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.

The Fair Housing Act (FHA) allows a plaintiff to attack a housing policy that discriminates based on familial status.  Specifically, the FHA prohibits landlords from discriminating against families with children under 18 years old.  For instance, landlords are prohibited from locating families with children to a certain area within the apartment complex, limiting families such as these from accessing recreational services available to other tenants, etc.  And during 2016, the U.S. Department of Justice (DOJ) made it very clear that discrimination of this type will not be tolerated.

For example, the DOJ entered consent orders in 2 cases where this type of discrimination occurred that resulted in each property owner having to pay over $30,000 to remedy the matters.  In one case, a property owner in Nevada used advertisements that conveyed the message that the apartment complex preferred families without children, and then subsequently denied housing to a family with children that responded to one of the advertisements.  This property owner was required to pay $24,000 to the victims for damages resulting from the discrimination, and $12,000 to the United States as a civil penalty.  In another case, a property owner in Pennsylvania refused to rent one and two bedroom units to a family with children.  As it turns out, this family was a DOJ fair housing tester, as we have written about before (We’re Going To Be Tested On This?!).  This resulted in the DOJ ruling that the property owner discriminated against this family, and the owner was forced to pay $20,000 to the victims as damages and $10,000 to the United States as a civil penalty.

These cases further stress the importance of the leasing office staff members being knowledgeable of housing discrimination law.  Property owners and managers must encourage their staff members to be welcoming to all, as we want to avoid situations where comments from a staff member may be perceived as discriminatory to families with children. Even if the staff member has the best intentions for these types of families in mind – such as advising families with children to live in units away from a busy street – these decisions should be left to the families to decide.  Additionally, be mindful that fair housing testers are on the prowl searching for property owners and managers to bring FHA claims against.

It may not be as sexy as a request for an assistance pig, or as routine as a request for grab bars, but one of the most important—and overlooked—parts of the Fair Housing Act is the design and construction guidelines.   Indeed, some of the largest settlements and penalties issued by the DOJ over the past few years have been a result of alleged violations of the Fair Housing Act Design and Construction Guidelines.  For example, in May 2013 the DOJ settled a case concerning violations of the Guidelines for a total of $925,000.  This settlement arose out the defendants’ violations of the Guidelines in the design and building of multifamily housing complexes in Louisiana, Mississippi, and Tennessee.

The Design and Construction Guidelines apply to “covered” buildings built for first occupancy after March 13, 1991.  For purposes of the Guidelines, “covered” multifamily dwellings are: 1) all units in buildings containing four or more dwelling units if such buildings have one or more elevators; and 2) all ground floor dwelling units in other buildings containing four or more units.  In other words, if you own or manage a building with four or more units that was built after March 13, 1991, all of the ground floor units in non-elevator buildings are covered, and all units in an elevator building are covered.  It should be noted, however, that to be a covered unit, all of the finished living space must be on the same floor—given this, multistory townhomes are not covered.

So what does it mean if the Design and Construction Guidelines apply to your building?  Well, stated broadly, it means that the property must meet seven requirements.  The property must have: 1) an accessible building entrance on an accessible route; 2) accessible and usable public and common use areas; 3) usable door; 4) accessible route into and through the covered dwelling unit; 5) light switches, electrical outlets, thermostats and other environmental controls in accessible locations; 6) reinforced walls for grab bars; and 7) usable kitchens and bathrooms.  Clear as mud?  Luckily HUD has issued a lengthy Fair Housing Act Design Manual that provides detailed specifications on compliance.

So what can you do?  Well, if you already own or manage the property, understand that you may be at risk for a Fair Housing Act complaint.  If you are purchasing the property—and despite the fact that there is some uncertainty over whether subsequent owners not involved in the construction of the property are liable for Design and Construction violations—I would recommend that, as part of your due diligence, you have a property evaluation report conducted that includes a Fair Housing Act Design and Construction compliance review.

As landlords and property managers, you walk a thin line with regard to accommodation requests involving assistance animals.  You obviously want to make sure that any tenant who needs an assistance animal is accommodated.  At the same time, you need to require enough verification to weed out anyone who is trying to take advantage of the Fair Housing Act.  As a fair housing attorney, I’m always curious about where to draw the line.  How much verification is too much?

That’s why a recent complaint filed by HUD caught my attention.  HUD challenged the reasonable accommodation and pet policies of a housing provider as having “impose[d] mandatory burdensome conditions on individuals with disabilities who request animal assistance.”  The landlord required tenants to fill out several forms, including an accommodation request form and a doctor’s prescription form.  So what bothered HUD?  Apparently, it was the doctor’s prescription form, which required the doctor to accept liability for any damage or injury caused by the animal in question.

As I am sure you can imagine, each of the doctors approached in the case above refused to sign any such form.  This requirement was seen by HUD as a violation of the Act on the basis of discrimination, given that the failure of the tenant to secure a doctor’s signature resulted in the denial of the request.

So what should you do?

Other than the guidelines I discussed in a previous post, do not, I repeat, do not attempt to assign liability to the prescribing doctor in a tenant’s request for an assistance animal. This action will likely be considered discriminatory under the Act, and could open you up to enforcement for an FHA violation.  Keep in mind that this doctor requirement is just one example of a recent burdensome requirement, and if any part of your reasonable accommodation process may be interpreted as placing an excessive burden on the requesting tenant, it is worth looking at.

Now that the Supreme Court has definitively ruled that disparate impact claims are valid under the Fair Housing Act, HUD has issued guidance regarding one common multifamily property policy that it believes has a discriminatory effect on minorities—criminal background screening.

In light of statistics demonstrating that African Americans and Hispanics are incarcerated at rates disproportionate to their share of the general population, HUD warned in guidance published on April 4, 2016 that criminal records-based barriers to housing are likely to have a disproportionate impact on minority home seekers.  Accordingly, landlords and management companies will need to have a substantial, legitimate, and nondiscriminatory reason for implementing a policy which considers criminal records in the housing application process.  Moreover, landlords and management should ensure that the interest achieved by their criminal background screening policy cannot be achieved by another practice that has a less discriminatory effect.

So does that mean that you cannot consider a prospect’s criminal background at all during the application process?  Not exactly.  HUD seems to agree that ensuring resident safety and protecting property are likely to be considered substantial and legitimate interests.  But it also warns that your criminal background policy darn sure better be tailored to achieve those goals. In terms of actual, specific (and useful) guidance, HUD does make two clear assertions: 1) a policy that excludes prospects because of one or more prior arrests (without a conviction) is unlikely to achieve a substantial, legitimate, nondiscriminatory interest; and 2) a policy that imposes a blanket prohibition on any person with any conviction (without any consideration of when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since) is also unlikely to achieve a substantial, legitimate, nondiscriminatory interest.

So what can you do?  Simple—sit down, and review your criminal background policy to make sure that it is tailored to meet your policy goals (such as protection of residents and property).  In essence, make sure that your policy only excludes based on criminal conduct that indicates a demonstrable risk to resident safety and/or property.  And make sure that you are taking into account mitigating factors, such as the amount of time that has passed since the conviction.  In other words, while you may be fine with a policy that excludes prospects with a violent felony conviction in the past seven years (absent any mitigating circumstance), you’re probably going to want to rethink a policy that excludes any prospect with a minor traffic offense.  The bottom-line is that you need to sit down and give some serious (and documented) thought to your criminal background policy to make sure that it is truly achieving your policy goals.

The Increasing Prevalence of Testing Under The Fair Housing Act

As landlords and management companies, I understand that you want to treat people fairly, and that you strive to stay within the confines of the Fair Housing Act.  Unfortunately, I have seen many well-intentioned owners and management companies caught off-guard by a housing discrimination claim filed as a result of “testing” that was done at the property.

While many owners and landlord companies may feel like they have been the victim of a “sting operation,” testing is a perfectly lawful (and efficient) means by which local fair housing advocacy organizations test properties to see if discrimination is occurring.  Advocacy organizations will send in two or more “comparable” testers—one or more of which is a member of a protected class under the FHA, and the remaining testers which are not—to inquire about renting similar units at a property.   “Comparable” in this regard means that the testers inform the property that they share the same background, employment, rental, and educational background.  In other words, everything should be the same about the testers except for their status as protected class-members—meaning that the testers should receive the exact same treatment and information about available units at the property.   If, as a result of the testing, the fair housing advocacy group finds that discrimination has occurred, then they (or the individual testers) will bring a housing discrimination claim against the property.

So is testing lawful?  In a word, yes.  The United States Supreme Court sanctioned these types of testing practices over twenty years ago.  So how do you avoid a tester-based housing discrimination claim?  The key is to have strong policies and procedures in place in ensure that all similar prospects are treated equally, and to instill those policies and procedures in employees through training.  In addition, it is essential to maintain records of all interactions with prospects, and to document the reasons for any deviations from standard procedure (e.g., if a leasing agent shows a prospect a unit that is not on the standard tour because of a maintenance issue, the reason for the deviation should be documented and kept on file).  Keeping proper records of leasing availability, prospect interaction, and deviations from policy may prove invaluable in the event that you find yourself defending against a discrimination claim from a fair housing advocacy group or tester!

Following the U.S. Supreme Court’s recent decision in Texas Department of Housing and Community Affairs v. Inclusive Community Projects, Inc. , it’s pretty clear that disparate impact claims are valid under the Fair Housing Act.  But the question remains:  how exactly does a disparate impact claim work?  And is it as draconian for landlords and property management companies as it seems?  The short answer is that while the threat of a disparate impact claim may give management a bit of heartburn, there are safeguards in place to protect legitimate, nondiscriminatory policies and practices.

As I’ve written about before, a disparate impact claim allows a plaintiff to attack a housing policy that may seem nondiscriminatory on its face, but which has a disparate impact on certain protected classes.  As upheld by the Supreme Court in Texas Department of Housing and Community Affairs, and as originally promulgated by the U.S. Department of Housing and Urban Development, a disparate impact claim encompasses a burden shifting framework.  So what does that mean in plain English?  Well, under the Supreme Court’s guidance, a disparate impact claim works as follows.  First, the plaintiff must make a threshold showing of disparate impact, meaning that the plaintiff must show that a challenged practice or policy has caused, or will cause, a discriminatory effect.  Importantly, pursuant to the Supreme Court’s guidance, there must be a causal relationship between the defendant’s practice or policy and the discriminatory effect—if there is not, then the plaintiff cannot make its required initial showing, and the case is dismissed.  If the plaintiff does make this initial showing, then the burden shifts to the defendant to show that the practice or policy is necessary to achieve one or more substantial, legitimate, non-discriminatory interests.  Presuming that the defendant makes this showing, then the burden shifts back to the plaintiff to prove that the interests offered by the defendant in support of the practice or policy could be achieved by another practice or policy with a less discriminatory effect.

While the above framework may seem complex, the key takeaway is that management is still able to articulate and rely on a valid interest served by the challenged practice or policy as a defense to a disparate impact claim.  Moreover, the causal requirement set out by the Supreme Court—which the Court itself described as needing to be “robust”—is designed to ensure that defendants will not be held liable for disparities that they did not create.  In fact, the Supreme Court has specifically cautioned that courts should examine with care whether a plaintiff has met the threshold requirements to make a disparate impact claim, and that courts should promptly dismiss those cases where the plaintiff’s initial showing is insufficient.

While the above safeguards should provide management with a little peace of mind, it is still instrumental for management to analyze all practices and policies to determine if they might have a discriminatory impact on any protected classes and, if so, to consider whether there are any less discriminatory means that might equally achieve the intended goals of the practice or procedures.