Of all the potential violations of fair housing law, the one that gives me the most heartburn—and occasionally wakes me up at night in a cold sweat—is a violation of the design and construction guidelines of the Fair Housing Amendments Act (FHAA).  Why am I so worried about that particular violation?  Well, because—as I have written about before—the potential liability for housing providers from a design and construction violation can be catastrophic.

Which is why a recent charge from the Department of Housing and Urban Development (HUD) alleging discrimination against a New York developer, owner, construction company, and architect (yes, HUD really ran the gamut there) caught my attention.  As everyone knows by now (right?), the FHAA requires that multifamily housing built after 1991 contain accessibility features for people with disabilities (known as the design and construction requirements).   In its charge, HUD has alleged that the (very prominent) developer, construction company, owner, and their architect violated the FHAA by failing to provide safe and accessible routes that persons with disabilities (and others) could use to travel between their units and common areas.  HUD also alleges that there were widespread violations inside the units, such as inaccessible doors, bathrooms, kitchens, and environmental controls.  If these allegations are found to have merit, not only can the complainant be awarded damages, the judge can also order retrofits, civil penalties, and other injunctive or equitable relief.  Now that’s enough to give anyone heartburn!

So what’s the bottom line?  First off, you should know that, generally speaking, if you are involved with the design and construction process for developing or building multifamily housing, you can be held liable for a design and construction violation of the FHAA (just look at all the parties named in this charge).  Second, as referenced above, the remedy for a design and construction violation can be a judicial order to correct the deficiencies—and, as you can imagine, the cost to correct the deficient construction can be stratospheric.  So make sure it is done right the first time!

 

Looking at the Fair Housing Act from today’s perspective, it seems like simple common sense—of course we don’t want to be discriminatory in our housing practices.  So why is the 50th birthday of the FHA such a big deal?  In order celebrate the passage of the Fair Housing Act in 1968, I thought I would take a look back at both the immediate context surrounding the enactment of this legislation, as well as the history of the Fair Housing Administration.

The Fair Housing Administration was created in 1934 to help regulate interest rates and mortgage terms so people could afford housing following the great depression and banking crisis of the 1930’s.  Sounds like a great opportunity for homeownership, right?  Unfortunately, the Underwriting Manual, created in 1936 for the association, severely inhibited the rights of homeownership based on personal characteristics—namely race.  In fact, the Underwriting Manual stated that deed restrictions could and should include a “prohibition of the occupancy of properties except by the race for which they are intended.” The application of this is a process known as “redlining,” where certain minorities would be refused mortgages in specific neighborhoods in order to preserve the “devaluation” of neighborhoods.

Now fast forward to the 1960’s. Common practices and beliefs were beginning to be challenged.  Pressure for change was mounting, and racial tensions and riots erupted all over the nation.  In 1967, President Johnson appointed the Kerner Commission to investigate the source of these riots.  The subsequent report highlighted frustration surrounding unfair housing practices, but no action was taken.

It was not until the assassination of Martin Luther King Jr. on April 4, 1968, that the Fair Housing Act gained the needed momentum to be enacted.  As it turns out, King’s death actually brought to life the Fair Housing Act, adding to his enormous legacy.  A mere seven days after his assassination, the Act was passed, after languishing in Congress for several years.  Originally, the Act prohibited discrimination in the sale, rental and financing of swellings based on race, color, religion, or national origin.  The Act was amended in 1974, adding “sex” as a protected class, and further amended in 1984 to protect “familial status” and “disability” as well.

And the bottom line?  The 50th birthday of the Fair Housing Act is cause for great celebration, as it represents and embodies the culmination of work pioneered by King and the Civil Rights Movement of the 1960’s as well as a commitment to working towards equal housing opportunities for all.

Ok, so I know I have written about this several times before.  But apparently some people still haven’t gotten the message.  So, one more time for the record—as a landlord, you cannot restrict the number of children at your property!  Just don’t do it!

This issue hit my radar after I saw a recent Charge of Discrimination from The Department of Housing and Urban Development (HUD).   So what was the problem?  Well, apparently there was a property management company in Alabama that purportedly had a policy against renting to families with more than two minor children.   The issue was uncovered and reported to HUD after the Center for Fair Housing conducted testing on the property management company, which revealed that the property management company refused to rent to testers who claimed to have more than two minor children—even when the rental homes at issue had three or more bedrooms.

So what’s the bottom line?  This is an easy one—unless you fall under a certain exception (e.g., housing for older persons), make sure that your policies do not in any way impede individuals with children from renting.

It’s summertime and everyone is headed to the pool – can my assistance animal join me?  Well, before I can answer that, I have a couple of questions for you:  1) is your pool private or is it open to the public; and 2) do you have a service or emotional support animal?

So to begin, let’s tackle the scenarios regarding a pool that is open to the public. As I have discussed at length before, areas that are open to the public fall under the Americans with Disabilities Act (ADA).  And according to the ADA, service animals (defined as dogs that are trained to do work or perform tasks for people with disabilities) must be allowed to accompany people with disabilities in all areas of the facility where the public is permitted to go.  However, an emotional support animal does not qualify as a service animal.  So if you are going to your public community pool, your service dog may come with you, but your emotional support pig must stay at home in the air conditioning.

Now, let’s take a look at a private pool that is only open to the residents and their guests; therefore, falling under the Fair Housing Act (FHA).  The FHA has a broader definition for assistance animals, which includes animals that provide emotional support.  And unlike the ADA, the FHA has no restriction on what type of animal can serve as an assistance animal, only that the resident has a disability and a disability-related need for the animal.  So in this case, your assistance animal can lounge by the pool with you.

I’ve got one more example for you (just to make you scratch your head).  Let’s say your private apartment community has a swimming pool for the residents, but also sells memberships to the public for the use of the pool.  In this instance, both the ADA and the FHA apply.  Hence, a person who purchased a membership may bring their service dog, but not their emotional support animal.  However, a resident is permitted to bring either their service dog or their emotional support animal along with them to the pool.

So what’s the bottom line?  Well, generally speaking, the first question should always be whether the pool is private or open to the general public.  The answer to that question will dictate what animals are allowed at the pool.  And I hope it goes without saying, but just in case, local public health rules likely prohibit service dogs or emotional support animals in swimming pools.  Your assistance animal can hang out with you on the pool deck, but cannot take a dip!

As if keeping the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA) straight wasn’t difficult enough, my practice also involves a horse of a different color—the Air Carrier Access Act (ACAA).  So I thought I would take a break from my usual topics and address the elephant in the room—the recent airline incident involving an emotional support peacock that was denied access to a flight at Newark Liberty International Airport.  This story has really taken flight since it was first reported, sparking a firestorm of questions surrounding the limitations and qualifications of assistance animals.

The principal question that I have been asked the most is, what exactly constitutes an assistance animal?  That is a valid question—and it depends on whom, or which law, more specifically, you ask.  The FHA is my bread and butter, so let’s tackle that one first.  Under the FHA, an assistance animal is defined as “an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more symptoms or effects of a person’s disability.”  The FHA includes emotional support animals in its definition of assistance animals in order to deal with a broader scope of disabilities.  Contrast this from the ADA, which applies to businesses and areas generally open to the public.  The ADA has the most stringent of definitions, dealing only with service animals, and defining them as “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability.”  Under the ADA, emotional support animals are not recognized as service animals, and only dogs (and miniature horses, for those keeping score at home) qualify as service animals.

Now you might be thinking, wouldn’t the situation at issue fall under the ADA since the airport is a public place?  As it turns out, you would be partially correct—while the ADA applies to the airport building itself (including the lobbies, security areas, terminals, etc.), the actual airplanes themselves are subject to the ACAA.  The ACAA defines assistance animals as, “any animal that is individually trained or able to provide assistance to a qualified person with a disability; or any animal shown by documentation to be necessary for the emotional well-being of a passenger.”  As you can see, this definition is very similar to the FHA and, therefore, emotional support animals are allowed under the ACAA.  However, the caveat to this rule is that if the animal “would pose a direct threat to the health and safety of others[,]” then the airline has the right to deny that animal access to the flight.

So what’s the bottom line?  Airlines need to be more inclusive of exotic animals?  Pride can only get you so far? I need to stop squeezing in as many bird/animal puns as I can find? All of these might be true, but the main takeaway is this—it is important to know not only when these laws have jurisdiction, but also what accommodations they provide in regards to assistance animals.

As a fair housing attorney, I often field the question, “What can I do to avoid having a complaint filed against me?”  Avoiding complaints seems like a pretty obvious and sensible goal, right? While the goal may be straightforward, the execution is often anything but.  Dealing with the Fair Housing Act is inherently difficult due to its complexity and complicated nature.  Although there is no magical formula to avoid claims altogether, I do have one hard and fast rule I abide by when dealing with the FHA—have written policies, and make sure you apply them uniformly.  (So technically I guess that is two hard and fast rules, but they go hand in hand).

One of the biggest—and most overlooked—areas to have clear and consistent procedures in place is with regard to reasonable accommodation or modification requests.  Part of my practice actually involves serving as a clearing house for accommodation/modification requests for property management companies.  In order to streamline this process and ensure that all requests are handled fairly, I have developed templates for various common scenarios that property managers can utilize in documenting accommodation and modification requests—and, in fact, I highly recommend that all property management companies and landlords do the same.

For example, when a resident requests an accommodation for their assistance animal, I recommend that the community manager provide them with a template reasonable accommodation/modification form (which we have developed for our clients).  These forms make each resident aware of the property policies as well as ensuring proper documentation is received.  However, one important caveat to note is that you cannot require that a resident or prospective reside use your template form.  If a resident or prospective resident chooses to bring in a letter from his or her medical provider or any other legitimate documentation, you do have to accept that documentation for review.

Once you have developed a comprehensive system that suits your needs, it is IMPERATIVE that you are uniform and consistent in the application of your policies. Although you may be tempted to bend the rules for that one sweet, elderly lady who has rented from you for thirty years or make an exception for the resident’s adorable puppy even though they have not filled out the verification form, you must stand firm.   Your firm policies and uniform application will be your defense if a fair housing complaint is filed.

So what’s the bottom line?  Although drafting and enforcing written policies can be work-intensive on the front side, complaining about drafting comprehensive policies beats dealing with numerous complaints filed against you in the future.  Not only will this golden rule make your life easier in the long run by keeping you organized and honest, it can also help avoid costly complaints and settlements.  Bottom line, consistency is key.

Although I have written about it a few times before (quid pro quo and hostile environment), given the current cultural climate I definitely feel that it bears repeating—sexual harassment touches all aspects of life, including the workplace, and should be treated seriously.  The prevalence and popularity of sexual harassment cases in the news makes this issue especially pertinent for landlords, as seen by the hefty $600,000 Department of Justice settlement highlighted in my previous post.  Therefore, property managers and landlords need to be hyper-vigilant about ensuring that it is not occurring at their communities or with their employees.

To review, HUD has issued regulations that explicitly prohibit both quid pro quo harassment and hostile environment.  Obviously, this means that landlords and property management companies need to avoid making normal services, practices, or policies contingent on the resident or prospective resident engaging in certain behavior.  However, it also means that landlords and property management companies must ensure that their employees and residents are not creating a hostile environment at the properties.

So what’s the bottom line?  Well, even though I’ve written about it extensively, it cannot be overstated—it is the duty of a landlord and management company to take proactive steps to stamp out sexual harassment both in the workplace and at their properties.

Advertisements for apartment complexes and rental properties are virtually impossible to miss as you drive along any busy street or highway.  They have brightly colored signs boasting “granite countertops,” “saltwater pools,” and even “two story gyms.”  But have you ever seen a sign that read “no families allowed” or “kid free apartments?”  Odds are that you have not, and as I have written about before, you have the Fair Housing Act to thank (or blame, depending on how you feel about children) for that due to its inclusion of familial status as a protected class.

A recent example of familial discrimination surfaced in a small Pennsylvania town via Craigslist, when the owner of two apartment complexes repeatedly posted ads unwelcoming to families, with one ad explicitly stating, “Not suitable for children/pets.” After seeing that ad, the local fair housing organization conducted testing.  When a single male tester with no kids came to look at the apartment, he was assured the unit would be available within the week.  However, when a test family arrived (consisting of a man, a pregnant woman, and a young child), they were outright denied the ability to even view the unit with the owner stating “it wouldn’t work for either of us.”  In this case, the familial status discrimination was pretty obvious, and the owner is now facing a discrimination charge based on the testing results.

Although the blatant signs excluding children and families are few and far between, familial status discrimination still appears in more subtle, insidious ways.  For example, an apartment complex marketing itself as “an upscale, adult community” not only runs the risk of sounding like a bad nightclub, but also violates the Fair Housing Act by creating exclusive language that harms families and children.  Similarly, an apartment complex that only shows families the units available in the building closest to the playground may be guilty of familial status discrimination.  Another example is a pregnant woman who, while touring an apartment complex, is asked multiple questions about her pregnancy and steered towards apartments larger than she can afford because she is expecting a child and “will need more space.”

So what’s the bottom line? There are a couple of key take-aways regarding the do’s and don’ts of dealing with families and children.  I think most people already know this one, but it bears repeating – asking women if they are pregnant is always a bad idea.  Second, double check your advertising techniques to ensure the language is inclusive towards families and children.  Third, owners cannot create policies that specifically target only children and teenagers.  This does not mean that you have to let children run amuck, but it does mean that your policies used to limit/control behavior must be universal in nature.  In short, as with all aspects of the Fair Housing Act, make sure that your apartment complex is an inclusive as possible.

Frequent readers of this blog know that the Fair Housing Act exists in large part to prohibit discrimination against individuals based on their physical appearance (race, gender, national origin, etc.).  However, did you know that you cannot discriminate against assistance animals based on appearance either?  A recent charge by the Department of Housing and Urban Development (HUD) accused one landlord of doing just that.

The landlord found itself in the doghouse with HUD after denying a resident the right to keep his assistance animal at the apartment complex.  The resident, a veteran who served tours in both Iraq and Afghanistan, submitted a request to allow his assistance animal—a Great Dane/Labrador Retriever mix—at the property.  Not only did the landlord deny the request (which included proper documentation both for the animal and the resident’s disability) they went so far as to “strongly suggest you consider a cat for your service animal” (Spoiler alert- dog lovers are not the only ones who took offense to this gross injustice).  When the resident refused to adopt a new assistance animal that fell within the 12 pound weight limit, the landlord filed an eviction action against the resident.  Although the eviction charge was dropped, the resident suffered “physical and emotional distress, inconvenience and frustration” and left the apartment complex shortly thereafter.

In response, HUD found cause against the landlord for three distinct violations of the Fair Housing Act: 1) making housing unavailable when they sought to evict the resident for his assistance animal; 2) refusing to afford an accommodation necessary for equal enjoyment and use of the dwelling; and 3) enforcing “arbitrary, unnecessary, and unlawful restrictions on the weight and type of support animal.”

So what’s the bottom line?  That it’s futile to try to convert a dog lover?  That cats are superior assistance animals?  While HUD did not definitively opine on the great dog versus cat debate, they did make clear that landlords are explicitly prohibited from excluding assistance animals based on breed and/or weight restrictions.  Bottom line, whether you are a cat lover or a dog lover, all assistance animals with a clear nexus to the resident’s disability must be allowed as a reasonable accommodation (provided that proper documentation is submitted).  Failure to do so could put you in the doghouse too.

The Department of Housing and Urban Development (HUD) released a report on Tuesday, September 5th that really struck me.  The report revealed the findings of a pilot study on rental housing discrimination on the basis of mental disabilities.  As most readers of this blog know, I devote a substantial amount of space discussing disability discrimination under the Fair Housing Act.  And for good reason, apparently, given that HUD’s recent report identified that persons with disabilities—specifically mental disabilities—received fewer responses to their rental inquiries, were informed of fewer available units and were less likely to be invited to contact the housing provider when compared to people without mental disabilities.

In addition, the report also focused on another topic I have devoted a significant amount of time on—reasonable accommodations—finding that a significant number of people with mental disabilities were given a negative response to their request.  Interestingly enough, HUD’s study also found that a higher percentage of housing providers were willing to grant accommodation requests to people with intellectual or developmental disabilities than to people with mental illness.

So what’s the bottom line?  The findings of HUD’s study really reveal that there is still an underlying stigma against residents and prospects with mental disabilities.  As a property manager or landlord, you need to have policies in place to ensure that all prospects and residents are treated equally.  With regard to handling reasonable accommodation requests, you must have strong policies in place, and I would recommend that you set up a centralized processing system for reviewing and responding to accommodation and modification requests.  Not only because it is the right thing to do, but also because HUD has given strong indicators that it will be focusing its testing efforts on disability discrimination in the immediate future.