Category Archives: Fair Housing & Accessibility

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.

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.”

Are You Familiar With Familial Status?

iStock_000040070258Small-300pxNot long ago, a couple sitting at my table at a wedding reception were talking about how they bought a house. They happened to mention that they first tried to rent an apartment but gave up because the landlords they met didn’t want kids at their properties.

Two things occurred to me then. First, it was clear that the couple didn’t know that these landlords were violating the law. Second, I thought it’s quite possible that the landlords didn’t know they were violating the law, either.

It’s not surprising that many people who aren’t familiar with the Fair Housing Act (FHA) wouldn’t think that the law protects families with children. In fact, it took over 20 years since the FHA was enacted in 1968 for “familial status” to be added as a protected class. When landlords don’t comply with the ban on familial status discrimination, it means families with children are more limited than other tenants when it comes to housing options. Also, because so many families with children don’t realize they’re protected against discrimination, many violations go unreported or even unnoticed.

Familial status discrimination most often occurs during an apartment search, when a family learns that a landlord, often citing past problems, has a policy of not renting to children (as, apparently, had happened to the couple sitting at my table). Sometimes, a landlord might not go so far as to refuse to rent to families with children but instead only show them available apartments in a certain part of a building (an unlawful practice known as “steering”) or impose illegal bedroom-sharing rules that require tenants to look for apartments with more bedrooms (and higher rent) on account of their children.

Some landlords who rent to families with children begin discriminating against them after they’ve moved in. Just this Wednesday, the U.S. Department of Housing and Urban Development (HUD) announced it settled with a housing provider in California and charged Kansas owners and managers in similar cases involving familial status discrimination claims.

According to HUD, the manager of an apartment complex in California allegedly cursed at children he found playing outside unsupervised, then ordered them to clean his office toilet and pick up trash while threatening their families with eviction. In addition, the apartment complex allegedly had a rule barring children from the swimming pool during certain hours. The owners and manager agreed to settle for almost $30,000.

In the Kansas case, the owners and managers of an apartment complex allegedly required children to be supervised by an adult at all times, limited children’s outdoor recreation to the playground, and banned team sports, bicycles, skateboards, and scooters. When a mother complained, they allegedly refused to renew her family’s lease in retaliation. The case is expected to be heard by a HUD administrative law judge.

As you can see, familial status discrimination is an important topic to know, both for landlords and tenants. Why not take a moment to get familiar with familial status by checking out the Nolo article, “Who’s Protected Against Familial Status Discrimination?

Three Things Every Landlord and Tenant Should Know About Steering

iStock_000004787361Small-300pxEarlier this summer, the U.S. Department of Housing and Urban Development (HUD) announced that a Pennsylvania landlord agreed to pay $25,000 to resolve allegations that it discriminated against prospective tenants based on race. The claim was that the landlord’s agents allegedly directed white prospects to neighborhoods they believed were safe while showing black prospects apartments in less desirable, high-crime neighborhoods.

The practice at issue is quite common and is known as “steering.” Steering occurs when a landlord or agent guides or encourages prospects to live in a certain neighborhood, building, or even a particular section of a building based on a protected class (in this case, race) under federal (the Fair Housing Act), state, and local fair housing laws.

Very often, victims don’t know they’re being steered or don’t realize it’s illegal, and many landlords who engage in steering aren’t aware that they’re breaking any laws. Whether you’re a landlord or a tenant, here are three important points to help you get up to speed on steering:

  1. Steering may not be overt, but it’s illegal. In the recent Pennsylvania case, it’s not that the landlord was refusing to rent to prospects because of race. The claim was that the landlord was guiding people to different neighborhoods based on their race, with white prospects receiving more favorable treatment. Although less overt than other types of discrimination, steering is illegal because it limits tenants’ housing choices based on a protected class. Plus, if a landlord runs out of vacancies in the floor, building, or neighborhood to which he steers certain types of people, then the landlord would presumably start flat-out rejecting such prospects.
  2. Steering can happen with any protected class. Steering often involves separating people based on race, as allegedly occurred in the Pennsylvania case. But steering can (and does) happen with any protected class. For example, a landlord who avoids renting apartments in the main building of a complex to people who use wheelchairs because he’s afraid his property will “resemble a nursing home” is steering based on disability. A landlord who shows non-Christian prospects apartments only on certain floors is steering based on religion.
  3. Good intentions don’t make steering legal. Very often, steering is motivated by a dislike of a certain group of people and a desire to be exclusionary. But steering is illegal regardless of what’s fueling it. For example, the sight of a prospect using a wheelchair shouldn’t lead a landlord to assume she would be interested only in a ground-floor or accessible apartment. Also, a landlord can’t tell a family with children about vacancies in only one building because children live there. It’s up to the family to decide how important it is to have other families with children as close neighbors.

Learn More About Steering

For more information about steering and help with identifying it, check out my Nolo article, “Avoid Practicing Illegal Steering at Your Property.”

Therapy Pig Dispute Offers Valuable Lessons to Landlords and Tenants

iStock_000006319699-300pxLandlords and tenants alike might not see how a story about a homeowners’ association and a pig pertains to them. But, although the facts are unusual and may seem foreign to your experience, the dispute nevertheless serves as a reminder of key rights and responsibilities when it comes to rental properties and pets. Indeed, there are important lessons that both landlords and tenants can learn from this dispute and should keep in mind throughout a tenancy.

The dispute concerns a Lake Worth, Florida, homeowners’ association’s contention that a family doesn’t have the right to keep a “therapy pig” in their home. According to a recent report by the Sun-Sentinel, the family claims that their pig, Wilbur, isn’t merely a pet but offers invaluable emotional support to their children, who have been diagnosed with ADHD and Asperger’s. However, the homeowners’ association argues that no matter what beneficial purpose Wilbur may serve, keeping a 65-pound potbellied pig in a home crosses the line.

While, on one level, this story is about a homeowner’s association and a pig, it’s also an example of a common scenario in which an individual claims a need for a housing accommodation based on a disability. Landlords and tenants should take note:

  1. Housing discrimination laws apply broadly. Although this issue involves a homeowner’s association, it could just have easily been a dispute between a tenant and a landlord. The Fair Housing Act (FHA), a federal law barring discrimination based on disability and other factors, broadly applies to residential property owners, managers, and others who could interfere with a tenant’s civil rights.
  2. Both sides must take this topic seriously. Landlords should consistently approach the larger topic of disability accommodations with a sense of importance and care. If you’re a landlord, you needn’t grant every tenant’s request for a service animal or other accommodation, but you should seriously consider all such requests. This way, you can determine if a request is reasonable or be in a position to justify why you must deny a request. Also, tenants who believe they need an accommodation should present their request in writing to their landlord. Even though this formality isn’t required by law, approaching a landlord in this way will help ensure that the landlord understands your request and takes it seriously.
  3. Tenants’ service animal requests are limited only by reasonableness. When a tenant asks a landlord to keep an animal as an accommodation for a disability, it must be treated as any other accommodation request. This means that a tenant must show that he needs the particular accommodation in connection with a disability, and that granting the request would be reasonable. According to the FHA, an accommodation is reasonable if it doesn’t impose an undue financial or administrative burden. As a practical matter, requests for pigs and other exotic animals (which aren’t widely welcome at rental properties to begin with) would be less likely to pass muster as reasonable. But, because the FHA doesn’t identify any animal or breed for exclusion, animals other than cats and dogs may qualify. In any event, if an accommodation request must be denied as unreasonable, the landlord and tenant should try to come up with a viable alternative accommodation.
  4. Landlords can have pet rules but must enforce them with care. The FHA doesn’t bar landlords from creating rules limiting pets to certain weights or even banning pets from the property altogether. Landlords just need to be ready to bend or break their rules, if necessary, to let a tenant keep an animal that’s needed to reasonably accommodate the tenant’s disability. Also, landlords can enforce pet rules aimed at keeping people safe and healthy, regardless of the circumstances behind the animal’s presence in an apartment. For example, landlords can require tenants to clean up after their animals and make sure they’re leashed, crated, or otherwise under their owners’ control while in common areas.