In keeping with a recent blog post, and in order to emphasize the importance of taking the Fair Housing Amendments Act (FHAA) seriously, I wanted to introduce a relatively recent HUD charge levied against a property in Denver to illustrate and substantiate HUD’s active concern with FHAA compliance issues.  A Denver, Colorado property was charged this past month with failing to make its property handicap accessible.  Specifically, the property was accused of large portions of its property being inaccessible to individuals with disabilities.

There are two aspects of this charge that can easily be overlooked, but I believe are crucial for property managers to be aware of.  First, let’s talk about the use of testers.  These testers, sent by HUD to investigate potential Fair Housing issues, don’t come with flashing signs or official “tester” uniforms.  Instead, they appear to be your average prospects- unassuming and unsuspicious.  It’s like an episode of undercover boss, but minus the cameras.  This means, therefore, that properties must practice constant vigilance and treat every prospective resident seriously (as someone who could turn around and file a Fair Housing complaint with HUD).  But you are doing that already, right?  It is impossible to quantify or calculate the risk that comes from taking encounters with prospects and residents lightly.

The second, easy-to-miss concern this charge highlights is found in the parties who were named in the suit.  The couple who raised this complaint named the owners, architects, and builders all in the suit. Most importantly, however, even the current owner, who was not involved in the design or the construction of the property, was named in the suit. Even though the current owner and property manager may not have been guilty of the initial design flaw, there is a potential to be held liable for correcting those defects.

So what’s the bottom line?  Property managers and owners need to avoid becoming complacent in their interactions with prospects and residents alike.  My advice is to adopt principles centered on accessibility and practice them consistently, to the point that it becomes sheer muscle memory.  When you make accessibility a habit, the likelihood of facing a Fair Housing complaint is diminished.  Similarly, present owners and property managers need to be proactive when acquiring a property.  Go ahead and look for potential design and construction issues as part of your due diligence, or correct them as you became aware of them.  While the up-front cost may seem daunting, I can guarantee it won’t be nearly as daunting as being slapped with a charge that could result in actual and punitive damages, injunctive or other equitable relief, as well as attorney’s fees for the opposing party.

With the government shutdown now surpassing a month, and the future still relatively uncertain, the functioning of HUD and many other federal organizations has reached a standstill.  A government shutdown not only impacts federal workers and government employees, it also has a very real impact on landlords and tenants.

You may be thinking, why are we talking about politics in a Fair Housing blog?    As it turns out, the government shutdown has a direct impact on Fair Housing, specifically on the housing choice voucher program (formerly known as Section 8).  As a refresher, these vouchers are federally funded, given by local organizations (known as public housing agencies, or “PHAs”), and used to subsidize the rent of qualifying tenants—making the costs more manageable (as tenants now only have to pay the balance after the voucher is applied).  In order to qualify, the tenant must be either low-income, elderly or disabled, which means we are talking about a vulnerable population here.

The longer the government is shut down, the more depleted the federal funds will continue to get.  It is projected that by the end of February, the majority of federal housing assistance funding will be gone.  Therefore, if the shutdown continues much longer, the PHAs face a real possibility of losing federal funding altogether, leaving both landlords and these vulnerable tenants in a nearly impossible position.

So, what’s the bottom line? What happens if/when the federal funding runs out and tenants are not making rent?  Unfortunately, there is no easy or clear cut answer.  First, I will say—start preparing now.  Formulate a game plan for how you will handle your residents utilizing housing vouchers if worst comes to worst and federal funding runs out.  Bear in mind that the shutdown will presumably end, and once the government is back open you will receive full funding.  We are in uncharted territory here when it comes to evictions, and landlords should proceed cautiously when evicting based on the housing voucher program’s shortfall—the only advice I can offer is that, if you make the decision to evict, be as consistent and uniform in your policy implementation as possible.

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.

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.

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.