Fair Housing Act (FHA) world, "familial status" means families with children (as well as women who are pregnant or someone preparing to adopt a child). Added to the FHA in 1988, "familial status" is a protected class and management must ensure that all covered housing is offered to families with children as appropriate. The consequences of not doing so can be expensive.

Admittedly an exceptional case with uncommon facts, just last week a jury in Fort Lauderdale, Florida awarded more than $1 million to seven families it found to have been wrongfully removed from their Florida homes because they had children living in the households. After a four-day trial, the jury awarded both compensatory and punitive damages.

The plaintiffs lived in Pelican Lake Village, a 117-unit apartment community in Pahokee, Florida. In late 2008, the Pelican Lake Village landlord and a prison ministry completed a deal under which the ministry agreed to lease the entire property and rent units to recently released sex offenders. After some discussions, the landlord and prison ministry simply began to force all of the families with children to move out.

The evidence at the trial revealed that in December, 2008, the landlord sent notices to the families stating that "IF YOU HAVE CHILDREN LIVING OR STAYING IN THE APARTMENT UNDER THE AGE OF 18 YEARS OLD, YOU WILL HAVE TO VACATE THE PROPERTY BEFORE JANUARY 1st, 2009." At the same time, the prison ministry employees knocked on families' doors instructing them to leave. Those efforts were successful -- but led to the filing of the instant lawsuit.

To be sure, most familial status complaints involve advertising which notes "Adults Only" or "College Students Preferred" as contrasted with specifically directing families to vacate. Nevertheless, this case is yet another reminder to management that we welcome families with children to our communities. If not, you might need to speak with a lawyer like me.

Just a Thought.

Some Comments on the Fair Housing Act and Advertising

Scott M. Badami — Sat, 04 Feb 2012 11:46:14 -0500

Earlier this week I got a question concerning how fair housing and advertising work together. Our Fair Housing Act (FHA) provides protection against discrimination based on race, color, national origin, religion, sex, familial status, and handicap. Specifically, section 804 of the FHA prohibits "… mak[ing], print[ing], publish[ing], or caus[ing] to be made, printed, or published any notice, statement, or advertisement, with respect to the sale rental of a dwelling that indicates any preference, limitation or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or any intention to make any such preference limitation or discrimination."

As such, the general rule is that all advertising of residential real estate for sale, rent, or financing should contain an equal housing opportunity logo, statement, or slogan as a means of educating anyone looking for a home that the property is available to all persons regardless of race, color, religion, sex, handicap, familial status, or national origin.

Advertising includes flyers, brochures, billboards, mailings, radio, television ads, newspapers and magazine ads, signs, business cards, as well as statements (i.e. word of mouth).

Certain types of phrases should absolutely be avoided as they could be read to indicate a preference (or exclusion) of one of the protected classes. For example, potentially offending phrases should not be used such as:

"Restricted, No Children, Singles Preferred, Catholic Church Nearby, Perfect For the Physically Fit, Hispanic Area, Prefer Bright and/or Healthy Person."

On the other hand, phrases that can be used in advertising include:

"Nice Residential Area, Parks Nearby, Gated Community, Nearby to Shopping, Close to Colleges."

Don't think fair housing testers are reviewing your ads? Think again. Particularly when management runs housing advertisements online -- it is easy to view and test if your ad potentially excludes one of the FHA protected classes. If you need the equal housing opportunity logo or statement or if you have a question about your ad, you might want to seek out a lawyer like me.

Just A Thought.

More On Criminal Background Screening and Reasonable Accommodation Requests

Scott M. Badami — Mon, 30 Jan 2012 09:53:16 -0500

As I have written before, it goes without saying that management should run a non-discriminatory criminal background and credit screening check on all of our applicants for housing. Doing so makes good business sense and helps ensure the safety of our residents as well as the management team.

What happens if an applicant has a criminal history as well as a disability? The applicant will state that he or she needs a reasonable accommodation because of that disability. In support of such an argument, tenant advocates will contend the Fair Housing Act (FHA) has been (or will be violated) if the reasonable accommodation request is denied based on a criminal record if the prior criminal activity was related to a disability.

At least one federal court has held that a landlord did not need to provide an accommodation in the application context where the housing denial was based on a facially neutral policy which rejected the applicant with a criminal record related to violent crime. See Evans v. UDR, Inc., No. 7:07-CV-136-FL, 2009 WL 1026724 (E.D.N.C. Mar. 24, 2009). The court concluded that the requested accommodation (in this case for a mentally disabled applicant who was denied an apartment) was not an issue in the case as the applicant was denied because of her criminal background. The FHA was found not to provide protection for those with a criminal history and that management had no obligation to make an exception because the applicant was also mentally disabled. In other words, the court noted that these are separate issues -- and the landlord has the right to have a “no criminal history policy.” On the other hand, because nothing is ever easy, a different court in Boston Hous. Auth. v. Bridgewaters, 452 Mass. 833 (2009), found that the resident was entitled to a reasonable accommodation after receiving an eviction notice based on a criminal history.

My usual advice in this situation is to develop and put in place a reasonable criminal background policy that you feel appropriate. What is important is to apply it across the board and not make exceptions. I am defending against a case right now involving these very issues. I will let you know how it turns out.

Just a Thought.

Should Management Draft A Reasonable Accommodation/Reasonable Modification Policy? Yes.

Scott M. Badami — Mon, 09 Jan 2012 17:53:20 -0500

As your Fair Housing Defense editor reviewed the articles our loyal readers sampled the most during 2011 -- it was clear that many of the most read posts had to do with reasonable accommodations and reasonable modifications as well as steps taken to ensure that residents/applicants with disabilities could have their needs met. I have written previously that in addition to an equal housing opportunity policy, management should draft a reasonable accommodation policy.

The purpose of a policy to address reasonable accommodation and reasonable modification requests is to make certain that requests from residents/applicants are appropriately addressed. Indeed, a number of years ago HUD published a notice mandating that owners of all HUD subsidized housing have a reasonable accommodations policy. I respectfully suggest, however, that it makes good sense for all property owners/managers have a policy to address reasonable accommodation and reasonable modification requests.

This type of policy will typically have two components. The first is the public statement of the company's priorities and intentions when working with applicants/residents with disabilities. This statement is similar to the fair housing policy statement, although it specifically addresses the needs of people with disabilities. For example: "Ownership/Management at ABC Apartments welcomes all to our community and we do not discriminate against individuals with disabilities. We offer an equal housing opportunity and provide accommodations to meet the needs of individuals with disabilities upon request, provided the accommodation/modification request is reasonable and feasible. Requests for reasonable accommodations or reasonable modifications should be submitted in writing to the community manager. Depending on the disability, the applicant/resident may need to provide some limited information from a medical/health care provider to verify the disability. Management will respond to the request in a timely manner."

The second component of a reasonable accommodations policy is a list of steps for management and the applicant/resident to follow in evaluating the accommodation request. Consistent use of this list will help ensure that each request is handled properly and consistently over time.

My next post will specifically address some of the issues that management may want to consider in developing a reasonable accommodation/reasonable modification policy.

Just A Thought.

Top Ten 2011 Fair Housing Defense Blog Posts

Scott M. Badami — Wed, 04 Jan 2012 10:43:00 -0500

With 2011 now in the books, your friendly Fair Housing Defense blogger thought this might be a good time to review the Top Ten most read of the 48 blog posts during the past year. Interestingly, they involve any number of items related to the Fair Housing Act and how management must comply with the law.

If you want to take a look at any of the most read entries, simply click on the above links. From your editor's perspective, I was caught by the fact that what you read most are my tips and suggestions about what to do (and what not to do) concerning fair housing compliance as opposed to simply reporting on cases. Let's see what I can do in 2012 to better meet those reader needs.

Just A Thought.

Additional Protections for Individuals With Disabilities

Scott M. Badami — Thu, 22 Dec 2011 15:09:22 -0500

A couple of questions have arisen concerning disabilities and the Fair Housing Act (FHA). As such, I thought this would be a good time to review some of the basics about reasonable accommodations and reasonable modifications.

To help ensure that individuals with disabilities have equal access to and enjoyment of their housing, the FHA provides residents/applicants with the right to request a reasonable accommodation or to make a reasonable modification.

A reasonable accommodation is a change to a rule, policy or procedure. Under the law, a person with a recognized disability has the right to request that a housing provider make a reasonable accommodation that will allow the person with a disability to have an equal enjoyment of housing. Examples of reasonable accommodations include, but are not limited to:

allowing a person with a service animal to live in an apartment with a “no pets” policy or to not charge a pet fee if the community permits animals;
providing a friendly note on the last day of the month to remind a person with a developmental disability that the rent is due the following day; or
providing a way to communicate with a resident who has a hearing impairment

The law does not give specific detail as to what types of accommodations are reasonable. In practice, it becomes a matter of judgment on behalf of both management and the resident/applicant. Indeed, there are many times when management and the resident absolutely agree on the appropriate accommodation.

In addition to a reasonable accommodation, a resident with a disability has the right to request a physical modification to his or her rental unit if it is necessary to allow the resident with an equal enjoyment of his or her housing. Examples of reasonable modifications include:

installation of a ramp;
installation of grab bars;
widening of doorways; or
lowering a mailbox;

In most cases (at conventional properties), the resident is responsible for the cost of the modifications made to the property and needs to ensure management that the work will be done properly and that any permits needed will be acquired. The tenant may be required to make payments into an escrow account to establish funds to remove the alteration, if indeed the change would interfere with the landlord’s or future tenant’s ability to enjoy the property. In affordable communities, the rule is usually reversed and management is required to pay for the modification, provided that the cost would not reflect a fundamental alteration in the housing program.

At least as important as the final decision on reasonable accommodation or modification requests is a requirement that management timely consider and respond to the request. I have seen any number of cases in which management's inaction causes more problems down the road. It is also my usual recommendation that management provide the resident with an interim letter indicating that we have received your request and the leasing office staff is reviewing it.

Just a thought.

Fair Housing Defense

A $2 Million Fair Housing Settlement? Yes -- Believed to Be the Largest on Record

Can An Apartment Community Advertise a "No Pets" Policy? Yes -- BUT Don't Forget About Service Animals

Familial Status and Designated Housing For Older Persons -- A Brief Guide

Please Do Not Attempt to Classify Your Pet As a Service Animal. Such Efforts Make Us All Look Bad.

Always Respond to Reasonable Accommodation/Modification Requests. Please.

Should You Really Do Fair Housing Training? Yes.

Restricted Breeds and Service Animals: How Should Management Evaluate These Requests?

Are Rental Roommates Covered Under the FHA?

A Few Comments on Balancing Religious Issues Under the Fair Housing Act

Missing One Important Reader

A Service Animal Refresher

A $20,000 Decision -- Is it a Pet or an Assistance Animal

Welcome to the Fair Housing Defense Blog

A Recent Familial Status Case: Management Did Not Really Do That -- Right?

Some Comments on the Fair Housing Act and Advertising

More On Criminal Background Screening and Reasonable Accommodation Requests

More on the Posting of Allegedly Racially Offensive Signs at a Community Pool

Should Management Draft A Reasonable Accommodation/Reasonable Modification Policy? Yes.

Top Ten 2011 Fair Housing Defense Blog Posts

Additional Protections for Individuals With Disabilities