Fair housing laws prohibit discrimination against people based on race, color, religion, national origin, sex, familial status or handicap (the "protected classes"). There are two types of unlawful discrimination that apply only to people who are handicapped : (1) Failure to make a reasonable accommodation; and (2) Failure to make reasonable modifications.
Reasonable Modifications. You are required to permit a person with a disability to make modifications to your existing premises if: 1. The existing premises are occupied or are to be occupied by a person who is handicapped. 2. The person offers to pay for the modification. 3. The modifications are necessary to afford the person who is handicapped full enjoyment of the property. Where reasonable, you may condition your permission on the tenant's agreement to restore the interior of the premises to the condition that existed before the modification (less reasonable wear and tear). The "premises" means both the interior and exterior of the building; therefore, common areas may be modified as well as the dwelling unit. But, the restoration requirement only applies to the interior of the dwelling unit. The landlord may require the tenant to pay into an interest bearing escrow account a reasonable amount of money to pay for the restoration when the tenant moves out. If the modification will not interfere with the landlord's or the next tenant's use and enjoyment of the premises, you may not condition the permission for the modification on the restoration requirement. The landlord may require the tenant to provide a reasonable description of the proposed modifications and reasonable assurances that the work will be done in a workmanlike manner with required building permits. I recommend that the landlord do the construction for required modifications because you have more assurance that the modifications are done in a good and workmanlike manner. Federal regulations provide the following examples of reasonable modifications: Example (1): A tenant with a handicap asks his or her landlord for permission to install grab bars in the bathroom at his or her own expense. It is necessary to reinforce the walls with blocking between studs in order to affix the grab bars. It is unlawful for the landlord to refuse to permit the tenant, at the tenant's own expense, from making the modifications necessary to add the grab bars. However, the landlord may condition permission for the modification on the tenant agreeing to restore the bathroom to the condition that existed before the modification, reasonable wear and tear excepted. It would be reasonable for the landlord to require the tenant to remove the grab bars at the end of the tenancy. The landlord may also reasonably require that the wall to which the grab bars are to be attached be repaired and restored to its original condition, reasonable wear and tear excepted. However, it would be unreasonable for the landlord to require the tenant to remove the blocking, since the reinforced walls will not interfere in any way with the landlord's or the next tenant's use and enjoyment of the premises and may be needed by some future tenant. Example (2): An applicant for rental housing has a child who uses a wheelchair. The bathroom door in the dwelling unit is too narrow to permit the wheelchair to pass. The applicant asks the landlord for permission to widen the doorway at the applicant's own expense. It is unlawful for the landlord to refuse to permit the applicant to make the modification. Further, the landlord may not, in usual circumstances, condition permission for the modification on the applicant paying for the doorway to be narrowed at the end of the lease because a wider doorway will not interfere with the landlord's or the next tenant's use and enjoyment of the premises. Reasonable Accommodations. Landlords are required to make reasonable accommodations in their rules, policies, practices, or services when such accommodations may be necessary to afford disabled persons equal opportunity to use and enjoy a dwelling. Unlike reasonable modifications, the law does not allow for the landlord to charge the disabled tenant for reasonable accommodations. Federal regulations provide the following examples of reasonable accommodations: 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. It is a violation of the law for the owner or manager of the apartment complex to refuse to 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): Progress Gardens is a 300 unit apartment complex with 450 parking spaces which are available to tenants and guests of Progress Gardens on a first come first served basis. John applies for housing in Progress Gardens. John is mobility impaired and is unable to walk more than a short distance and therefore 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. It is a violation of the law for the owner or manager of Progress Gardens to refuse to make this accommodation. Without a reserved space, John might be unable to live in Progress Gardens 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 apartment unit. The accommodation therefore is necessary to afford John an equal opportunity to use and enjoy a dwelling. The accommodation is reasonable because it is feasible and practical under the circumstances. The terms reasonable and necessary are key words used in the laws requiring reasonable modification and accommodation. "Reasonable" has been defined as feasible and practical. If the accommodation would cause the Landlord undue financial or administrative burdens then it is not reasonable. What is necessary? The tenant with a disability may have to show that the accommodation they are seeking will improve their life enough to justify the cost to the landlord. There must be some connection between the disability and the requested accommodation. As a landlord you may require proof that the tenant is disabled. Then you should determine whether the requested accommodation would improve the disabled persons quality of life by reducing the effects of the disability enough to justify the cost to the landlord. The obligations to make reasonable modifications and accommodations apply only to people who are disabled. The requirement to make reasonable accommodations and reasonable modifications does not apply to the other protected classes. Landlords do not have to make reasonable modifications or reasonable accommodations for people unless they are disabled. A tenants' race, religion, sex or familial status does not entitle them to a modification of the premises or an accommodation of your policies. The landlord's decision about whether a modification or an accommodation is required is not always easy to make. If you are asked by a tenant to make a modification or accommodation and you do not think such request is reasonable, you should ask your attorney to try to find to find a written court opinion based on similar facts to your situation. Many court opinions have been written to provide guidance about whether an accommodation or modification was required in specific situations. The decision to make accommodations and modifications are really a case by case test as each case is different. You conscience and common sense can be your guide in deciding what would be reasonable. Apartment owner has the following problem: Owner's policy is that all tenants and adult occupants listed on the Lease must meet certain financial criteria. One tenant ("Mom") wanted her adult son ("Son") to move in with her. Son did not meet the financial criteria and his application was refused. Mom tells apartment owner that she (Mom) is disabled and needs her son to move in with her to help care for her - like a live-in aide. Owner wants to know if they have to allow Son to move in with Mom even though Son would not otherwise be allowed to live there.
Under the fair housing laws, landlords are required to make reasonable accommodations in their rules, policies, practices, or services when such accommodations may be necessary to afford disabled persons equal opportunity to use and enjoy a dwelling. "Reasonable" has been defined as feasible and practical. If the accommodation would cause the Landlord undue financial or administrative burdens then it is not reasonable. What is "necessary"? The tenant with a disability may have to show that the accommodation they are seeking will improve their life enough to justify the cost to the Landlord. There must be some connection between the disability and the requested accommodation. Landlords may require proof that the tenant is disabled and proof that the requested accommodation would improve the disabled persons quality of life by reducing the effects of the disability enough to justify the cost to the landlord. The obligation to make reasonable accommodations applies only to people who are disabled. The requirement to make reasonable accommodations does not apply to the other "protected classes," therefore, a tenants' race, religion, sex or familial status does not entitle them to an accommodation of the Landlord's. Here is what we did with Mom and Son and why: First, we verified with a health care provider that Mom was disabled and that she needed a live-in caregiver to afford her equal opportunity to use and enjoy her apartment. We just asked Mom to provide us with this information. Mistake. She gave us a letter from someone (not her doctor) that simply suggested that we let Mom have a live-in caregiver. The letter did not verify that Mom was disabled or that she needed a live-in aide to as a result of her disability. Not enough information. The best way to get this information is to create your own request form and provide it to the tenant. This form should include the following: a. Signature of the tenant authorizing the health care provider to release information to you. b. Request for verification that the tenant has a disability where disability means "a physical or mental impairment that substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such impairment." c. Request that the health care provider verify that in their professional opinion the tenant needs a live-in caregiver to use and enjoy the apartment. Once we were specific about what information was required, Mom obtained the needed verification. Even though Mom was old and feeble and appeared to be disabled we insisted on verification. Why? Not to be difficult, but because in the future, another resident who does not appear to be disabled may ask for an accommodation and if we make them provide verification, they may claim we are discriminating against them because we made them provide verification and we did not make Mom do the same. Stick with your policy that all people requesting accommodations based on a disability must provide verification that they are disabled and verification of the need for the accommodation to use and enjoy the apartment. After Mom provided the verification we let Son move in but with a few conditions. Son had to sign the Lease. Son has to follow the Community Rules and Regulations and Lease terms just like everyone else. Son also had to agree in writing that if Mom moved or died before the end of the Lease term, Son would move out within 7 days. We also included language in the lease that said if Mom terminated or replaced Son as Mom's caregiver, Son would move out within 7 days of the termination or replacement. Remember, the only reason Son was living there was to serve as Mom's caregiver. If he is no longer serving as Mom's caregiver, he should move. Finally, we documented Mom's file. Months from now if another person is managing this apartment community and wonders why Son was allowed to move in even though he did not meet the financial criteria, the file documents and notes will explain the whole story. Is your apartment community ready to respond to a fair housing complaint? Sure, you would be able to reply with my six-year-old's favorite "liar, liar, pants on fire" defense. Or maybe you could use my four-year-old's favorite - a forceful "did not!" accompanied by a stern look. But do you wonder whether you can you back up these defenses? If a fair housing investigator inspected your property today, would they have an overwhelming impression that your community complies with the spirit and letter of the fair housing laws?
Never mind that the burden of proof is on the person making the discrimination complaint. Never mind that the claim may be frivolous. You need to be able to respond convincingly. That means you do not want anything about your community to give the appearance that a discrimination claim could be true. Here are some things you can do now to make your defense more persuasive, or better yet, avoid a discrimination claim altogether: 1. Educate Your Staff. Your staff should know that they cannot choose tenants based on: race, religion, ethnic background, national origin, sex, the fact that the prospective tenant has children, or mental or physical disability. These are the "protected classes". Your staff should also know how the characteristics of those protected classes differ from the characteristics you can legally discriminate against based on business reasons such as bad credit, poor rental history or a criminal record. Require your management staff to read Federal Fair Housing Compliance by Larry Niemann found in the current Texas Apartment Association Red Book. 2. Review Your Written Materials and Advertising. Get rid of anything that would be ammunition for a complainer. Your advertisements and community newsletter should portray a community that is accessible to the protected classes. It is much more convincing when you claim that you do not unlawfully discriminate if your written stuff tells that same story. 3. Review Your Community Policies. Do your community policies reflect a bias against any of the protected classes or residents? Having rules that apply to children is not discrimination. I recommend them; particularly the rules that provide for their safety. But, your community policies should not contain anything that leaves the impression that you are unlawfully recognizing a difference in your residents who are in the protected classes. 4. Review Your Leasing Procedures. Anyone should be allowed to apply to be a resident at your community. That does not mean that you have to lease to anyone. You can deny an applicant based on your established criteria. But, be consistent in applying those criteria. Your file should have some documentation that the basis for your denial was in accordance with your written policy, which outlines your admission criteria. You might want to send all disapproved applicants a respectful letter confirming their disapproval and keep a copy in your files. You do not have to state the reason for the disapproval in the letter if you send one unless the denial is based on credit issues. 5. Rents and Security Deposits. Are rents and security deposits consistent among all tenants? Your rents and security deposits may go up and down with the market. However, the rents should not be different for any class of person. For example, you may not have higher rents and security deposits for residents with children than those without children. 6. Steering. Your staff may not "steer" people away from your community by making negative comments about the suitability of the community. Also, you staff may not 'steer" people away or toward a particular part of your apartment community. For example, do not try to "encourage" all of the residents with kids to live in the same section of your property. 7. Applying Rules and Regulations. Be consistent. Enforce the rules with the same level of zeal or lenience on all residents. Do not wait until it happens to be prepared to respond to a fair housing complaint. After a complaint is made, it looks pathetic to start doing these things during the middle of the investigation. Do them now. If you have not reviewed and modified your occupancy standards in the last year, you may be in violation of the fair housing laws.
What do occupancy standards have to do with fair housing laws? Occupancy standards may be a violation of the fair housing laws if they unfairly limit the housing options because of familial status . The fair housing laws make it unlawful to discriminate against persons based on race, color, religion, sex, familial status or national origin. Of these "protected classes," "familial status" is the class to be concerned with in establishing your occupancy standards. Any policy that directly or indirectly excludes families could be a violation of the fair housing laws. If your occupancy standards unreasonably limit the ability of families with children to obtain housing in your apartment community, you could have to defend yourself against a claim made under the fair housing laws. The law in Texas regarding occupancy standards has changed recently. From May 1, 1995 until May 23, 2001, it was easy to know what your occupancy policy should be in Texas. On May 1, 1995 the Texas Commission on Human Rights (TCHR) put into effect a policy concerning occupancy standards. If an apartment owner followed the TCHR policy, they could rest assured that they would not be accused by TCHR of violating the fair housing laws. This was the policy: TCHR Policy Before May 23, 2001: TCHR "Maximum-Persons-Per-Bedroom" Occupancy Policy For Families The following policy regarding maximum persons per bedroom for families was presumed reasonable by the TCHR:A family may occupy an owner's dwelling if the family does not exceed two persons per bedroom plus a child who is less than 6 months old and who sleeps in the same bedroom with the child's parent, guardian, legal custodian, or person applying for that status. A more liberal occupancy policy may be adopted by a rental housing owner. A more restrictive occupancy policy will be presumed unreasonable and a violation of fair housing laws.TCHR "Newborn Policy" The following policy regarding newborns was presumed reasonable by TCHR:If an owner makes timely written disclosures of the owner's newborn policy and maximum-persons-per-bedroom policy for families, the owner may adopt a newborn policy as follows: Residents who have a newborn less than 6 months old at the time of rental application or lease renewal and residents whose newborn has reached 6 months of age during the lease term may be required, at that time, to either (1) move into another available dwelling of the owner which has more bedrooms or (2) move out. Rent for the larger dwelling may be the rental rate at the time the lease or rental agreement is entered into for the larger dwelling.TCHR Policy After May 23, 2001 On May 23, 2001, the TCHR abandoned the above policy and adopted the standards set out in the "Keating Memorandum." The Keating Memorandum was written by Frank Keating, the General Counsel of the Department of Housing and Urban Development ("HUD"). HUD has adopted the Keating Memorandum as its policy on occupancy standards. The Keating Memorandum sets out guidelines rental housing owners should use for establishing their occupancy policy. You may access the Keating Memorandum at the Texas Apartment Association website (www.taa.org). Consider the Keating guidelines as the law now. The problem is the Keating guidelines are just that - guidelines, not a definitive test. The Keating guidelines are not specific rules that are easy to apply in every case. Keating says "an occupancy policy of two persons in a bedroom, as a general rule, is reasonable under the Fair Housing Act." However, the reasonableness of the two persons per bedroom policy may be disputed and you may not be in compliance based on this policy alone. Other factors must be considered in determining whether a policy of two persons per bedroom is reasonable. Factors such as the size of the bedrooms and unit, age of the children living in the apartment under some circumstances, configuration of the unit, physical limitations of the housing, state or local government occupancy standards and other relevant factors may be considered in determining what is a reasonable occupancy policy. For example, if your two bedroom units have large bedrooms and a spacious living area or study, your policy of two people per bedroom may be unreasonably restrictive. In light of the size of the bedrooms and configuration of the unit, a more reasonable policy may be to allow five people to occupy this two bedroom unit. Consider the following portion of the Keating Memorandum regarding the factor of the age of children:"The following hypothetical involving two housing providers who refused to permit three people to share a bedroom illustrate this principal. In the first, the complainants are two adult parents who applied to rent a one-bedroom apartment with their infant child, and both the bedroom and the apartment were large. In the second, the complainants are a family of two adult parents and one teenager who applied to rent a one-bedroom apartment. Depending on the other facts, issuance of a charge might be warranted in the first hypothetical, but not in the second."Your challenge is to read the Keating guidelines, examine the size and configuration of your apartment units and come up with a reasonable occupancy policy that does not unfairly discriminate against families with children. As a starting point, if your units are of an average size with an average configuration and not particularly spacious, two people per bedroom would be presumed reasonable per Keating. However, if the bedrooms of the units are unusually large or the configuration of the unit includes additional space, (ie a study and/or a living room), then a two people per bedroom limit may be unfairly restrictive and your policy should allow more than 2 people per bedroom. But what if these two people have a child living with them? Should you allow these three people (two adults and child) to occupy a one bedroom that is average size? It may depend on the age of the child. But, the Keating guidelines do not expressly state that a child's age is a factor. But, Keating implies that infancy may be a factor by indicating in the above-quoted portion of the memorandum that an infant child be allowed to stay in a large bedroom in a large apartment. The old TCHR policy did not include the characteristics of the unit as a factor but it did include the age of the children as a factor. Keating does not define what bedroom size would be considered unusually large or what would be a "spacious" living area. Some experts say that a bedroom in a unit above 350 square feet in size would be unusually large. I think you would have to consider the unit sizes in your city or even your neighborhood. What is unusually large in New York City is probably not considered unusually large in Austin, Texas. Can two reasonable people look at the same apartment and have a different opinion on how many people should be allowed to live there? Absolutely. One Tenant Attorney's View of "Reasonableness" I asked an attorney who has been an advocate for tenant's rights for many years for his view on how Keating guidelines should be applied when counting children in the number or persons per bedroom calculation. This experienced attorney believes that the age of the child should be at least 5 or 6 years old before you count them in making your persons per bedroom calculation. His reasoning is that prior to reaching the age of 5, a child does not have a significant impact on the amount of wear and tear on the unit. Therefore, a landlord does not have a legitimate business reason to include a child under 5 years old in calculating the number of persons per bedroom. He concludes that a policy that precludes families with children under 5 is unreasonable because children that young do not make a difference to the landlord's bottom line. In other words, he contends that a landlord does not have a legitimate business reason for having a policy that discriminates against families with children under 5 years old. A "legitimate business reason" has been used as a defense to fair housing claims in some cases. A "legitimate business reason" may excuse a policy that is otherwise discriminatory and a violation of the fair housing law. Don't count on it. The Keating guidelines do not specify at what age to count children in your persons-per-bedroom calculation nor does Keating cite that business reasons are a factor in judging the fairness of an occupancy policy. One Landlord Attorney's View of "Reasonableness" Another experienced fair housing attorney I consulted believes that the old TCHR guidelines were and still are "reasonable" and that a family occupancy policy following the old guidelines is not discriminatory under federal law, subject to one clarification: He advises that a more liberal occupancy policy should be expressly stated whenever a particular dwelling or floor plan type contains: (1) an above-average-size bedroom that is large enough to accommodate three children or one adult and two children, or (2) a den, family room, or loft that could be used as an extra bedroom. In other words, you can have more than one occupancy policy in an apartment complex if differing sizes and configurations of the units and/or children's ages justify it. For example: In a two-bedroom unit, you could have a limit of two adults and three children; or in a one-bedroom unit with a very small loft, you could limit occupancy to a three-person family when the child or children are over 6 months old. In same one-bedroom-loft unit, you should allow an extra child if the child is an infant less than 6 months old. In the opinion of that expert, you can still lawfully adopt a policy of not renting an average or larger-than-average one-bedroom dwelling to a couple with a child older than 6 months-for two reasons: (1) the typical child begins to crawl at six months and a crawling child causes more wear and tear on a dwelling than an infant (because the child is more mobile and is more likely to urinate on or soil carpets, mar walls, etc.), and (2) a child more than 6 months old sleeping in the same bedroom as the parents is more likely to hear and observe what should be private parental conversations and sexual activities in the parent's bedroom. For practical considerations, that expert believes that you should go ahead and allow residents whose infant child is born or reaches 6 months of age during the lease term to stay in the dwelling until the end of their current lease term-even though the parents would not qualify under your policy to initially move into the one bedroom unit with a child older than 6 months. It is significant that Keating does not state that it would be unreasonable for a landlord to refuse to rent an average-size one-bedroom unit to a couple with an infant. Similarly, Keating does not state that it would be unreasonable to refuse to rent a larger-than-average-size one bedroom unit to a couple with a non-infant child. The emphasis of the hypothetical exception in the Keating guideline is on infancy. Are landlords limited to purely "landlord business reasons" in setting a family occupancy policy? Are landlords excluded from taking into consideration factors that can adversely affect the physical safety or health of the child? The answer is "no" to both, according to that fair housing attorney. For example, if a landlord allows an infant to stay in the same bedroom as the parent, the landlord can lawfully insist that the child be in a crib to lessen the chance of an adult in the same bed rolling on top of the infant and hurting or smothering the infant accidentally. It is quite "reasonable" for a landlord's occupancy policy to reflect what is commonly considered by the general populace as being in the best interest of the child. My View I believe that you can look at the prior TCHR policies as a guide for what was previously considered reasonable by TCHR (i.e. do not count infants under 6 months in the persons-per-bedroom calculation). However, do not rely on the old TCHR policy alone. You should now add to that TCHR policy a consideration of factors such as the age of children, bedroom size, configuration of the unit and any physical limitations of the housing (e.g. capacity for septic, sewer, or other building systems). Follow the old TCHR rules set out above but make adjustments to your calculation if the bedroom size or configuration of the unit would support a greater occupancy. Let's say a couple with a three-year-old child seeks to rent a one-bedroom apartment in your community. Assume that the one-bedroom apartment had larger than average size bedroom and had an unusually large dining/living area. Under old TCHR guidelines, you could require them to rent a two-bedroom apartment because their child was over 6 months of age regardless of the characteristics of the unit. Because Keating guidelines require that you take into account the bedroom size and configuration of the unit, these people would be entitled to rent a one-bedroom unit under the Keating guidelines. If you want to be conservative, use an older age for your definition of an "infant" than the six months of age used under the old TCHR policy. Other sources that I have consulted recommend that you treat all children up to one year as "infants" and do not count infants in calculating the number of people per bedroom. The older the age of the child that you use before you count them in your occupancy calculation, the less likely you will have a claim that you violated the fair housing laws. It is less likely that you will be accused of discriminating against families if you do not count children under three years old as opposed to not counting children under six months old in calculating occupancy limits. Texas Property Code section 92.010 also governs occupancy limits. Generally, the maximum number of adults (18 years or older) that a landlord may allow to occupy a dwelling is three times the number of bedrooms in the dwelling. The statute does not limit the number of children. Keep in mind that the occupancy standards may be more restrictive if a family is not involved. The concern is that occupancy standards may unfairly discriminate against families and violate the fair housing act. If the prospective tenants do not involve a family, a more restrictive occupancy policy may be adopted such as one person per bedroom. Also, just because the prospective tenant is a family, you do not have to consent to lease to them due to their familial status. The applicants, even if a family, must meet your other criteria such as financial ability or acceptable rental history. Here are some tips to avoid a discrimination claim based on familial status: 1. Read the Keating Memorandum and the TCHR policy set out above and develop a family occupancy policy based on the Keating guidelines and the TCHR policy with consideration of the size of the bedrooms and configuration of the units. If your bedrooms are unusually large or spacious, allow more than two people per bedroom. If you want to be more conservative, set an age older than six months for which you will count a child as a person. The older the age, the less likely you will be accused of discriminating against families. 2. Tell prospective tenants what your occupancy policy is as soon as possible in the leasing process. Do not wait for them to ask about your policy. If you tell them up front, you will be less likely to mislead someone into thinking they are eligible to rent only to find out that the occupancy policy precludes them from leasing. Tell all prospects about your policy, not just people who ask or people who have children. 3. Do not have anything in your policy that would prevent children of different sexes from sharing a bedroom or would restrict a child from sharing a bedroom with a parent, legal custodian, or person who has written permission of the child's parent or legal custodian to live with the child. You would not have any legal basis for such restrictions and it would have a disparate impact on families. 4. Do not ask a prospect how many children they have or how many children will be living in the unit. Do not comment on a person's pregnancy. First, imagine how embarrassed would you be if you asked "When is the baby due?" and her response was "I'm not pregnant." Secondly, you do not count a pregnant woman as two people in deciding what size apartment she will need. You may ask how many people will be living in the unit. Do not say things like "we only allow two children per bedroom because a remark like that may look like you are discriminating. Use neutral language that would apply to any prospective tenant such as "we allow two people per bedroom." Keating says that "An occupancy policy which limits the number of children per unit is less likely to be reasonable than one which limits the number of people per unit. 5. Be consistent in applying your family occupancy policy. Do not make exceptions. In summary, the law says you may not discriminate against families with children. You can enforce a limit on the number of people who live in a dwelling. Two people per bedroom is presumed reasonable. The exception to this presumption is units that have extra-large bedrooms or the overall size and configuration of the unit would warrant more than two persons per bedroom. The age of any children should also be considered. Put your occupancy standards in writing and be consistent in enforcing them. The manager of an apartment community called me recently, and our conversation went something like this:
Manager: One of our residents is acting very strangely and I'm not sure what to do about it. He sends notes to the management office complaining about other residents yelling at him all night long. He told me he was tired of my staff coming into his apartment when he was not home and destroying the faxes the FBI was sending to him before he could read them. His neighbors are complaining because he has called the police and reported that they have been harassing him when they haven't been doing anything. His neighbors are scared of him. I really believe he has "lost it". Me: Has he threatened anyone or given you any reason to believe that he poses a danger to himself or to others? Manager: No threats that I am aware of. No criminal history when his application was approved. He seems very paranoid. I do not know if he is dangerous. I'm a property manager, not a psychologist. Is mental illness a disability? Me: The fair housing laws use the term "handicap" which is defined as "a physical or mental impairment which substantially limits one or more major life activities; a record of impairment; or being regarded as having such an impairment." From what you have described, he probably has a "handicap" under the law. Manager: If he has a psychiatric disability or "handicap" and I evict him wouldn't that be a violation of the fair housing laws? Me: It could be. Assuming he is a person with a psychiatric disability, you may not discriminate against him on that basis. If he asks, you may be required to make a reasonable accommodation in your policies because of his disability and allow him to continue living there. Manager: But what about the neighbors he is disturbing. Don't we have an obligation to them as well? Me: Yes. Your obligation to all of your residents is to give them peaceable possession of their apartments. Your residents have a right to live undisturbed. If a particular resident is disturbing the neighbors you should evict him. Manager: This guy is violating our community rules and his lease by acting this way. Does the fact that he has a mental disability mean that I have to allow him to breach the lease? Me: Generally, each resident has to comply with the lease and community policies just like everyone else. Manager: Let me get this straight. I'm supposed to evict people who are disturbing the other residents because I owe the residents a duty of peaceable enjoyment of their property. Doesn't that conflict with the law that requires me to make reasonable accommodations to my policies for this resident so he can stay? It took several more long conversations for us to resolve that situation. Sometimes the laws do conflict and there is no easy answer to these questions. A landlord has an obligation to make reasonable accommodations for people with disabilities. But, Landlords also have the duty to the other residents of the community to evict people who are being disruptive. The answers and solutions to these situations differ on a case-by-case basis. Landlords should grant a reasonable request from a disabled tenant for an accommodation if the accommodation does not involve a great deal of money or logistical problems on the landlord's part. If asked, a landlord may have to make an adjustment to their community policies, rules or lease to accommodate a resident's disability. For example, if counseling or medication would help eliminate this behavior, you may want to allow the resident time to seek counseling or get back on medication before making the decision of whether or not to evict him. The accommodation does not cost anything and will not create any logistical problems on your part. Landlords may evict a resident because of conduct which is a breach of their lease unless the violation was due to the person's disability and the person requested a reasonable accommodation which would prevent the conduct or breach from happening again. The lease violation has to be related to the disability before accommodation becomes an issue, otherwise, it is just like any other lease violation and you may evict the resident. If you have a resident who begins exhibiting mental illness, check your TAA Rental Application for Residents and Occupants. Contact the people listed as emergency contacts on the Application. Ask for their help. I have had cases where the family of the resident exhibiting strange behavior intervened after they were notified and helped solve the problem. If no person is listed on the Rental Application as an emergency contact, contact the county Mental Health/Mental Retardation (MHMR) office and ask for their advice and assistance. Technically, if the disabled resident does not request an accommodation, you have no obligation to offer one. However, many people who become mentally disabled no longer have the ability to know what accommodation would be practical in their situation. While the law does not require you to offer an accommodation without being asked, you might wish to offer an accommodation as an alternative to an eviction. If the resident's mental problems are so severe that they pose a danger to other persons or themselves and you are unable to solve the problems with reasonable accommodations, consult an attorney and seek a termination of the lease or eviction. Most of you apartment owners out there own your property in some type of legal entity such as a Limited Partnership ("LP"), Limited Liability Company (LLC) or a Corporation. The most common form of ownership of apartments that I see in Texas is a Limited Partnership that has a corporation or an LLC as its general partner. However, for the purposes of this article and simplicity sake, let's say that you formed a corporation that owns your apartment property and you are the president, director and sole shareholder of the corporation. What liability do you have personally if an employee of your corporation violates the Fair Housing Act?
Traditionally, your corporation would be legally responsible for the actions of the employees. This is called vicarious liability. However, under traditional legal principals you would not be personally liable for the employee's actions just because you were an officer, director or shareholder of the corporation that owned the apartments. The principal (your corporation) is responsible for the acts of its agents (your employees). But, the officers, directors and shareholders of the corporation are not liable for the acts of the employees absent some special circumstances. This shield from liability is one of the primary reasons that apartments are owned in some type of legal entity. The owners (shareholders) want to avoid being personally liable for the legal obligations of the entity (corporation). If you own the apartment as an individual, you would be personally liable for the acts of your management staff. Your other assets would be at risk for claims arising from the acts of your employees. If the manager of your apartment community violates the law, your corporation would be legally responsible for the manager's unlawful acts just the same as the manager. In other words, your corporation and the manager would both likely be sued if the manager breaks the law. Traditionally, you would not be personally liable just because you were the officer or shareholder of the corporation if your corporation's employee violates the law. Does the Fair Housing Act go farther? Does the Fair Housing Act make owners and officers of corporations liable for an employee's violation of the Fair Housing Act even if the owner was not involved in the discriminatory act? This was the question answered by the Supreme Court of the United States on January 23, 2003 in the matter of Meyer vs. Holley. This Supreme Court opinion may help you owners of apartments sleep better at night. The facts of Meyer vs. Holley are as follows: Mr. and Mrs. Holley, an interracial couple, attempted to buy a house that was listed by Triad, Inc. Triad, Inc. was a real estate corporation in California. David Meyer was president of Triad, Inc. A Triad salesman, Grove Crank, was alleged to have prevented Mr. and Mrs. Holley from obtaining a house for racially discriminatory reasons. The Fair Housing Act prohibits racial discrimination in the sale or rental of a dwelling. The Holleys sued Crank, Triad and Meyer as president and sole shareholder of Triad, Inc. The Holleys claimed that Meyer was vicariously liable for Crank's unlawful acts even though they had not dealt with Meyer. The issue decided by the U.S. Supreme Court in Meyer v. Holley was whether the Fair Housing Act makes the officers or owners of the corporation liable for the unlawful acts of the employees when the officer or owner had nothing to do with the discriminatory activity. The Supreme Court held that the Fair Housing Act does not create liability for the officers or owners of a corporation for the employee's unlawful acts. The Fair Housing Act does not "go further" than traditional law regarding who is responsible for unlawful discrimination under the Fair Housing Act. If an apartment manager unlawfully discriminated against someone protected under the Fair Housing Act, the victim of the discrimination can make a claim against the owner of the apartments (usually an entity), the manager, and any other person involved in the unlawful act. The claimant will not be able to sustain a claim against the shareholders, officers and directors of the entity that owns the apartments unless they were personally involved in the discriminatory act. Even if you educate and train your employees to abide by the Fair Housing Laws, the laws are complex and knowing the difference in lawful and unlawful discrimination is not always easy. Given the Supreme Court's ruling, it is more advisable than ever to own your rental property in some sort of entity. If you are going to purchase rental property, do not put the title to it in your name individually. Form some entity to own the rental units. Get advice from your attorney and accountant about which entity (corporation, LLC, LP etc.) is best for your situation. Q. Are race, color, religion, sex, national origin, familial status and handicap the only protected classes?
A. These seven categories are the only protected classes under the Fair Housing Amendments Act of 1988. However, many state and local governments often have their own laws and ordinances making housing discrimination illegal, and may include categories in addition to the ones protected by the federal law. For instance, a city's ordinance may prohibit discrimination on the basis of marital status. If you refused to rent an apartment to two people of the opposite sex who are not married, but will rent to two people of the opposite sex as long as they are married, you have not violated the federal Fair Housing Act, but the city could take action against you for a violation of the local fair housing ordinance. Besides marital status, other categories sometimes protected by local ordinance or state law include: sexual orientation, source of income, and age. Occasionally, an additional category may be added based on a particular local condition. For example, Cincinnati's ordinance protects people of Appalachian heritage from discrimination, while Denver's includes military status as a protected class. If everyone is treated fairly and consistently, there should be no need to be overly concerned with the particular protected groups of a locality. Q. Can we designate a specific "play area" on a property? We have a lot of children as residents, and we're very concerned that they will play in the parking areas. A. There's nothing wrong with designating a certain area of a property as a "play area." You need to be careful, however, that your designation isn't limited only to children. While as a practical matter, children may be the primary users of the play area, adults sometimes "play" too. A rule that says "No playing in the parking lot," therefore, is fine, but one that says "Children may not play in the parking lot," is not appropriate. Remember, while safety is a legitimate concern, not permitting playing in any area of the property may result in a fair housing challenge by families with children. Q. A resident has asked me to make an accommodation to his disability. I understand I'm required to make accommodations, but I'm not sure he really has a disability. Can I ask for verification? A. Both the Fair Housing Act and Section 504 of the Rehabilitation Act of 1973 require housing providers to make accommodations for people with disabilities when requested. (The nature of the accommodation required differs depending on whether the Fair Housing Act or Section 504 applies.) Some disabilities are immediately obvious, such as the loss of a limb, the use of a wheelchair, or a serious visual or hearing impairment. Other disabilities, which are just as real, are not so apparent, such as asthma or a heart condition (which may prevent a person from walking long distances), a sensitivity to common chemicals, or a mental illness. If the disability would not be immediately obvious to a reasonable person, you may ask for verification of the disability and the need for the accommodation at the time the accommodation request is made. That verification can come from a medical professional, but it might also come from a social service organization that assists people with the particular disability. Once the existence of the disability is confirmed, you should not request further verification or details of the disability. Do not ask for verification if the disability is immediately obvious to you. Q. In my advertisements, or when giving information over the phone to a prospective resident, can I use directional indications that include references to ethnic or religious landmarks? A. The Fair Housing Act's implementing regulations caution that "specific directions which make reference to a racial or national origin significant area may indicate a preference. References to a synagogue, congregation or parish may also indicate a religious preference. Names of facilities which cater to a particular racial, national origin or religious group, such as country club or private school designations, or names of facilities which are used exclusively by one sex may indicate a preference." The answer to your question, then, is that it is best to avoid the use of directional landmarks that are specifically identified with any particular race, national origin, or religion. Q. Do I have to waive the pet deposit for a resident with a disability who requires the use of a service or companion animal? A. If you manage a conventional property that normally allows pets and charges a deposit for animals, go ahead and charge the usual pet deposit for a service or companion animal. If you manage an assisted property, however, the resident may not be able to afford the deposit. If that's the case, and the deposit would prevent the resident from renting the apartment, you should waive it for a service or companion animal. In either conventional or assisted housing, if you do not normally allow pets, do not create a deposit policy just for service or companion animals. Let the animal in with no deposit payment. Q. On an assisted property, I have already provided a visual door knock indicator for a hearing impaired resident. He wants a different one that is more expensive. Do I have to provide it? A. Since this is an assisted property, Section 504 of the Rehabilitation Act of 1973 applied, and it is your responsibility as the housing provider to pay for reasonable modifications made necessary because of a resident's disability. However, you need only make accommodations (including physical modifications) that are effective; you are under no obligation to do everything to the exact specifications requested by the resident. As long as the door knock indicator you've installed is effective, you've met your responsibilities under Section 504. Of course, on a conventional property, this would not be an issue, since the resident is responsible for the cost of the modification, and can choose to install whatever model door knock indicator he or she prefers. As an attorney, I represent property management companies and provide legal advice to apartment managers. Periodically, I have a conversation with a client that goes something like this:
Manager: This guy came in this week and applied for an apartment. He is really obnoxious and I get "bad vibes" from him. Do I have to lease to him? Me: Why does he give you "bad vibes"? Manager: He has called every two hours to see if his application has been approved. Then, he puts me on hold every time he gets another call on his call waiting. He yelled at me when I told him that we would not be able to process his application without a copy of his driver's license. He has asked to see the same two apartments every day for the last week. He told my assistant manager that our staff was incompetent because we could not tell him how many cubic inches the refrigerator freezers have. He wants to see the resumes of the maintenance staff. He made one of my leasing agents cry. This guy is obnoxious and rude. Me: Did he complete his application? Manager: Yes. Good credit, no criminal history, sufficient income. I verified the information on the application. He is qualified to be a tenant here. Me: Do you have a written policy that outlines your admission criteria? Manager: Yes, and he meets all of the criteria, but I can't imagine dealing with this guy for the next year. Do I have to lease to him? Me: No. Manager: I don't? Isn't that discrimination? Don't I have to treat everyone the same? Me: Not necessarily. As long as your reason for not leasing to this person has nothing to do with this person's race, color, religion, national origin, sex, familial status or handicap, (the "protected classes" under the Fair Housing Acts), you don't have to lease to them. Manager: If he is in the "protected class" don't I have to lease to him anyway? Me: No. You do not have to rent to him just because he is in the "protected class". Your decision to deny the application is not based on this applicant's race, color, religion, national origin, sex, familial status or handicap. You may deny the application for another reason. For example, the applicant could be in the "protected class", but if he refuses to fill out the application completely, you could refuse to lease to him based on that reason. It's all right as long as you would have rejected someone in the non-protected class for the same reason. However, you might want to document in your file the reason you rejected someone because you may have to defend the decision in the future. Manager: You mean we can have a "No Jerks" policy? Me: Yes. Just as you may have a policy that rejects applicants who have a criminal record, who do not have sufficient income, who have bad hygiene or who have bad credit history. The legal test is whether your decision is because of the applicant's race, color, religion, national origin, sex, familial status or handicap. If your decision is for some other reason, you are not violating the law. Manager: What do I tell him about why I'm denying his application? Don't I have to give him a reason why we will not lease to him? Me: No. As long as the reason is not based on his credit report you do not have to give a reason. I do recommend that you confirm all disapproved applications with a polite letter confirming their disapproval but it is not required. In this situation, you do not have to state the reason for the disapproval in the letter if you send one. Who Can Landlords Lease To or Refuse To Lease To? Managers are often surprised to hear that they do not have to lease to people who otherwise qualify to be tenants. The misconception is that they have to treat everyone the same. While is it a good idea to be consistent in your treatment of all tenants and prospective tenants, you do not have to treat everyone the same. However, if you deny an applicant just because you don't like them, you run a greater risk of a discrimination claim if they are in the protected class. For example, say you deny the application of a Hispanic female who is in a wheelchair and has three minor children because she is obnoxious and rude to you and your staff. A jury could more easily infer that your denial was based on some other reason (i.e. her disability, her race, her familial status) than the fact that you did not like her behavior. Be consistent in enforcing the policies, otherwise, it may be hard to prove that you did not discriminate against someone in the "protected class" illegally. The problem with a "No Jerk's" policy is that it may be viewed by a jury as a pretext for discrimination. In other words, a jury might think that your rejection of someone based on their offensive behavior is just an excuse that you are using to discriminate against them for some unlawful reason such as their race, color, religion, national origin, sex, familial status or handicap. Landlords Should Have A Written Policy You should have a written policy that outlines your admission criteria for tenants. You may want to modify the written policy to include a category for "Management Discretion". Your file should have some documentation that the basis for your denial was in accordance with your policy. If someone otherwise meets your admission criteria but you are not comfortable leasing to them, you may use the Management Discretion category as the basis for rejecting the application. In addition, include notes of the specific conduct that you found to be offensive as well as the basis for your decision. If you reject an applicant based on the applicant's obnoxious behavior, be sure that their behavior is not due to a mental disability. The applicant may be in the "protected class" and you may be inadvertently denying their application based on a mental disability, which is reason for their unacceptable behavior. The same question arises in lease renewals. Sometimes you lease to people who make life difficult for themselves and everyone around them and you wish you had never leased to them. While their behavior may not warrant an eviction, you may decide to refuse to renew their lease. As long as decision to deny the lease renewal is not because of this tenant's race, color, religion, national origin, sex, familial status or handicap, you do not have to re-new their lease. Like lease applications, you do not have to tell the tenant why you did not renew their lease. Another factor comes into play in lease renewals. You may not refuse to renew a lease in retaliation for a tenant exercising his rights. Here, you must make the distinction between a tenant who is rude and obnoxious in making legitimate demands and asserting their legal rights and the tenant that is just rude and obnoxious without merit. If a tenant has been obnoxious and pushy but in the context of asserting their legal rights such as requesting repairs, you should probably renew their lease. Otherwise, a jury could easily infer a motive of retaliation. You would have a difficult time proving that the reason for not renewing the lease was based solely on the tenant's conduct and was unrelated to their exercising their legal rights. Life is too short to have to put up with certain people as tenants. As long as your reason for not leasing to a person has nothing to do with their race, color, religion, national origin, sex, familial status or handicap, you don't have to. Fair Housing laws prohibit discrimination against people based on race, color, religion, national origin, sex, familial status or handicap (the "protected classes"). Two types of unlawful discrimination apply only to people who with disabilities. One, a Landlord may be required to make reasonable modifications to the premises for a person with a disability. Two, a Landlord may be required to make reasonable accommodations in their rules, policies, practices, or services when such accommodations may be necessary to afford persons with disabilities equal opportunity to use and enjoy a dwelling.
If you are in a situation which requires you to make an accommodation or modification of your premises for a person with a disability, you will probably have extensive interaction with that individual. Do you ever find yourself nervous or uncomfortable when your around a person who is disabled? You don't know exactly what to say or how to act? Do I offer to help the guy using a wheelchair get in his car? Do I offer to shake hands with the lady using crutches when introduced? Many people without a disability are often uncomfortable in dealing with people having disabilities. They may not have had many friends, co-workers or family members with a disability. Because some people are afraid they will do or say the wrong thing around someone with a disability, they try to avoid the individual with the disability altogether. What is often perceived as discrimination by those in the protected classes is often a communication problem rather than true discrimination. A prospective tenant who is disabled may conclude that you were discriminating against them when the problem was really how you were communicating with them. The U.S. Department of Labor promotes these "Ten Commandments of Etiquette for Communicating with People with Disabilities": 1. When talking with a person with a disability, speak directly to that person rather than through a companion or sign language interpreter. 2. When introduced to a person with a disability, it is appropriate to offer to shake hands. People with limited hand use or who wear an artificial limb can usually shake hands. (Shaking hands with the left hand is an acceptable greeting.) 3. When meeting a person who is visually impaired, always identify yourself and others who may be with you. When conversing in a group, remember to identify the person to whom you are speaking. 4. If you offer assistance, wait until the offer is accepted. Then listen to or ask for instructions. 5. Treat adults as adults. Address people who have disabilities by their first names only when extending the same familiarity to all others. (Never patronize people who use wheelchairs by patting them on the head or shoulder.) 6. Leaning on or hanging on to a person's wheelchair is similar to leaning or hanging on to a person and is generally considered annoying. The chair is part of the personal body space of the person who uses it. 7. Listen attentively when you're talking with a person who has difficulty speaking. Be patient and wait for the person to finish, rather than correcting or speaking for the person. If necessary, ask short questions that require short answers, a nod or shake of the head. Never pretend to understand if you are having difficulty doing so. Instead, repeat what you have understood and allow the person to respond. The response will clue you in and guide your understanding. 8. When speaking with a person who uses a wheelchair or a person who uses crutches, place yourself at eye level in front of the person to facilitate the conversation. 9. To get the attention of a person who is deaf, tap the person on the shoulder or wave your hand. Look directly at the person and speak clearly, slowly, and expressively to determine if the person can read your lips. Not all people who are deaf can read lips. For those who do lip read, be sensitive to their needs by placing yourself so that you face the light source and keep hands, cigarettes and food away from your mouth when speaking. 10. Relax. Don't be embarrassed if you happen to use accepted, common expressions such as "See you later," or "Did you hear about that?" that seems to relate to a person's disability. Don't be afraid to ask questions when you're unsure of what to do. When speaking about people with disabilities, use "person first" language. People with disabilities should be referred to as people first , their disability is secondary. For example, instead of saying the "disabled person", say the "person with a disability". Rather than saying "the retarded man", say the "person with mental retardation". Instead of saying "he is "crippled", "lame" or "deformed", say he is "physically disabled." Avoid group designations such as "the blind" or the "the deaf" because these terms do not reflect the individuality of the people with disabilities. For example, instead of saying "the blind" or "blind people" say "person who is blind" or "the people who are blind". Refrain from patronizing people with disabilities. People with disabilities do not want to be viewed as heroic or particularly brave for living independently, working or accomplishing day-to-day tasks. Be careful about what assumptions you make about people with disabilities. Do not assume that people with disabilities are unable to do things. People with quadriplegia can drive cars. People who are blind can use your work-out facility. Focus on the person's ability, not their disability. Don't make assumptions about what a person can or cannot do. Let them tell you and don't be afraid to ask. Do not assume that an individual's disability negatively affects their other senses. You don't have speak slowly or loudly to a person who is blind. Be aware of "hidden" disabilities. For purposes of the Fair Housing laws, a "disability" is defined as an impairment that "substantially limits one or more of the major life activities." Learning disabilities, psychiatric disabilities, epilepsy, cancer, arthritis and heart conditions are not apparent by observing the person, but they are bona fide disabilities which may justify accommodation or modification by the Landlord. The more often you are communicating and interacting with people with disabilities, the more comfortable you will become. Your occupancy rates are down and you are competing with other apartment communities for residents. You have a novel idea - Hey! Maybe some creative advertising would help! You create a stunning brochure with pictures from your holiday party with everyone having a good time and a guy dressed like the Easter Bunny in the background. You put up some billboards with pictures of your smiling staff members posing around the swimming pool. The next thing you know, you have a complaint filed against you claiming that your advertising violates the Fair Housing Act. The complaint says that 7 out of the 10 people in the pictures on your billboards are Hispanic and that does not reasonably represent the majority and minority groups in your area. The complaint also says that the Easter Bunny in the brochure implies that you are discriminating against non-Christians.
Wait a minute. This is the U.S.A. What about freedom of speech? The First Amendment? You mean I cannot put anything I want to in my advertisements? That's right. An apartment owner in Virginia was fined a substantial amount of money for using all white models in their brochure because the models were not "clearly definable as reasonably representing the majority and minority groups in the metropolitan area." Your billboard might be a problem because more of the residents in your community are members of racial groups other than what is shown in your billboard picture. However, you may take comfort in knowing that the Department of Housing and Urban Development (HUD) does not consider the use of the Easter Bunny to be discriminatory. So your brochure is probably okay. The Fair Housing Act says that you may not publish advertisements which "indicate any preference, limitation, or discrimination or the intention to make a preference, limitation, or discrimination because of race, color, religion, sex, disability, familial status, or national origin." Obviously, your ads may not say something blatant such as "no children" or "no Catholics." But what about the more subtle aspects of your ads? The general rule is to describe the property and not the people who live there and the ad will be acceptable. Phrases like "no wheel chairs allowed" or "independent living" discriminate against people with disabilities. But, it is acceptable to say that your property is "handicapped accessible" or has "wheelchair ramps" because these are descriptions of the facilities. An ad stating that your property is "great for Jewish families" is unacceptable because it indicates a preference for renting to Jewish families. Describing your property as "near the new Catholic Community Center" may also show a preference for a particular type of resident. However, using terms like "desirable neighborhood" or "great location" is not discriminatory. Here Are Some Tips to Avoid Problems with Advertising 1. Review your written materials and advertising materials. Get rid of anything that may give rise to a discrimination complaint. Your advertisements and community newsletter should portray a community that is accessible to the protected classes. 2. Add the Fair Housing Logo to all of your advertising materials. 3. If room provides, put a statement in your advertising that contains the following Fair Housing message: WE DO BUSINESS IN ACCORDANCE WITH THE FAIR HOUSING ACT IT IS ILLEGAL TO DISCRIMINATE AGAINST ANY PERSON BECAUSE OF RACE, COLOR, RELIGION, SEX, HANDICAP, FAMILIAL STATUS, OR NATIONAL ORIGIN 4. Describe the apartment and amenities. Do not describe who you think would be happy renting there. 5. The people in any pictures in your advertising should reflect the majority and minority members of your community. If your staff does not reflect the make-up of the community, do not use a picture of them in your advertisements. Likewise, using a photograph from one of your community events may be a bad idea if it does not represent the majority and minority members of your metropolitan area. 6. If you are not sure whether something in your advertisement is a Fair Housing violation, leave it out. |
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