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.

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.

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.