Williams
Zinman &
Parham P.C.
Articles
Fair Housing      

Michael A. Parham                           

                                   

See Also:  Fair Housing Guidance for helpful Government publications.  

 

INDEX OF ARTICLES (Click on Link):

What Should 55+ Parks Be Doing To Keep Their 55+ Status?

Fair Housing—Do Not Adopt Special Rules Regarding Children!

April 4, 2016 HUD Policy of Criminal Background Criteria

ADA Suits Against RV Parks, MHC's With RV Sections and Apartments With Public Use Facilities--2.21.16

Park Closures Under Fair Housing Laws Part 2--12.5.15

Park Closures Under Fair Housing Laws--7.10.15

Disparate Impact Case Update--6.25.15

Criminal Background Checks Under Fair Housing Law

There Is No Qualification/Certification for Assistive Animals!

Disparate Impact--11.4.14

Assistive Animal Reasonable Accommodation Request Form--September 11, 2014

When Is A Caregiver Allowed, And Why Do I Need An Addendum?

Handicap Assistive Animals

Allowing Disabled Children In Age 55 Communities

Sexual Orientation and Gender Identity Discrimination in the City of Phoenix

Disparate Impact As a Test of Fair Housing Discrimination

What is the Test for Determining a Fair Housing Violation

Reasonable Accommodations and Reasonable Modifications

Court Rules ADA Does Not Apply to Residential Communities and Fair Housing Act Does Not Require Reasonable Accommodations Unless First Requested.

The Crime Free Program and Fair Housing Laws

The Effect of Fair Housing Laws on Crime Free Addendums

What to Do When the Fair Housing Complaint Arrives

Statute of Limitations Applicable to Accessibility Claims Under Fair Housing Laws

Standing of Testing Agencies to Seek Damages for Fair Housing Handicapped Accessibility Violations


All articles (c) 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2016 and 2017 by Michael A. Parham and Melissa A.parham. All rights reserved.


WHAT SHOULD 55+ PARKS BE DOING TO KEEP THEIR 55+ STATUS?

Melissa A. Parham

Lately I’ve been getting a lot of calls with questions regarding how age 55+ parks work, when exceptions to the 55+ requirement must be made, and when exceptions should not be made.  There seems to be much confusion about what 55+ status means and how it is retained and enforced.  Given that serious liability that can arise if a park is not meeting the requirements to be called 55+, it is important for operators to know and follow the mandates.

To qualify as 55+ housing under the Housing For Older Persons Act (“HOPA”), a mobile home park must: (1) have at least 80% of its occupied units be occupied by at least one person who is 55 years of age or older; (2) publish and adhere to policies and procedures that demonstrate an intent to provide housing for persons 55 and older; and (3) comply with federal rules regarding verification of occupancy through reliable surveys and affidavits. 

Regular Surveys.  While most 55+ parks have leases and published Rules and Regulations that clearly state the parks’ 55+ status, many fail to complete the required surveys.  HOPA requires that age verification surveys be conducted every two years.  Failure to conduct such surveys can be used as evidence, in a familial status discrimination fair housing complaint, that the park has not demonstrated an intent to operate as housing for older persons.  The MHCA Blue Book contains forms that mobile home parks can use for age verification and for conducting these surveys.  

80% of Occupied Spaces With at Least One 55+ Resident.  Many parks misunderstand this 80% requirement.  HOPA requires 80% of occupied units to be occupied by at least one person who is 55 or older.  The remaining 20% of units may be occupied by persons under 55.  However, HOPA also requires 55+ communities to advertise and hold themselves out to the public as housing intended for older persons.  If a 55+ park purposefully markets itself to individuals who are under 55, it could ultimately be determined that the park did not act with intent to operate as housing for older persons.  Though 20% of units may be occupied by persons under 55, the 20% was intended for situations where the occupants of spaces who are over 55 die, leaving only surviving spouses or heirs who are under 55.  In that situation, the surviving spouse or heir would fall into the 20% and would not jeopardize the park’s 55+ status.

If a park uses its 20% simply to rent to individuals who are under 55, the park may be jeopardizing its 55+ status down the road as older tenants die, leaving only younger occupants on the mobile home space.  If no room is left in the 20% for those individuals, the park could fall out of the 80%/20% balance and lose its protection under HOPA.

80/20 and Secondary Age.  Many parks also get confused by their “secondary age.”  Most 55+ parks require that at least one person on each space be over 55, and have adopted a “secondary age” that everyone else residing in the park must meet.  Please remember, this is discretionary and not required by federal law.  For example, many 55+ parks require that one person on each space be at least 55 or older, and that anyone else residing in the park must be at least 40.  As long as one person residing on the space is 55 or older, the younger occupants of the space who meet the secondary age do not count towards the 20%.  Rather, the space itself is fully compliant with the 55+ requirement because at least one person residing there is 55 or older.  The park’s 20% only includes spaces where no one is 55 or older.

Exceptions to Secondary Age for Caregivers and Disabled Dependents.  I often get questions from managers about spaces where the 55+ tenant wishes to bring in a full-time, live-in caregiver who does not meet the park’s adopted secondary age requirement.  Assuming the need for the caregiver is either apparent or has been verified pursuant to fair housing laws, the park would need to make an exception to its secondary age and allow the caregiver to reside on the space to care for the 55+ tenant.  Again, this would not jeopardize the park’s 55+ status because at least one person residing on the space would be over 55 and because it is an accommodation required by fair housing laws.

A similar situation occurs when a 55+ tenant becomes the full-time caregiver for a disabled person.  I have received several calls from park managers faced with a 55+ tenant who has become the caregiver to a disabled minor child or a disabled adult child.  Again, assuming that the disability and need for the caregiver is either apparent or verified pursuant to fair housing laws, the park would be required to make an exception to its secondary age and allow the disabled minor or disabled adult to reside on the mobile home space with the 55+ tenant.  This still would not jeopardize the park’s 55+ status because at least one person residing on the space would still be over 55.

Notably, I have recently taken several calls from parks with questions regarding whether a park would have to make an exception to the requirement that at least one tenant on each space be over 55 because the proposed tenant making application to the park, is under 55 but is either disabled or acts as a full-time caregiver for a disabled person.  Where no person residing on the space would be 55, the park would not be required to make an exception and allow younger individuals to live on the space because of a disability on the part of the proposed tenant or any proposed occupant.

Keeping Your 55+ Status.  55+ mobile home parks would be wise to review their rental documentation and ensure that it is apparent from the documentation that the park is 55+.  Likewise, the park’s advertising should make clear that the park is 55+.  The park should ensure that it receives verification of age from each incoming tenant.  The park should also confirm that it conducts surveys of all of its tenants every two years to verify that at least one person on each occupied space is over 55.  Forms for this purpose are available in the MHCA Blue Book.  


FAIR HOUSING—DO NOT ADOPT SPECIAL RULES REGARDING CHILDREN!

By:  Melissa A. Parham

Our office sometimes comes across landlords of family communities (communities that are not 55+) who have sent letters to their tenants requiring that the tenants supervise their children at all times.  We can’t stress this enough: SENDING SUCH A LETTER IS ILLEGAL AND CAN SUBJECT A LANDLORD TO SEVERE PENALTIES.  We also often see rules and regulations landlords have adopted or signs landlords have posted stating rules that prohibit children from using certain facilities or doing certain things.  Such rules also violate fair housing laws.

It is illegal to discriminate against anyone on the basis of “familial status.”  Under fair housing laws, “familial status” means one or more children under the age of 18 living with either a parent, a legal guardian, or a designee with written permission of a parent or legal guardian for the child to live with him or her.  It also means a pregnant woman or person in the process of securing legal custody of a child under 18. 

If a landlord adopts rules requiring supervision of children or restricting children’s use of common area facilities, the landlord is most likely violating fair housing laws.  A landlord cannot require parents to supervise their children when the children are outside the home.  Likewise, a landlord cannot post signs prohibiting children from using the billiards room, laundry room, etc. 

Exceptions are possible when a landlord can justify restrictions on children for health and safety reasons that can be proven with documentation (like literature from the manufacturer of a piece of exercise equipment that is considered dangerous for children of a certain age).  If your park is considering adopting any restrictions regarding children, it should consult an attorney before doing so to avoid violating the law.    

A good rule of thumb is that park rules and signage should never specifically refer to children or anyone under the age of 18.  If a park wants to prohibit playing in the street, its rules should state, “no one may play in the street.”  If such a rule is adopted, it must be enforced against everyone—not just children.  Adults playing football in the street should be stopped just as children would be stopped.  The park should not have signs posted at any community facility referring to children.  For example, a sign stating that the billiards room is 18+ would violate fair housing laws, as would a sign requiring supervision of children in the laundry room.  If you have such signs, take them down immediately.    

Familial status discrimination also occurs when a landlord advertises or presents itself as an “adult community” when it is not actually an age qualified community.  A family park should never state or imply that it is geared towards “adults.”  It should also never try to steer people with children away from the park by stating that children would not have fun there, or there are not sufficient facilities for children in the park, etc.  A landlord should treat everyone applying for tenancy the same and managers should not make comments about the makeup of the potential tenant’s family.


Criminal Background Criteria Under Fair Housing Laws.  

Introduction

Set forth below is a summary of the main points in a 10 page HUD policy paper released on April 4, 2016 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.

A landlord violates Fair Housing laws when his policy or practice has an unjustified discriminatory effect, even when he has no intent to discriminate.  Under this standard, a facially neutral policy or practice that has a discriminatory effect violates the law if it is not supported by a legally sufficient justification.

Thus, where a practice that restricts access to housing on the basis of criminal history has a disparate impact on individuals of a particular race, national origin, or other protected class, such policy or practice is unlawful if it is not necessary to serve a substantial, legitimate, nondiscriminatory interest of the landlord, or if such interest could be served by another practice that has a less discriminatory effect.

For purposes of the following summary it is assumed that any criminal background criteria has a statically greater effect on protected minorities.

Summary

In a fair housing case the landlord will need to prove that the challenged policy or practice is justified – that it is necessary to achieve a substantial, legitimate, nondiscriminatory interest of the landlord.  The interest may not be hypothetical or speculative, meaning the landlord must be able to provide evidence proving both that he has a substantial, legitimate, nondiscriminatory interest supporting the challenged policy and that the challenged policy actually achieves that interest.

Ensuring resident safety and protecting property are among the fundamental responsibilities of a landlord, and courts may consider such interests to be both substantial and legitimate. But the landlord must be able to prove that making housing decisions based on criminal history actually assists in protecting resident safety and/or property.  Assertions based on generalizations or stereotypes that any individual with an arrest or conviction record poses a greater risk than any individual without such a record are not sufficient.

A landlord with a policy of excluding individuals because of prior arrests without conviction cannot satisfy its burden of showing that such policy or practice is necessary to achieve a legitimate, nondiscriminatory interest. For that reason, a landlord who denies housing to persons on the basis of arrests not resulting in conviction cannot prove that the exclusion actually assists in protecting resident safety and/or property.

In most instances, a record of conviction (as opposed to an arrest) will serve as sufficient evidence to prove that an individual engaged in criminal conduct. But landlords that apply a policy or practice that excludes persons with prior convictions must still be able to prove that such policy or practice is necessary to achieve a legitimate, nondiscriminatory interest.

A landlord that imposes a blanket prohibition on any person with any conviction record – no matter when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then – will be unable to meet this burden.

A landlord with a more tailored policy or practice that excludes individuals with only certain types of convictions must still prove that its policy is necessary to serve a “substantial, legitimate, nondiscriminatory interest.” To do this, he must show that the policy accurately distinguishes between criminal conduct that indicates a demonstrable risk to resident safety and/or property and criminal conduct that does not.  

A policy that fails to take into account the nature and severity of an individual’s conviction is unlikely to satisfy this standard. Similarly, a policy that does not consider the amount of time that has passed since the criminal conduct occurred is also unlikely to satisfy this standard, especially in light of research showing that, over time, the likelihood that a person with a prior criminal record will engage in additional criminal conduct decreases until it approximates the likelihood that a person with no criminal history will commit an offense.

Accordingly, a policy that fails to consider the nature, severity, and remoteness in time of criminal conduct is unlikely to be proven necessary to serve a “substantial, legitimate, nondiscriminatory interest” of the landlord.

The Fair Housing Act provides that it does not prohibit “conduct against a person because such person has been convicted … of the illegal manufacture or distribution of a controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).” Accordingly, a landlord will normally not be liable for excluding individuals because they have been convicted of one or more of the specified drug crimes, regardless of any discriminatory effect that may result from such a policy.

Conclusion

Landlords should review and revise their criminal background screening criteria in light of this new, 2016 HUD policy statement.


ADA Suits Against RV Parks, MHC's With RV Sections and Apartments With Public Use Facilities--2.21.16

Arizona has become a target for lawsuits arising under the Public Accommodations section of the Americans with Disabilities Act (ADA). As the name implies, this section applies to “public accommodations” as defined in the ADA. There are twelve categories of these including places of transient lodging but not including residential communities. Many of the lawsuits have been filed by Theresa Brooke, a wheelchair bound woman who has sued more than 150 Arizona hotel owners for failing to provide wheelchair accessible pool lifts. She is not the only such plaintiff.

Apartments, MH and RV Parks have repeatedly asked if they need to bring their pools into compliance with the accessibility standards issued under the ADA. Specifically these standards have expensive pool lift requirements to enable wheelchair bound users to get into and out of the pool.  I have said for years that as long as the pool is in a residential community and is limited to being used by residents and their guests and is not open to the public, the ADA and the pool lift requirements do not apply.

Here is an excerpt from a U.S. Department of Justice advisory issued in 1993 involving Title III of the ADA which covers this area of Public Accommodations:

In a mobilehome facility, common areas, such as recreational facilities, for example, that are restricted to the exclusive use of residents and their guests would be considered part of the residential facility and not a place of public accommodation even though places of recreation are listed among the categories of public accommodations under title III. However, where such facilities are available for use by persons other than residents and their guests, they are places of public accommodations within the meaning of title III. 

You can see the entire letter at the DOJ website.  

Although 23 years old, this policy remains accurate. As long as the public is not allowed use of the pool the ADA accessibility standards do not apply to it in an MHC.

The same logic would seem to apply to RV Parks and Resorts, and to mulit-housing communities that are limited to long-term residence and not transient rentals. But those renting spaces overnight or for only a few days may qualify as public accommodations and may be subject to the ADA and one of these lawsuits if they do not have qualifying pool lifts.

Pleadings in some of these cases indicate that the suit is filed on the basis of a phone call by the plaintiff to the community office asking if there is a pool or spa and if so, whether it has a wheelchair lift. If the answer is “no”, the suit is filed.

Any park or multi-housing community getting such a call should answer that it only rents spaces or units to long-term residents (if that is true) and not get into the details of its facilities over the phone. If someone asks about the minimum stay requirement, respond with the truth. This goes not only for RV space rentals but for park owned home rentals as well. It would be wise to have a minimum one-month stay requirement since that would appear to clearly make the use residential and not transient.

Communities with short-term rentals and no pool lifts should immediately contact an ADA qualified contractor for the purpose of getting the pool and spa brought into compliance.

These plaintiffs seem to target small mom and pop operations who can ill afford the expense of litigation in the homes of getting a quick settlement of a few thousand dollars (which will all go to the attorney filing the suit) and an agreement to install the pool lift.

I am hopeful that residential communities targeted for these suits that do not fall under the ADA will fight back. But that will be up to the landlord and perhaps its insurance carrier if it has coverage for ADA litigation.


PARK CLOSURES UNDER FAIR HOUSING LAWS PART 2--12.5.15

I wrote about this in my July 10 Blog entry. Essentially I talked about how the recent U.S. Supreme Court decision approving Disparate Impact as a test for housing discrimination could releate to park closures. The idea is that most parks about to be closed are largely inhabited by minorities and the closure would have a "disparate impact" on those minorities. But, as I pointed out there is language in the decision saying "practical business choices and profit-related decisions that sustain a vibrant and dynamic free-enterprise system" may be legitimate anyway.

In an article in the September 2015 WMA Reporter, two officials with MHI speculated on the effect of this disparate impact decision on community closures.  They referred to an Iowa Law Review article involving a series of park closures in the Boise, Idaho area.  Those parks had disproportionate numbers of single female residents.  The article apparently speculated that they could have complained of a fair housing violation based on sex since the closures had a disparate impact on females. 

That article actually appeared in the Idaho (not Iowa) Law Review in 2011 but it has now been taken down by the University and I was unable to find it on line or on the MHI website.

Nevertheless it is easy to see why someone would speculate that a closure of a community with a disproportionate population of people in protected classes would trigger disparate impact claims.  But unlike 2011 when the Boise cases took place and the Law Review article was written, we now have the Supreme Court decision to guide us.  It clearly makes the point that these sorts of actions having a disparate impact are acceptable if the action is to secure a legitimate goal, specifically including profit.

Discussions I have had with the Attorney' General's Office also make it clear to me that the community owner's efforts to minimize the difficulties faced by tenants in parks being closed will go a long way towards avoiding such claims being made.  The MHCA program is thus even more valuable under this decision.  The WMA article made the point that these considerations need to be part of the owner's due diligence before closing a park, and I agree with that.


PARK CLOSURES UNDER FAIR HOUSING LAWS--7.10.15 

In Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., the U.S. Supreme Court held that “disparate impact" claims may be brought under the Fair Housing Act. 

"Disparate impact" goes beyond outlawing intentional discrimination and also makes illegal normal business practices that happen to have discriminatory outcomes. In essence, "disparate impact" punishes practices not intended to discriminate, but which have a disproportionally adverse impact on a protected class.

Under this decision, if a statistical discrepancy occurs because of an action taken by a park, a protected class disproportionately impacted by the action may bring a discrimination complaint. The legal burden shifts to the landlord to prove the action is necessary to achieve legitimate, non-discriminatory interests.

The Court added some protections against abusive claims, stating that "... practical business choices and profit-related decisions that sustain a vibrant and dynamic free-enterprise system ..." may be legitimate. In addition, the Court stated that profit is a valid interest.

In the case of change in use and redevelopment of older parks, if the majority of the people displaced were protected minorities, the actions could be viewed as having a "disparate impact" on a protected class under the fair housing laws. A fair housing complaint could be the result.  Hopefully the Supreme Court language endorsing such actions for nondiscriminatory valid business reasons will enable such complaints to be defended.


DISPARATE IMPACT CASE UPDATE--6.25.15

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.

I think this is incorrect but this answers it.

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 admitted it did not decide what the law actually says but were 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.

Most people will be happy with the outcome, but the dangers in a court deciding cases against the clear language of the statutes under which they arise presents problems in the future.


CRIMINAL BACKGROUND CHECKS UNDER FAIR HOUSING LAW

There is a lot of misinformation floating around about the use of criminal background information to screen applicants and use of the Crime Free Addendum.  Crime free addendums should always be used as part of tenant rental agreements.  They mainly just restate what the law is (i.e., that an immediate eviction may be filed against a resident for serious criminal conduct in the community) but they help with evictions.

I think some of the confusion over criminal background screening comes from the interpretation of fair housing laws to consider some disqualifying criminal background criteria as discriminatory under the “disparate impact” test used by fair housing enforcement agencies.

“Disparate impact” means unintentional discriminatory results from a facially neutral policy.  Some attorneys including me believe that the Fair Housing Act does not allow disparate impact claims.  Unfortunately the federal courts have allowed them, though they have applied different standards.  Until the U.S. Supreme Court changes this, it seems to be the law of the land. 

The main concern in requiring applicants to undergo criminal background checks is the safety of others on the premises.   Landlords can be held liable if they fail to use reasonable care to protect residents from foreseeable risk of harm.   

Fair housing laws protect against discrimination on the basis of race, color, national origin, religion, sex, disability, and familial status. These are inherent characteristics of a person. Committing a crime however, is something a person chooses to do.

The protected classes are are irrelevant in determining what kind of tenant an applicant will be. But a criminal record is relevant in determining whether the applicant will be a good tenant since it indicates a disregard for safety or property.  This is a material business reason for a landlord to screen applicants’ criminal history.  

It is important for landlords to structure screening criteria to limit the likelihood of liability under fair housing laws while still protecting tenants, employees, venders, and the property.

A blanket prohibition against criminal convictions probably violates fair housing laws because of a disparate impact upon racial and ethnic minorities, more so than screening criteria containing selective prohibitions against criminal convictions.  But it is unclear how narrow the scope must be.  

Arrest Records

The Fair Credit Reporting Act allows tenant screeners to access arrest records up to seven years old.  But landlords should not rely on arrest records to make a decision about tenancy.  The Supreme Court has said that “the mere fact that a man has been arrested has very little, if any, probative value in showing that he has engaged in any misconduct.”

Expunged, Purged, and Sealed Convictions

Criminal records can be expunged from the public record for a variety of reasons.  Landlords in my view should disregard records that are expunged, sealed, or closed. Criminal record checks should not contain such records but sometimes erroneously show them.

Time Since Conviction and Nature of Crime

There are conflicting studies dealing with the likelihood of persons convicted of various kinds of crimes to engage in criminal conduct in the future.  Given this fact, but also considering the concerns of landlords to ensure the safety and security of tenants, employees, and vendors, and to protect property and property value, policies should be carefully drafted.

It is reasonable to have different policies for different kinds of crime. Serious property crimes, violent crimes, and sex offenses, may warrant prohibiting applicants from tenancy for more years from the date of conviction than lesser crimes.  Drug-related convictions may be treated differently depending on the severity of the charge. A drug distribution conviction presents a higher risk than one for drug possession. The number of convictions an applicant has may also be a consideration.

Sex Offenders

Federal law prohibits applicants who are subject to a lifetime registration requirement under a state sex offender registration from public housing.  This kind of history puts other residents at risk. The public nature of the sex offender registry also means that a landlord allowing sex offenders may face a decline in applications, anger by current tenants, and damage to its reputation.

Moreover, renting to registered sex offenders would not likely reduce any disparate impact on racial or ethnic minorities since statistically there appears to be no greater incidence of sex crimes in minority groups than non-minority groups.

It’s probably a good idea to adopt a policy prohibiting registered sex offenders.

Conclusion

Drafting criminal background criteria restricted to serious crimes, taking into account the time since the conduct incurred in light of how serious it was, and applying it to everyone normally should not create a disparate impact claim.  There will be some who point to statistics showing that minorities are disproportionately convicted of such crimes.  But with serious, especially recent dangerous crimes, any disparate impact claim should be overcome.

Disparate impact arguments can also be made that certain kinds of crime can be linked to mental disabilities.  Crimes such as drug use and shoplifting tend to be disproportionately committed by mentally impaired people, who often are homeless.  Such minor crimes should be excluded from the landlord’s criteria, especially if they took place in the distant past.

Any adult intending to live on the premises should be screened.  This includes residential caregivers.


THERE IS NO QUALIFICATION/CERTIFICATION FOR ASSISTIVE ANIMALS!

Background

Under the Americans with Disabilities Act (ADA), a “service animal” means any dog (or miniature horse)that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.  The ADA applies to “public accommodations,” which may usually (if the disability and service the animal provides are not obvious) make limited inquiry into: (1) whether the animal is a “service animal” required because of a disability; and (2) what work or task the animal has been trained to perform.  Where the ADA applies, the public accommodation cannot ask about the person’s disability, require medical documentation, require a special identification card or training documentation for the animal, or ask that the animal demonstrate its ability to perform the work or task.  

But, the ADA generally does not apply to housing communities (though it does apply to certain short-term rentals, like overnight or weekly RV stays).  Housing communities generally are not “public accommodations” within the meaning of the ADA.  The Fair Housing Act (FHA) does apply and it has entirely separate requirements for what are called “assistive animals.”  These are not limited to dogs or miniature horses.  The category includes:

Emotional Support Animals or Comfort Animals.  These are often used as part of a medical treatment plan as therapy animals. They provide companionship, relieve loneliness, and sometimes help with depression.  They do not perform physical tasks and do not have special training to assist the person’s disability like service animals.

Therapy Animals.  These are not defined by federal law. They provide people with therapeutic contact to improve their physical, social, and mental functioning. They are not limited to working with people with disabilities.

The FHA definition of discrimination includes the refusal to grant “reasonable accommodation in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.”

Waiving a no-pet rule and pet deposit to allow a person with a disability to have an assistive animal constitutes a reasonable accommodation. Courts have held that landlords must use “a flexible standard, based on the needs of the particular tenant” when responding to a reasonable accommodation request.

Inquiries into the existence, nature, and extent of disabilities are generally prohibited. But an individual with a disability who requests a reasonable accommodation may be asked to provide documentation so that the landlord can properly review the accommodation request if either the disability or the need for the animal is not apparent.

The landlord can ask a person to certify, in writing, (1) that the tenant or a member of the household is a person with a disability; (2) the need of the animal to assist the person with that specific disability; and (3) that the animal actually assists the person with a disability.   

If there is a requested accommodation for an assistive animal that provides emotional support, a landlord is within its rights to ask for documentation from a health care provider (physician, psychiatrist, social worker, or other mental health professional) that the individual has a disability and that the animal in question will provide some type of disability-related assistance or emotional support.

A landlord may not ask an applicant or tenant to provide access to medical records or provide detailed or extensive information or documentation of a person’s physical or mental impairments.

The FHA does not require an assistive animal to be trained or certified!Although dogs are the most common type of assistive animal, other species may also constitute assistive animals.

Pet Rules/Pet Agreements

Recently we have been seeing pet rules and pet agreements in parks that require people claiming to need an assistive animal to provide proof that the animal has been trained and/or certified.

Setting aside the problem with so many internet websites selling certification kits to anyone wanting one, in essence creating phony assistive/service animals, this is not a proper inquiry to make or a proper requirement to impose on the person seeking approval.

If the need is apparent, the animal should be approved.  If the need is not apparent, the documentation described above may be requested.  But proof of training or certification may not be required, and just doing so may well constitute a fair housing violation.

Parks should review their pet rules and pet agreements to ensure they do not violate these requirements.  If they do, immediately change them and seek to replace existing pet agreements with new ones that satisfy fair housing laws.


November 4, 2014

Disparate Impact.  I have written for years that "Disparate Impact" is not a proper test for housing discrimination. This theory says when a neutral rule has the effect of treating minorities differently than others, it is discriminatory even though it was not meant to be.  Recently HUD adopted regulations incorporating Disparate Impact as its test for housing discrimination.  Every federal appeals court that has considred the question has adopted Disparate Impact as a housing discrimination test.  But thanks to crafty maneuvering by the obama Administration, the issue has never been ruled on by the Supreme Court.

The Supreme Court is set to rule on this next June and it is unlikely the Administration will be able to avoid it this time since the State of Texas is party to that suit.

Meanwhile on Monday, the U.S. District Court in Washington, DC held the HUD rule applying Disparate Impact in housing discrimination is invalid.  The Court echoed the reasoning I have long argued: the text of the Fair Housing Act allows for only direct discrimination claims and not those based on so-called disparate impact allegations. The Judge wrote that the Administration's view that the language of the Fair Housing Act assumes that disparate impact claims are permitted "appears to be nothing more than wishful thinking on steroids."

Read the opinion here.


Assistive Animal Reasonable Accommodation Request Form--September 11, 2014.  The old MHCA Blue Book had this form but the version in it called for a medical provider to specifically certify that even though he knew the animal was a "dangerous breed", that particular animal was needed by the tenant.  In 2013 HUD published a position statement on dangerous breeds as assistive animals.

This called into question the practice of having medical providers specifically address the need for the tenant to have a "dangerous breed" as an assistive animal.  While it is possible HUD's position is not supported by the law, prudence dictates that this inquiry not be made of the medical provider any more.

As a result the REASONABLE ACCOMMODATION ASSISTIVE ANIMAL REQUEST form in the 2014 version of the MHCA Blue Book eliminated those parts. However many parks have not obtained the new Blue Book and continue to use the old version of that form. This is a mistake and the new form should be used.

As a courtesy, here is the new version of the form.


WHEN IS A CAREGIVER ALLOWED, AND WHY DO I NEED AN ADDENDUM?

(c) 2013, "Today & Tomorrow", Manufactured Housing Communities of Arizona. Reprinted by permission.

Melissa A. Parham

I am often asked under what circumstances a mobile home park tenant may have a live-in caregiver, and whether an individual who has already moved in with a tenant constitutes a “caregiver.” 

In summary, when a tenant can demonstrate a medical need for a live-in caregiver, fair housing laws require the park to waive any rule prohibiting the tenant from having the caregiver live with him—for example, occupancy limits, or, in age 55 parks, age restrictions.  But, Arizona laws make clear that a caregiver does not become a tenant, must comply with park 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 parks 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.  A form for that purpose is available in the MHCA Bluebook. 

     Who is entitled to have a live-in caregiver?  To be entitled to a live-in caregiver, a tenant must be “disabled.”  A person is “disabled” if he or she has a sensory, mental, or physical condition that “substantially limits” one or more “major life activities” (like walking, seeing, hearing, working, etc.). 

     What is a live-in caregiver?  A live-in caregiver is a person who resides with a person who is disabled, and who is: (1) essential to the care and well-being of the disabled person; (2) not obligated to support the disabled person; and (3) would not be living in the unit except to provide the necessary supportive services to the disabled person.  The caregiver is an occupant of the unit, but is NOT considered a tenant.  Accordingly, the caregiver does not have to meet income qualifications and is not liable for paying rent.  A park may—and should—still run a criminal background check on any appropriately requested caregiver.  And once the need for the caregiver ends (for example, the tenants dies, recovers, or moves out), the caregiver must leave.

Since the caregiver is not a tenant, the caregiver is not permitted to use park facilities (like the swimming pool or clubhouse).  The caregiver must comply with park rules.  If a tenant’s caregiver is caught using park facilities or breaking park rules, the park should deliver the appropriate notice to the tenant regarding the caregiver’s conduct (for example, a 14/30 Termination Notice if the caregiver is using park facilities, or a 10/20 Termination Notice if the tenant is speeding through the park’s streets).  We have heard complaints from parks regarding “caregivers” who had loud parties after their disabled ward went to bed, and about “caregivers” who were dealing drugs out of the disabled tenant’s home.  If a caregiver commits a crime in the park, an immediate eviction against the tenant is probably appropriate.  Caregivers are not exempt from the park rules or the law.      

     How is the caregiver requested?  A disabled tenant requests to have a live-in caregiver by making a reasonable accommodation request.  The MHCA Blue Book has a specific form for this purpose, though you cannot require a tenant to use your particular form. 

Through the MHCA form or other means (i.e. a letter from the tenant’s doctor, other medical professional, or qualified party), the park may verify: (1) the existence of the disability (if not readily apparent); (2) the need for the accommodation (if not readily apparent); and (3) that the caregiver is qualified to provide the supportive services that the tenant needs because of the disability. 

It is insufficient for the tenant to merely present a letter that states that the caregiver would be “nice” or “helpful.”  If the disability and need for the caregiver are obvious, you should not request verification or use the form.          

A park is not required to allow a live-in caregiver who the tenant refuses to identify.  The park is permitted to run a criminal background check on anyone who will live there, including caregivers.  Additionally, a tenant should obtain approval of a live-in caregiver before the caregiver moves in.            

Where a tenant’s requested live-in caregiver cannot pass the park’s criminal background check, the park should give the tenant the opportunity to select a different caregiver.

     Caregiver Addendum.  A park should always have a tenant complete a caregiver addendum when the tenant has properly requested to have a live-in caregiver and the caregiver has passed the park’s criminal background check.  The Addendum makes it crystal clear that the live-in caregiver is not a tenant of the park and does not possess any of the rights that a tenant possesses.  Should it ever be necessary (for example, the tenant dies and the caregiver refuses to move out), the Addendum can be used to prove that the caregiver was never a tenant and only lived in the unit to provide medical care to the tenant. 

A park does not want to be left in the position of having to prove that a caregiver who refuses to move out—about whom the park has no documentation—has not somehow become a tenant.  Finally, a park may not charge any fee for a live-in caregiver.                


HANDICAP ASSISTIVE ANIMALS

(c) 2013, "Today & Tomorrow", Manufactured Housing Communities of Arizona. Reprinted by permission.

Michael A. Parham     

     Assistive Animals

Fair housing laws require landlords to make exception to normal community rules and policies when necessary to enable a resident to reside there provided the exception is not unreasonable.  These are called “reasonable accommodations”. 

One of the most common forms of reasonable accommodations requested these days is for an animal to be approved to reside with the resident.  This is also one of the most abused areas of this law since it is commonly used by non-disabled people to get their pets approved despite rules forbidding the particular pet.

To begin with, fair housing laws require approval of “assistive animals” if they aid a disabled resident in some manner in living in the community.  “Assistive animal” is a broad term.

HUD has recently published guidelines on animals in housing communities discussing assistive animals in the following terms. 

An “assistive animal” is not a pet. It is an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person's disability.

“Assistive animals” perform many disability-related functions, including guiding individuals who are blind or have low vision, alerting individuals who are deaf or hard of hearing to sounds, providing protection or rescue assistance, pulling a wheelchair, fetching items, alerting persons to impending seizures, or providing emotional support to persons with disabilities who have a disability-related need for such support.

For purposes of reasonable accommodation requests, fair housing laws do not require an “assistive animal” to be individually trained or certified. While dogs are the most common type of assistance animal, other animals can also be assistance animals.

A landlord may not deny a reasonable accommodation request because he is uncertain whether the person seeking the accommodation has a disability or a disability- related need for the animal. They may ask individuals who have disabilities that are not readily apparent or known to the provider to submit reliable documentation of a disability and their disability-related need for an “assistive animal”.

If the disability is readily apparent or known but the disability-related need for the “assistive animal” is not, the landlord may ask the individual to provide documentation of the disability related need for the animal. For example, the housing provider may ask persons who are seeking a reasonable accommodation for an animal that provides emotional support to provide documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability. Such documentation is sufficient if it establishes that an individual has a disability and that the animal in question will provide some type of disability-related assistance or emotional support.

However, a housing provider may not ask a tenant or applicant to provide documentation showing the disability or disability-related need for an assistance animal if the disability or disability-related need is readily apparent or already known to the provider. For example, persons who are blind or have low vision may not be asked to provide documentation of their disability or their disability-related need for a guide dog.

A landlord also may not ask an applicant or tenant to provide access to medical records or medical providers or provide detailed or extensive information or documentation of a person's physical or mental impairments. Like all reasonable accommodation requests, the determination of whether a person has a disability-related need for an “assistive animal” involves an individualized assessment of the needs of the resident on whose behalf the request is being made.

     Service Animals Distinguished

The Americans with Disabilities Act (ADA) also has a requirement that operators public accommodations also make reasonable accommodations for persons with disabilities to use their facilities.  Like residential housing (that is generally not covered by the ADA) one of the most common requests is that people be allowed to bring animals with them when using the public accommodation.

When the abuses of the requests for animals got so pervasive and extreme, the government issued new regulations sharply limiting the kinds of animals that disabled people may bring into public accommodations like stores, restaurants and theaters.

Therevised ADA regulations define "service animal" narrowly as any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.

The revised regulations specify that "the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition."  Thus, trained dogs are the only species of animal that may qualify as service animals under the ADA (there is a separate provision regarding trained miniature horses), and emotional support animals are expressly precluded from qualifying as service animals under the ADA.

Unfortunately the ADA and its regulations do not apply to residential communities.  Fair housing laws still require the use of the broader category of “assistive animal” in considering resident reasonable accommodation requests involving animals claimed as necessary for an individual with a disability to reside there.


ALLOWING DISABLED CHILDREN IN AGE 55 COMMUNITIES

I have been getting more and more calls from Age 55+ Parks asking whether there are circumstances when they must allow children to live there.  For a very narrow range of cases, the answer is “yes”.

Normally, the law allows qualified Age 55+ Communities to exclude children from living there and to restrict what they can do when visiting.  This is the principal reason residential communities elect Age 55+ status—the desire to create a retirement community where people can live free of being exposed to children.  Age 55+ Parks will adopt age restrictions in their Statements of Policy requiring at least one resident per household to be over 55, and all other household members to be some other age that is over 18 years.  It is this latter age that fulfills the purpose of the Age 55+ status.  The second age prohibits children from living there.

These age restrictions are part of the community’s policies and regulations.

Fair housing laws also contain a number of provisions dealing with “handicap discrimination”.  Essentially they prevent housing providers from discrimination on account of a “handicap” of a renter, a person in the renter’s household, or a person associated with the renter.  These laws also state that “discrimination” includes a refusal to make reasonable accommodations in rules and policies where such an accommodation is necessary to afford a person the equal opportunity to use the premises.

So what happens in an Age55+ Park when a tenant or an applicant asks the landlord to make an exception to its age restrictions to allow a disabled child to live in the tenant’s household?  The law on this question is pretty settled and perhaps best explained in a 2002 Arizona Court of Appeals case.

In Canady v. Prescott Canyon Estates Homeowners Association, 204 Ariz. 91, 60 P.3d 231 (2002) the Court was faced with a situation where an Age 55+ HOA refused to make an exception to its age restrictions imposing a minimum limit of 35 for residence despite being requested to do so.  The request was made by the parents of a severely developmentally disabled child for him to be able to live with them.  The HOA denied the request since it violated the age restrictions it had developed to qualify for Age 55+ status.

The child as a member of the proposed property owner’s household was covered by these laws since members of the household qualify for coverage.  The important question here was whether age restrictions adopted to qualify for age 55+ status under one section of fair housing laws needed to be waived to comply with the reasonable accommodation provisions of another portion of those same laws.

The Court concluded that they did need to be waived.

First, the Court found that fair housing laws impose an affirmative duty to reasonably accommodate disabled persons. To reasonably accommodate a disabled person, an individual or group may have to make an affirmative change in an otherwise valid policy.  So a reasonable accommodation may involve "changing some rule that is generally applicable so as to make its burden less onerous on the handicapped individual."  That would include waiving an age 35 requirement to permit a disabled child to live with his family.

Second, allowing the child to live with his parents in a home in the community would not indicate that the HOA had failed to publish and adhere to policies and procedures that demonstrate the intent that it be an Age 55+ housing community for older persons.  By enabling the child to live with his parents in order to avoid violating the Fair Housing Acts, the HOA would not be abandoning its purpose for the community but, rather, would be acceding to compliance with other portions of federal and state laws. Such a "concession" to the law could hardly be interpreted as an intent to relinquish its status as "housing for older persons."

Finally, the Court addressed the HOA’s argument that allowing the child to live with his parents would open their community to a "flood" of other persons younger than the age of thirty-five desiring to live there. It stated that reasonable accommodations vary depending on the facts of each case.  What is reasonable in a particular circumstance is a "fact-intensive, case-specific determination." 

Fair housing laws allow the housing provider to consider each request individually and to grant only those requests that are reasonable.  Only a narrow group of persons would be entitled to the limited exception to the age restrictions required by young persons who are disabled and whose disability requires housing with a person who is older than fifty-five years of age.  Given this, it is hardly likely that a “flood” of underage residents will appear.

So the upshot is that if an otherwise qualified tenant or applicant asks for an age restriction waiver to allow a genuinely disabled family member or dependent to reside with him, it is likely the landlord will need to agree.  Likewise, if an occupancy limit would also be violated, that too would normally need to be waived.

If there is legitimate doubt that the underage person is really disabled or dependent on the tenant, reasonable evidence of that fact can be requested.  But once provided, the exception normally must be made.

 

SEXUAL ORIENTATION AND GENDER IDENTITY DISCRIMINATION IN THE CITY OF PHOENIX

(c) 2013, "Today & Tomorrow", Manufactured Housing Communities of Arizona. Reprinted by permission.

Michael A. Parham

The City of Phoenix added “sexual orientation” and “gender identity or expression” to the groups of protected classes under its fair housing, employment and public accommodations anti-discrimination ordinances.  The laws were enacted on February 26, 2013 and will be effective March 26, 2013.

This is significant in the fair housing area since the City of Phoenix holds “substantial equivalency” status with the federal government and investigated housing discrimination complaints filed with both HUD and the City under fair housing laws.

 

The amendments to the ordinance define “sexual orientation” as “an enduring pattern of emotional, romantic, or sexual attractions to men, women, or both sexes as well as the genders that accompany them and shall include discrimination based upon the identification, perception, or status of an individual’s same-sex, opposite sex, or bi-sexual orientation.”

 

“‘Gender identity or expression’ means an individual’s self-identification as male, female, or something in between, and shall include an individual’s appearance, mannerisms, or other characteristics only insofar as they relate to gender with or without regard to the individual’s designated sex at birth.”

 

Interestingly, violation of anti discrimination laws with respect to employment discrimination and discrimination in public accommodations can in extreme cases be prosecuted as class one misdemeanors under the revisions.  But fair housing violations have not been criminalized and the current system of imposing fines and injunctive relief remains unchanged in fair housing cases.

 

There could be claims in the future that the ordinance violates the free exercise of religion clause of the First Amendment to the U.S. Constitution since so many religions have strong doctrines condemning non-heterosexual practices.  It is conceivable that landlords could claim that being forced to rent to gay or lesbian or transgendered people would violate their deeply held religions beliefs.

 

This has been a subject of extensive litigation in Alaska and other places which have laws prohibiting discrimination on account of marital status.  Landlords have attacked such laws as requiring them to violate their religious beliefs.  These attacks have been uniformly unsuccessful so far.  I do not expect this defense to be any more successful when the issue is sexual orientation or gender identity discrimination.

 

I have been saying for years that it is stupid to discriminate on these grounds.  Now, in the City of Phoenix at least, it is unlawful.

 

Note:  In the City of Tucson which has no separate fair housing ordinance but includes housing in its general anti discrimination law, these kinds of discrimination have been unlawful for years.


DISPARATE IMPACT AS A TEST OF FAIR HOUSING DISCRIMINATION

Reprinted From February 12, 2013 Blog

Michael A. Parham

For decades a question has existed whether a policy that was not discriminatory on its face or by design could still violate fair housing laws if its effect was discriminatory.  Does a facially neutral rule still violate the law if it disproportionately affects protected minorities?

This question has been the subject of several appeals to the U.S. Supreme Court, all but one of which was withdrawn by the government before the Court could decide the issue.  One case is pending at the Court now.

Against this backdrop, the Office of Fair Housing and Equal Opportunity of HUD has just released a new rule on Disparate Impact and Discrimination.  HUD still believes disparate impact is a valid test (many including me believe it is not) but it defines how the test is to be applied and this may give some relief and c larity to housing providers and lenders.  The 83 page rule document summarizes itself at page 4:

This rule formally establishes the three-part burden-shifting test for determining when a practice with a discriminatory effect violates the Fair Housing Act.  Under this test, the charging party or plaintiff first bears the burden of proving its prima facie case that a practice results in, or would predictably result in, a discriminatory effect on the basis of a protected characteristic.  If the charging party or plaintiff proves a prima facie case, the burden of proof shifts to the respondent or defendant to prove that the challenged practice is necessary to achieve one or more of its substantial, legitimate, nondiscriminatory interests.  If the respondent or defendant satisfies this burden, then the charging party or plaintiff may still establish liability by proving that the substantial, legitimate, nondiscriminatory interest could be served by a practice that has a less discriminatory effect.  

So it a respondent in a fair housing case is shown that his practice treats minorities worse that others, he must prove there is a legitimate nondiscriminatory business interest served by it.  If he does so, then the complainant must prove that legimate interest could be served by a practice with a less discriminatory effect.

I still think disparate impact is not a valid fair housing discrimination test but at least the government is starting to re-think the issue and perhaps make it a little harder for complainants to obtain relief when disparate impact is established.

You can read the full rule as well as a lot of explanatory comments here.


WHAT IS THE TEST FOR DETERMINING A FAIR HOUSING VIOLATION

(c) 2012, "Today & Tomorrow", Manufactured Housing Communities of Arizona. Reprinted by permission.

Michael A. Parham

The Fair Housing Act makes it unlawful “[t]o refuse to sell or rent after the making of a bona fide offer . . . or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” 42 U.S.C. §3604(a).  Elsewhere it prohibits discrimination on account of handicap.
 
Clearly this law makes intentional discrimination on account of protected status (“disparate treatment”) unlawful.
 
But how about treatment of people that is not intended to discriminate but that has the effect of treating protected classes less favorably than others?  This is called “disparate impact”.  Examples in the residential rental business are low occupancy limits which impacts families with children and zero tolerance crime free programs which have a more pronounced impact on certain racial minorities and people with certain emotional and mental disabilities.
 
If a landlord adopts a “facially neutral” rule that is not intended to discriminate against protected classes but nevertheless has that effect, does it violate fair housing laws?  In other words, is “disparate impact” a proper test for determining if a fair housing violation has been committed by a landlord in enforcing such a rule?
 
In 1993 HUD put out a memorandum to its field offices saying that as far as it was concerned, “disparate impact” is a valid test of a fair housing violation.  Both it, the Arizona Attorney General and the City of Phoenix have adopted and enforced that position since then.
 
The newly created (thanks to Dodd-Frank) Consumer Financial Protection Bureau joined by HUD and the Department of Justice recently declared that “disparate impact” claims are viable under the fair housing laws. Late last year while a case challenging this position was pending before the Supreme Court, HUD issued a proposed “disparate impact” rule.  
 
The U.S. Supreme Court has taken two “disparate impact” cases under the Fair Housing Act (“FHA”) in recent years, but has never decided whether disparate impact claims are cognizable or what standard should be applied to such claims. See Town of HuntingtonN.Y.v. HuntingtonBranch, N.A.A.C.P., 488 U.S.15, 18 (1988) and City of Cuyahoga FallsOhio v. Buckeye Cmty. Hope Found., 538 U.S.188, 199-200 (2003).  However when the briefs filed with the Court indicated how weak the “disparate impact” argument in one case became moot, and the government abandoned those arguments in the other one to avoid losing on the issue.
 
To date the Supreme Court has not decided whether “disparate impact” claims are cognizable under fair housing laws. Thus, the issue has remained unresolved and ripe for review for over two decades.
 
“Disparate impact” has been recognized as a proper test of whether other anti-discrimination laws such as the Age Discrimination in Employment Act of 1967 (“ADEA”), and the Americans with Disabilities Act of 1990 (“ADA”).  The ADA and the ADEA by their express language each prohibit the “effect” or “impact” of certain actions by using the term “affect” when describing unlawful actions.
 
But the federal Fair Housing Act (“FHA”) does not contain comparable language regarding “affect” or the “effect” of certain actions. “Discriminatory housing practice” is defined in the FHA as “an act that is unlawful under section 3604, 3605, 3606, or 3617 of this title.” 42 U.S.C. §3602(f ).  None of those sections include language addressing discriminatory effect.
 
Congress’s action in failing to amend the FHA to include “disparate impact” claims when it amended The Civil Rights Act of 1991 to specifically include claims for discriminatory effect would seem to demonstrate Congress’s intent to exclude such claims under the FHA. If Congress had intended the FHA to apply to disparate impact claims, it would have amended the FHA at that time to specifically include claims for discriminatory effect.
 
Just recently another case presenting this issue was before the Supreme Court and once again the government abandoned it before the issue could be decided.  After the withdrawal of Magner v. Gallagher, Case No. 10-1032  it was unclear when the Court would get another  but the issues raised in the Petition for Certiorari in yet another case, Mount Holly v. Mount Holly Gardens Citizens in Action, Inc. filed June 11, 2012, are similar to those presented in Magner.
 
All of the federal Courts of Appeal have adopted variations of “disparate impact” as a test of a fair housing violation.  For nearly 25 years I have believed that is wrong and that this is not a proper test under the FHA but I have nevertheless advised landlords to assume it is applicable and avoid rules and policies having a “disparate impact”.
 
Petition for Certiorari is merely a request that the Supreme Court accept a case for review.  The Court is not obligated to take the case and about 99% of all such requests are denied.  But the Court has accepted cases presenting this issue several times over the years and I am hopeful that it will take this one and that the government does not play any more tricks to avoid a clear ruling on this issue.

 

REASONABLE ACCOMMODATIONS AND REASONABLE MODIFICATIONS

(c) 2011, "Today & Tomorrow", Manufactured Housing Communities of Arizona. Reprinted by permission.

Michael A. Parham

Fair housing laws say it constitutes unlawful discrimination against persons with handicaps to grant Reasonable Accommodations or to allow Reasonable Modifications when asked to do so.  It is important to understand what these terms mean and what is required.

     Reasonable Accommodations.

Housing providers, including landlords, must make Reasonable Accommodations to rules, practices and procedures when necessary to enable a household with a handicapped resident an equal opportunity to reside on the premises.  Normally this means making an exception to some rule that interferes with the handicapped person’s ability to live there without undue difficulty.  Common examples are making exceptions to pet restrictions to permit assistive or comfort animals, exceptions to age restrictions or occupancy limits to permit necessary residential caregivers, changes to parking space assignments to allow closer parking to residences, and the like.

Typically there is no cost to the landlord associated with allowing these exceptions.  Conceivably there might be like waiving a pet fee or extra occupant fee, but that cost will be nominal and the landlord must assume it.

People sometimes abuse the law by asking for exceptions when there is no disability related need for them.  In these cases the law does permit the landlord to do certain things to try and ensure the exceptions are merited.

First, there must be a real handicap involved.  Often the handicap will be apparent or already known to a landlord.  A wheelchair bound or blind resident is obviously handicapped.  Someone dependent on disability payments from the government clearly has been determined handicapped.  But someone asserting some sort of emotional or mental handicap may not appear to have any impairment, and if there is no other evidence of the authenticity of the claim, the landlord has the right to confirm it. 

In those cases the resident making the request can be asked to provide some evidence from a qualified medical provider that the household member at issue is in fact handicapped.  But when that evidence is provided (normally in the form of a prescription pad note) the landlord normally must accept it at face value despite any misgivings he may have.

Second, the accommodation requested must be described.  Either the resident or medical provider will normally explain that is being requested.  As long as what is being asked for is clear, that requirement is satisfied.

Finally, there must be a “nexus” between the disability and the handicap, a connection between the handicap and the exception being requested.  The nexus between blindness and a seeing eye dog exceeding a park’s size limits is clear.  But it may not be clear when that same blind resident asks for a closer parking space.  In those cases the resident or medical provider can be asked to explain the connection.

Once these three criteria are satisfied, the request must normally be granted without expense to the resident unless it would “unduly burden” the landlord or jeopardize safety in the park that cannot be avoided by other landlord actions.

An accommodation is unduly burdensome if it requires the landlord to change his business or subjects him to large expenses.  For example a request that a landlord shuttle a resident to shopping areas or doctors’ appointments would force him into a business area he is not engaged in and would probably be unduly burdensome.  A request that a convicted child molester or mass murderer be approved as a caregiver would endanger others and the danger probably could not otherwise be mitigated by the landlord.

When a request is denied for one of these reasons, the landlord must engage in an “interactive process” to see if there is not some alternative way to satisfy the resident’s needs.  Refusal by a landlord to negotiate can itself amount to unlawful discrimination.

     Reasonable Modifications

These are physical changes to the premises that a handicapped resident needs made in order to be able to live there.  For example a wheelchair bound resident may need curb cuts made to enable his wheelchair to get from the parking area into the clubhouse.  A blind person may need Braille signs posted at the clubhouse restrooms.  An arthritic resident may need lever faucet knobs instead of the round ones on the sinks at the clubhouse.

Mobile home parks don’t get too many of these requests since the residents normally own their own homes and it is the clubhouse and other common areas that the landlord provides.  But they are occasionally received, and apartment and other residential landlords get them quite often.

Landlords must agree to Reasonable Modifications if there is a handicap, a description of what is requested, a nexus between them, and if they are not unduly burdensome or unsafe to others.  But if approved, it is the resident, not the landlord who is required to pay for them.  This is unlike the Americans with Disabilities Act (ADA) that has similar provisions applicable to “public accommodations” which require the proprietor to pay the costs.  A residential community like an apartment community or mobile home park is normally not a “public accommodation” and is not covered by the ADA (with one exception).  So it is the Fair Housing Act, not the ADA that applies, and the Fair Housing Act says the modification is at the expense of the resident.

The exception is the rental office.  That is considered a public accommodation within a residential community.  Modifications to the rental office, if necessary, are at the landlord’s expense.

Also, if the community (or its facilities) was built or renovated after 1993, there are supposed to be certain “accessibility features” designed into it.  If the requested modification should already be in such a newer facility but was omitted, it would need to be added at the landlord’s expense.

     Conclusion

Never blow off one of these requests.  No matter how silly one may sound, take it seriously.  Follow these principles and if in doubt check with a knowledgeable attorney before simply rejecting the request


COURT RULES ADA DOES NOT APPLY TO RESIDENTIAL COMMUNITIES AND FAIR HOUSING ACT DOES NOT REQUIRE REASONABLE ACCOMMODATIONS UNLESS FIRST REQUESTED.

Michael A. Parham

A brand new opinion by the Arizona Court of Appeals disposed of claims by a prominent plaintiff that her wheelchair bound husband was entitled to have the housing provider at its expense make the community facilities accessible to him by the ADA.  In the alternative she claimed the housing provider was obligated to make it accessible as a reasonable accommodation under handicapped discrimination provisions of the Fair Housing Act.  The case is Nolan v. Starlight Pines Homeowners Association, 1 CA-CV 06-0572 (10/09/07).

The Court first found that the ADA applies to "public accommodations" and requires their proprietors to make them accessible to the disabled at the proprietor's expense.  But it went on to find that residential communities are not defined as public accommodations.  While a residential community can contain a public accommodation (e.g., the rental office), the particular facility involved must be open to public use, and not restricted to residents, their guests and visitors.  To constitute a public accommodation, the facility must be open indiscriminately to members of the general public.  Occasional infrequest admission of the public to events there is not sufficient to render a facility in a residential community a public accommodation.

Of course the court did find the Fair Housing Act applicable. 

It found that since this community was built after early 1991, the accessibility requirements of the Act did apply to it.  But surprisingly it found that they only apply to the individual dwelling units provided they were covered by the requirements (i.e., units in multi-family buildings on the first floor and elevator accessible upper level floors).  But it found that these requirements do not apply to the community and common area facilities since they are not dwelling units.

The Act requires housing providers to make reasonable accommodations to rules. practices and procedures for handicapped residents.  It also requires a housing provider to allow a resident to make accessibility changes in facilities at his or her expense.  In this case the Court found that the plaintiff never requested approval to make a modification and never requested an accommodation.  The housing provider's obligation never arises until a request is made.  Here no such request was ever submitted.

This is an important decision in this area.  You can read the full opinion at www.cofad1.state.az.us/opinionfiles/CV/CV060572.pdf

This is an opinion.  As such it sets precedent in Arizona.


THE CRIME FREE PROGRAM AND FAIR HOUSING LAWS

(c) 2007, "Today & Tomorrow", Manufactured Housing Communities of Arizona, May, 2007 edition. Reprinted by permission.

Michael A. Parham

The Arizona Civil Rights Advisory Board is an organization affiliated with the Arizona Attorney General's Office which enforces fair housing laws in our state. Over the last several months the Board has held a number of hearings in different locations concerning how fair housing laws impact the crime free housing programs in mobile home parks and apartment communities.

The alleged concern of the Board is that the crime free program is being used as a pretext for unlawful discrimination. In other words, they suspect that some landlords have been acting in an unlawfully discriminatory manner and using crime free housing concerns as an excuse for what they have been doing.

At the conclusion of their hearings the Board announced that it had three main concerns that had been reinforced by what they had heard.

First, it believes that using criminal records to deny housing to mentally disabled persons who have committed "minor crimes" in the past as a result of their impairment, such as "survival crimes" by homeless people amounts to nothing more than discrimination on account of handicap--their mental impairment.

Second, it believes that these programs have a disproportionate effect on women and children when it comes to domestic violence since they are the victims of the abuser. The implication is that by holding them responsible for what a member of their household did in harming them amounts to discrimination on account of sex or family status.

Third, minority groups have a higher percentage of members with criminal backgrounds than others and the Board believes this means the use of criminal background criteria has a disparate effect on these minorities.

While this may sound pretty unbelievable coming out of a Board affiliated with the chief law enforcement agency of the state, it is real. The Board concludes its announcement with the following:

The Board recognizes that there are challenges in properly balancing the legitimate housing needs of individuals with those of landlords and managers who are making eligibility determinations about individuals seeking housing while also attempting to provide a safe environment for tenants and avoid liability. We encourage all groups to be cognizant of the potential civil rights impact of crime free housing programs. In that regard, we believe that fair housing training is imperative for all landlords, property managers, and leasing agents involved in implementing crime free housing programs. We also encourage housing providers to engage in open dialogue with housing advocates with a view toward adopting policies for implementing crime free housing programs that are based on individual factors, including the applicability of reasonable accommodation for disabled individuals whose criminal backgrounds may be related to their disabilities.

To me this is almost a declaration of war by housing and fair housing advocates on the crime free program. There have been unsuccessful attacks on the program in other states in the past. The advocacy groups have now found an avenue of attack that may well succeed. In enforcing your crime free program while trying to avoid becoming the test case, consider the following.

Minor crimes by the Mentally Impaired.

Misdemeanors such as shoplifting, vagrancy, drug possession or use, prostitution and other so called victimless crimes are what the Board seems to have in mind here. They are often committed by homeless people or similarly down on their luck groups. If there has been a reasonable amount of time since the last conviction, such crimes probably should not be used to disqualify an applicant.

More serious misdemeanors such as assault and DUI are another story. If recent, they should probably be disqualifiers. But if there has been a significant amount of time that has passed, allowing a fresh start is probably advisable.

Some crimes in my view should always be disqualifiers, such as aggravated assault; second or third offense DUI; drug manufacturing, distribution or sale; arson; burglary, etc.

Sex crimes are a problem since almost by definition they are the result of a mental disability. Pedophilia, sexual assault and rape are examples of sex crimes that should typically disqualify an applicant. But indecent exposure might be overlooked (depending on the circumstances) especially if the conviction was several years in the past.

When you have a close call and the applicant lets you know he was having mental or emotional problems when the offense took place, remember the obligation under handicap discrimination laws to make reasonable accommodations for persons with disabilities. You must make an exception to a standard rule if the exception will enable a disabled person to live in the community without endangering others and unduly interfering with your business. An exception for a five year old DUI for a recovered alcoholic is one thing. But an exception for child molestation by a recently released pedophile claiming to have recovered, in my view, would not normally be required.

Domestic Violence.

What the Board is concerned with is punishing the victim and her children for the violence inflicted on them by the violent partner.

When domestic violence takes place in a household it constitutes a violation of the crime free addendum. That is, it is an assault that the addendum defines as a material and irreparable breach. The landlord's remedy is to terminate the tenancy and proceed to evict the tenants and other occupants. The result is that the victim gets terminated and evicted.

In my view, the paramount concern is to get the perpetrator out of the park. If the only way to do that is to remove the entire family, public safety concerns in my view require that. But this is not always necessary.

If the victim is also an enabler and refuses to protect herself by getting a restraining order against the perpetrator, and instead defends him, there is not much choice but to remove them both.

If the victim will take action to protect herself, however, the landlord can work with her. The way to do this is to serve the immediate termination notice and if the perpetrator does not immediately move, file to evict the entire household. Once the eviction judgment is obtained, remove the perpetrator. The victim should also obtain and enforce an order of protection and give a copy to the manager. After the perpetrator is gone (whether with or without an eviction being filed), a new lease can be signed with the victim as the sole tenant. An addendum should be added stating that if the perpetrator is allowed to move back in or to even stay for short periods, the parties agree that this act alone shall constitute a material and irreparable breach and shall be grounds for immediate eviction.

Under this kind of policy, the victim will only be evicted if she refuses to act on her own behalf.

Criminal Backgrounds of Minorities.

This is the most troubling finding of the three. Anyone can see that prisons are disproportionately populated by minorities. That is because minorities, for a variety of largely socio-economic reasons, commit a disproportionate amount of crime. I would hate to think that our state's chief law enforcement officer (the Attorney General) would elect not to prosecute suspects solely because of their race or ethnicity.

Nevertheless, this effect can be mitigated to some extent by looking at what crimes are disqualifiers. Drug use and drug possession offenses that happened a long time ago could probably overlooked if the recent record is clean, regardless whether they are classified as misdemeanors or felonies. Even old property crimes such as theft, car theft, criminal damage and the like could probably be overlooked with a clean recent record.


 
THE EFFECT OF FAIR HOUSING LAWS ON THE USE OF CRIME FREE ADDENDUMS

(c) 2006, "Today & Tomorrow", Manufactured Housing Communities of Arizona, August, 2006 edition.   Reprinted by permission.  See update at end of article.

Michael A. Parham

The Arizona Civil Rights Advisory Board and the Arizona Attorney General’s Office have embarked on a series of hearings in various locations in Arizona to assess the effect of Crime Free Addendums on Fair Housing Laws. The AG enforces both Federal and State Fair Housing Laws in Arizona.

This process results from pressure coming from the ACLU. That advocacy organization and others sharing its general philosophies have long believed that the enforcement of what have become mainstream crime free housing programs including the Crime Free Housing Addendums commonly used by residential and manufactured rental housing communities violate discrimination laws pertaining to housing providers.

Though the AG has not officially been forthcoming about the real agenda behind these hearings, it is hinted at by the language used in the announcement of the July 27, 2006 Tucson hearing:

The Board would like to hear from housing industry and homeless prevention advocacy groups about potential fair housing barriers and solutions. We are particularly interested in the impact of Crime Free/Drug Free lease addendums.

There has been a theory circulating among fair housing advocacy groups for several years that excluding people from rental housing because they have prior criminal convictions violates Fair Housing Laws. Not because criminals are a protected class; they are not. The theory is that people with criminal convictions tend to be racial and ethnic minorities. Put bluntly, as a percentage of the population, Blacks and Hispanics are far more likely to have criminal records than Whites (or for that matter Asians).

Since the effect of the rule excluding convicted criminals is to exclude more minorities from housing than others, the rule discriminates against racial and ethnic minorities. This theory recognizes that the rule is not discriminatory on its face. It acknowledges that all convicted criminals are treated the same regardless of race or ethnicity. But since minorities are disproportionately affected by the rule, it discriminates in its effect and is therefore unlawful under fair housing laws.

This is called “disparate impact” discrimination. Disparate impact describes a form of discrimination where a seemingly neutral policy has a disproportionate impact on a protected class even where there is no intent to discriminate.

There are a variety of Civil Rights Laws on the books and disparate impact discrimination has been accepted by the courts in some of them as a valid theory. In a disparate impact case, once the plaintiff establishes that a facially neutral rule disproportionately affects a minority group, the defendant must prove there is a compelling business necessity for the rule. If he fails to do so, he can be found liable for unlawful discrimination.

The U. S. Supreme Court has never declared whether disparate impact discrimination applies to Fair Housing Laws. In 2002 a case got to the Court but the disparate impact claim was withdrawn before the issue was decided.

There is a split among the various Federal Courts of Appeal on this. In my mind the better view is that Fair Housing Laws apply only to intentional discrimination, and disparate impact is not a valid test. But many, especially advocates for minorities and the homeless disagree. The issue will never be put to bed until the Supreme Court decides it and that is not going to happen any time soon.

What seems apparent from the hearings now taking place in Arizona and the language quoted above is that the AG is trying to develop information for two purposes.

First it is trying to develop statistical data showing that the exclusion of people because of criminal records is creating a class of homeless persons who are disproportionately Black or Hispanic and have large numbers of women and children in the household. Its thinking seems to be that the data developed will establish that the crime free program does in fact have a disparate impact on various classes protected under Fair Housing Laws.

Second, and this is speculative, it may be attempting to build a statistical case that minor convictions, single convictions and very old convictions are being used to reject applicants. This data would be used to refute any claim that a compelling business necessity is being served.

It appears (though it has never been stated) that the AG believes that Fair Housing Laws are subject to the disparate impact discrimination theory. Why else would it be conducting these hearings? Combine the political leanings of the current Attorney General with the pressure from the ACLU and other groups and it is not difficult to reach this conclusion.

I believe that a few months after these hearings end, we will begin seeing crime free housing communities hit with fair housing complaints for rejecting minority applicants on the basis of prior convictions. We may also see complaints for evictions following drug related arrests.

At that point the community will need to decide whether to cave in or fight the charge on the basis that disparate impact discrimination does not apply to fair housing claims. In my view it does not but that can be an expensive battle to fight.

If you receive such a complaint in the future, please immediately advise the AMA or MHCA. Those organizations need to be aware of these developments as they happen.

If a hearing is scheduled for your area, go to it and feel free to testify. But keep in mind that in all probability the ultimate purpose of those conducting it is to water down the crime free program.

July 2007 Update.  The foregoing article was written and published by the MHCA in August 2006.  Since then the AG has concluded its hearings and the advisory commission has sent a letter to housing industry representatives including the AMA and MHCA warning that crime free addendum enforcement may, in its view constitute a violation of fair housing laws, depending on the circumstances.  Essentially the hearings merely confirmed its original views.  Although that letter was sent several months ago, I am not aware of the filing of fair housing complaints since then involving this issue.  I still expect to see them.


WHAT TO DO WHEN THE FAIR HOUSING COMPLAINT ARRIVES.

Michael A. Parham

Its 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.

Most times the complainant is simply misinformed about what the law requires.  Sometimes he thinks he was treated unfairly and jumps to the conclusion he was discriminated against.  All too often he is just being spiteful and lying about what happened.  After all, there has never been a sanction taken against a complainant for lying on a fair housing complaint form even though it is signed under penalty of perjury.

For whatever reason the overwhelming majority of fair housing complaints are eventually dismissed.  Many of those which are not and instead are settled would have been if the housing provider had dug in its heels and insisted the investigation be pursued.

So don't feel bad.  It's just part of the business of being a residential landlord.  It goes with the territory.

But that is not to say you should ignore it or treat is lightly.  Quite the opposite.  Take it seriously and stay on top of it until it is resolved.

The complaint will typically be filed with HUD or the Arizona Attorney General.  Either way it will be handled by the AG unless you are in the City of Phoenix in which case it may be handled instead by the Phoenix Equal Opportunity Department (PEOD).  Both agencies handle it in essentially the same way.

You will receive it by certified mail.  There will be a cover letter and a copy of the actual complaint.  Other papers of an informational nature will be enclosed.  You need to focus on the cover letter and the complaint.

The cover letter will identify in the last paragraph who the investigator is and will give the investigator's phone number.  It will also tell you that you have a short time (usually 14 days) to send a written response to the investigator.

The complaint will give the complainant's version of what happened.  It may be partially or entirely false.  It will surely be exaggerated.  You will be angry when you read it, then upset, then fearful.  After all, this is a communication from a powerful government agency telling you that they are going to investigate you for unlawful discrimination.

Relax.  And more importantly do not immediately fire off a response or call the investigator.  Put the papers aside for a day or two.  Then re-read them and check whatever files you may have on the incident..  And try to remember this.  The investigator is going to be impartial and fair.  She will have read hundreds of such complaints and will know from experience that it is probably bogus or at least exaggerated.  Her job is to get to the bottom of what really happened, not to hang your scalp on her belt.

At this point you have an important decision to make.  Are you going to go it alone, saving the expense of a lawyer?  Or are you going to hire a lawyer?

No one likes lawyers.  But we do have our place.  That place is keeping you out of trouble and this is a proceeding we play that role in very effectively.  Though I obviously have an interest in your decision, I nevertheless must say you would be a fool to represent yourself.

But you will think about it so here is how the process will unfold from this point on.

You will need to respond to the complaint in writing.  The response will deal first with your version of the facts and then will analyze the law as it applies to those facts, hopefully pointing out that whatever happened, fair housing laws were not involved.

For the PEOD you will also need to complete and return a questionnaire.  If it is an AG investigation, you will be asked to produce documents later and maybe to respond to some written questions.

For a while things will be quiet.  The investigator will actually be working the file, reviewing documents, interviewing the complainant and talking to any other witnesses the complainant offers.

After a few weeks you will be contacted by the investigator for an interview.  Eventually you and any witnesses you identify will be interviewed.

All interviews will be typed up and put in the investigative file.

The investigator is always required to visit the property, look around and talk to other residents including some of the same race or other protected status as the complainant to see how they are being treated.

When all of this is done, the investigator will write a final report that will go to her boss and eventually to HUD for approval.  She will recommend whether the complaint should be dismissed or treated as worthy of filing a discrimination lawsuit.  Most are dismissed.

When this process first starts, you will need to make another important decision.  You will be asked whether you are interested in conciliation.  In plain English, whether you want to try and settle the case and avoid the investigation.

Different lawyers approach these requests differently.  My approach is that if you did nothing wrong, do not conciliate but insist on an investigation.  If you did something bad but it was not as bad as the complaint says, get your story set out in a response and then agree to engage in conciliation.  If you did what is claimed or worse and if the conduct amounted to a fair housing violation, by all means go to conciliation and try to get the matter settled.

Some people will agree to conciliate groundless claims to avoid the inconvenience of the investigation and the legal expense.  In my view that is a big mistake.  No matter what they say, a conciliation agreement CAN be used against you in the future to support a government claim of  "pattern and practice" discrimination, a far more serious matter.

So take the complaint seriously and be sure you handle it correctly, with full knowledge of the law that applies and the consequences of your decisions.



STATUTE OF LIMITATIONS APPLICABLE TO ACCESSIBILITY CLAIMS UNDER FAIR HOUSING LAWS

Michael A. Parham

In recent years a number of housing providers have been subjected to claims that their communities do not comply with handicap accessibility requirements of fair housing laws. Essentially the Fair Housing Act requires that residential housing accommodations constructed for first occupancy after March 13, 1991 meet federal standards of accessibility by persons with disabilities.

These standards are pretty modest and include maximum heights for light switches and thermostats, installation of grab bar supports in bathroom walls, elimination of steps and the like. They only apply, in multihousing communities, to residential units on the first floor and on upper level floors that can be reached by elevators.

The standards are vague in many respects and are fleshed out in government design manuals. This coupled with a lack of awareness by many in the construction industry in the early and mid 1990's resulted in a number of residential buildings built after March 13, 1991 not meeting the standards. Even today, many residential buildings have been found not to strictly comply with the standards.

For example a thermostat located half an inch over the maximum allowed constitutes a violation. Fair housing act violations can be the subject of administrative complaints by an aggrieved person to HUD or, in Arizona, to the Arizona Attorney General's Office. Or they can be the subject of a Federal or state court lawsuit. In recent years a number of complaints have been initiated by testers working for consumer advocacy groups.

Under the Fair Housing Act, a complaint must be filed by an aggrieved person within two years after the "occurrence or termination of an alleged discriminatory practice…whichever occurs last". 42 U.S.C § 3613 (a) (1) (A). When a residential building has been open and operating with the defective design feature for more than two years at the time the complaint is filed the question may arise whether the claim is barred by the passage of time.

There is no clear Arizona case law on this subject, and cases deciding the point from other jurisdictions are in conflict. The minority rule seems to be that the passage of the two year period bars the claim. The majority rule is that other factors may allow the claim to go forward.

Minority Rule. U. S. District Court decisions in Idaho and Virginia have held that the passing of two years bars the claim. In Moseke v. Miller & Smith, Inc., 202 F. Supp. 2d 492, 508-09 (E.D. Va. 2002) the court stated “[A] plaintiff would have two years from the time a building is constructed to bring a claim under the design and construct statutory provision, 42 U.S.C. § 3604(f)(3)(C). After the two year time period has expired, a plaintiff could resort to seeking a reasonable accommodation, which if refused would give rise to a reasonable accommodation claim under 42 U.S.C. § 3604(f)(3)(A).”

Majority Rule. U. S. District Court decisions in California, Nevada, New York, Kentucky, Maryland and Montana have held that the passage of the time period does not necessarily bar the claim. These decisions in one way or the other found such violations to be "continuing violations" meaning the statutory period never starts to run.

A U. S. Court of Appeals unpublished decision in Fair Housing Council, Inc. v. Village of Olde St. Andrews, Inc., No.05-5862 (6th Cir. 2006) discussed this issue. While as an unpublished decision the case is not supposed to be relied on as precedent, government fair housing enforcement agencies nevertheless rely on it. Here the court refused to find that each day the violation remained uncured started a new two year period such that there was no meaningful limitation. But the court also refused to recognize a bar to all complaints once two years elapsed after the building with the violations was placed in service.

Instead the court decided that when the period begins depends on who is complaining and what his circumstances are. In the case of a single multihousing property, the two year period would begin when a prospective buyer or renter discovered the offending condition. He would have two years from that date to file the complaint. This reasoning would seem to cut off all claims against the developer of a condo project two years after the last unit was sold. In the case of an apartment development it is not so clear.

If the developer operates it as a rental property, the statute would apparently be triggered each time a prospective renter looked at it. But if the developer sold the property his Fair Housing Act liability would appear to end two years after sale. The property operator however, may have liability and if so would probably have some sort of warranty claim back against his seller.

Conclusion. Different statutes of limitations apply depending on who is bringing the claim. It may be as little as one year for a private complaint to an administrative agency or as much as five years for a government lawsuit. And the criteria for different claims will vary. The two year statute analyzed above applies to the filing of a private lawsuit by an aggrieved private party. The key is to be aware of the existence of statutes of limitation that may potentially bar claims from being pursued. Any time you are the subject of an accessibility design claim under the Fair Housing Act involving a property that was built several years previously, be sure to check whether the claim may be time barred.


STANDING OF TESTING AGENCIES TO SEEK DAMAGES FOR FAIR HOUSING HANDICAPPED ACCESSIBILITY VIOLATIONS

Michael A. Parham

"Testers" are individuals who, without an intent to rent or purchase a home or apartment, pose as renters or purchasers for the purpose of collecting evidence of unlawful housing practices. This is how the U. S. Supreme Court defined the term in Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). In this important decision the Supreme Court considered the claim of a fair housing organization suing a real estate company alleging "racial steering" in violation of the Fair Housing Act.

The organization alleged it had to devote significant resources to identify and counteract these unlawful practices. The defendant housing provider argued that the organization had not suffered any actual injury as a result of the alleged violations its testers had found and therefore had no "standing" to sue.

"Standing" is a doctrine under which a court requires a litigant to have a real stake in the outcome of a case. It is designed to prevent persons unaffected by what is alleged to be happening to nevertheless sue because of it. Earlier Supreme Court decisions had established a requirement that in order to sue a plaintiff must allege he has suffered some real injury as a result of the defendant's actions. The question in Havens was whether an organization that sent testers out to find violations and incurred other expenses as a result had standing to sue over those violations in its own right.

The Supreme Court held that the organization did have standing, stating:

If, as broadly alleged, petitioners' steering practices have perceptibly impaired HOME's ability to provide counseling and referral services for low- and moderate-income homeseekers, there can be no question that the organization has suffered injury in fact. Such concrete and demonstrable injury to the organization's activities - with the consequent drain on the organization's resources - constitutes far more than simply a setback to the organization's abstract social interests.

Havens involved claims of racial discrimination. Subsequently the Fair Housing Act was amended to prohibit handicapped discrimination and to require that residential communities opened after March 13, 1991 meet certain federal requirements for handicapped accessibility. These requirements are fairly modest and include such things as maximum thermostat and light switch heights, grab bar supports in bathroom walls, wide doorways, no steps and the like.

They apply to first floor units and those on upper floors that can be reached by elevators. Since 1991 a number of newer residential properties have been found in violation of these standards. Some violations are due to ignorance of the requirements in the construction industry in the early 1990's, and some are due to sloppy workmanship. Most are relatively minor but even a minor violation is a violation.

A cottage industry has developed for fair housing organizations to send testers to newer apartment communities to find technical violations in such things as thermostat heights and then file fair housing complaints with the Arizona Attorney General. As a condition of dropping the complaint these organizations often demand several thousand dollars to compensate them for having to divert "valuable resources" to correcting the violations.

The fact in these cases is that the organizations went out on their own looking for violations and their only expense was that of sending the testers. The great unanswered question here is whether these organizations have standing to demand any financial settlement.

This was dealt with by the U. S. Court of Appeals for the 6th Circuit in an unpublished decision in the case of Fair Housing Council, Inc. v. Village of Olde St. Andrews, Inc., No.05-5862 (6th Cir. 2006). Unpublished opinions do not set precedent but this case has been regarded as instructive by various government agencies and the court's rationale is valuable as a guide. The case analyzed how various federal courts have been coming up with different criteria for determining standing.

Some require a concrete injury beyond the costs of litigating and hold that an organization cannot manufacture the injury necessary to confer standing. Other courts take a more lenient approach allowing organizations to prove they diverted resources toward litigation to counteract the defendant's discrimination.

The 6th Circuit falls in the latter group. It has held that pre-litigation investigation costs can form the basis of standing. Therefore this case found that the mere act of sending testers out who found violations of accessibility requirements gave the organization standing to seek damages. Arizona is not in the 6th Circuit and this is not a published decision. But its analysis is enlightening.

The 9th Circuit where Arizona is located has published a decision bearing on the issue that does set precedent here. In Walker v. City of Lakewood, 272 F.3d 1114 (9th Cir. 2001) the Court refused to consider the expense incurred by the housing organization prosecuting the suit in determining whether it had standing. In footnote 3 the Court stated:

Because we agree that a plaintiff cannot establish standing simply by filing its own lawsuit, we will not consider the time and money the FHF has expended in prosecuting this suit in deciding if the FHF has standing to pursue the retaliation claim.

This same rationale would seem to apply to an organization that manufactured a claim by sending testers out to measure thermostat heights or doorway widths.

Consequently the relevant law in Arizona seems to support a position that a landlord need not roll over and pay damages demanded by an organization whose only involvement in the matter is unilaterally searching for and finding technical violations of accessibility standards in post-1991 residential facilities.


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