In my last post, I discussed the Department of Housing and Urban Development’s (“HUD”) Rule 100.600 (the “Rule”), published by HUD last September.  In the post, I focused on that Rule’s prohibition of hostile environment harassment, and in my humble opinion, I believe that aspect of the Rule created a standard of liability that may come as a surprise to many landlords.  The Rule also contained another important aspect, prohibition quid pro quo harassment, which I will focus on in this post.

So what is quid pro quo harassment?  The official definition per HUD Rule Section 100.600(A)(1) is an “unwelcome request or demand to engage in conduct where submission to the request or demand, either explicitly or implicitly, is made a condition related to: The sale, rental or availability of a dwelling; the terms, conditions, or privileges of the sale or rental, or the provision of services or facilities in connection therewith; or the availability, terms, or conditions of a residential real estate-related transaction.”  And what does that mean in plain English?  Essentially, as a landlord, you cannot condition the availability of any of your normal services, practices, or policies—or the availability or rental terms of the unit itself—on the resident or prospect engaging in certain conduct.  As a couple of obvious examples, you (or your employees) cannot condition a maintenance request on a resident performing sexual favors, nor can you condition the availability of an apartment on a prospect performing sexual favors.

Similarly to hostile environment harassment, as a landlord you need to ensure that you and your employees are not engaging in any type of quid pro quo harassment.  Common sense, right?  But you also need to make sure that your residents are not engaging in this type of behavior, because you (as a landlord) can be directly liable if you know (or should have known) of the harassment and fail to take prompt action to stop it.

So what’s the bottom line?  Well, this part of HUD Rule 100.600 seems pretty intuitive, and I feel pretty confident that most landlords know that they should not be engaging in this type of behavior. I would, however, advise that you need to act quickly to stop this behavior if you are aware of occurrences between residents.  I stated this in my last post, but it bears repeating—simply put, always act promptly to stop harassment, wherever and whenever it occurs.

It occurred to me recently that I have been remiss in not writing about a very important rule that the Department of Housing and Urban Development (HUD) published last September.  HUD Rule 100.600 profoundly impacts landlords in two primary ways: 1) it creates liability for landlords who fail to take action to correct a hostile environment; and 2) it prohibits “quid pro quo” harassment.  This blog post will focus on the first prohibition, hostile environment harassment.  In a subsequent post, I will address “quid pro quo” harassment.

HUD Rule Section 100.600(A)(2) defines hostile environment harassment as “unwelcome conduct that is sufficiently severe or pervasive to interfere with the availability, sale, rental, or use or enjoyment of a dwelling; the terms, conditions, or privileges of the sale or rental, or the provision or enjoyment of services or facilities in connection with the sale or rental; or the availability, terms, or conditions of a residential real estate-related transaction.”  In other words, the Rule acts to prohibit harassment or bullying based on a protected characteristic.  Whether hostile environment harassment exists depends on the totality of the circumstances, looking at factors such as “the nature of the conduct, the context in which the incident(s) occurred, the severity, scope, frequency, duration, and location of the conduct, and the relationships of the persons involved.”  Basically, in determining whether hostile environment harassment has occurred, a court will review the foregoing factors from the standpoint of a “reasonable” person in the aggrieved person’s position.  Hopefully, a review of these factors will help to distinguish minor disagreements between individuals from actual harassment.

Obviously, as a landlord, you need to ensure that your employees are not creating a hostile environment for any of the residents.  But do you need to care if one resident is harassing another resident? Yes. Yes you do.  Under the new rule, you as the landlord can be directly liable for resident-on-resident harassment if you knew (or should have known) of the harassment and you fail to take prompt action to end the harassment.  So, if an employee of a management company knows that one resident is harassing another resident and the management company fails to take corrective action, then the management company will be liable under the new HUD rule (presuming, of course, that the management company has the authority to stop the harassment).

Interestingly enough, and following a theme that I wrote about earlier, HUD also stated in the preamble to the rule it “reaffirms its view that under the Fair Housing Act, discrimination based on gender identity is sex discrimination. Accordingly, quid pro quo or hostile environment harassment in housing because of a person’s gender identity is indistinguishable from harassment because of sex.”

So what’s the bottom line?  Well, in all honesty, it is probably common sense.  Landlords and management companies should act promptly to stop any and all harassment on the property, whether it is committed by one of their employees, or by a resident.  Simply put, always act promptly to stop harassment, wherever and whenever it occurs.

I received a fair housing complaint the other day, and it surprised me because of its interesting use of gender discrimination. The complaint alleged that the resident was being discriminated against by the landlord because he identified as a transgender male.  I wondered if this person was even protected under the Fair Housing Act (FHA) because of his identification, so I decided to do a little research.

It appears as if the vast majority of courts have yet to hear cases concerning this issue–however, one federal judge in Colorado recently held that the FHA protects all LGBT individuals, including those who identify as transgender individuals (see Order).

As you are probably aware, the FHA prohibits discrimination based on national origin, familial status, and sex, but does not specifically mention sexual orientation or gender identification.  Since the FHA does not address this issue, the Colorado court reviewed employment cases and statutes to give guidance.  In these employment cases, the court held that sex stereotyping is a prohibited form of discrimination.  The Colorado judge in that case held that discrimination based on gender identity is akin to discrimination based on sex stereotyping; therefore, this type of discrimination is prohibited under the FHA.  The court concluded that gender identification is included in the FHA’s prohibition of discrimination based upon “sex.”

While this is the opinion of just one judge in Colorado, I am confident this will be the national trend.  The FHA is intended to be broad to protect all individuals from being discriminated against for any number of personal characteristics that are completely unrelated from their ability to be a good tenant.  Courts will (and should) continue to interpret the FHA in this manner.  As always, encourage your employees in the leasing office to be courteous and respectful to all individuals, and to treat everyone fairly and equally.  Not only will this avoid unnecessary FHA complaints, but will promote a positive reputation for your company and help improve societal relationships on an even greater scale than your leasing office.

As I have written about before, the rules regarding permissible inquiries in response to a Fair Housing Act accommodation request are complex and fraught with danger. Given this complexity, many housing providers are inclined to simply grant any accommodation request made by a resident with an apparent disability (such as a resident in a wheelchair).

Which leads me to an interesting scenario I heard about recently.  A resident’s ferret had gotten loose on the property and was terrorizing the neighbors.  I was understandably confused, given that I did not think that this particular apartment complex allowed ferrets (in light of their obvious man-eating propensities).  It turns out that this particular resident was in a wheelchair, and the landlord, despite the property’s policy strictly prohibiting ferrets, simply allowed him to have the ferret because the disabled resident requested it (without asking any further questions).

Accordingly, as a public service announcement, I wanted to remind everyone that there still must be a connection, or nexus, between a resident’s disability and the requested accommodation.  And if that connection is not obvious, you are permitted to request information verifying the disability-related need for the accommodation.  It’s only when the disability or the disability-related need is apparent that you are not allowed to request additional information (it makes sense if you think about—if you can plainly see it, there is no need for additional documentation regarding it).

So, if a resident with a vision impairment requests what is clearly a seeing eye dog, you should not request any further information.  But if a resident in a wheelchair requests that you allow him or her to have a ferret, you will probably want to ask for documentation verifying that there is a disability-related need for that ferret.

Part II: Applying Multiple Laws in Certain Areas of the Property

As discussed in the first part of this blog series, there are certain areas of a multifamily apartment community where both the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA) apply.  Our last blog post focused on applying the ADA at those areas.  In this post, we will provide guidance on how to simultaneously apply both the FHA and ADA (with specific regard to animals).

As I mentioned previously, the Department of Justice (DOJ) has defined “service animal” under the ADA narrowly to only include dogs, and to specifically exclude emotional support animals.  Accordingly, when you are applying the ADA analysis at a public area of the property (such as the leasing office), only a dog can be considered a service animal.  The DOJ has also made clear, however, that housing providers may not use its definition of a service animal as a justification for reducing their FHA obligations, and that the revised ADA regulations do not change the reasonable accommodation analysis under the FHA.  And, as you know from my previous blog posts, unlike the ADA the FHA places no limits on what type of animal can serve as an assistance animal—nor does the FHA require that the animal receive any type of formal training.

Specifically, and as we have discussed several times before, under the FHA an individual with a disability has the right to have an assistance animal other than a dog if the animal qualifies as a necessary reasonable accommodation.  But, the good news for landlords is that they are permitted under the FHA to make more detailed inquiries to individuals with non-obvious disabilities who request reasonable accommodations.  In other words, the scope of questions that you can ask to verify the need for the animal under the FHA is much broader than it is under the ADA.

As such, you can see that there is a tension arising in matters where both the ADA and the FHA apply—such as situations involving animals and prospective tenants in the leasing office.   For example, if a prospect comes into a pet-free leasing office with an animal, are you allowed to make the detailed inquiries permitted under the FHA, or are you limited to the basic questions allowed under the ADA?

My advice, in situations where both the ADA and the FHA apply, is to apply the (stricter) ADA service animal test first.  To piggyback on the first part of this blog series and use the leasing office as an example, in a situation where an animal meets the ADA’s test for a service animal (a dog that is individually trained to do work or perform tasks), the animal must be permitted in the leasing office unless (1) the animal is out of control and its handler does not take effective action to control it; (2) the animal is not housebroken; or (3) the animal poses a direct threat to the health or safety of others.   If the animal does not meet the ADA’s service animal test, then the landlord should use the reasonable accommodation analysis under the FHA.  As a reminder, for non-obvious disabilities, a landlord is permitted under the FHA to require the individual to provide information that: (1) is necessary to verify that the individual meets the FHA’s definition of “disability” (substantially limits one or more major life activities); (2) describes the needed accommodation; and (3) shows the relationship between the individual’s disability and the need for the requested accommodation.  If there is sufficient verification of a disability and a disability-related need for the animal, then the prospect must be permitted to have the animal.

To put the interplay between the ADA and the FHA into perspective, you could hypothetically encounter a situation where a prospective tenant’s request to have a dog accompany him or her into a pet-free leasing office is denied under the ADA analysis because the dog is an emotional support animal, but permitted under the FHA because you have determined that there is a connection between the disability and the support the animal provides.

 

 

Part I:  Assistance Animals Under The ADA

As I wrote about recently, while the Fair Housing Act (FHA) applies to virtually all areas of a multifamily apartment community, the Americans with Disabilities Act (ADA) only applies to areas of the community open to the public—including, most notably, the leasing office.  Accordingly, all aspects of the ADA—including its provisions on service animals—apply to the leasing office.  And, generally speaking, most leasing offices that I’m familiar with do not allow animals.  In this blog post, I will provide guidance on how to deal with service animals under the ADA at the leasing office (or any other area of the property open to the public).  In Part Two, I will give an overview of how to apply both the FHA and ADA in areas of the property where both Acts apply.

The distinction between the FHA and the ADA—and the fact that the ADA applies to only a small area of the property—is important because the Department of Justice’s definition of service animal under the ADA includes only dogs, and specifically excludes emotional support animals.  For purposes of the ADA, “service animal” is defined narrowly as any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability.  The DOJ regulations specify that the “provision of emotional support, well-being, comfort, or companionship do not constitute work or task for purposes of [the definition of the service animal].”  Thus, under the DOJ regulations, trained dogs are the only species of animal that may qualify as service animals under the ADA (note that there is a separate provision regarding miniature horses) and emotional support animals are expressly precluded from qualifying as service animals under the ADA.

It is also extremely important to note that under the ADA, you may only ask: (1) Is this a service animal that is required because of a disability; and (2) What work or tasks has the animal been trained to perform? These are the only two inquiries that an ADA-covered facility may make, even when the disability is not readily apparent—in fact, the foregoing inquiries may not be made when it is obvious that the animal is trained to do work or perform tasks for an individual with a disability (e.g., the dog is observed guiding an individual who is blind or who has low vision).  Furthermore, an ADA-covered facility may not require documentation concerning the animal, such as proof that the animal has been certified, trained, or licensed as a service animal.

So, the bottom line is that if a prospect with a service dog enters the leasing office, you may only ask the two questions above, and you may only ask those questions if and only if the disability is non-apparent.  Obviously, this is very different from what you are permitted to ask under the Fair Housing Act, and it presents a conundrum in an area of the property where both Acts apply simultaneously.  Accordingly, in Part Two of this blog post, I will provide some guidance on how to proceed with service animals and assistance animals at the leasing office.

I had an interesting situation come up just the other day—a resident at an apartment community claimed that the community pool was violating housing discrimination laws by not being fully accessible to individuals with disabilities.  Obviously, any time a resident threatens a property with being “out of compliance with housing laws,” my heart rate jumps considerably.  However, it turns out that this situation stemmed from a common misconception regarding the separate requirements of the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA).

The question at issue was whether an apartment community pool was required to have a “pool lift.”  The particular resident was alleging that, because the complex did not have a pool lift, the property was not in compliance with the ADA.  The fact of the matter, however, is that the ADA only applies to the areas of the apartment community that are open to the general public—which is typically only a select few areas of the property.  But here, whether or not the ADA is applicable is extremely important because, to the extent that the ADA applies, your pool must have either a pool lift or a sloped entry (although, as a caveat, the rules regarding your obligations are slightly different depending on when your pool was built).  And while the Fair Housing Act Design and Construction Guidelines require that the area around the pool be accessible, there is no set requirement for access into the pool itself (only to the edge).

So how do you know whether the ADA applies to your pool?  Well, ask yourself—is the public allowed to use the pool?  Or is it restricted to the property’s residents?  To the extent that the pool is solely for the use of the residents, then it is a pretty safe bet that the ADA does not apply.  But if you allow the general public to use the pool, or if you sell pool memberships to the general public, then there is a good chance that the ADA does apply.  So how about all of the gray areas, like allowing guests at the pool, or permitting the local high school to host swim meets at the pool?  Unfortunately, like most issues with the ADA and the FHA, there is no clear rule and the safest course of action is to contact an attorney.

One question that I get asked frequently is “When is a claim under the Fair Housing Act barred?”  In other words, how long does an individual have under the Fair Housing Act to make a claim before that claim is barred by the statute of limitations?  Like most topics involving the Fair Housing Act, the answer depends on a few factors.

So let’s pretend that you have a resident threatening to bring a discrimination claim against you for an act that occurred last year.  Are you in the clear?  Well, the answer depends first on who the resident intends to file the complaint with.  The deadline to file a fair housing complaint with an administrative agency (such as the Department of Housing and Urban Development (HUD)) is one year from the date of the last discriminatory act.  If the resident seeks to file in federal or state court, the general rule is that it’s two years after the last date of discrimination occurred—but that period is tolled for any period when HUD was investigating the claim.

Here is an example of the interplay between the two deadlines.  Let’s assume that an alleged discriminatory act occurred on July 1, 2016 and the resident filed a complaint with HUD on September 1, 2016.  The resident is in the clear, because he or she filed with an administrative agency within one year of the discriminatory act.  Let’s further assume that the local fair housing agency investigated the matter (if a particular state’s fair housing act is substantially similar to the federal Fair Housing Act, HUD typically has the local fair housing agency conduct the investigation), and issued a determination of no discrimination on January 1, 2017 (congratulations!).  The deadline for the resident/complainant to file in federal or state court is tolled for the four months that the local fair housing agency investigated the claim, making the new deadline to file November 1, 2018.

As usual, there is not one set answer; however, based on where the resident chooses to file, we are given a statute of limitations to follow.

A recent U.S. Department of Housing and Urban Development (HUD) case caught my eye earlier this week, and made me realize that there was still some confusion over the distinction between “service animals” and “emotional support animals.”  To simplify matters, I generally advise my multifamily management and owner clients that, for purposes of the Fair Housing Act, there is no need to get bogged down in the nomenclature unnecessarily—just lump them all under the category of “assistance animals,” and follow your standard fair housing protocol.

It was a case out of Oklahoma that got me thinking about this issue.  HUD filed a Charge of Discrimination against the landlords of a rental property, alleging that they violated the Fair Housing Act by refusing to waive a $250 pet fee for an emotional support animal.  Based on the facts in the Charge, a veteran with PTSD apparently made a reasonable accommodation request for the landlords to waive the pet fee for his emotional support animal.  Although no details about the doctor’s letter were given, it appears that it was likely sufficient for the request.  However, the landlords seemed to be operating under the belief that pet fees only needed to be waived for service animals, and not emotional support animals.  Even though the complainant provided the landlords with multiple sources to the contrary, the landlords continued to refuse to waive the pet fee for the emotional support animal.

HUD has made it pretty clear that it believes that pet fees must be waived for both service animals and emotional support animals under the Fair Housing Act.  In fact, for purposes of the Fair Housing Act, HUD lumps emotional support animals, therapy/companion animals, and service animals under the umbrella term of “assistance animals.”  And HUD has explicitly stated that assistance animals under the Fair Housing Act are not required to have any individual training or certification (contrast this with the Americans with Disabilities Act, which requires that a service animal be a trained dog–or, oddly enough, a miniature horse).

So, the bottom-line for housing providers is that you should not be too focused on labels when you are considering an accommodation request for an assistance animal.  Simply stick to your standard procedures, and require verification where the disability and/or the disability-related need is not apparent — in fact, this is likely the one instance where the distinction between a service animal and an emotional support animal is relevant, since the disability and disability-related need for a service animal is likely to be more apparent (see my prior blog post “The Do’s and Don’ts of verifying RA Requests”).

And for Pete’s sake, unless you really have an ax to grind with HUD, do not charge a pet fee for any approved assistance animal!

In my recent blog post, I discussed the often overlooked design and construction requirements of the Fair Housing Act.  In sum, if you are an owner or manager of a property “built for first occupancy” after March 13, 1991, you need to be aware that you are subject to a series of mandated accessibility requirements.   However, following that blog post, a number of people have asked the same (very good) question—what does it mean to be “built for first occupancy” after March 13, 1991?

The good news is that, as with most Fair Housing related issues, HUD has given some pretty good guidance on this question.  Broadly speaking though, it is important to bear in mind that the determination of first occupancy is made on a case by case basis.  Which means, of course, that if you own or manage a property that was built in or around 1991, you may have some buildings on the property that are covered by the Fair Housing Act Design and Construction Guidelines, and some that are not.

HUD has made clear that “covered multifamily dwellings” (see blog for a discussion of what a covered multifamily dwelling is) will be considered to be designed and constructed on or before March 13, 1991 (and exempt from the Act’s design and construction requirements) if the last building permit (or renewal) for the covered units is issued by the State, county, or local government on or before June 15, 1990.

So if you did not obtain the final building permit on or before June 15, 1990, are you out of luck?  Not necessarily.  You can also prove the date of first occupancy was on or before March 13, 1991 by: (1) a certificate of occupancy; and (2) a showing that at least one unit in the building was actually occupied by March 13, 1991.  This means that a resident has signed a lease and has taken possession of the unit.  Note that the resident does not actually have to physically move into the unit on or before March 13, 1991, but it does mean that the resident could have taken possession, if desired.   And did you catch the “and” in the proof requirements?  That means that you cannot simply rely on a certificate of occupancy alone—you need to show both the certificate of occupancy and proof of actual occupancy.