Fair housing are two words that often scare landlords because they simply don’t know enough about this area of the law. Our firm is well versed in all aspects of fair housing as our attorneys have been practicing in the area for up to 25 years. Fair housing enforces an important public policy of ensuring that improper discrimination does not take place in the sale or rental of a dwelling unit.
Our attorneys regularly defend fair housing cases on behalf of landlords, but more importantly, teach numerous classes on the subject to landlords so as to help avoid becoming the subject of a complaint. Fair housing is not a subject that can be learned once; as it is a constantly evolving area of the law its important for owners and property managers to stay current on the legal issues, from medical marijuana to occupancy standards. Our firm is here to help.
IMPORTANT GOVERNMENT PUBLICATIONS ON FAIR HOUSING ISSUES
These are joint, easy to understand publications from HUD and the U.S. Department of Justice explaining three difficult areas involving rights of disabled persons in housing communities. They are in Q & A format and address most common questions of landlords and other housing providers.
Joint Statement on Reasonable Accommodations. This explains the duty to make exceptions to rules and policies to accommodate people with disabilities.
Joint Statement on Reasonable Modifications. This explains the duty to allow residents to make physical changes to the premises to accommodate their disabilities.
Joint Statement on Design and Construction Requirements. This explains the design and construction requirements for residential housing built after 1991 and also how ADA requirements may impact residential construction.
4/9/16–HUD APRIL 4, 2016 CRIMINAL BACKGROUND POLICY STATEMENT
On April 6, 2016 HUD released a 10 page policy paper on the use of criminal background criteria to screen applicants for tenancy. Blanket policies of refusing to rent to anybody with a criminal record are de facto discrimination, HUD says — because of the systemic disparities of the American criminal justice system. Black men are imprisoned at a rate nearly six times that of white men, and Hispanic men at more than twice the rate of white men. Read the HUD statement here. To read more on this go here.
6/25/15 – DISPARATE IMPACT UPHELD BY SUPREME COURT AS FAIR HOUSING TEST
On June 25, 2015 the Supreme Court UPHELD “disparate impact” as a proper test for housing discrimination under the Fair Housing Act. This was a 5-4 decision but settles the question for once and for all. The court stated:
“A disparate-impact claim that relies on a statistical disparity must fail if the plaintiff cannot point to a defendant’s policy or policies causing that disparity. A robust causality requirement ensures that ‘[r]acial imbalance . . . does not, without more, establish a prima facie case of disparate impact’ and thus protects defendants from being held liable for racial disparities they did not create”.
Essentially this decision preserves the status quo since all enforcement agencies were using this test anyway.
The opinion acknowledged it did not decide what the law actually says but was based largely on other considerations, mainly that this had been the understanding of all the lower courts, responsible administrative agencies, and housing advocacy groups since 1988.
When a tenant can demonstrate a medical need for a live-in caregiver, fair housing laws require the landlord to waive any rule prohibiting the tenant from having the caregiver live with him—for example, occupancy limits, or, in age 55 communities, age restrictions. But, Arizona laws make clear that a caregiver does not become a tenant, must comply with community rules, and when the condition giving rise to his or her need ends (for example, the tenant recovers or dies), the caregiver can be required to move. We strongly recommend that landlords require tenants who have properly requested to have a live-in caregiver to sign an addendum to their rental agreements spelling out the caregiver’s limited rights. To read the whole article, click here.
11/1/13 UPDATE ON SUPREME COURT DISPARATE IMPACT CASE
Press reports indicate that this case has been settled and will be withdrawn from the Supreme Court docket. So once again the Supreme Court will be deprived of an opportunity to rule on whether Disparate Impact is a proper test for fair housing violations.
6/17/13 SUPREME COURT TO HEAR CASE ON WHETHER DISPARATE IMPACT APPLIES TO FAIR HOUSING.
On June 17, 2013, the Supreme Court of the United States granted certiorari (cert) for a case to determine whether a disparate impact test may be applied to fair housing complaints. When the Supreme Court grants cert it means that they will hear arguments and potentially render an opinion on the subject. To date, the Supreme Court has never ruled whether a disparate impact test may apply to fair housing situations. While disparate impact language appears nowhere in the Federal Fair Housing Act, many courts have held that such a standard implicitly exists. A disparate impact test can be viewed as whether a neutral policy by a landlord has an unintended adverse impact upon a protected class. In other words, is a protected class being discriminated against as a result of a facially neutral policy? In the case before the Supreme Court, Township v. Mount Holly Gardens, the issue is whether a New Jersey town’s plan to redevelop lower income housing violated the Fair Housing Act because it would reduce affordability for minorities. The argument is that while the redevelopment policy is neutral, it unintentionally discriminates against minors who will not be able to afford the new housing development. Many cases have raised this issue before, and have been settled prior to a ruling by the Supreme Court. Hopefully the Supreme Court will render an opinion in this case and settle the dispute. It will take months, if not a year, before a ruling is expected.
2/26/2013 UPDATE – NEW CITY OF PHOENIX PROTECTED CLASS
On February 26, 2013, the City of Phoenix announced proposed changes to its laws adding “sexual orientation” and “gender identity or expression” to the list of protected classes for fair housing, employment and public accommodation laws. The law is scheduled to go into effect on March 26, 2013. (the ordinance language referenced herein is subject to change before final ordinance is enacted).
To read the full article on the new protected class within the City of Phoenix, click here.
DISPARATE IMPACT – NEW HUD RULE
In February, 2013, the U.S. Department of Housing and Urban Development came out with a new rule regarding disparate impact and how such fair housing cases should be analyzed. Under a disparate impact theory, a complaint argues that a facially neutral policy has the effect of discriminating against a protected class. For example, some have argued that an application standard that prohibits any criminal history violates fair housing as it disproportionally impacts minorities.
Among practitioners, it is debated whether disparate impact is an appropriate test under fair housing laws. While most appellate courts find that disparate impact is a valid test, the issue has not yet been decided by the U.S. Supreme Court. However, HUD published a new rule addressing the issue.
To read the full article on disparate impact, click here.
FAIR HOUSING, DISABILITIES, AND REASONABLE ACCOMMODATIONS
Since 2010, by volume, there have been more fair housing complaints based upon disability filed with the U.S.Department of Housing and Urban Development than any other protected class. A likely reason for this is because in addressing claims based upon disability, its not a clear issue of whether someone was denied services or whether negative actions were taken against the tenant or applicant.
In dealing with disabilities, there are additional steps that must be considered to ensure that the tenant is able to use and enjoy a property. This includes things like granting reasonable accommodations and modifications, and engaging in the interactive process with tenants. Too often landlords recognize that someone is considered disabled, but fail to review accommodation requests to allow the tenant to reasonable use and enjoy the property.
The premier analysis of Reasonable Accommodation issues is a Joint Statement issued by HUD and Department of Justice. It is an important read for any landlord. To read the Joint Statement, click here.
ASSISTIVE ANIMALS UNDER FAIR HOUSING v. SERVICE ANIMALS UNDER ADA
All landlords know (or should know) that they must allow their disabled tenants to have assistive animals, when the animal is necessary for the tenant to reasonably use and enjoy the rental property. However, landlords often do not know the details of what this requires and to what animals it apples. In 2011, the Department of Justice amended the Americans with Disabilities Act (ADA) to specify that only certified dogs and miniature horses that assist with physical disabilities, may qualify as service animals. Many people incorrectly assumed that this applied to fair housing laws and allowed a landlord to limit the assistive animals they must accept in their rental properties. Such assumptions are wrong. Fair housing laws always have, and continue to, require a landlord to accept any type of assistive animal when reasonably necessary for a disabled tenant to use and enjoy a rental property.
To read the full article analyzing ADA changes, and the HUD analysis regarding assistive animals, click here.
THE INVESTIGATION PROCESS
It’s just a matter of time. If you are in the business of managing apartments or other residential communities, you will eventually be accused of a fair housing violation. (…) So don’t feel bad. Knowing the process is an important part of responding to a fair housing complaint. While its understandably scary and upsetting to receive a complaint alleging that you have committed unlawful discrimination, its best to prepare an objective response to the Complaint. Knowing the process is an invaluable part of this.
To read the full article regarding the investigative process for fair housing complaints) click here.