I’ll be presenting a two hour live webinar titled “What Real Estate Lawyers Need to Know About the ADA, FHA, and CT Accessibility Laws” for the Connecticut Bar Association on April 4, 2023 at noon Eastern Time. If your clients buy, sell or manage shopping centers, commercial properties, multi-family housing, single family housing developments, or home owners associations you need to understand their obligations under the Americans with Disabilities Act, Fair Housing Act, and Connecticut’s fair housing and public accommodation accessibility laws. Even if you don’t practice in Connecticut you’ll find this presentation helpful because so much of Connecticut law tracks the equivalent federal statutes. Sign up at the link above.
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. More
By Richard Hunt in Accessibility Litigation Trends, FHA, FHA definition of handicap, FHA Emotional Support Animals, FHA Guidance, FHA Training Tags: assistance animals, Emotional Support Animals, FHA Defense, HUD guidance, service animals
On April 14 at 2:00 p.m. CST I’ll be presenting a one hour webinar on HUD’s January 2020 guidance on reasonable accommodations for animals. I’ll cover what HUD got right and wrong in this guidance and explain what housing providers need to know about the reasonable accommodation process in light of the guidance. Written materials include modified decision tree for accommodation requests.
The course is sponsored by the University of Texas School of Law and is approved for CLE credit. If you are interested in registering, this link will take you to the registration page:
Just after posting yesterday’s blog on the perils of being ignorant in FHA matters I received a copy of a recent charge of discrimination showing how reasonable accommodation can be done wrong. You can read the complaint here. The facts as presented in the charge show that the landlord made three important mistakes when refusing a request for a reasonable accommodation. The first was the manager’s absolute refusal to consider modifying the apartment’s no pet policy in response to the first request for accommodation. Absolute refusal is never the right way to respond to an initial request for accommodation because it fails the requirement that the management engage in an interactive process with the tenant. More
Ignorance of the law is never a good idea. In a May 2, 2016 decision from the First Circuit it became clear that ignorance can be expensive. Castillo Condo. Ass’n v. U.S. Dep’t of Hous. & Urban Dev., 2016 WL 1732499 (1st Cir. May 2, 2016). The case was, as the Court observed, fact intensive, but a couple of observations about ignorance of the law explain much of the outcome.
The original complaining party, Carlo Giménez Bianco (“Giménez”) suffered from depression and anxiety. He wanted to keep his dog despite the Castillo Condominium’s no pets policy. He asked, he was rebuffed, and he moved out. He then filed a fair housing complaint. HUD’s initial investigation resulted in a charge of discrimination, which was referred to an Administrative Law Judge. The ALJ concluded after an evidentiary hearing that Giménez was not disabled and therefore not entitled to an accommodation. This decision was appealed to the Secretary of Housing and Urban Development, who reviewed the evidence and reversed, finding that Giménez was disabled. The case went back down to the ALJ to assess damages and penalties. The ALJ awarded only $2,000 in damages and a $3,000 penalty. The latter was based on his finding that the Condominiums were not motivated by malice, but were simply ignorant. This went back up to the Secretary, who again disagreed, raising the damage amount to $20,000 and imposing the maximum penalty, $16,000. The Secretary found that ignorance was an aggravating rather than a mitigating factor, and justified the maximum penalty. The Secretary’s decision was appealed to the First Circuit, which ruled in favor of the Secretary on every count. More