CATHY L. LUCREZI, Attorney, is an attorney with extensive expertise in landlord tenant and fair housing issues. With more than twenty years experience since graduating from the University of Virginia School of Law, she has practiced in both state and federal courts, at both trial and appellate levels. She is admitted to practice in Florida and Tennessee. Ms. Lucrezi worked as a legal services attorney and a consultant and maintained a solo practice. She has offered trainings on fair housing, case management, foreclosures, landlord/tenant eviction law, subsidized and public housing issues, and housing preservation.

HOUSING FOR OLDER PERSONS

Although Fair Housing laws prohibit discrimination on the basis of familial status, they also allow for housing specifically designed to meet the needs of senior citizens. If the rental unit meets the definition of "housing for older persons", the landlord is exempt from the law's familial status requirements.

Types of HOP

There are three types of HOP:

1. The complex or community is part of a government program specifically designed for and occupied by elderly persons;

2.The complex or community is occupied solely by persons who are 62 or older; or,

3. There is at least one person who is 55 or older in at least 80 percent of the occupied units in the complex or community, and the landlord adheres to a policy that demonstrates intent to house persons who are 55 or older.

Of the three, a property manager is most likely to encounter the third one – the 55+ category. If the complex or housing community satisfies the legal definition housing for older persons, it can legally exclude families with children.

Is your rental unit part of HOP 55+?

Fitting the definition is not easy. To qualify, the housing provider must keep excellent records showing that each household in the complex has at least one person who is over the age of 55. The “census” records must be regularly updated and maintained in a format that can be easily reviewed by HUD.

The housing provider must establish a written policy showing that it is HOP 55+. Furthermore, the housing provider must show he follows that written policy. It has to be put into practice, not selectively enforced.

All of the advertising for the property should state that the place is housing for older persons. Saying “adults only” is bad. Saying “a 55+ community” or “housing for 55+” is ok.

Effects of the exemption

Once the community fits the definition, the community can refuse to rent to children. It can insist that all members of the household be over the age of 55 even though the statute allows a bit of a cushion. If the housing is truly HOP 55+, the landlord can impose restrictions on children playing in the community that could never be done in other housing.

The HOP 55+ exception is very narrow. It lets the landlord “off the hook” in regards to families with children, but with no other protected class. The landlord is still obligated to offer housing without regard to a tenant’s race, color, religion, sex, national origin, and handicap.

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WELCOMING DISABLED TENANTS
by Cathy L. Lucrezi, Attorney at Law

 A disabled applicant should be treated just as any other applicant.  The process of accepting an application, showing available units, doing a credit and background check, and executing a lease should be the same as you it would be for a non-disabled person.  There are a few exceptions, described later in this article.

The business office.

Make sure that your leasing office meets accessibility standards. This includes being sure there is an accessible route from the parking area to your leasing office.   This may mean adding a ramp or curb cut, or outfitting at least one restroom that is accessible.

   
Reasonable accommodations.

If the disabled applicant needs an accommodation in order to apply for housing, make it.  Examples include allowing a vision-impaired applicant to have his friend complete the forms, or allowing a service animal to enter the business office.  Another example would be to allow the disabled person’s guardian do the paperwork and sign the lease.

The applicant may say she wants the unit, but will need a modification or accommodation.  You can ask the applicant to put the request in writing and provide you with verification of disability.  (Hopefully, you already have a policy in place for handling this type of request.)

Question “Do’s”

Generally, a landlord should only ask a person with a disability questions that are asked of all applicants or tenants.  It’s OKAY to ask questions such as:
-- Can you pay the rent?

-- Do you have references regarding your tenant history?

--Who will be living in the unit?

-- Do you have a criminal history?

If ours is an apartment community designated for people with disabilities, you can ask the applicant if he or she qualifies for the housing.  

Question “Don’ts”

It is NOT ok to ask the following:

--Do you have a disability? 

--Do you take medication?

--How severe is your disability?
 
--Why are you getting SSI?

--Can I see your medical records?

--Have you ever been hospitalized for mental illness?

--Have you ever been in drug or alcohol rehab?

--Are you capable of living independently?

A few more “Don’ts”.

Do not presume to know what is best for the disabled applicant.  If a person with a mobility impairment wants a unit on the second floor, do not try to talk him into a first floor unit.  You would be presuming to know better what the applicant needs, than the applicant himself!  It would be a violation of fair housing laws, no matter that you acted with good intentions.

Do not offer a particular accommodation.  Don’t suggest: “Will you need a handicapped parking space since you are in a wheelchair?”  Instead, respond positively if the individual in the wheelchair asks for a handicapped parking space.  The request for such an accommodation should come from the tenant, not you.  You can let applicants know you welcome requests for reasonable accommodations and modifications, by noting it in your application materials.

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There is great value in having a “policy book” or “management handbook”. It holds the landlord’s written policies and procedures. It is a tool used by management staff to assure a uniform approach to handling applicants and tenants. The written policies promote consistency and, thus, avoid fair housing pitfalls.

Every property manager should have a set of written policies describing the procedures to be followed by staff. This article is a “how to” of how to create a set of written policies.

Organize your priorities…

If you had to, you could probably describe your policies: “We require a photo id when the lease is signed.” “I always require a guarantor if the credit score is poor.” “We don’t allow tenants to have decorative items on the door.” All of those “rules” reflect a policy that you have, even if it’s all in your noggin.

Start by writing down all of those “rules” that you apply without thinking. Sort them by the following categories:

-- Applications and Eligibility
-- Lease sign-up
-- Tenant requests for accommodations and modifications
-- Deciding when to evict
-- Deciding when to non-renew
-- Collecting rent
-- Work out agreements
-- Work orders and maintenance
-- Tenant complaints and suggestions
-- and whatever else you might think of

Don’t be overwhelmed…

If you are starting from scratch, down be intimidated by the size of the task. Take it one step at a time.

In some areas, you already have a head start. Our office makes the following “models” available: eligibility criteria, a non-renewal policy, and reasonable accommodation/modification policy.

Once the policy is written…

Be sure all staff is aware of the written policy and understand its importance. Keep a binder of the written policies in a place where all staff can have access to it.

Most important – Follow the written policies that are in place. The purpose of the written policy is to promote consistent treatment of applicants and tenants. Think of it as “self-imposed” law.

If you deviate from your written policies, be sure to document why you made an exception. Keep a record of the non-discriminatory, business reason. It is wise to have a supervisor or the broker sign-off on any deviation.

Periodically, review your written policies. It is easy for such things to become stale. For example, you may change the manner in which you handle maintenance requests if you get new software.

Resistant to putting it in writing?

An argument can be made that it is a bad idea to put certain policies in writing. It can be said that, by creating these “self-imposed” laws, one is creating just another pitfall for a litigation-happy tenant. Although there may be some truth to that line of thinking, it is our humble legal opinion that the risk is outweighed by the benefit of having a well-informed staff that is all on the same page.

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The fair housing laws are very clear: it is unlawful to discriminate in the terms and conditions of a rental based on a person’s race, color, religion, sex, national origin, familial status, or handicap. There are few people that would do so overtly, but a landlord can be engaging in this form of discrimination without recognizing it.

The stakes are high. If it is determined that a landlord is unlawfully imposing different terms and conditions on a rental, the landlord can become liable for damages, fines, and attorney fees. Examples:

“We will do monthly inspections of your unit.”

The landlord plans to do a monthly inspection of the rental unit because (pick one) the tenant has a service animal, the tenant’s wheelchair will damage the floor, his “kind” always cause more damage to a place, or it is a large family. Such reasons violate fair housing laws regardless of how a landlord might justify them.

Of course, many landlords have the practice of performing regular inspections of the premises. [“Monthly”, though, is too intrusive in almost any scenario.] That practice is fine, because it is for a legitimate business reason that has nothing to do with a person being a member of a protected class.

“You’re approved, but only if you erect a child-proof pool fence.”

The landlord requires the tenant to erect a child barrier fence because he fears injury of the children who will be living at his property. He is requiring something of the family with minor children that he would not require of other tenants. He is violating the law.

If the landlord is so concerned about the risk of the children being injured, he should install the child barrier fence himself. Note, too, that some local codes require landlords to provide child barrier fencing around a pool.

“Your children can use the pool in the afternoons only.”

The landlord’s rule is that children can use the community pool only in the afternoons, even though the pool is open until 9:00pm. As a result, the tenant with children in her household is limited in her use of the amenities. The landlord is violating fair housing laws.

Reasonable pool rules are absolutely okay. It is smart to have rules to promote safety. However, rules that limit use, but which have nothing to do with safety, are very likely to violate fair housing law. The fact that the adult tenants would prefer to use the pool at a time that kids aren’t around is, well, tough noogies.

The solution

See the pattern? If you are attaching a term or condition to the tenancy that affects only a certain group of people, then it is very likely you are violating fair housing laws. Terms and conditions on a tenancy are perfectly okay – after all, that’s what a lease is for. Just be sure you have a legitimate, nondiscriminatory reason for what you do. If you are imposing a term or condition on an applicant or tenant because she is a member of a protected class, and not imposing it on others, you should expect to see a HUD complaint arrive in the mail.

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The fair housing laws are very clear: It is unlawful to refuse to rent to a person because of that person’s race, color, religion, sex, national origin, familial status, or handicap. What is not so clear, perhaps, is that a refusal can occur even if the word “no” is never used.

An unlawful refusal of housing can be the basis for a fair housing complaint and can result in the landlord being liable to the applicant or tenant for a substantial sum of damages, as well as fines and attorney’s fees. Examples of an unlawful refusal of housing:

The landlord takes the application but allows it to languish on his desk, hoping the applicant will forget about it or find some other place to live. The landlord’s inaction is as good as a “no”.

Of course, delays occur for reasons totally unrelated to unlawful discrimination. The agent may go on vacation, or the agent may be waiting for the employment verification to come back. A good management office will make diligent efforts to make sure such delays are avoided. If delays do occur, good management will communicate with the applicant to assuage any of his concerns.

“This place is terrible!”

The landlord shows the home to the applicant but persistently bad-mouths it, in the hopes the person will just walk away. Showing the unit does not disguise what is really happening: The landlord does not want to rent to the person.

Of course, the landlord is obligated to tell a prospective tenant about “latent defects” – negative things that the person would not be able to learn from an inspection. However, the law is violated when the landlord goes beyond this; being so negative that the applicant begs to be shown another unit or disappears altogether.

“You’re approved, but you need a co-signer.”

The landlord is requiring a guarantor or co-signer from an applicant merely because the person is a member of a protected class. Whether the landlord is doing it intentionally or doing it because of some wrong-headed generalization about a group of people, it violates the law. The “conditional approval” is the same as a refusal.

Of course, it is absolutely ok to require a guarantor or co-signer to the lease, provided it is done for a sound business reason. Regrettably, some landlords impose such a condition on single mothers, disabled individuals, and non-citizens who are lawfully present in the U.S.A.

The solution

Develop written criteria for who will qualify for a rental. Develop a written procedure for how each application will be handled. Follow the procedures! The more standardized the procedure is, the less likely there will be one of the refusals listed above.

Be sure that your decisions about who qualifies and what conditions are imposed are based on legitimate, non-discriminatory reasons. If it can’t pass that test, you shouldn’t be doing it.

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It is easy to imagine many scenarios where a handicapped individual may require the assistance of another person. For individuals with severe mobility impairments, a caregiver may assist with moving the tenant in and out of a wheel chair. For individuals with dementia, a caregiver may be responsible for keeping the tenant safe. A caregiver may be responsible for housekeeping, paying bills, administering medication, and/or a thousand other tasks.

A tenant’s request for a live-in caregiver should be handled just as any other request for a reasonable accommodation. The tenant must demonstrate she is handicapped and needs the caregiver. If it is reasonable to grant the request, the landlord is obligated to “bend the rules” and let the caregiver move in.

Who is a caregiver?

A caregiver is a person who performs some type of service to a handicapped tenant so that the tenant is better able to use and enjoy the rental premises. The caregiver does not have to be certified or licensed. She could be the tenant’s relative or she could be someone from a nursing agency. The caregiver is whoever the tenant says he is.

When is a caregiver needed?

As with any other request for an accommodation, the landlord can require the tenant to produce verification of the need for the caregiver. If the tenant’s health care provider (doesn’t have to be a physician) says the caregiver is needed by the handicapped tenant, then the caregiver is needed. Period. The landlord should not second guess the health professional’s opinion.

What should the lease say?

The live-in caregiver is not a tenant and should not be listed as a tenant on the lease. The caregiver is not responsible for rent or any other charges that may become due under the lease. Only the tenant is responsible for that.

Neither should the caregiver be listed as an occupant. The caregiver has no status as a tenant and no entitlement to protections of the landlord tenant statute. His presence in the household is based solely on the tenant’s need for his services.

The live-in caregiver is in a category by himself. The lease should include a provision, or there should be an addendum, that indicates the name of the caregiver and acknowledges that the tenant remains responsible for performance of the lease and the conduct of the caregiver. The lease should make the tenant responsible for notifying the landlord of any changes in who serves as caregiver.

Can the caregiver be “checked out”?

Because the caregiver is not a tenant, the caregiver’s income is irrelevant. There is no need for the caregiver to complete an application or for a landlord to run a credit check.

However, it is perfectly legitimate for a landlord to run a criminal background check. The landlord can request the minimum amount of data necessary to run the check. If that means the caregiver must sign an authorization, then it is the tenant’s responsibility to obtain it. If the criminal background check reveals a conviction that wouldn’t pass muster under a typical application, then it is reasonable for the landlord to refuse to allow that particular caregiver to move-in.

(name of caregiver) shall reside in the premises as Tenant’s caregiver. It is understood that the caregiver is not a tenant entitled to the protections or entitlements of the lease, nor of the statutes related to landlord tenant matters. If Tenant changes caregivers, Tenant shall notify Landlord of the name of the new caregiver prior to the new caregiver taking occupancy. Landlord may conduct a criminal background check of the caregiver and may condition consent to the caregiver upon the results of the criminal background check. Tenant is responsible for any lease violations that occur through the acts or omissions of the caregiver. Tenant shall provide a copy of this lease to the caregiver.

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A proper notice and a risk of eviction often make a tenant comply with the lease. However, that notice and risk of eviction can sometimes be perceived as a fair housing violation. How can a landlord figure out how to enforce the lease without looking like he is violating the law? Is there really such a tightrope to walk?

If a tenant is violating the lease, the landlord serves a notice. Sometimes it’s a three day notice to pay rent or move. Sometimes it’s a seven day notice to correct a problem and not do it again. Sometimes it’s a notice to vacate.

Landlords often worry that the tenant who receives such a notice will claim a violation of fair housing law. It is thus not surprising that some landlords hesitate to take any action, even though the noncompliance persists.

A landlord protects himself by being sure that his decision to serve a notice or to start an eviction is based solely on non-discriminatory reasons. The decision can never be based, even in part, on the tenant’s race, color, religion, sex, national origin, familial status, or handicap. [Don’t forget – Your local government may have added one or two to that list.]

As long as the landlord is not considering the tenant’s protected class, it is okay to evict a tenant. There must be valid, nondiscriminatory reasons for the eviction. It is okay to evict a tenant who fails to pay rent regardless of the tenant’s protected status. A landlord could cross the line, though, if he treats one group of non-payers differently from another group of non-payers. For instance, if the landlord generally serves three day notices on the 10th of each month, but serves three day notices to families with children on the 5th of each month, then the landlord should expect a fair housing complaint to be made.

Here are some other situations that can result in discrimination complaints:

A single woman is told that her partner is approved to move in with her, and then is evicted when management learns her partner is of a different race.

A married couple who lives in a one bedroom apartment is asked to vacate after management learns the wife is pregnant.

Tenants who invited guests of a particular racial, ethnic or religious group for dinner or an afternoon at the pool are asked to vacate.

A tenant with epilepsy falls at the property and has a seizure. The ensuing flurry of emergency personnel causes the landlord to issue a disturbance notice.

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A property manager can fall into a dilemma when an owner’s wishes conflict with what the law requires. This can happen in many, many ways. When it involves denying applicants who fall into a protected class, the dilemma can become a federal court case.

The problem.

The owner wants the agent to lease the property, but he has some ideas about the tenant you are to find. The owner says he does not want to rent to a family with small children. Or, he wants to reject applicants who need modifications for a disability. Perhaps the owner only wants tenants who are U.S. citizens. The agent’s internal warning system goes off, and she calls the attorney. When the attorney says each of those things violate the fair housing laws, what can the agent do?

Options.

(Can you pick out the one that is spelled B-A-D-A-N-D-E-X-P-E-N-S-I-V-E?): One. Talk to the owner and let him know his “requirement” is a violation of fair housing laws. Persuade the owner to drop the requirement, and allow you to place a tenant who qualifies financially and who meets other non-discriminatory criteria. If the owner sees the wisdom of the agent’s advice, then all should be fine. The agent should make good notes of the conversation, including a note she alerted the owner to the fair housing issue and she will not engage in unfair discrimination.

Two. Go along with what the owner wants to do, but be sure you have your checkbook ready. [This is the BAD choice.] By acceding to the owner’s discriminatory desires, the agent becomes part of the violation. The agent will be liable to the rejected applicant for damages, attorney fees, and court costs. The agent, just like the ne’er-do-well owner, can be made subject to court-ordered injunctions and fines. FREC can initiate license revocation or suspension proceedings. It is NOT a defense to say “I was only doing what the owner told me to do”.

Three. End the property management agreement. If the owner will not agree to do the right thing, the agent should end the property management for this owner. This is a bitter pill to swallow, since it means giving up business, but it is a far better choice than being a co-defendant in a fair housing lawsuit.

This creates an awkward situation, because the agent must follow up with the applicant. What can the agent say? The agent cannot tell the applicant what the owner said. That would be breaching a fiduciary duty to the owner. The agent should tell the applicant she no longer acts as property manager for the owner, and she cannot say anything more. The agent can offer to help the applicant (“Is there some other way I can help you?”), but she should not offer another property unless the applicant asks.

Check your property management agreement.

Be sure your owners know you will not engage in unfair housing practices. This should be reflected in your property management agreement. It should include something along the following lines: Please do not ask or expect us to place any restrictions on your property based on an individual’s racial, religious, handicap, sex, national origin, familial status or other group protected by federal, state or local law.

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What’s your choice of greeting at this time of year? Merry Christmas? Happy Hanukkah? Bah Humbug? Happy Generic Day of Gift Giving? The holiday season is a good excuse for many apartment communities and management offices to host parties and decorate the office.

There is nothing unlawful about putting up Christmas decorations. Festooning the office with evergreen and elves does not violate the law. However, housing providers must avoid displays that give the impression the landlord favors one religion over another.

Fair housing laws protect tenants from discrimination in housing based on the person’s religion (or lack of religion). Religious decorations and displays on the common areas may suggest to tenants and guests that the landlord favors people with a particular religious affiliation.

An apartment community that sets up elaborate holiday decorations consisting of nativity scenes and references to Christ may communicate that the landlord favors Christians. The displays could make tenants and applicants who are not Christian feel that are not wanted at the complex.

So, does this mean that a landlord should avoid all red and green? No. Holiday decorations are definitely “ok”. They should just be more general than religious.

For instance, it is generally accepted that the following decorations do not communicate a religious preference: lights, wreaths, Santa Claus images, candy canes, and decorated trees. The focus on the secular rather than the religious elements of Christmas, is certainly offensive to many devout Christians and to non-Christians who do not see other religions’ holidays recognized. Nonetheless, the “generic” decorations and symbols of Christmas are generally considered acceptable.

If the landlord dislikes “Plan A” of the generic decorations and wants to go with “Plan B” to show the religious symbols of the holiday, then care should be taken to give equal treatment to all other religious affiliations. That means that if the landlord uses a Christian symbol in his decorations, there should also be a decoration that references Hanukkah or other religious holidays observed by the community.

So, put up the sparkly lights and hang your stockings. Put a star at the top of the tree. Your holiday – whatever it may be – will be wonderful. Happy Holidays and Peace on Earth.

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Whether it is reserved or “first-come, first-serve”, parking is a territorial issue which tenants loathe to let anyone change. Because of this, a property manager may have a dilemma when a tenant with a disability requests a reserved accessible parking space.

Fair housing law obligates you to provide reasonable accommodations for tenants with disabilities. That means you are obligated to provide the reserved space even if your property does not assign parking spaces to specific tenants or units. You must provide a reserved parking space to a tenant with a disability if he requests it.

The reserved parking space for the disabled tenant must be posted with a sign at the head of the parking space, saying the spot is reserved and enforced. It should be marked as reserved so that other people with disabilities don’t park there.

You must enforce the tenant’s right to the reserved accessible parking space. That may mean issuing a notice of noncompliance to a tenant who parks there.

A challenge arises when there are several tenants with disabilities, each one requesting a reserved parking spot. Unfortunately, there is very little guidance from HUD about how to juggle numerous, competing requests. Instead, each request must be handled with individual consideration. It helps to have in place a written policy and procedure regarding requests for reasonable accommodations.

Note that not all accessible parking spaces have to be equal. Many tenants who need an accessible parking space don't need an extra-wide space with an access aisle. They may only need a regular-size parking space nearest to their front door (or on the most accessible route to the front door). Discuss with the tenant his or her needs for parking.

Guest parking is subject to ADA Title III rules, which require that at least 2% of all guest spaces in any lot meet access requirements and be designated with appropriate signage. These spaces must be at least 96" wide and must have an adjacent access aisle at least 60" wide, which allows room for a wheelchair, electric scooter or other mobility device. An access aisle can be shared between two accessible parking spaces. At least one of these spaces must be van accessible with a 96" access aisle.

Remember that the parking spot you provide to a tenant in response to an accommodation request is separate from and in addition to any general accessible spots provided for the public or tenants and their guests.

If the rental office is on-site, be sure to locate at least one accessible guest parking space next to the office.

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“Harassment” is used so often in our vernacular, the word fails to even raise an eyebrow. Not so in fair housing law. “Discriminatory Harassment” has a specific meaning and a powerful impact.

Under fair housing laws, “discriminatory harassment" includes any abusive, foul or threatening language or behavior directed at a tenant because of that person’s protected class. [Protected classes include race, color, national origin, religion, sex, disability, familial status, as well as any protected classes created by local ordinances.]

Harassment occurs when the landlord or staff or other tenants, target a tenant with hostile conduct. The hostile conduct might be using racial epithets, making sexually suggestive proposals, yelling profanity at a person, persistently photographing the person in common areas, and any other annoying and threatening behavior.

Of course, not all annoying conduct is a fair housing violation. A person who yells profanity at his neighbor may simply be a jerk. If the person yells the profanity because he dislikes his neighbor’s religious beliefs, then it is discriminatory harassment.

You would be correct in assuming the landlord can be sued for damages if he or his staff is the source of the harassment. However, you might be surprised to learn the landlord can be held liable even if the harassment comes from other tenants.

Staff who witness or learn of harassment should investigate the complaint. If there is merit to it, a notice of noncompliance should be served to the harasser. If the harassment is repeated following expiration of the notice, termination and eviction may be appropriate.

Prevention helps avoid harassment complaints. The landlord should foster an environment that is free from discriminatory harassment or intimidation. All staff should model appropriate non-discriminatory behavior. That means, no offensive “jokes” or names, no matter how friendly the listener may be. All staff should attend fair housing training. If you would like to adopt a staff policy of “no harassment” that includes directions to staff on how to handle complaints, contact our office for a sample policy.

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Although housekeeping is a hassle for everyone, it can pose special challenges to individuals with disabilities. The problem for the landlord is to figure out whether a tenant’s poor housekeeping is a result of a disability and, if it is, figure out how to handle the problem.

Note that many physical disabilities may interfere with the ability to clean a home. An individual who relies on a wheelchair for mobility may not be able to take garbage bags to the dumpster. A visually impaired person may be unable to perceive the grime which the landlord considers unacceptable.

Mental illnesses can also interfere with keeping a unit clean. Cognitive disorders may mean the tenant fails to understand the need to clean. A tenant with a compulsive disorder may horde newspapers. The examples are endless.

Because handicapped individuals are protected by the Fair Housing laws, they cannot be evicted for conduct that is a result of the disability. For example, a landlord could not evict a mentally ill tenant because a disturbance was caused when emergency workers responded to his suicide attempt. In the same vein, poor housekeeping cannot be a basis for eviction if the tenant cannot clean the unit due to his disability.

Of course, when housekeeping problems become so bad that they pose a threat to the health and safety of other residents, the landlord needs to take action. In that case, a notice of noncompliance and, eventually, an eviction may be appropriate. The fair housing laws do not protect a tenant who is a “direct threat” to the health or safety of other tenants or who causes substantial physical damage to property, unless a reasonable accommodation can alleviate the situation.

There are many possible accommodations. One would be to permit more than the seven days to cure the noncompliance. Another might be to permit a “second chance” or allow time for the tenant’s caseworker (if there is one) to help with the problem. Still another would be to permit time for the tenant to hire a cleaning service or enlist the help of family and friends. Ultimately, the accommodation is as unique as the tenant and the landlord themselves.

Documentation of the condition of the premises, as well as the efforts for an accommodation, is key. Not only is that data important for a successful eviction, it could later help defend a claim of housing discrimination.

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Childhood is meant to include adventure. Play and risk-taking is part of each person’s development. Landlords don’t want to thwart that; they just hope that it doesn’t result in injury on the property. Fair housing requirements sometimes seem to run counter to promoting safety. A landlord’s rules cannot discourage families from renting the property or place unfair burdens on them.

A landlord who wants to establish rules that require adult supervision while using certain amenities should keep these tips in mind:

-- Age restrictions should reflect health and safety rules in the area. If there are none established by local government, check the with the property’s insurer. It may have some guidelines.

-- Exercise equipment is often designed for a certain body size and so may not be appropriate for children. Check with the manufacturer to see what it recommends for size restrictions.

-- If the child can use the amenity with supervision only, be careful the rule states “adult supervision” or “accompanied by responsible adult”. If you use the phrase “must be accompanied by parent”, you would be placing an unreasonable burden on families with children and likely violating the law.

-- Use the least restrictive rule possible. For instance, a landlord’s safety concerns may just as well be met a rule that requires children between the ages of 13-17 to have at least one other person present who is 13 or older. A rule that excluded everyone under 18 years old without an adult present is almost always too strict.

-- Pool rules should be reasonable for the use and enjoyment of all tenants. "Adult swim" hours are not permitted. You may want to designate part of the pool for lap swimming during certain hours of the day, open to all tenants.

-- Computer rooms and business centers cannot be restricted only to adult use. Just as with a pool, it may be appropriate to establish some supervision guidelines based on age.

-- Document your reasons for establishing the rules that are in place. If you based your pool supervision rule on a memo sent by an insurance company, put that in your file. If you based the age restriction for use of free weights on your local gym’s recommendations, make a record of it. This type of documentation may later be invaluable. It will show you had sound business reasons for your decisions.

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Fair housing laws prohibit making, printing or publishing a notice, statement, or advertisement that indicates a preference, limitation, or discrimination based on a protected class. The law applies to all types of marketing used in the rental process. That includes an ad in a newspaper or on television, an index card on a bulletin board at the convenience store, a vacancy sign in the window, and even word-of-mouth. The law covers all advertising.

Check the language that is used in your ad. There should neither be any words or phrases that show a preference for any protected class, nor should there be anything that would discourage a member of any protected class. Using phrases like “close to churches,” “single adult community” or “perfect for mature professionals” would likely be considered fair housing violations. Symbols should be scrutinized too. If the signage to the community includes the Christian fish symbol, it likely discourages some people from applying.

Stick with describing the property, not the targeted audience. Describe the features of the unit that make it appealing -- the size and location of the unit, rental price, utilities included, laundry room, pool, etc.

If the printed ad uses photographs or drawings of people, try to use men, women, children, people with disabilities, and people of all races, nationalities and ages in a way that reflects the population as a whole. Better yet, leave humans out of the illustration altogether.

Avoid advertising concessions or move-in specials for particular groups. A television ad that tells seniors they can get the first month free may seem benign, but is really a red flag of a fair housing violation. It tells a family with children they may not be welcome there. A promo that offers a concession to newly married couples would, in some cities and counties, be a violation since it discourages gay couples from applying.

There are some situations where it is ok to indicate preferences. You can let the market know you have units which are accessible for people with disabilities. You can advertise amenities such as playgrounds and state that families are welcome. HUD finds it acceptable (and even encourages) landlords to expand their marketing options by advertising in minority newspapers and at social services agencies and organizations for people with disabilities.

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Landlords, often with the best of intentions, worry that if they rent a unit to a person who appears to be frail and elderly, there will ultimately be a terrible accident involving the tenant. Perhaps it will be the tenant falling on the steps. Perhaps it will be the tenant leaving the stove on and starting a fire. Or, perhaps the tenant will die in the unit and not be found for a few days.

First and foremost, note that all of those horror stories can happen to any tenant. They are not reserved for elderly people. Secondly, be careful about making assumptions about seniors’ abilities. Not every octogenarian sits on the porch in a rocking chair – I know one who has begun ballroom dancing!

Despite those cautions, there will indeed be times when a landlord will reasonably wonder if a person is able to live on his own. How the landlord deals with those concerns is influenced by fair housing laws.

For instance, it is unlawful to ask the tenant or applicant to provide proof from a doctor that they are able to live independently. It is unlawful to require that the elderly tenant get one of their children to co-sign the lease. It is unlawful to refuse a second story unit just because you worry the person will fall on the steps.

The law presumes that a person knows what is best for himself. Thus, if I want that second story unit even though I use a cane, I should have that second story unit. It is not up to the landlord to figure out what is best for me.

If there are observable facts showing that the tenant is endangering herself or others, or risking damage to property, document it in your file. If you feel the person is not safe, call the Florida Abuse Hotline at 800-962-2873, or your local Elder Affairs Resource number (in the blue pages of the phone book).

If the individual’s conduct violates the lease, then it is appropriate to serve a seven day notice of noncompliance with opportunity to cure. If the conduct is repeated or continues, and the conduct creates a risk of injury or damage, then a termination notice could be given.

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Most landlords would agree -- They would rather have tenants who are not familiar with the inside of a jail cell. To screen out those with criminal records, the landlord asks whether the tenant has been convicted of a felony, or had adjudication withheld on a felony charge, or was ever convicted of a sexual crime. The landlord often runs a background check of all the adults in the household just to make sure.

If the landlord learns the applicant does indeed have a criminal record, the landlord can legitimately turn down the applicant. It won’t be a violation of fair housing laws.

Fair Housing laws do not protect criminal activity.

Having a criminal record is not a protected class under the fair housing laws. Thus, landlords can establish screening criteria that reject an applicant who has a criminal record.

Conviction vs. Arrest vs. Adjudication Withheld

Convictions should not be confused with arrests. A conviction means that a judge and jury have determined that the individual is guilty of the particular crime. An arrest occurs if law enforcement suspects the individual committed a crime. There is a world of difference between suspicion and conviction, as any Perry Mason fan can tell you.

“Adjudication withheld” means the court determined the individual did the crime but the court is not entering a conviction at the moment. Instead, the court places certain conditions on the defendant. Examples are to not use drugs, do community service, stay in school, etc. If the defendant satisfies all of the conditions set by the judge, then the conviction is never entered against him. Even though the conviction is not entered, you can reasonably believe that the individual did the criminal activity.

A landlord should not reject applicants on the basis of arrest records. Doing so would be considered unlawful discrimination. That is because arrest statistics show that arrest patterns have sometimes been discriminatory against protected classes in some contexts. That makes arrests a bad screening criterion.

Uniformity and Consistency.

If the landlord conducts criminal background checks, it should be done on every adult applicant. Doing anything less would be considered discriminatory.

The landlord should not accept some applicants with criminal records and reject others. For example, a landlord should not accept a female applicant with a record of assault but not a male applicant with a similar conviction. Once exceptions are made, the criteria cease to be fair.

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The federal Fair Housing law was enacted on April 11, 1968. That’s why April is “Fair Housing Month”. There are no parades or parties or commemorative plates for the event, but you can still celebrate by doing a quick “check up” to make sure the fair housing language in your lease is up to date.

When the law was initially enacted, there were five protected classes: race, color, religion, sex, and national origin. In 1988, the law was amended to add two more: familial status and handicap.

Many leases and applications, not to mention posters and promotional materials, contain a statement that is something like the following: “Our property does not discriminate on the basis of race, color, religion, sex, national origin, familial status, or handicap.”

The problem? Many forms have not been updated since 1988! Some materials have been through the old “cut and paste” so much that one of the protected classes has been dropped!

The solution: Pull out your lease or management agreement or other written material, and see if there is an “anti-discrimination” clause. Count the number of protected classes. If there aren’t seven of them, then you are omitting somebody.

In the worst case scenario, someone from the “omitted” group files a fair housing claim. To HUD or a plaintiff’s attorney, the absence of one of the protected classes will look like you intended to discriminate against the particular group, OR that you are way out of sync with what the fair housing laws require of you. Neither perception is good for a landlord.

A lease does not have to contain an anti-discrimination clause. If there is no anti-discrimination clause in the lease, the landlord is still obligated to follow the law. He can’t avoid fair housing just by leaving it out of the lease!

Lastly, depending on where the property is located, there may be additional protected classes. In some Florida localities, the protected classes include sexual orientation, marital status, veteran status, age, politics, ancestry, and place of birth. It is acceptable practice to not include the local protected classes in your anti-discrimination clause, particularly where a lease is used in more than one locality.

Happy Fair Housing Month! Where’s my present?

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First off, it’s important to know the difference between an accommodation and a modification. A modification is a change to the physical structure of the unit, while an accommodation is some “bending” of a rule. Both a modification and an accommodation permit the disabled person to fully enjoy the rental premises.

The landlord must permit “reasonable” modifications. To be reasonable, a modification must: (1) not require a fundamental alteration in the nature of the landlord’s business, and (2) not impose undue financial or administrative burdens on the landlord.

The tenant is responsible for paying the costs of the modification. If the modification is something that does not diminish the unit’s ability to be rented to the “next” tenant, then the landlord cannot require the tenant to remove the modification when he leaves.

The landlord can insist that the work be done by licensed professionals, that all codes be complied with, and that the design be reviewed by the landlord before work begins. The permission to do the modification should always be done in writing, to avoid confusion later.

A sample letter granting permission might be: “We understand you wish to install a lift chair in the interior stair case, due to your son’s handicap. We consent to such a modification of the unit on the following conditions: 1.) The modification is done at your expense; 2.) Our office reviews the work plan or design before work begins; 3.) All work is done by licensed individuals and complies with local codes; and, 4.) You agree to restore the staircase upon your vacating."

The landlord may not increase any customarily required security deposit due to the modification. However, if the modification is something that would diminish the “next” tenant’s enjoyment of the unit, the landlord can require the tenant to pay, over a reasonable period, an amount of money not to exceed the cost of the restorations. HUD requires that such a deposit be in an interest bearing account, with all the interest going to the tenant.

Whether it’s grab bars or a light-alert system that takes the place of a traditional doorbell, the landlord must permit the disabled tenant to make a modification to the existing premises. Failing to do so may mean that HUD attempts to “modify” the landlord’s pocketbook.

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Fair housing laws require that a landlord permit reasonable modifications to a rental unit and make reasonable accommodations in rules, policies, practices or service. Next newsletter, look for a discussion of reasonable modifications (e.g., grab bars and ramps).

An accommodation is some “bending” of a rule so that a handicapped person can live in the rental unit. It can mean changing some rule that is generally applicable to everyone so as to make its burden less onerous on the handicapped individual. The landlord must make the accommodation if it is reasonable to do so.

Unfortunately, the statute does not define the word “reasonable”. HUD regulations don’t shed much light, indicating a reasonable accommodation is one that is “feasible and practical”. Judges have come up with a variety of interpretations.

Generally, the consensus is that an accommodation is considered reasonable if it would: (1) not require a fundamental alteration in the nature of the landlord’s business, and (2) not impose undue financial or administrative burdens on the landlord.

Here are the two examples offered by HUD:

Example #1: A blind applicant for rental housing wants to live in a dwelling unit with a seeing eye dog. The building has a no pets policy. The landlord must permit the applicant to live in the apartment with a seeing eye dog, because without the seeing eye dog, the blind person will not have an equal opportunity to use and enjoy a dwelling.

Example #2: A 300 unit apartment complex has 450 parking spaces which are available to tenants and guests, on a first come, first served basis. An applicant is mobility impaired and unable to walk more than a short distance. He requests that a parking space near his unit be reserved for him, so he will not have to walk very far to get to his apartment. The landlord must make this accommodation. Without a reserved space, the individual might be unable to live in the apartment complex at all, or when he has to park in a space far from his unit, might have great difficulty getting from his car to his unit. The accommodation therefore is necessary to afford the applicant an equal opportunity to use and enjoy a dwelling.

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Fair housing law prohibits discrimination against individuals on the basis of familial status. One cannot deny housing or take other adverse action against a tenant merely because there are children in the household. So, what can you do if a resident complains about the raucous children who live next door?

“Noisy kids” is a lament that’s been heard for centuries. One imagines cavemen complaining of how loud the cavekids next door banged their clubs. Perhaps Van Gogh would have kept his ear had the neighbor’s kids not been practicing the drums. Regardless of the “tradition” of complaining about noisy kids, there remains no easy way to handle the tenant’s complaint.

If a tenant complains that the children who live upstairs are making a racket all hours of the day and night, handle it like any other noise disturbance. Do not focus on the fact that children are making the noise. Instead, note the details of the disturbance – loud music, skateboards in the breezeway, stomping on the steps, slamming doors. That noise is a disturbance regardless of the age of the perpetrator. A Seven Day Notice of Noncompliance with Opportunity to Cure can be served.

Focusing on the age of the noisemaker raises red flags. It can easily appear that the landlord is complaining about children rather than noise. That means a fair housing claim might arise.

A landlord should not complain about “children loitering”. Such a statement focuses too much on the age of the individuals – as if it would be okay if adults had been loitering. “Unsupervised child” is another bad statement. It is so vague that the only possible focus is the age of the individual. Instead, note the details of how the unsupervised child affects the tenancy or other residents. For instance, the “ten year old member of the household used gym equipment without supervision, thus risking injury and damage.”

Lastly, it is important to let kids be kids. It is not unreasonable for kids to make some noise when they play. Such “racket” may disturb a resident’s afternoon nap, but it is not a lease violation. It’s the noise one expects in a community with families.

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Acting out of Anger

Don’t let anger guide your actions. If you learn that your tenant has filed a fair housing complaint of discrimination, take a deep breath, and get legal advice. Do not act out of anger. Any retaliatory act may mean that the landlord will be liable for damages, attorney fees, and court costs.

Acts of Retaliation

Everyone (hopefully) knows the federal Fair Housing Act prohibits discrimination based on race, color, religion, sex, familial status, national origin, and handicap. Perhaps fewer people know that it also prohibits acts of retaliation.

The law makes it unlawful to “coerce, intimidate, threaten, or interfere with any person” who is exercising his rights under the Fair Housing Act or who is helping another person exercise rights under the Fair Housing Act. Such conduct is retaliation and can subject the landlord to a lawsuit, even if he is not otherwise engaging in discrimination.

Examples of Retaliation

Examples of retaliation are refusing to make repairs or not making them in a timely manner because the tenant was involved in a discrimination complaint, or evicting a tenant because he was a witness in a discrimination investigation. The way a person asserts his or her fair housing rights can be as informal as a verbal complaint to the manager, or as formal as a complaint filed with a local fair housing enforcement agency.

Suppose the complaint has no merit?

It is illegal to retaliate against someone who has raised an issue of discrimination, even if the original allegation of discrimination has no merit. Make sure the actions you take are not a result of the allegation itself, but rather that the actions would have happened regardless of the allegation.

If a tenant alleges discrimination, you are not required to stop enforcing the lease or to stop serving notices for nonpayment or other lease violations. Stay consistent with what you do, and you should be able to support any legitimate actions you take after a tenant makes an allegation. Unsure of what to do? Call your attorney!

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Who handles the Complaint?

Administrative complaints of fair housing violations are handled by government agencies and, in some rare situations, nonprofit organizations. An administrative complaint is not the same as a lawsuit, even though it can have the same consequences as a lawsuit. Whether it’s HUD or the Commission on Human Relations or a local agency, the process is pretty much the same.

What will the investigator want?

1. Documentation: As part of its investigation, the agency will ask for copies of various documents, including the tenant’s (or applicant’s) file, copies of notices, the property’s ads and brochures, policies related to reasonable accommodation, applicant criteria, and just about anything else that might shed some light on the complainant’s situation.

2. Position Statement

The agency will request a position statement from you. It wants to know your side of the story. The statement should be reviewed carefully by your attorney to make sure every word is accurate. NEVER send a position statement to an investigator unless it is reviewed by your attorney.

3. An Interview

Often, the agency will want to interview you and other staff members at the property site. This is done informally, but is nonetheless important. The investigator may ask to see files, including those of other tenants. The investigator also notes the environment – whether the fair housing logo is posted, whether staff is pleasant to all who enter, etc.

The Complainant’s side of the story

At the same time the agency is obtaining all this data from you, it is getting data from the complainant. When all the information is in, the agency issues a determination.

The Agency’s Determination

The determination can be any one of the following: “probable cause”, “no probable cause”, or “no determination can be made”. If the agency concludes there is “probable cause” to believe a violation of fair housing law occurred, the government has the opportunity to file a lawsuit against you.

The Determination is “No Probable Cause”: Are you safe now?

Keep in mind that all of the above is about administrative complaints. The complainant always has the option of filing a lawsuit in court, even if the administrative complaint was unsuccessful and a determination came back as No Probable Cause”.

Is it necessary to hire an attorney?

Although there is no legal requirement that you be represented by a lawyer, it is nonetheless imperative to have one. The lawyer can help formulate responses in a way that most effectively communicate your position.

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Newspapers love to report about a “crazy man” who goes on a violent rampage. Hollywood adds to the image with its Hannibal Lechters, Freddies, and Norman Bates. The result is that mental illness is grossly misunderstood. Fear overtakes reason.

The Fair Housing Act

The Fair Housing Act protects individuals with mental illness, so they don’t fall prey to the fears and misperceptions of landlords and property managers. A mentally ill person cannot be evicted just because of the manifestations of his disease. Examples:

1. A tenant diagnosed with clinical depression attempts suicide on the premises by taking an overdose of pills. This impacts no other tenant, even though the resulting ambulance and police cruiser awakes everyone. This is not a lease violation.

2. A household includes a brain-damaged child, who sits on the patio of the unit almost daily. He yells loudly at each passer-by in a jovial manner even though one cannot understand what he is saying. Other tenants complain, saying the child makes them “uncomfortable”. They claim to worry they “don’t know what he will do next”. This is not a lease violation.

3. A tenant calls on the first of every month, saying she will be paying her rent even though she knows the management staff is conspiring against her. Management suspects she may suffer from a mental illness. The phone calls are tedious and time-consuming. Often, the tenant is rude. This is not a lease violation.

4. A tenant goes to the mail box area each day and watches the letter carrier put the mail in the boxes for 30- minutes. This makes the mail carrier extremely uncomfortable and the mail carrier wants you to “do something”. This is not a lease violation.

5. A tenant wears a nightgown and walks around the property all day long mumbling and carrying on a conversation with himself. This is not a lease violation.

All of the above examples, and there are many more where they came from, show the observable effects of some mental illnesses. As annoying as some behaviors may be, they do not rise to the level of a lease violation unless the conduct poses a direct threat to the health or safety of other tenants or causes substantial physical damage to the property of others. Even then, the landlord must determine whether a reasonable accommodation can alleviate the situation.

Don’t rely on fear, speculation, or stereotype when dealing with mentally ill individuals. They are entitled to fair treatment based on facts. A wrong move on your part could result in an expensive lawsuit against you and your company. Not sure about how to deal with a situation? Give attorney Cathy Lucrezi a call at 1 800 253 8428

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The Competitive Edge

In any competition it’s good to have an edge – something that makes you stand out from the rest of the landlords. Often, that edge takes the shape of a special move-in deal or a concession. Be sure that it does not take the shape of a fair housing violation.

Targeted Move-in Specials

Move-in specials can violate the fair housing laws if they are targeted to limited groups. Such targeting indicates a preference for one group over another. Thus, what you think is a “deal” for one group can act as a discouragement to another.

Specials for Seniors

A move-in special that offers the first month free to senior citizens has the effect of discouraging families with children. That violates the federal and state Fair Housing Act’s prohibitions against familial status discrimination.

Married Couples

If you have a move-in special for newly married couples, you are discouraging single people (which violates fair housing ordinances in several localities). For this same reason, you should charge each applicant the same application fee. There should be no “2-for-1” or reduced application fee for married couples.

Innocent Looking Specials

The situation may not seem logical. For instance, a move-in special aimed at families with school-age children would seem benign. After all, it certainly does not exclude families with children. However, since it shows a preference for a protected group, it could be considered a violation of the law.

Our Recommendations

Review your specials to make sure they are fairly available to all groups. Get legal advice immediately. Give attorney Cathy Lucrezi a call at 1 800 253 8428. If you think the special might discourage someone from applying, your special won’t be so special in the long run.

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SPECIAL” LEASE TERMS

Sometimes, landlords want to add special lease clauses or use a special addendum if a tenant has a handicap. The landlord may want to be protected from liability if the handicapped person falls or if the grab-bars break. Sometimes, the landlord wants the tenant to acknowledge in writing that the landlord will not pay for any modifications to the unit. Or, the landlord wants to include language in the lease that cautions the wheelchair user about the dangers of going to the pool unattended.

Should you add language to your lease to cover these situations? No.

The Fair Housing Act protects individuals with handicaps. The law says you cannot discriminate in the “terms and conditions” of the tenancy based on a person’s handicap.

That means you cannot impose conditions on a handicapped person’s tenancy if you are not also imposing the conditions on all other tenants as well. You cannot single them out for special or additional responsibilities. You cannot require them to sign an addendum that you would not also require of a non-handicapped tenant.

Limiting Liability

Clauses that attempt to limit the landlord’s liability are unenforceable in Florida, regardless of whether they involve handicapped individuals. However, by imposing such a clause on a handicapped person, the landlord would also run afoul of the fair housing laws.

Refusing to Pay for Modifications

A lease clause that provides the owner will not pay for any modifications to the unit may be correctly stating the law, but it should still be avoided. It is hostile language that would discourage a handicapped person from requesting permission to make a reasonable modification. Also, because it is something the landlord would be using only for his handicapped tenants, it discriminates.

Warning of dangers

If the lease includes cautions about what the landlord perceives as special dangers to the handicapped person, such patronizing lease clauses are not only useless, but are also in violation of fair housing law. You can be assured the wheelchair user already understands the risks of using the pool alone.

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“What can we do to avoid being sued for fair housing?” The easy answer: “Don’t discriminate”.

Unfortunately, the answer begs the question. More advice is needed in order to truly reduce the likelihood of being on the receiving end of a fair housing complaint. Here are a few tips:

1. Educate yourself. Go to trainings on fair housing. Be sure that all staff gets trained. Even maintenance staff should be trained on the rudiments of fair housing.

2. Post fair housing posters in your management office. This lets the public (and your own staff) know that you support fair housing. You can find them at HUD’s website or your local equal opportunity office.

3. Document your actions. This means making a copy of every piece of paper you give to a tenant or applicant. Keep a log or file diary of every conversation and contact with a tenant or applicant. This might be a tough habit to develop but it will pay off in the long run.

4. Adopt policies and stick to them. You should have criteria for applicants and criteria for renewals. There should be a policy for how you will handle requests for reasonable accommodations. Keep them handy. Be sure every staff person knows them.

5. When necessary, get advice from legal counsel. Don’t attempt to deal with a HUD complaint or a lawsuit on your own.

6. Become personally committed to fostering fair housing. Embrace the goals of fair housing and welcome all individuals to live in your properties. Quit expressing any negative generalizations about people. You set the model for staff. Jokes about people’s heritage are never a joke.

7.We live in a litigious world, and it is a reality of business that everyone becomes a defendant at some point. You may not have control over a tenant naming you in a complaint, but you do have control over how well you come out of it. By following the tips above, you will reduce your chances of being liable for a violation of fair housing laws.

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The federal fair housing law bars discrimination based on an individual’s race, color, religion, sex, familial status, national origin, and handicap. Florida law bars discrimination on the same bases. Although these seven “protected classes” are fairly well known by housing providers, what many people don’t realize is that local laws can create additional categories of protection.

A county or city can enact its own fair housing law by passing an ordinance or resolution. Sometimes, when this is done, the local law mimics what the federal and state laws require. However, many opt to create additional restrictions.

For instance, under the federal and state law, it is okay to discriminate on the basis of marital status. Not so in Martin County! In Martin County, a landlord cannot refuse to rent to an unmarried couple just because they lack a marriage license. The same is true of Palm Beach County, Pinellas County, and the city of Sarasota (to mention just a few).

In Broward County, in addition to the seven protected classes of the federal law, it is unlawful to discriminate against tenants and applicants on the basis of sexual orientation, age, marital status, and political affiliation. Martin County adds ancestry to the list and the city of Sarasota adds veterans.

Sometimes, the difference between legality and illegality is the city line. A gay couple in Orange County has no fair housing protection unless they are within the city limits of Orlando. There, if they are refused housing because of their sexual orientation, they can contact city government to make an administrative complaint.

Although the local laws are not so well known, they nonetheless pack a punch. Violations of the local laws can subject the landlord to fines, damages, costs, and attorney fees. The local laws can be used to get an injunction against the landlord.

If you are unsure what laws apply to your property, some research may be in order. You can call your local city and county governments and ask to speak to the department that handles housing discrimination. Or, you can go to www.municode.com and look for the link to “online library”. Or, you can call our office at 1 800 253 8428.

Local laws change periodically. Thus, be sure you are getting the most up to date info when finding out what restrictions apply to you.

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Perhaps every recipient of a complaint letter from HUD is shocked. The recipient wonders how they could be accused of unlawful discrimination. They wonder how the complaint even got filed. This article describes the life of an administrative complaint.

The initial contact with the Governmental Agency

A tenant or applicant starts by contacting HUD or the Florida Commission on Human Relations or the local agency dealing with fair housing. It can be as simple as a phone call or filing a complaint online. The agency will usually mail a complaint form to the “complainant” for her to fill out. The form asks for the names and addresses of the people that did the discriminating and asks for a description of the discriminatory act.

Once the form is back at agency, it is transformed into a more formal complaint – typed and easy to read. The Complainant may sign the form, but the law does not require it.

The Governmental Agency sends out the Complaint

The agency then sends the Complaint to the individuals who are alleged to have participated in the discrimination. These folks are the “Respondents” and can include the owner of the property, property manager, leasing agent, maintenance man, or anybody else the Complainant says participated in the discrimination. No one is safe.

What does the Governmental Agency want from you?

The Complaint arrives with a letter from the agency. Most of the time, it asks if the Respondent would like to “conciliate”. This means “do you want to settle?” It’s often a good idea to try that process, but never without advice from your attorney.

Sometimes, the letter also requests various documents. It asks for a “position statement”, which is really your side of the story. Although there is no requirement that the Respondents be represented by a lawyer, it is nonetheless a good idea to do so. The lawyer can help formulate responses in a way that most effectively communicates the Respondents’ position. Do not naively believe that, because you’ve done nothing wrong, you don’t need an attorney.

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THE LITTLE HOUSE THAT MAKES A BIG STATEMENT

You’ve seen the fair housing symbol so often, you may not notice it anymore. Yet, the little house makes a big statement about your commitment to the fair housing.

The Fair Housing Logo

The fair housing logo accomplishes several things. For one, it creates trust. An applicant will feel more comfortable knowing her application will be judged on a fair basis. Your tenant will be reassured knowing that you recognize the importance of fair housing.

Another benefit of displaying the logo is that it reminds tenants that they have the right to be free of discrimination in housing. To some, that might seem like saying it’s a good thing for a tenant to know they can sue you! But, one should not be so cynical. Once a tenant understands that fair housing laws protect tenants, they may be better able to understand why you are permitting one tenant to have an animal but not another, or why you require an application from every adult who will reside in the unit.

Fair Housing Claims

In the event a fair housing claim is made against you, the presence of the logo in your office, reception area, and other places where tenants may go, will demonstrate to a HUD investigator that the management is committed to fair housing. Thus, the logo helps shield you from the risk of liability.

The logo acts as an excellent reminder. You and your staff will be reminded, every time you pass it, of the importance of fair housing. Being aware of fair housing is the best protection against violating the law.

Where to locate the poster

A fair housing poster should be in the reception area and at least one other place that management does not dominate (the laundry room is a good spot). The logo should appear on all your ads, brochures, and newsletters.

Where to acquire the poster

The fair housing logo and various fair housing posters are available from HUD. Just visit the website at www.hud.gov. Click on “Fair Housing”, and then click on “Library”. You will find a variety of links, including those to a download of the logo and other materials. It is not necessary that you purchase the poster from an expensive private third party supplier.

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Some disabled individuals require a service animal to help them with daily life activities. Although everyone knows a “seeing-eye” dog is a service animal, most people don’t realize that other animals (for instance, cats, birds, monkeys…) can also be service animals.

Is the animal a “Service Animal?

A service animal does not have to be “certified” or have identification papers (other than what local animal control laws require). There is no legal requirement that a service animal have documentation showing it is specifically trained for assistance to handicapped people. In fact, fair housing laws recognize that “companion” animals can be service animals. This is most commonly seen in situations where the tenant’s handicap involves mental illness.

Reasonable Accommodations

Fair housing laws require that a landlord make a reasonable accommodation for a handicapped person who needs a service animal. That means that a landlord must waive its “no pet” policy, waive the size and weight limits for animals, and waive the pet fee or pet deposit.

Conduct of Animal

The handicapped individual is nonetheless responsible for the animal’s conduct. The animal cannot be unsupervised in common areas, and its waste must be properly removed.

Determining the legitimacy of the request

So, how do you know when the request for permission to have a service animal is legitimate, and when it is a ruse for having an otherwise prohibited pet? As with so many other fair housing issues, it pays to have a policy in place before the question gets asked. To see a terrific sample service animal policy, go to www.metrokc.gov

A landlord can ask the tenant to put his request in writing (unless the handicap impairs the ability to write). A landlord can require that the tenant provide written verification that he is handicapped and that he needs the service animal. That verification can come from any healthcare provider. It does not have to be a doctor. The landlord should respond to the request in writing. You can obtain form letters from our office.

Service animals enable many handicapped individuals to live independently and ease the effects of a disability. By helping your handicapped tenants cope with daily activities, they ultimately enhance your community. Welcome the Arfs, Meows, and Coo-coo ca choose.

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Every property manager should have a policy for deciding who qualifies for a tenancy. The value of such a policy lies in its ability to avoid differential treatment of applicants and thus shield the owner and property manager from a fair housing complaint.

Income criteria Application criteria should reflect what it takes to be a successful tenant at your property. For instance, most properties require that a household’s income exceed a pre-determined minimum, so as to reduce the risk of a default in rent. Your application criteria should never rely solely upon “income from employment” since that discourages disabled people from applying. Instead, household income from any source (including disability payments) should be considered.

Criminal records

Many properties also seek to exclude individuals who have drug convictions or a criminal record of violent crimes. How should these be assessed?

First, consider that not all past crimes may impact a person’s tenancy at your property. A person whose criminal record shows a conviction for a trespass arising from a protest at a nuclear plant eight years ago, may nonetheless be a terrific tenant. The same goes for a person who stole a car at the age of 19, but who is now a 34 year old church pastor.

Then, tailor your criteria to identify only the factors that are important to predicting whether the applicant will be a successful tenant.

Make sure the application asks the right questions

Review the application to make sure it is asking the right questions. It should not ask whether the person was ever arrested. An arrest is not the same as guilt. Your application might ask whether the applicant has been convicted of a felony within the last seven years. Or, whether there were ever any sexual offenses.

Avoid “stale” information

Keep your criteria relevant. Avoid making decisions on “stale” events that do not relate to how the person will act as your tenant now.

Unfortunately, there is no clear rule about what is “stale” or otherwise irrelevant. Instead, when courts review these types of things, they look for whether the criteria have a relevant business purpose. If any of the criteria do not have a relevant business purpose, then a presumption may arise that the criteria unfairly exclude individuals who are protected by fair housing laws.

Consistent and fair use

Of course, the criteria must be applied to everyone. Once exceptions are made, the policy loses its value. If you feel that your criteria are causing you to turn away applicants that you think would be great at your property, that may be a sign that the criteria need to reviewed for some “fine tuning”. Such revisions are good if they are based on business reasons and if the revision is evenly applied from that point forward.

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Hamlet only had to decide how to avenge his father’s death. You have to decide whether to non-renew a tenant who has been a problem during the past year – making noise, paying late, yelling at staff. Although you really want the tenant to be gone, you worry that tenant will think you are discriminating against her.

You have the right to non-renew a tenant at the end of a lease term. Florida law does not require that you have a reason for the non-renewal. Nonetheless, you better have one, and it better be documented in your file. Without that documentation, you may be vulnerable if the tenant later claims you are violating the Fair Housing Law. Often, documentation is key to winning a fair housing case.

It is also a good idea if your office develops a renewal policy. The policy will set the standard for who stays and who goes. Thus the decision about renewal will not be arbitrary.

Such a policy can say a tenant will be subject to a non-renewal if one or more of the following conditions apply:

1. The tenant received one or more 7 day Notices of Noncompliance within the preceding twelve months.
2. The tenant was late with rent 2 or more months within the preceding twelve months.
3. The tenant has violated the lease and/or the community rules four or more times within the preceding twelve months, and each of the violations is documented in the tenant’s file.
4. The tenant owes an amount to management for rent, late charges, repairs, or other amounts, and the debt is more than 30 days past due.
5. The owner and/or management plans to use the unit for purposes other than the rental of a residential unit.

This is just an example. Your renewal policy should reflect your property’s priorities. Of course, your policy is only good if it is consistently applied.

To be fair, or not to be fair? That’s the real question.

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Don’t discourage applications from individuals who appear to be disabled! Resist the temptation to “know what’s best” for disabled applicants who you think will not qualify or who will not like the rental unit. If you discourage a person from applying, you may be violating the fair housing laws.

HUD recently charged an owner of a rental unit with denying housing to a couple who were disabled. The case alleges that when the couple applied for housing, the wife told the property manager that she liked the unit because it was close to the medical center where she went for kidney dialysis. The husband viewed the unit while using his mobile oxygen tank. The property manager failed to process the application; she actually threw it into the garbage! When the couple later called to check on the status of the application, the property manager agent said she felt they were “too sick” to live in the unit. If HUD is successful in proving the case, the property owner and manager may have to pay damages, costs, and attorney fees, as well as being subject to an ongoing injunction.

What the property manager should have done was to receive the application and process it as she would any other application. Whether or not the couple would have been “too sick” to live in the rental unit is NOT a decision for the property manager to make.

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S It is unlawful to screen housing applicants on the basis of race, color, religion, sex, national origin, disability, or familial status. However, asking housing applicants to provide documentation of their citizenship or immigration status does not violate the Fair Housing Act. The landlord has a legitimate basis for seeking this information because it may affect how long the individual is able to be present in the country and, as a result, whether they will be able to fulfill the lease’s term.

If you plan to screen on this basis, it is wise to develop a policy and then apply that policy uniformly and in a nondiscriminatory fashion. You may consider asking every applicant if they are a U.S. citizen. If the answer is no, you can request the applicant to produce proof that they are lawfully in the U.S.A. The kinds of documents you may see will include passports, visas, “green cards”, or other documents from the INS showing the person’s status.

The two following examples come straight from HUD:

Example 1: A person from the Middle East who is in the United States applies for an apartment. Because the person is from the Middle East, the landlord requires the person to provide additional information and forms of identification, and refuses to rent the apartment to him. Later, a person from Europe who is in the United States applies for an apartment at the same complex. Because the person is from Europe, the landlord does not have him complete additional paperwork, does not verify the information on the application, and rents the apartment. This is disparate treatment on the basis of national origin.

Example 2: A person who is applying for an apartment mentions in the interview that he left his native country to come study in the United States. The landlord, concerned that the student's visa may expire during tenancy, asks the student for documentation to determine how long he is legally allowed to be in the United States. If the landlord requests this information, regardless of the applicant's race or specific national origin, the landlord has not violated the Fair Housing Act.

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S Everyone knows that it is unlawful to discriminate against tenants and applicants on the basis of race, color, religion, sex, national origin, disability, or familial status. What is less well understood is that it is also unlawful to discriminate against a tenant because her friends or visitors fall into one of the protected categories. A landlord in Alabama knows that now.

The landlord rented a single family home to a woman over the phone. When the woman showed up to move in, the landlord saw that her new tenant was a white woman with a bi-racial child. As time passed, the landlord noticed that the tenant was visited by an African-American (a friend) and by an Asian-American (a co-worker). The landlord asked others about the tenant – Did she date black men? Did she have parties? Did she invite people to spend the night? In addition to the landlord’s “investigation”, the landlord told the tenant that the visits had to stop, that she did not want “those people” at her property. Later, the landlord told the tenant she had to move because the house needed repairs.

As you might expect, the landlord now faces a charge of housing discrimination. The case will be heard by an Administrative Law Judge later this year. The landlord faces a civil penalty of $11,000 (more if the landlord has committed prior violations of the Act) plus damages for the tenant, an injunction, attorney fees, and court costs.

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S An African family (from Congo and Angola) at an apartment community complained the landlord failed to make repairs to the apartment. During the several years that the family lived at the complex, they allegedly suffered multiple ceiling collapses, water running through the ceiling, backed-up and malfunctioning water pipes, and defective insulation and window jambs. The tenants claimed the landlord had one set of standards for white tenants and another for immigrants and minorities. The landlord settled the case by payment of over $60,000 and agreeing to have staff attend fair housing training.

The cautionary lesson here is that a failure to maintain premises cannot only give rise to rent withholding and claims for rent abatement, it can give rise to a fair housing complaint. Be sure that your process of handling repair requests is fair and well documented. Emergency repairs (those affecting habitability and/or preventing further damage) should get priority. Everything else should be on a “first come, first serve” basis.

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S It seems like an easy question – “What rentals are available?” Easy, if the question is about what’s available right now. It gets complicated if you have to pin down what was available as of a particular date and time.

That complicated question comes up in fair housing cases where a rejected applicant accuses the landlord of refusing him the rental even though there were units available. A property manager who receives such a complaint from HUD or an attorney, will hopefully have proof that there was indeed nothing available as of the date and time that the person applied or inquired.

Keeping that kind of record may be cumbersome but it is essential, regardless of whether your housing stock is five or five hundred. You should document when each unit becomes available for rent and when it goes off-market. The record should reflect the day and even the time when the unit changes. Luckily, some software supports keeping track of such statistics. If yours does not, consider keeping a log of each unit’s availability. It may seem tedious but, if you ever get one of those complaints, you will be very happy to have it.

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Advertisements, billboards, and brochures are your invitation to the public. Their purpose, of course, is to draw new tenants to you. But, how well do those ads communicate your commitment to fair housing?

Recently, a landlord paid $100,000 in a settlement of a case dealing with advertisements. The landlord’s ads showed only white models which conveyed an offensive and discouraging message to many African Americans.

Both the federal and Florida fair housing acts make it unlawful to make, print or publish any advertisement for a rental that indicates any preference, limitation, or discrimination based on race, color, religion, sex, familial status, or national origin. There are some very narrow exceptions, e.g., church-operated housing.

HUD’s guidelines call for human models used in housing advertisements to reflect the racial composition of the region served. The safest bet? Avoid having any humans in the ads. Many rental publications have in-house attorneys to review your ads for compliance. If you are uncertain, always check with an attorney.

Lastly, it is a great idea to add the Fair Housing Logo to your ads and brochures. It demonstrates to the public (and to HUD in the event of an investigation) that you are committed to fair housing for everyone.

Looking for a download of the little fair housing house? Go to www.hud.gov. Click on “Fair Housing”, and then click on “Library”. Under the heading “Policy and Guidance”, you’ll see a link to the logo.

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When it comes to occupancy limits, it is good to follow the HUD regulations. But what, exactly, are those guidelines? Contrary to myth and rumor, the guidelines do not say “two heartbeats per bedroom”. Instead, HUD recommends basing an occupancy limit on the number and size of sleeping areas or bedrooms and the overall size of the dwelling unit.

Consider two situations where landlords refused to rent a two-bedroom unit to a family of five, based on a “two people per bedroom” policy. The first family was attempting to rent a unit with two large bedrooms and spacious living areas. The second family was attempting to rent a small unit with two small bedrooms. HUD says the first family likely has a claim for discrimination, while the second does not.

The bottom line? There is no clear cut rule. Your occupancy limits should be reasonable. They should be based on size of the unit (how many square feet?) and the number of sleeping areas (i.e., people can use a den for a bedroom).

Lastly, your occupancy limit should refer to the number of people in the unit, not the number of children in the unit.

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As a teenager, your parents may have imposed a curfew on you to make sure you did not get into trouble. If you were out past your curfew, you knew to expect some form of parental punishment! Can the same concept be applied to minors who live at apartment communities? Generally, the answer is no, for two main reasons.

The primary reason is that a curfew which is directed at minors is considered a violation of the federal Fair Housing Law. The curfew is a rule directed only to the conduct of families with children. It discourages families with children from living at the apartment community.

The second reason is that a curfew is a restriction of liberty. Such restrictions of liberty are prohibited by the U.S. Constitution. The only time curfews are ok under the constitution is when they are lawfully initiated by the government. A good example are the various curfews imposed by the authorities after the Katrina disaster. Because an apartment community is not part of the government, it is hard to imagine any curfew passing muster under constitutional law.

Often, when an apartment community is considering creating a curfew, it is due to disturbances caused by minors on the property. Perhaps a group of teenagers is “hanging out” in the parking lot at late hours. Or, some unsupervised toddlers are vandalizing property in the evening. The solution to the problem is not a curfew. Instead, the property manager can serve a seven day notice of noncompliance with opportunity to cure, citing the disturbance or vandalism or other noncompliant behavior. If illegal activity is suspected, law enforcement should be called.

Initiating a curfew at the apartment community is an invitation to a claim of housing discrimination or violation of civil rights. Avoid that risk by enforcing your lease terms with the use of notices of noncompliance.

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HUD’s newest administrative charge highlights how much can go wrong if there is poor transition between on-site managers. The case was filed against a property management company who mishandled an application for more than eight months, never issuing an approval or denial of the application.

A disabled individual applied for a one bedroom apartment in August. In December, he was approved by the corporate office but was not offered a unit. He submitted all requested paperwork, some of it more than once. Over the course of events, he was asked to submit new applications three times because the management office could not locate his file. No formal denial was ever issued by the management company, but the management company’s actions effectively prevented a qualified individual from moving into an apartment. The series of missteps was attributable, at least in part, to frequent changes in the on-site management. Property managers did not last long at this property. They seemed to “switch out” every three months or so. Such a flux of office staff, along with the usual hectic activity of an on-site management office, caused the individual’s application to slip between the cracks.

Whenever there is a change in staff, a plan should be made to assure a smooth transition. Where a transition cannot be planned because it is happening quickly or without notice, the company must rely upon good records. “Good records” means that someone has kept accurate records about what matters are ongoing and require immediate attention. At the very minimum, files and other important documents should be safeguarded so they are not lost.

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Landlords who advertised rental units refused to speak to deaf persons in one of four calls, while non-disabled callers were given information about the units. For those hearing-impaired persons who were able to get some information, they did not receive the same level of encouragement as non-disabled persons.

Those are the results of a recent HUD study. You can read the full report at http://www.huduser.org/publications/hsgspec/dds.html

Many hearing-impaired individuals rely upon TTY or TDD (“Telecommunications Device for the Deaf”) when making a phone call. If you haven’t seen one, it is a phone with a connected keyboard. Don’t have one at the rental office? No problem.

A hearing caller who needs to get in touch with a TTY user can use the TTY operator to make the call. The caller simply calls the TTY operator (800-955-8771). The operator at the center will use a TTY to call the party that the hearing person is trying to reach. The operator acts as an interpreter, typing the hearing person's message into a TTY and reading the response to him as it returns. (This works vice versa for a deaf caller trying to reach a hearing party.)

Using the TTY operator to communicate makes for a slower conversation since a “translator” is at work. That may take a bit of getting used to. Nonetheless, don’t let it cause you to short change the information you provide to the applicant. You should provide as much information and encouragement to a hearing impaired person as you do to a non-disabled person.

By using the TTY to accommodate hearing-impaired applicants you will be complying with fair housing laws. You will also be opening up your rental market to over 4 million TTY users.

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The Fair Housing Act protects disabled individuals, including those with mental illness, but it does not protect a tenant who is a “direct threat” to the health or safety of other tenants or who causes substantial physical damage to the property of others, unless a reasonable accommodation can alleviate the situation. It is wrong to exclude applicants or evict tenants based on fear, speculation, or stereotype about mental illness. Instead, a determination that a person poses a direct threat must be founded on an individualized assessment that is based on reliable objective evidence. That assessment has three parts:

* What is the nature, duration, and severity of the risk of injury? * What is the probability that the injury will actually occur? * Are there any reasonable accommodations that will eliminate the direct threat?

The assessment is not an exact science. There are no easy rules to apply. It all depends on the particular conduct that is being displayed. Management’s use of good judgment is key.

Note that even if a person poses a “direct threat”, management must consider whether there is a reasonable accommodation that will correct the situation. Here’s an example used by HUD:

A tenant is arrested for threatening his neighbors while swinging a baseball bat. You issue a seven day notice of termination due to the criminal behavior, but you then get a phone call from the tenant’s attorney. The attorney says that the tenant should be given another chance because the tenant is starting a new medication that will control his behavior. Management should grant this accommodation if the attorney can provide satisfactory assurance that the tenant will receive appropriate counseling and periodic medication monitoring so that he will no longer pose a direct threat during his tenancy. If the tenant refuses to do this, then management can proceed with its eviction.

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Be careful of having tenants or untrained staff members act as your agents. Their discriminatory acts could be held against you! In a recent case, a landlord routinely had one of his tenants act as an informal “agent” – showing apartments to applicants and collecting rents from other tenants. In at least one instance, the tenant-agent told an applicant that the landlord did not like to rent to a particular group. That off-hand remark caused the landlord to be a defendant in a fair housing case, which the landlord ultimately settled by paying the applicant. The landlord learned that it is not always helpful to have a tenant “help out” with the landlord’s duties. The same situation can occur when you fail to have staff members thoroughly trained in Fair Housing.

Looking for some informative fair housing training that you can do in your pajamas? All you need is a computer and http://fairhousing.iccsafe.org/. The website is sponsored by HUD and the International Code Council. The course covers fair housing issues involving accessibility. That means you can learn about ramps, parking spaces, curb cuts, elevators, and various other items that affect how well handicapped people can live at the premises. Best of all, the 12 hour course is free. A certificate is issued for successful completion of the course.

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