Tag Archives: fair housing

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.”

When Landlords Get in the Way of Their Own Success

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As a landlord, it’s important to learn as much as you can about specific situations and what to do to steer clear of potential liability lurking behind each one. That said, it’s just not possible to know all the answers all the time, given the complex legal landscape and changing laws. For example, did you know that if you order credit reports as part of your tenant screening, you can get into trouble with the federal government if you don’t follow certain rules for the disposal of the reports when you’re done with them? Even if you were aware of this, chances are there’s something else you don’t know.

So, what’s a prudent landlord to do?

While it’s certainly important to strive to learn as much as you can about specific situations and laws that pertain to your business, even better advice is to run your property in a thoughtful and careful way. This way, you keep a watchful eye on liability traps while always taking time to seek answers, strategies, and solutions as new or challenging situations arise.

In the last Roundup, I took a look at risky behaviors that tenants commonly engage in (see “Elevator Surfing and Other Bad Ideas,” August 15, 2014). Unlike tenants, landlords have a business to run, which means they have even more at stake. A poor decision or a rush to action can jeopardize the integrity of a rental property and the safety of those who live in it, not to mention the business’ bottom line.

Here are top ways to ensure that your behavior or procedures won’t lead to problems at your property:

  1. Not always following the law. Before taking any adverse action, consider whether you’re at liberty to do so. Some landlords know what’s required of them yet they take the law into their own hands because they want a speedier path or more favorable outcome. For example, rather than follow the judicial process to evict a tenant, some landlords engage in “self-help evictions” by shutting off utilities or even removing tenants’ belongings from their apartment and then changing the lock. Other landlords don’t follow the law simply because they didn’t think about whether there might be any laws that apply to the situation. For example, since trespassing is illegal, some landlords assume it’s okay to set traps for trespassers, but the law imposes at least a minimal duty on property owners to not intentionally harm trespassers. If you find yourself in a situation in which another person’s rights are affected, there’s a good chance there’s an applicable law.
  2. Taking too long to respond to issues. Too often, particularly when it comes to property ownership, problems arise from inaction. For example, delaying repairs to a small leak in a tenant’s refrigerator could yield a much costlier bill down the road, when you must deal with a large leak that has caused substantial property damage. Similarly, when several tenants complain about a harassing neighbor and you don’t respond, you may find yourself later responding to a lawsuit claiming you should be held liable for harm suffered after the neighbor has committed a crime.
  3. Not protecting yourself. The last thing you want is to do everything right but still have to pay in the end. Don’t rush to throw away important documents, such as recent tax returns and key compliance documents if your property participates in an affordable housing program. Also, keep good written records to ward off unfounded claims of discrimination. For example, keep an apartment availability log that backs you up should a prospective tenant claim you didn’t tell her about all available apartments. If you decide there’s a valid reason to make an exception to a house rule, document the reason or modify the rule itself so that you can be sure to make exceptions consistently going forward.