My next Quick Hits blog will discuss federal court decisions in the last month; this special is about only one thing – HUD’s very active enforcement activities concerning the Fair Housing Act, especially with respect to disability rights claims. Here are the press release headlines from September 1 to the present:
HUD AWARDS OVER $47 MILLION TO FIGHT HOUSING DISCRIMINATION
These grants go to local organizations that file FHA lawsuits, engage in FHA testing, and help process FHA Complaints. Most of the money is going to organizations that conduct testing campaigns in which they either expose discrimination or trap innocent landlords using calculated deception, according to how you view tester tactics. It may be a little of both since not all organizations are equally committed to fairness in fair housing. It is telling that litigation related activities will get three times as much money as education related activities. HUD seems to be more interested in punishing landlords than in helping them understand the law. This is an attitude left over from the decades in which most FHA complaints were based on obviously wrong conduct in the form or racism. Disability discrimination is far more difficult for landlords to understand because it is usually in found in failures to grant modifications or accommodations in situations where the morally correct choice is not necessarily the same as the legally correct response. HUD might take note that the education to enforcement ratio is backwards in an era where most claims arise out of ignorance rather than obviously evil conduct. If you are a landlord or HOA you need to be aware that more money means more testing, so you need to be careful in dealing with callers who claim to have a disability or fall into a protected category under the FHA. They really are out to get you.
HUD CHARGES FLORIDA HOMEOWNER ASSOCIATION WITH DISCRIMINATING AGAINST RESIDENT WITH DISABILITIES
In this case the HOA refused to allow condominium owners to leave their shoes outside in order to avoid bringing allergens into the home. The key complaint, I think, is this: “the homeowner association refused to grant the couple’s accommodation request, and instead made repeated demands for further documentation.” Drawing the line between insisting on reliable evidence and demanding more than the law allows isn’t always easy, but asking more than once or twice will probably lead to trouble. It also hurt that the complaining party was suffering from 9/11 related respiratory illness. Some complaining parties have to be given kid glove treatment, and that includes veterans and similar heroes. It isn’t the law, but it is common sense.
HUD CHARGES MISSOURI HOUSING PROVIDERS WITH HOUSING DISCRIMINATION
This is a family status discrimination case that came about because the landlord was concerned that the apartment was just too small for an adult and two children. Whenever landlords decide to make decisions based on their idea of how a family should be raised or their stereotypical views of what children might do in terms of damage they are bound to get in trouble. Occupancy limits can be enforced, but under most local ordinances and HUD’s guidelines even a studio apartment is large enough for an adult and two children. Whether it’s a bad idea to put children in a small apartment isn’t something the landlord gets to decide.
HUD APPROVES AGREEMENT WITH HOUSING AUTHORITY OF MARICOPA COUNTY, ARIZONA, RESOLVING CLAIMS OF DISABILITY DISCRIMINATION
This case looks more like a mistake than discrimination, but mistakes can be costly when the result is discriminatory. The mentally disabled tenant had an accommodation in place so her brother got copies of all notices from the housing authority. Some were not sent and as a result the tenant missed deadlines and got evicted. The settlement cost the housing authority $10,000 plus undoing the eviction and agreeing to training. This is a very typical bureaucratic screw up, but public agencies aren’t the housing providers with bureaucracies. Any landlord that doesn’t take the time to make sure management personnel understand the Fair Housing Act might get stuck in the same situation. As a rule of thumb, don’t evict a disabled tenant without very carefully thinking about whether it might violate the FHA.
HUD Charges Houston Rental Property Owners with Discriminating Against Person with Disabilities
NIMBYism is a fruitful source of discrimination complaints because, unfortunately, many people still rely on stereotypes and ancient prejudices when making decisions about who to rent to. In this case a group of landlords refused to rent houses for group homes for the mentally disabled. They may or may not have said what the charge of discrimination alleges, but refusing to rent to a group home for the disabled is a decision that shouldn’t be made without careful thought and, probably, talking to a lawyer who knows something about the FHA.
HUD CONSENT ORDER SETTLES CLAIMS INVOLVING NEW HAMPSHIRE MOBILE HOME PARK ACCUSED OF DISCRIMINATING AGAINST TENANT WITH DISABILITIES
Ordinarily age restricted communities are allowed to refuse younger tenants because the Fair Housing Act specifically provides for it. However, there is no rule or law that isn’t subject to the reasonable accommodation requirement in Section 3604(f)(3)(B) and age restrictions are no different. The defendants refused to allow the severely disabled son of an older couple to live with them and will have the opportunity to learn why that was wrong with required training and a $15,000 fine. This situation – an older couple with a disabled adult child – isn’t uncommon and refusal to allow the child is going to result in a complaint and possible fine every time.
HUD APPROVES AGREEMENT BETWEEN OWNERS OF TUCSON APARTMENT COMPLEX AND SAME-SEX COUPLE RESOLVING CLAIMS OF HOUSING DISCRIMINATION
Just a reminder that the discrimination based on “sex” outlawed by the Fair Housing Act includes discrimination based on any of the LGBTQ classifications, as well as anything else related to gender and gender identity. In this case there was also an element of race discrimination because the couple was black. Most important, the landlord’s involvement was originally indirect. The couple was harassed by another tenant and the landlord didn’t get involved until after they complained, at which point the landlord began mistreating them as well. The take-aways for any landlord are that (a) you can be responsible for tenant misbehavior if you know about it and (b) if you hire the wrong local manager (who was responsible for the bad conduct) you are setting yourself up for a HUD complaint and penalty. My informal observation over many years has been that low income housing, which can require a tougher management style than other kinds of housing, is also more likely to be the subject of HUD complaints. That tough cookie you are counting on to collect the rent from problem tenants also needs to understand the FHA and where being tough crosses the line into illegal discrimination.
Justice Department Resolves Lawsuit Alleging Disability-Based Discrimination at 38 Multifamily Housing Complexes in North Carolina.
This is a design/build case against a developer who built a lot of apartment complexes that did not meet the FHA’s requirement of accessible design. I am involved in cases like this (but not this one) and it is still amazing that designers and contractors are not following the requirements first put in place in the early 1990’s. If you read the expert reports in these cases you will see the same problems – uneven sidewalks, exterior door knobs, narrow doors, high thresholds, misplaced toilets, narrow kitchens, misplaced controls and the like — occurring over and over again. Developers need to protect themselves with third-party plan and construction reviews if they want to avoid very expensive remediation and penalties down the road.
That’s it for the last six weeks – no doubt the next six weeks will bring an equivalent number of complaints and settlements. I’m sure that if I dug into the facts of each of these claims I would find some that don’t match the claims made by HUD or DOJ because press releases rarely present all sides to a story. In a sense though it doesn’t matter because the cost of winning a battle with HUD or DOJ isn’t one any landlord or HOA wants to incur. I suggest this bit of wisdom. Trial lawyers are like heart surgeons – when you need one you want a really good one, but you don’t want to need one very often. Better to stick with a healthy diet of FHA compliance instead of hoping that triple-bypass will go well after a diet of cigarettes and red meat.