Fair Housing

I have a one year old daughter, so when I think about where I want to live, one of the major elements is simply whether there are other families with young children in the area.  So imagine me touring an apartment community and asking if there are a lot of children in the community, or if any buildings are more family-oriented.  What type of response do you think I would get from a leasing consultant?  If they are trained properly, they will probably say some meaningless line about being a “diverse community” blah blah blah.  Did that help me in my apartment search?

The fact of the matter is that my family would likely be happier if we lived in close proximity to others in the same stage of life.  Having other families with children the same age would allow us to have play dates and keep our little ball of energy entertained throughout the day.  But while Fair Housing does a great job at reducing discrimination, it has a negative affect in situations like these, which makes it impossible for me to find a living situation that would fit my needs.

Another example comes from a recent blog, “Risk: It’s Everywhere!” where Nathan Borne discusses national origin and the potential discrimination risk by asking where someone is from.  He then asks why you might want to know that information to begin with.  Granted, knowing that someone is from Malaysia versus Nigeria may not make a difference, but knowing that they are simply from another country could make a huge difference in customer service.  Of all our residents, those coming from a different country would probably be fairly high on the list of those that need the most help with their move.  They may not know anything about the customs, how business is done, or the language itself.  But if we are not allowed to discuss this issue for fear of opening ourselves up to allegations of Fair Housing abuse, then we inevitably cannot provide that much needed customer service.

And now you will have that lovely ditty in your head for the day.  (You’re welcome – LOL.)

Today’s post is about the use of miniature horses as guide animals for the blind.  I have found when teaching that I often get skeptical looks and comments when I bring this up during discussion of reasonable accommodation of service animals.  (Two attendees in past years were not skeptical at all, however, since they actually had residents with visual impairment who did in fact have miniature horses to assist them.)  I have always explained the rationale for the use of a miniature horse to be based on the life span of that animal.  The traditional guide dog usually serves its owner for 8-12 years, but as the miniature horse has an average life span of 30-40 years, the time of service is so much longer (a major consideration given how difficult it is to secure a guide dog from both time and cost perspectives).

But there are many other reasons that the use of a miniature horse makes sense (I guess that would be “horse sense”).  My online research on another issue resulted in my coming across the website for GuideHorse.com and I ended up learning a lot, some of which I will share with you.

at least not in Maryland…and his owner might not have an apartment if that dog is a pit bull.  That is because a recent ruling by the Maryland Court of Appeals has established that pit bulls are “inherently dangerous”.  Now before you chew me out, note that this was said by the court, not by this blogger.  In doing my research for this article, I saw how passionate many folks are about pit bulls – passionately for them (“no bad dogs, only bad owners”; pit bulls do not bite more than any other breeds) and passionately against them (“nature v. nuture”; it’s in their genes; they might not bite more than other breeds but they rank near the top of canine killers of humans).

Thus (I love saying “thus”!), this post is not about the pros and cons of pit bulls as pets.  Rather, this post is about what the ramification of the Maryland ruling may be for landlords in that state.  Landlords who accept pit bulls as pets in Maryland will arguably be liable for any harm inflicted by a pet pit bull if it can be shown that they knew that dog was a pit bull (or even part pit).  So now there are risk management decisions to make.  Will you ban or accept pit bulls?  What about the timing – do you tell existing residents that they must remove their pets now?  Or at lease renewal time?  If you accept pit bulls, will you require the pet owner to have liability insurance that covers you as an additional insured?  Will you be able to get notice from such an insurer if the pet owner cancels that insurance or allows it to lapse?  What impact will this have on your insurance?

If there is one thing that property managers know, it’s that we are exposed to risk in all that we do. This “risk” comes in all shapes and forms; some are more evident than others. I am constantly reminding my employees to be careful of their actions as to not expose the property and our owners to possible litigation. Some of the greatest potential risks, as I have found, are in the very small details. Here’s a few that I wanted to point out.

First, consider the “golden rule” of leasing—treat everyone consistently. Consistently being the key word.  I have often instructed my leasing agents to use caution when asking where people are from. Generally, in life this is a great conversation starter, but in the realm of fair housing when we open that door and are inquisitive on a prospects nationality this could be construed as discriminatory (if an allegation were to ever occur). The curiosity of national origin presents a very strong basis for a suit if one were ever made against the defendant (i.e. leasing agent). Think about it: why does it matter where they are from? You are trying to lease them an apartment—its best to stick to questions that qualify the prospect. As an alternative, the leasing agent might inquire about the prospects interests, hobbies, etc. While it may seem like a harmless, amiable way to personally get to know a prospect, its best to leave this question alone.  

Secondly, the guest card. The guest card is an all-important leasing tool whose purpose is to gather bona fide, relevant data pertaining to the apartment preferences of a prospect. Not only does this tool aid in the selling process of the leasing agent, but its auxiliary purpose is to ward-off fair housing claims by providing a record of the tour—time and place, apartment shown, follow up, etc. Consider if the prospect has children. I have been to a few properties where the leasing agent will report the familial status of all occupants (i.e. if they are a child, minor, etc.)—this is a bad idea. It’s best to stay neutral and simply state the number of occupants that will be living in the apartment. Remember that familial status is a protected class.

Did you know that May is MCS Month?  Probably not.  Do you know what MCS is?  Probably not.  Did you know that MCS can be a disability under the Fair Housing Act?  Probably not.

But just because you do not know, it doesn’t mean that others may not be totally aware and informed.  I have heard a rumor (from a pretty decent source) that there are folks with MCS going to apartment communities this month to ask about what will be done if someone with MCS moves in.  Whether these folks are fair housing testers or whether they merely want to inform our industry about MCS, you need to have an understanding as to what this is all about.

Hah!  Got your attention with that blog title, did I not?  And it is true – there is no need to accommodate service animals.  The duty to reasonably accommodate is a duty owed to a person with a disability (PWD) as spelled out in the Fair Housing Act.

I was recently making a presentation when this topic came up in the form of a question from one of the attendees.  (Those of my colleagues who also teach fair housing can attest that it is amazing how we can teach for years, field the same and similar questions seemingly forever, and yet occasionally still have a new question arise.)  The question was based on the following scenario:  There is a resident with a disability who needs a service dog (undisputed); the resident needs to have the service dog accompany her to the fitness center (undisputed); the resident thinks that the service dog should be allowed to work out (really?).  So the question was “Do we have to let the dog work out on the treadmill? – the lady ties its leash to the equipment and makes the dog trot for exercise.”

My answer, after a moment to get past the mental vision, was “no.”  There is nothing in the FHA that speaks to a requirement to accommodate for the benefit of an animal.  We accommodate (reasonably) for the benefit of a PWD.  If this woman’s dog needs to be exercised (which for dogs is generally along the lines of a walk in the park or a game of fetch) then she can do that or arrange for others to do that on her behalf.  So, if you have a neurotic dog that must howl all night because of its anxiety disorder, a traumatized cat that can’t bear to use the litter box, or a boa constrictor that can’t cope with staying in its apartment (ah, the stories, the stories), you can address those issues.

I like to think of myself as a good teacher, and a good teacher always is willing and open to learning from others.  And that is just what I did recently when I was honored to be included in the celebration of the Virginia Fair Housing Act’s 40^th anniversary.

As I was talking about the industry’s oft-discussed “3 Question Reasonable Accommodation Form” I was asked the question “Can we deny a reasonable accommodation if the person’s health care provider will not say ‘yes’ to the third question and agree to testify if asked?”  I said that I believed it was reasonable to deny the accommodation on that basis.  However, a more detailed and eloquent response to the question was forthcoming from Lizbeth T. Hayes, Director of the Virginia Fair Housing Office (who by the way is a most gracious woman).  In essence, Liz said that it would be wise to go that extra mile and reach out to the health care provider to see why there is a reluctance to agree to that provision.  A simple “Can we talk” may resolve the matter.  Perhaps the health care provider is concerned that there will be a significant time commitment to testifying (when truth be told it is unlikely that it will be necessary at all, ever).  She shared a story about a health care provider who would not sign the form (although the questions were answered).  That is because the landlord had make the signature line read “Physician’s signature” when the health care provider was not a physician (and you, dear reader, know that the health care provider does not have to be a “doctor”).

Yet, few may realize that the Fair Housing Act (FHA) fought an uphill battle before being passed and that the early days of the Department of Housing and Urban Development (HUD) were not without controversy. Both overcame numerous hurdles in the civil rights era of the 1960s to form the groundwork for today’s critically important multifamily housing policies that prohibit discrimination.

I toured an apartment complex the other day and was asking tons of questions of my leasing agent (who knew that I was a developer and was just shopping their product). I am always struck by the wall that goes up when you ask demographic questions (I do get that that these young folks are taught to not even address these questions for fear of being hunted down by the crazy Fair Housing police). Unfortunately, as a developer, these are about the only questions that really concern me.

When choosing whether or not to undertake a $50M investment, understanding who the prospective renter is- is actually a critical part of my job. Of course there is always the basic demographic info that we get from our consultants:

By Linda Day Harrison, theBrokerList, Chicago, IL

Today more than ever, many people do not have traditional sources of employment income. With the job market shrinking, many of us are working for ourselves and are creating jobs by starting businesses and new ventures. With that being said, how does a self-employed individual purchase a residential or commercial location with the stringent financing requirements currently in place?