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.

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.