Accused of a Fair Housing Violation? How Not to Make Things Worse

iStock_000028313630Small-300pxWhen tenants accuse their landlords of housing discrimination, much of what happens next is determined by how the landlord responds. A landlord’s initial reaction to an accusation and subsequent behavior could lower the likelihood of an amicable outcome and even open the door to more liability.

One recent case concerning a tenant and her three children in Cedar Rapids, Iowa (HUD ex rel. Beverly Dittmar v. Elite Properties, LLC. and Robert K. Miell, HUDALJ 09-M-113-FH-40 (July 9, 2010)), is a perfect example of how this can happen.

After losing her home to a flood, the tenant sought an apartment for her family. She approached a landlord who owns and manages over 430 rental properties in the area and asked if she could rent a three-bedroom apartment that became available. For reasons that aren’t clear, the landlord declined but offered her a two-bedroom house for rent instead. The tenant accepted and moved her family into the house, paying a requested $645 as a security deposit and keeping up with timely rent payments each month.

The tenant later complained to the U.S. Department of Housing and Urban Development (HUD) about the landlord, accusing him of refusing to rent the three-bedroom apartment to her because of her sex, in violation of the Fair Housing Act (FHA) (42 U.S. Code §§ 3601-3619 and 3631). Following an investigation, HUD concluded that no reasonable cause existed to hold the landlord liable for the alleged discrimination.

The case could have ended there, with the landlord feeling exonerated and able to move on without having incurred any liability. But instead, the landlord wound up paying dearly, both with his wallet and reputation, thanks to two big mistakes he made in his handling of the tenant’s fair housing accusation:

Mistake #1: Retaliating against the tenant for complaining to HUD. The FHA makes it “unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of” fair housing rights (42 U.S. Code § 3617), and federal regulations clarify that this includes “[r]etaliating against any person because that person has made a complaint, testified, assisted, or participated in any manner in a proceeding under the Fair Housing Act” (24 CFR § 100.400(c)(5)). When the landlord learned that his tenant complained to HUD about his alleged sex discrimination, he reacted by taking adverse action against her, refusing her rent payments and proceeding with an eviction. As a result, the tenant amended her complaint to include the retaliation component and succeeded—even though HUD believed the underlying matter didn’t have merit.

Mistake #2: Not cooperating with HUD’s investigation. The landlord’s allegedly poor behavior with HUD investigators hurt him even more. According to the HUD administrative law judge’s (ALJ) decision, the landlord displayed defiance, indifference, disrespect, and a lack of cooperation throughout the investigative process. For example, the landlord hung up on investigators during a telephone interview, refused to claim certified letters, walked out on an investigatory meeting without notice or reason, and made rude statements to the investigator. This behavior led the HUD ALJ to impose the maximum civil penalty ($16,000) on both the landlord and his management company for the retaliation claim, in addition to damages for emotional distress and other relief.

As you can see, landlords can easily make things worse for themselves if they’re not careful about how they respond to a fair housing accusation. Check out the Nolo article, “What to Do if a Tenant Accuses You of Housing Discrimination,” for more guidance on this important topic.

Eliminating Pests Without Destroying Apartments

iStock_000041523660Small-300pxIt’s unsettling to discover pests living in your apartment. Aside from being scary and annoying, the presence of these unwelcome visitors threaten a range of serious issues, from health concerns to property damage. Whether an infestation of cockroaches, mounting evidence of bed bugs, or a single sighting of a mouse is what’s causing alarm, landlords and tenants both have compelling reasons to move quickly to eradicate pests from their rental property.

But before you rush to fight pests at your building, keep in mind that it’s important to proceed with care. Taking shortcuts or acting recklessly can lead to greater problems, including apartment damage and tenant displacement.

Here are two costly mistakes landlords and tenants often make when trying to combat a pest problem that you should strive to avoid repeating at your building:

Mistake #1: Not Reading Directions Carefully

If you buy a pest-fighting device that’s new to you, be sure to read the instructions carefully and not gloss over the warnings on the label. In your eagerness to treat a pest problem, it may be tempting to proceed without learning about the proper use of a device and ignore cautionary statements because you assume they’re common knowledge or meaningless legalese. But even inexpensive products that consumers can purchase in a hardware or home supply store have the potential to cause substantial damage and serious injury if they’re misused.

One common example of such a device is a fogger, or “bug bomb.” If you’re not already familiar with this product, you should know that a fogger spreads pesticide across a room or an entire apartment through a mechanism of aerosol propellants. In addition to making sure you’re not present in an apartment while a fogger’s fumigation takes place, it’s also essential to make sure any pilot light (such as for an oven) is turned off before you begin using a fogger. If chemicals from a fogger come into contact with a pilot light or other ignition source, it can result in a harmful explosion (just ask Joe). If you’re not sure how to turn off pilot lights in an apartment, check with your local utility company.

Mistake #2: Not Monitoring Risky Pest Treatments

Sometimes, the treatment used to fight a pest problem takes a short time to apply, and then it’s just a matter of waiting for results. This is the case, for example, with a pesticide spray, which may eliminate certain insects either on contact or over a period of time. Other treatments, such as the fogger (mentioned above), may necessitate your leaving the apartment until the health risk is gone. But certain pest treatments involve a special procedure that needs to be monitored until finished. Leaving an apartment unattended while such a pest-control procedure is ongoing can lead to major problems.

Recently, the owner of a Des Moines, Iowa, apartment building used a large, commercial bed bug treatment heater to eliminate a problem in a vacant apartment. While the heater was left unattended, it malfunctioned and ignited a fire, causing $30,000 in damages, according to a report from The Des Moines Register. This incident prompted the city fire department to issue a public warning Monday on the risks of using such heaters to fight bed bugs, urging consumers to be present in case of an electrical overload that can lead to a fire.

As you can see, landlords and tenants who temper their eagerness with caution and diligence when it comes to fighting pests are likely to accomplish their goals without incident or catastrophe.

New York City’s Frank Slumlord-Shaming Strategy

iStock_000025162012Small-300pxStart spreading the news: New York City is making it increasingly difficult for bad landlords to do business in the five boroughs while keeping their reputation intact.

The city that doesn’t sleep has been pressing forward with a strategy of publicly shaming landlords who have displayed a commitment to making tenants’ lives miserable or who treat the city code like an inconsequential compendium of suggested practices. New York hopes that landlords who discover that their reputation is on the line—as well as online—will be inspired to change their ways. Plus, other slumlords with little town blues may think twice before letting them melt away by deciding to be a part of it in old New York.

King of the Violation Hill, Top of the Slumlord Heap

While it’s normally admirable to be exceptional, New York City landlords don’t want to find that they’re A-number-1, top of the Landlord Watch List. Four years ago, the city’s then-Public Advocate and current mayor, Bill De Blasio, started the Watch List with an admonition: “The city’s worst landlords can no longer hide from responsibility while their buildings fall into dangerous disrepair.”

Last month, Public Advocate Letitia James showed her office is continuing its support, right through the very heart of the initiative, by unveiling a revamped website highlighting the “100 Worst Landlords in New York City.” The website lists landlords who own buildings with a high number of outstanding housing maintenance code violations. These landlords can get the city to remove their names once they resolve enough open violations (see the Office of the Public Advocate’s “Criteria & Submissions” page for more information). Already, there’s some evidence that the list is prompting responses.

New Law Will Protect Tenants Not Longing to Stray

Under new legislation enacted September 30, New York City will soon begin posting on the Internet the names of landlords who are found to have violated the city’s tenant anti-harassment law. On the books since 2008, this law bars landlords from using threats or other types of action (such as cutting off utilities) to force tenants out of their apartments. In addition to this public shaming, landlords who illegally require their tenants to wear vagabond shoes could face a maximum civil penalty of $10,000 per apartment, which is twice the current level.

City to Slumlords: It’s Up to You

Given New York City’s growing commitment to shaming bad landlords into cleaning up their act, it may be true that if landlords can make it there, they’ll make it anywhere. As for slumlords who choose not to change their ways, they may indeed need to make a brand new start of it—in another profession.

Your Assignment This Weekend: Save Lives

iStock_000025583375Small-300pxBeginning Sunday, most of the United States will observe Daylight Saving Time, and if you’re one of the millions of people who will be moving their clocks back an hour, you may already be planning what you’ll do with the extra time you’ll gain.

If you’re a tenant, consider taking a few minutes from that extra hour to make sure your apartment’s smoke detectors are in working order. Fire and safety experts across the United States recommend this, and Energizer, along with the International Association of Fire Chiefs, has been spreading this important message through a “Change Your Clock Change Your Batteries” campaign for 27 years.

This small task can go a long way toward saving lives in the unfortunate event of a fire at your building. Here are some sobering statistics from a recent report by the National Fire Protection Association:

  • Smoke alarms didn’t sound in 48% of reported home fires.
  • In 60% of home fire deaths, smoke alarms weren’t there to help… 37% of the time, there weren’t any smoke detectors present and 23% of the time, the smoke alarms didn’t sound.
  • When smoke detectors failed, it was usually because the batteries were missing, disconnected, or dead.
  • The risk of dying in a home fire is cut in half when working smoke detectors are present.

If smoke detectors are missing from your apartment or you find they’re not working even with new batteries, talk to your landlord, who may be obligated to replace them under state or local law.

Speaking of which, if you’re a landlord, why not use this opportunity to check that you’re in full compliance with your state and local codes regarding detectors? Such an effort helps keep tenants safe and your property intact. Plus, if a fire occurs, you won’t be open to liability if a tenant or guest claims that your failure to follow safety codes contributed to their injuries.

Smoke detector laws vary in their complexity but typically at least set forth requirements for the number and placement of smoke detectors as well as carbon monoxide detectors in a building. If you’ve been referring to a printed version of the law, it might be out of date. California’s and New York City’s smoke detector law, for example, have changed significantly in just the past year. If you’re not already familiar with how to find laws that affect your rental properties, check out Nolo’s “Legal Research” resource for guidance.

Rejecting Apartment Applicants Because They Have HIV/AIDS: Is It Legal?

iStock_000016736849Small-300pxCommunicable diseases have been making headlines recently, between the growing Ebola scare and the rapid spread of enterovirus D68. When you learn that someone who lives near you or with whom you may come in contact has a communicable disease, it’s only natural to get concerned and want to follow precautions to prevent getting infected.

Given this legitimate concern, do tenants have the right to live in an apartment building free of neighbors who have HIV/AIDS? Are landlords legally or morally obligated to turn away applicants who have HIV/AIDS to protect tenants and shield themselves from liability?

The answer to both questions is no. On the contrary, tenants have the right to live in an apartment building without regard to the fact that they have HIV/AIDS. Plus, landlords who turn away applicants because they HIV/AIDS invite liability because they are violating federal housing discrimination laws.

If you’re not sure how this can be true, consider these two realities:

  1. HIV/AIDS isn’t spread through the air or by casual contact. There’s no denying that AIDS and HIV, the virus that causes it, are very serious and that you should do what you can to avoid getting infected. In the United States alone, roughly 635,000 people have died from AIDS since it was first discovered in the early 1980s and some 50,000 people get infected with HIV every year, according to the Centers for Disease Control and Prevention.
     
    Although scientists have learned a great deal about HIV/AIDS over the last few decades, misinformation persists and is often disseminated by public figures. Just last week, for example, televangelist Pat Robertson told The 700 Club viewers that people who visit Kenya should worry more about contracting AIDS than Ebola and suggested that AIDS can be spread through casual contact. “You’ve got to be careful… I mean, the towels could have AIDS,” he cautioned, earning him the spotlight on Anderson Cooper’s RidicuList. But HIV/AIDS isn’t spread by casual contact or even through the air, and so tenants needn’t fear contracting HIV/AIDS if they discover that someone in their building has it.
  2. HIV/AIDS is considered a disability under federal law. The Fair Housing Act (FHA) protects prospects and tenants against housing discrimination across the United States based on seven protected classes, including disability. The FHA defines disability as any “physical or mental impairment” that “substantially limits” one or more “major life activities,” which includes HIV/AIDS. (Check out the Nolo article, “Who’s Protected Against Disability Discrimination?” for more information.) This means that landlords can’t refuse to rent to applicants or offer them an apartment on different terms simply because they have HIV/AIDS.

As you can see, apartment applicants with HIV/AIDS don’t pose a public health threat and have the same right to housing as others under the law. For some help complying with this important aspect of the FHA, check out the Nolo article, “Dealing With Rental Applicants Who Have HIV/AIDS.”