Author: ainsley

As landlords and property managers, you walk a thin line with regard to accommodation requests involving assistance animals.  You obviously want to make sure that any tenant who needs an assistance animal is accommodated.  At the same time, you need to require enough verification to weed out anyone who is trying to take advantage of the Fair Housing Act.  As a fair housing attorney, I’m always curious about where to draw the line.  How much verification is too much?

That’s why a recent complaint filed by HUD caught my attention.  HUD challenged the reasonable accommodation and pet policies of a housing provider as having “impose[d] mandatory burdensome conditions on individuals with disabilities who request animal assistance.”  The landlord required tenants to fill out several forms, including an accommodation request form and a doctor’s prescription form.  So what bothered HUD?  Apparently, it was the doctor’s prescription form, which required the doctor to accept liability for any damage or injury caused by the animal in question.

As I am sure you can imagine, each of the doctors approached in the case above refused to sign any such form.  This requirement was seen by HUD as a violation of the Act on the basis of discrimination, given that the failure of the tenant to secure a doctor’s signature resulted in the denial of the request.

So what should you do?

Other than the guidelines I discussed in a previous post, do not, I repeat, do not attempt to assign liability to the prescribing doctor in a tenant’s request for an assistance animal. This action will likely be considered discriminatory under the Act, and could open you up to enforcement for an FHA violation.  Keep in mind that this doctor requirement is just one example of a recent burdensome requirement, and if any part of your reasonable accommodation process may be interpreted as placing an excessive burden on the requesting tenant, it is worth looking at.

Now that the Supreme Court has definitively ruled that disparate impact claims are valid under the Fair Housing Act (discussed in further detail here), HUD has issued guidance regarding one common multifamily property policy that it believes has a discriminatory effect on minorities—criminal background screening.

In light of statistics demonstrating that African Americans and Hispanics are incarcerated at rates disproportionate to their share of the general population, HUD warned in guidance published on April 4, 2016 that criminal records-based barriers to housing are likely to have a disproportionate impact on minority home seekers.  Accordingly, landlords and management companies will need to have a substantial, legitimate, and nondiscriminatory reason for implementing a policy which considers criminal records in the housing application process.  Moreover, landlords and management should ensure that the interest achieved by their criminal background screening policy cannot be achieved by another practice that has a less discriminatory effect.

So does that mean that you cannot consider a prospect’s criminal background at all during the application process?  Not exactly.  HUD seems to agree that ensuring resident safety and protecting property are likely to be considered substantial and legitimate interests.  But it also warns that your criminal background policy darn sure better be tailored to achieve those goals. In terms of actual, specific (and useful) guidance, HUD does make two clear assertions: 1) a policy that excludes prospects because of one or more prior arrests (without a conviction) is unlikely to achieve a substantial, legitimate, nondiscriminatory interest; and 2) a policy that imposes a blanket prohibition on any person with any conviction (without any consideration of when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since) is also unlikely to achieve a substantial, legitimate, nondiscriminatory interest.

So what can you do?  Simple—sit down, and review your criminal background policy to make sure that it is tailored to meet your policy goals (such as protection of residents and property).  In essence, make sure that your policy only excludes based on criminal conduct that indicates a demonstrable risk to resident safety and/or property.  And make sure that you are taking into account mitigating factors, such as the amount of time that has passed since the conviction.  In other words, while you may be fine with a policy that excludes prospects with a violent felony conviction in the past seven years (absent any mitigating circumstance), you’re probably going to want to rethink a policy that excludes any prospect with a minor traffic offense.  The bottom-line is that you need to sit down and give some serious (and documented) thought to your criminal background policy to make sure that it is truly achieving your policy goals.

The Increasing Prevalence of Testing Under The Fair Housing Act

As landlords and management companies, I understand that you want to treat people fairly, and that you strive to stay within the confines of the Fair Housing Act.  Unfortunately, I have seen many well-intentioned owners and management companies caught off-guard by a housing discrimination claim filed as a result of “testing” that was done at the property.

While many owners and landlord companies may feel like they have been the victim of a “sting operation,” testing is a perfectly lawful (and efficient) means by which local fair housing advocacy organizations test properties to see if discrimination is occurring.  Advocacy organizations will send in two or more “comparable” testers—one or more of which is a member of a protected class under the FHA, and the remaining testers which are not—to inquire about renting similar units at a property.   “Comparable” in this regard means that the testers inform the property that they share the same background, employment, rental, and educational background.  In other words, everything should be the same about the testers except for their status as protected class-members—meaning that the testers should receive the exact same treatment and information about available units at the property.   If, as a result of the testing, the fair housing advocacy group finds that discrimination has occurred, then they (or the individual testers) will bring a housing discrimination claim against the property.

So is testing lawful?  In a word, yes.  The United States Supreme Court sanctioned these types of testing practices over twenty years ago.  So how do you avoid a tester-based housing discrimination claim?  The key is to have strong policies and procedures in place in ensure that all similar prospects are treated equally, and to instill those policies and procedures in employees through training.  In addition, it is essential to maintain records of all interactions with prospects, and to document the reasons for any deviations from standard procedure (e.g., if a leasing agent shows a prospect a unit that is not on the standard tour because of a maintenance issue, the reason for the deviation should be documented and kept on file).  Keeping proper records of leasing availability, prospect interaction, and deviations from policy may prove invaluable in the event that you find yourself defending against a discrimination claim from a fair housing advocacy group or tester!

Following the U.S. Supreme Court’s recent decision in Texas Department of Housing and Community Affairs v. Inclusive Community Projects, Inc. , it’s pretty clear that disparate impact claims are valid under the Fair Housing Act.  But the question remains:  how exactly does a disparate impact claim work?  And is it as draconian for landlords and property management companies as it seems?  The short answer is that while the threat of a disparate impact claim may give management a bit of heartburn, there are safeguards in place to protect legitimate, nondiscriminatory policies and practices.

As I’ve written about before (The U.S. Supreme Court Upholds “Disparate Impact” Claims Under The Fair Housing Act), a disparate impact claim allows a plaintiff to attack a housing policy that may seem nondiscriminatory on its face, but which has a disparate impact on certain protected classes.  As upheld by the Supreme Court in Texas Department of Housing and Community Affairs, and as originally promulgated by the U.S. Department of Housing and Urban Development, a disparate impact claim encompasses a burden shifting framework.  So what does that mean in plain English?  Well, under the Supreme Court’s guidance, a disparate impact claim works as follows.  First, the plaintiff must make a threshold showing of disparate impact, meaning that the plaintiff must show that a challenged practice or policy has caused, or will cause, a discriminatory effect.  Importantly, pursuant to the Supreme Court’s guidance, there must be a causal relationship between the defendant’s practice or policy and the discriminatory effect—if there is not, then the plaintiff cannot make its required initial showing, and the case is dismissed.  If the plaintiff does make this initial showing, then the burden shifts to the defendant to show that the practice or policy is necessary to achieve one or more substantial, legitimate, non-discriminatory interests.  Presuming that the defendant makes this showing, then the burden shifts back to the plaintiff to prove that the interests offered by the defendant in support of the practice or policy could be achieved by another practice or policy with a less discriminatory effect.

While the above framework may seem complex, the key takeaway is that management is still able to articulate and rely on a valid interest served by the challenged practice or policy as a defense to a disparate impact claim.  Moreover, the causal requirement set out by the Supreme Court—which the Court itself described as needing to be “robust”—is designed to ensure that defendants will not be held liable for disparities that they did not create.  In fact, the Supreme Court has specifically cautioned that courts should examine with care whether a plaintiff has met the threshold requirements to make a disparate impact claim, and that courts should promptly dismiss those cases where the plaintiff’s initial showing is insufficient.

While the above safeguards should provide management with a little peace of mind, it is still instrumental for management to analyze all practices and policies to determine if they might have a discriminatory impact on any protected classes and, if so, to consider whether there are any less discriminatory means that might equally achieve the intended goals of the practice or procedures.

As I have discussed in a previous post (The Differences Between Accommodations and Modifications Under the Fair Housing Act), the general rule under the federal Fair Housing Act is that the requesting tenant is responsible for the costs associated with a reasonable modification (meaning a structural change) to the property.  But what happens when a tenant requests a modification that should have already been part of the property under the Fair Housing Act’s Design and Construction Guidelines?  In this event, landlords may need to make the modification at their expense—and they may need to keep their fingers crossed that the tenant doesn’t make a claim for discrimination!

The Fair Housing Act’s Design and Construction Guidelines require that covered multifamily dwellings built for first occupancy after March 13, 1991 meet certain minimum accessibility and adaptability standards.  The Department of Housing and Urban Development (HUD) has provided guidance stating that if a tenant makes a reasonable modification request for a structural change to the property that should have been included in the unit or common use area when the property was constructed, then the owner may be responsible for providing and paying for the requested structural changes.  This is an exception to the general rule under the Fair Housing Act that the requesting tenant is responsible for the costs associated with a reasonable modification request.

Moreover, and perhaps even more concerning to landlords, under the Act any person or entity involved with the design and construction process of the noncompliant property may be sued for discrimination.  So landlords who have a noncompliant property built may find themselves facing a discrimination claim from a disabled tenant.  Given this, if a landlord receives a reasonable modification request for a change to the property that should have already existed under the Design and Construction Guidelines, it may behoove that landlord to make that modification as quickly as possible, and at their expense!

Under the Fair Housing Act, property owners and management companies are required to ensure that all tenants have an equal opportunity to use and enjoy a property.  Generally, this means that management must grant reasonable accommodation and modification requests where necessary to afford a tenant the full use of the property.  But what is the difference between a reasonable accommodation and a reasonable modification under the Fair Housing Act?  Well, in a word—cost!

First things first though.  A reasonable accommodation is a change, exception, or adjustment to a property rule, policy, practice, or service.  A reasonable modification is a structural change made to the premises.  So, for example, a request by a tenant in a wheelchair for a guide dog in an apartment community with a “no pets” policy is a reasonable accommodation request; a request by a tenant in a wheelchair to install grab bars in the bathroom is a reasonable modification request.

In my experience, however, I have found that property owners and management companies are more interested in the cost aspect of reasonable accommodations and modifications.  Generally speaking, under the federal Fair Housing Act, management is responsible for the costs associated with a reasonable accommodation, while the tenant is responsible for the costs associated with a reasonable modification.  There are a few exceptions to the general rule regarding cost (which I will explore in a subsequent blog post), such as where the requested modification is one that should have been included in the unit or common use area when the property was constructed pursuant to the Fair Housing Act’s Design and Construction Guidelines, or where the property receives federal funding.

In closing, here are a few additional caveats regarding cost.  First, you may request that a tenant restore the modified portions of the interior of the unit to the previous condition only where “it is reasonable to do so.”  Contrast this from modifications to common areas of the property or the exterior of the unit, which the tenant is not required to restore to the original condition at the end of his or her tenancy.  And, while the tenant is generally required to pay for reasonable modifications made to common areas of the property, if the modification is made to a common area that is normally maintained by management, then management is responsible for the upkeep and maintenance of the modification as well.

Reasonable accommodation and modification requests can be tricky, and I would encourage property owners and management companies to consult with a local, experienced attorney regarding these requests—particularly given that other jurisdictions (such as Massachusetts) have enacted statutes placing the burden of the cost of a reasonable modification on the landlord.

One common question from landlords and property managers is whether they are permitted to request supporting information from tenants who have made an accommodation request under the federal Fair Housing Act.  The stakes for owners and property managers here are high—a single misstep can lead to a costly discrimination claim.

Thankfully, HUD—the Department of Housing and Urban Development —has given some pretty clear guidance on this issue.  Generally speaking, the inquiries that you may make—and the verifying information that you may require—depends on the degree to which the requester’s disability or the disability-related need for the accommodation is either obvious or known.  The following is an overview of the guidance that HUD has provided regarding responding to a reasonable accommodation request:

• If the requester’s disability is obvious, or known to you, and the need for the accommodation is also readily apparent or known, then you may not request any additional information about the disability or the disability-related need for the accommodation.  Example:  An applicant with an obvious vision impairment requests an accommodation to a property’s “no pets” policy to allow the applicant’s seeing eye dog in his unit. Here, you may not require the applicant to provide any additional information about the disability or the disability-related need for the accommodation.   

• If the requester’s disability is known or readily apparent, but the need for the accommodation is not readily apparent or known, then you may request only information that is necessary to evaluate the disability-related need for the accommodation.  Example: An applicant who uses a wheelchair makes a reasonable accommodation request to allow an assistance dog in her unit even though the property has a “no pets” policy.  Here, even though the applicant’s disability is readily apparent, the need for the accommodation is not obvious—thus, you may ask the applicant to provide information about the disability-related need for the dog. 

• If the requester’s disability is not obvious, then you may request reliable disability-related information that: 1) is necessary to verify that the requester has a disability within the meaning of the Fair Housing Act; 2) describes the needed accommodation; and 3) shows the relationship between the requester’s disability and the need for the requested accommodation.  This information can usually be obtained directly from the requester, or from a medical professional, peer support group, non-medical service agency, or other reliable third party.  Under most circumstances, an individual’s medical records or detailed information about the nature of a person’s disabilities will not be necessary.