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 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.

Part II: Applying Multiple Laws in Certain Areas of the Property

As discussed in the first part of this blog series, there are certain areas of a multifamily apartment community where both the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA) apply.  Our last blog post focused on applying the ADA at those areas.  In this post, we will provide guidance on how to simultaneously apply both the FHA and ADA (with specific regard to animals).

As I mentioned previously, the Department of Justice (DOJ) has defined “service animal” under the ADA narrowly to only include dogs, and to specifically exclude emotional support animals.  Accordingly, when you are applying the ADA analysis at a public area of the property (such as the leasing office), only a dog can be considered a service animal.  The DOJ has also made clear, however, that housing providers may not use its definition of a service animal as a justification for reducing their FHA obligations, and that the revised ADA regulations do not change the reasonable accommodation analysis under the FHA.  And, as you know from my previous blog posts, unlike the ADA the FHA places no limits on what type of animal can serve as an assistance animal—nor does the FHA require that the animal receive any type of formal training.

Specifically, and as we have discussed several times before, under the FHA an individual with a disability has the right to have an assistance animal other than a dog if the animal qualifies as a necessary reasonable accommodation.  But, the good news for landlords is that they are permitted under the FHA to make more detailed inquiries to individuals with non-obvious disabilities who request reasonable accommodations.  In other words, the scope of questions that you can ask to verify the need for the animal under the FHA is much broader than it is under the ADA.

As such, you can see that there is a tension arising in matters where both the ADA and the FHA apply—such as situations involving animals and prospective tenants in the leasing office.   For example, if a prospect comes into a pet-free leasing office with an animal, are you allowed to make the detailed inquiries permitted under the FHA, or are you limited to the basic questions allowed under the ADA?

My advice, in situations where both the ADA and the FHA apply, is to apply the (stricter) ADA service animal test first.  To piggyback on the first part of this blog series and use the leasing office as an example, in a situation where an animal meets the ADA’s test for a service animal (a dog that is individually trained to do work or perform tasks), the animal must be permitted in the leasing office unless (1) the animal is out of control and its handler does not take effective action to control it; (2) the animal is not housebroken; or (3) the animal poses a direct threat to the health or safety of others.   If the animal does not meet the ADA’s service animal test, then the landlord should use the reasonable accommodation analysis under the FHA.  As a reminder, for non-obvious disabilities, a landlord is permitted under the FHA to require the individual to provide information that: (1) is necessary to verify that the individual meets the FHA’s definition of “disability” (substantially limits one or more major life activities); (2) describes the needed accommodation; and (3) shows the relationship between the individual’s disability and the need for the requested accommodation.  If there is sufficient verification of a disability and a disability-related need for the animal, then the prospect must be permitted to have the animal.

To put the interplay between the ADA and the FHA into perspective, you could hypothetically encounter a situation where a prospective tenant’s request to have a dog accompany him or her into a pet-free leasing office is denied under the ADA analysis because the dog is an emotional support animal, but permitted under the FHA because you have determined that there is a connection between the disability and the support the animal provides.

 

 

Part I:  Assistance Animals Under The ADA

As I wrote about recently, while the Fair Housing Act (FHA) applies to virtually all areas of a multifamily apartment community, the Americans with Disabilities Act (ADA) only applies to areas of the community open to the public—including, most notably, the leasing office.  Accordingly, all aspects of the ADA—including its provisions on service animals—apply to the leasing office.  And, generally speaking, most leasing offices that I’m familiar with do not allow animals.  In this blog post, I will provide guidance on how to deal with service animals under the ADA at the leasing office (or any other area of the property open to the public).  In Part Two, I will give an overview of how to apply both the FHA and ADA in areas of the property where both Acts apply.

The distinction between the FHA and the ADA—and the fact that the ADA applies to only a small area of the property—is important because the Department of Justice’s definition of service animal under the ADA includes only dogs, and specifically excludes emotional support animals.  For purposes of the ADA, “service animal” is defined narrowly as any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability.  The DOJ regulations specify that the “provision of emotional support, well-being, comfort, or companionship do not constitute work or task for purposes of [the definition of the service animal].”  Thus, under the DOJ regulations, trained dogs are the only species of animal that may qualify as service animals under the ADA (note that there is a separate provision regarding miniature horses) and emotional support animals are expressly precluded from qualifying as service animals under the ADA.

It is also extremely important to note that under the ADA, you may only ask: (1) Is this a service animal that is required because of a disability; and (2) What work or tasks has the animal been trained to perform? These are the only two inquiries that an ADA-covered facility may make, even when the disability is not readily apparent—in fact, the foregoing inquiries may not be made when it is obvious that the animal is trained to do work or perform tasks for an individual with a disability (e.g., the dog is observed guiding an individual who is blind or who has low vision).  Furthermore, an ADA-covered facility may not require documentation concerning the animal, such as proof that the animal has been certified, trained, or licensed as a service animal.

So, the bottom line is that if a prospect with a service dog enters the leasing office, you may only ask the two questions above, and you may only ask those questions if and only if the disability is non-apparent.  Obviously, this is very different from what you are permitted to ask under the Fair Housing Act, and it presents a conundrum in an area of the property where both Acts apply simultaneously.  Accordingly, in Part Two of this blog post, I will provide some guidance on how to proceed with service animals and assistance animals at the leasing office.

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!