An Update on Fair Housing

A brief breakdown of recent fair housing rulings. By ANNE SADOVSKY, CAM, CAPS, NAAEI Advanced Facilitator, professional speaker and consultant

An Update on

Fair Housing

The majority of people who work in the apartment business are clear on the Fair Housing Act’s protected classes. We have learned about the stiff penalties for discrimination, in fair housing-focused classes and seminars.

When new rulings or decisions arise, there can be misunderstandings or confusion. Misunderstanding a new guidance, ruling or law could have expensive results. Right now, some of the apartment industry’s biggest concerns are below. Please note, I am not an attorney and this article does not, and is not intended to, constitute legal advice. This article is for general informational purposes only.

Reasonable Accommodations to Assistance Animals

New guidance issued by the U.S. Department of Housing and Urban Development clarifies how apartment professionals can comply with the Fair Housing Act when assessing an applicant’s or resident’s request to have an animal that provides assistance because of a disability. Several states have cracked down on sham documentation, that sometimes include the request of parking in a handicapped parking. HUD has taken action against online companies that profit from selling fake assistance animal documents.

Housing providers have the right to request reliable documentation when the disability or disability-related need is not obvious, visible nor apparent. You may use the term physician or doctor in your request for documentation to assess a resident’s request for reasonable accommodation. It would be wise to create and offer a standard request form and a maintained list of reasonable accommodation requests. Reliable documentation could be a note or letter from the person’s health care professional that confirms the person’s disability and/or need for an assistance animal. As a reminder, service animal breed restrictions do not apply as they might pertain to pets. A service or assistance animal is not a pet, therefore, pet fees nor rent are required. Also, the resident may require accommodation for more than one assistance animal if he or she has more than one disability.

Emotional support animals are also assistance animals. Other animals that do work, perform tasks, provide assistance or provide therapeutic emotional support for individuals with disabilities should be treated as assistance animals. If the person has an obvious or known disability or if the animal has proper documentation, a reasonable accommodation should be granted. You can expect dogs, cats, small birds, rabbits, gerbils, fish and turtles.

Medical Marijuana

Another hot topic is medical marijuana. Days before press time, Kentucky joined the 33 other states, along with the District of Columbia, Guam, Puerto Rico and the U.S. Virgin Islands, that have approved a comprehensive, publicly available medical marijuana/cannabis program. With strict cannabis laws and Republican-controlled leadership here in Texas, I highly doubt the state will step up to legalize cannabis, however, voters can sometimes take things into their own hands. Even if our state does approve medical marijuana, you, as a housing provider, may still be able to disallow any form of smoking in apartment homes.

Parking and Fair Housing

High occupancy has created parking issues in many communities. Many gardenstyle properties did not build enough parking spaces. Texans have cars and are not big users of mass transit. Adding to the situation, increased rents often create more roommate situations. Six roommates occupying a three-bedroom apartment home requesting six parking spots could be a big challenge. Unless your city states otherwise, you might limit the number of vehicles per apartment. This is, however, hard to govern, unless you implement parking stickers or a policy/agreement that registers license plate numbers with a towing company.

Due to the aging population, requests for handicap spaces are overwhelming. There is no such thing as a reserved handicapped parking space. Anyone with a handicapped permit can park in any handicap space. A reserved space should be identified by a sign that issues a permit number on the reserved spot. Do not use the word handicapped or blue paint. Document all requests and the action taken.

April 2020 Background checks

Another issue HUD released guidance on is the use of criminal background.

Remember, this is a guidance, not a regulation, nor an added protected class. HUD’s guidance states a housing provider’s policy that denies an applicant for an arrest does not serve as a legitimate interest to protect the safety of residents and their property. HUD favors a more individualized approach for screening and encourages housing providers to review an applicant’s criminal history before deciding whether or not to approve or deny an individual.

Many believe the following are reasonable criteria for denying an applicant housing under the new guidance:

• Felony convictions within the last seven years for illegal manufacturing or distribution of a controlled substance.

• Felony convictions within the last seven years involving bodily harm.

• Felony convictions within the last seven years for property destruction or damage (like arson).

• Felony conviction of any timeframe for a sexual offense.

As we work to further understand this HUD guidance, here some action items that property owners and managers could do now:

Inform your employees of this guidance, put policies in place to be in compliance with fair housing laws and document communication. Prepare scripts so team members aren’t floundering.

When screening an applicant, begin with background checks, credit backgrounds and employment. This may prevent having to deal with criminal background.

Make your insurance provider aware of the guidance and inform him or her that you may have to make some changes to your leasing policies.

One of the most important aspects to remember from this ruling is that there is a difference between being arrested and being convicted. To make sure you are not accused of denying someone on an arrest instead of a conviction, you should not request an arrest record. If your current policy requires arrest records change it immediately. The focus should be on convictions, never arrests.

It is important that you have company policies and training on how to gather the information needed per applicant. That’s the toughest part! In the screening process, management becomes the criminologist, psychiatrist or judge. This could result in disparate impact or discrimination complaints.

Testers or shoppers are placing calls to properties with questions like, “Do you take felons? Or “Will you allow my Pitbull dog as a service animal?” The wrong answer can result in filed complaints, mandatory training or fines.

The best answer might be, “We abide by all fair housing laws. Please come in and fill out an application and discuss your situation with the manager.”

Educate your onsite teams and write scripts for their use when these questions are asked. This helps prevent comments like “You likely won’t get approved!”

Sexual Harassment

There are two main types of sexual harassment: quid pro quo sexual harassment and hostile environment sexual harassment. Quid pro quo harassment occurs when a housing provider requires a person to submit to an unwelcome request to engage in sexual conduct as a condition of obtaining or maintaining housing or housing-related services.

It is hard to believe that these circumstances take place, yet we learn about them regularly.

Fair housing is an important and serious topic, stay updated to avoid discrimination. Of all the hats we wear this is one of the most frustrating yet most important!

Anne Sadovsky has five decades of experience in the apartment industry. Previously, she was the vice president of marketing and education for Lincoln Property Company. Her credentials include NAAEI Advanced Facilitator, CAM and CAPS. Sadovsky is a contributing writer for many publications. She earned a Texas Real Estate license and obtained certified speaking credentials from the National Speakers Association. She was named one of the top trainers in the industry by MultiHousing News and both the Brainstorming Conference and the Apartment Association of Greater Dallas have honored her with Legends Awards. You can reach Sadovsky at anne@annesadovsky.com.