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.

In my previous post, I discussed the Department of Housing and Urban Development’s (HUD) prohibition on sexual harassment.  Although it seems patently obvious that no landlord should be sexually harassing his or her residents, apparently some people remain oblivious. And as a recent settlement by the Department of Justice (DOJ, the government organization that prosecutes housing discrimination claims in court) reveals, HUD and the DOJ take sexual harassment very seriously.

On July 10, 2017, the DOJ announced that it reached a $600,000 (!) settlement with the owners and former managers of more than 70 residential properties in the Morganton, West Virginia area.  The settlement was in resolution of allegations that the property manager sexually harassed both female residents and prospective residents.  In addition to the $600,000 (!) in damages and civil penalties, the offending property manager had to transfer his ownership shares in these properties and relinquish his role in their management.  The property manager at issue here was also enjoined from engaging in any property management, rental management, or maintenance responsibilities at the rental properties, as well as from entering the premises or having any contact with current or former residents of the rental property.

This settlement amount is significantly higher than a typical fair housing case—however, the conduct by the property manager was particularly repugnant.  The matter began when four female residents filed fair housing complaints with HUD, alleging sexual harassment against the property manager.  During the course of its investigation, HUD determined that there was reasonable cause to believe that the property manager sexually harassed multiple female residents and prospective residents over a nine year period, including inappropriate touching and groping, conditioning tangible housing benefits to female tenants in exchange for performance of a sex act (quintessential quid pro quo harassment), making unwanted sexual comments and advances, entering the homes of female residents without permission to sexually harass them, and taking or threatening to take adverse action against female tenants when they refused or objected to his sexual advances.  As Acting Assistant General Tom Wheeler of the DOJ’s Civil Rights Division aptly stated, “[i]t is unacceptable that a woman should have to endure sexual harassment by her landlord in her own home,” and, accordingly, this settlement was intended to “send[] a strong message that the Civil Rights Division will aggressively pursue those who engage in this egregious conduct.”

So what’s the bottom line?  I cannot say this enough—as a property management company or owner, you need to have strong policies and training programs in place to prevent harassment, and you have to act promptly and proactively to end harassment whenever and wherever it occurs.

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.