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HUD Bans Using Arrest Records

HUD Bans Using Arrest Records

The Department of Housing and Urban Development (HUD) issued new guidance on April 4th, 2016 that is going to require all single-family and multifamily rental professionals to revisit their policies.

In a decision that is aimed at protecting the rights of “returning citizens”, HUD is limiting the use of arrest records in tenant screening nationwide for both public and private housing. While they are not discouraging the use of criminal records in the background screening process, they are requiring a conviction be reported for the record to be considered in the decision. Using an arrest record without a conviction is being viewed as discriminating against a consumer who has not been found guilty of having done anything illegal.

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Communicating with People with Disabilities

Communicating with People with Disabilities
Consider this scenario: Your new co-worker, Bob, uses a wheelchair. You don’t want to intrude into Bob’s private life, but at the same time, you may wonder if he needs special accommodations or if there are things he can’t do. Are you comfortable having a conversation with Bob about his disability? For many people without disabilities, it’s an uncomfortable topic. You don’t want to offend anyone. You definitely don't want to find yourself outside of fair housing compliance. You’re not exactly sure what words to use. You not even sure Bob wants to acknowledge his situation. So, what should you do? The 2010 Census estimated that 19% of the U.S. population has a disability. People can be born with a disability, or it can occur later in life due to an illness or accident. Disabilities are a medical diagnosis, not a label or stereotype. As a team member in your community, you should know that discriminating against persons with disabilities—be it an employee, resident, or a random stranger—is also illegal under federal laws.  The old saying “Sticks and stones may break my bones, but names/words will never hurt me” isn’t true. Words can affect the way we see others and the way they see themselves. Words perpetuate stereotypes that victimize or bully others. If you only know Bob as “the guy in the wheelchair,” you may never learn that Bob is a skilled woodworker, father of twin boys, and an all-star basketball player. By using people first language—that is, choosing words that put the person before their disabil......
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No Crystal Ball: Disparate Impact Is Not Crystal Clear

  The National Apartment Association recently provided an excellent webinar titled “Fair Housing Disparate Impact:  Learn How the Supreme Court’s Decision Affects You”.  The two attorneys who presented (Harry Kelly from Nixon Peabody LLP and Mike Skojec from Ballard Spahr LLP) wrestled well with the topic of this relevant decision (that disparate impact is a facet of fair housing law) while at the same time making it clear that what this means and how it will impact our multifamily housing industry is not clear at all.  The webinar covered weighty topics that I will not even begin to try and explain (such as the dilemma of revitalization/ affordable housing – damned if you do, damned if you don’t; pending decisions that will interpret the Supreme Court decision; shifting burdens of proof; whether the HUD Rule on disparate impact is consistent with the ruling).  It is clear to me that these issues are way above my pay scale.   Where I found the webinar to be particularly helpful was in identifying where some real world issues may arise and how to prepare for them.  While no one professes to have a crystal ball, I will (with great appreciation to these to lawyers for their insight) share what I learned.    Examples of anticipated future kinds of challenges:   Drug/crime screening policies Rental decisions based on source or type of income/income multipliers (such as requiring income that is 2 times or 3 times the rent) Credit Screening “House rules”  (such as those affecting families) I ......
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Doctor, lawyer...Indian Chief?

In my role as Senior Counsel with For Rent Media Solutions™ I actually have more job responsibilities than my (favorite!) role as “Fair Housing Lady”.  Office leases, intellectual property matters, non-disclosure agreements, content licenses, Facebook contests, and other matters regularly constitute my “desk job”.  And that requires me to do reading and research to keep up with what is going on in all of those various areas.   Today I was reading an article about the Washington Redskins having their team’s trademark registrations cancelled by a federal judge because of concerns that such references to “Redskins” is an offense to Native Americans.  There will now be an appeal which will address possible Constitutional issues, PTO (Patent and Trademark Office) issues and the like.   So why am I posting about this?  Because some of the comments made by attorneys “in the know” about this matter may be something our industry should think about.   Howard S. Hogan, who is an attorney with Gibson, Dunn & Crutcher said this:  “The recent confluence of public controversies over the Confederate flag and the Washington Redskins trademark make it clear that companies should be concerned about the continuing viability of logos or other marks that have the potential to offend a ‘substantial composite’ of discrete communities.”  He went on to say that “As a business matter…any company that employs trademarks based on terms or images that have a perceived historic connection to discrimination would be wise to evaluate their branding strategy and make sure that it is consistent with a 21st ce......
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Fair Housing, Disability, Rental Payments and You!

The rent is due on the first and late on the second and we don’t make any exceptions, right? We don’t make any exceptions because of the Fair Housing Act, correct? Well, not exactly, because the Fair Housing Act actually requires us to consider requests for exceptions based on the protected class of Disability. Must we consider and approve a request for a different rental payment due date based on someone’s disability? In certain situations, yes! The most common situation is when a person with a disability (PWD) requests a rental payment due date other than the first of the month, because their only source of income is from Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) payments that arrive on a date other than the first of the month. Does this meet the test? The Fair Housing Act requires us to approve any request that meets the definition of “reasonable” and if the request does not meet the definition, we are required to offer any reasonable alternative that exists. So the first question we must answer is, “How does the Fair Housing Act define reasonable”? HUD defines “reasonable” as anything that would not impose an undue financial and administrative burden on the housing provider or would not fundamentally alter the nature of the provider’s operations. HUD also requires the housing provider to make the determination about a request being reasonable on a case-by-case basis; in other words, no “one size fits all” rules here! The next question we must answer is whether ......
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Remove the Emotion from Your Applicant Screening

Remove the Emotion from Your Applicant Screening
Leasing apartments is a tricky business. It’s the job of a leasing professional to build a relationship with a prospective resident, get to know their needs, and to make them feel welcome in your community. Then comes the application and screening process, where the whole dance can go terribly wrong. I began my career leasing apartments. As a young person, with limited experience of the world, I loved meeting new people and hearing their stories… new jobs, marriages, or just a new neighborhood to explore. It was my job to be friendly and helpful—until their screening results came back. The wonderful rapport we’d created was tough to maintain as their stories became about the rental collection that wasn’t theirs or the criminal record that wasn’t their fault. Nearly two decades later, I still remember a woman who was denied due to bad credit. She’d been very quiet and kind during the leasing process, and she had the look of someone who had been through a lot. When I delivered the news that her application was denied due to credit, she explained that she’d been a victim of identity theft. Her credit had been ruined without her knowledge and she was working to sort through the mess. I felt certain she was telling the truth and wanted to assist. To be honest, if I’d been given the tools to accept her application, I certainly would have done so—putting my company and myself at risk for a Fair Housing claim. What you do for one, you must do fo......
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Disparate Impact: What does this mean for screening?

Disparate Impact: What does this mean for screening?
If you Google Fair Housing Act, Anti-Discrimination, or Disparate Impact, you will see a barrage of articles outlining the controversial Texas case facing the Supreme Court, challenging a ruling concerning the Fair Housing Act and the theology around “disparate impact.” The case, Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc.1,  is causing quite a ripple in the multifamily industry. The location of housing developments, the granting of loans and tax credits, the screening of potential residents could all change depending on the final ruling. In my opinion, the case is going to spark some major changes in the industry around legal screening practices. Therefore, I think it’s a good time to revisit leasing practices and audit processes to ensure your community is FHA compliant, whether you are a single-housing landlord, or multifamily community manager. Here are some areas to check in the meantime: Marketing Practices: Are any of your marketing messages discriminatory? Are you diverse in your advertising? Do you promote all facets of your community as non-discriminatory? Screening Practices: Are your screening solutions compliant with FHA procedures? Does your screening interface allow you to apply applicant criteria uniformly? Messaging Practices: Is your leasing team FHA compliant in their treatment of all residents? Are your properties communicating fairly to all individuals, regardless of race, religion, sex, national origin, familial status, or disability? Now is the time to do an audit of your properties’ FHA compliance. The TDHCA v. ICP case is controversial on many grounds and people are worried on all ends of the ......
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Back to the Future? Back to the Past?

I have never been good at understanding the issues that would be presented if time travel were to become a possibility.  Heck, I have troubles following “Back to the Future”.  And the concept of one little something done differently if someone traveled “back then” resulting in a totally different present is way beyond me.  I get totally confused and in fact I have confused myself writing this paragraph.   However, what confuses me even more is that some of the blatant discrimination of the past seems to have been transported to the future by what can only be described as clueless landlords.  I do believe that some fair housing issues actually can be difficult (hoarding as an example) and that even well meaning landlords can make mistakes.  But overt and obvious (upon testing) racial discrimination?  That’s not an accidental, non-intentional misstep.  That’s wrong.  And it is also expensive.  And, pardon me for saying so, it is far less than smart.   In the past months I have been surprised to see as many race discrimination cases as I have.  In fact, race has not been a focus of mine for quite a while in my presentations as the message is short and quick:  when it comes to race and color discrimination, use the anti-Nike model and “Just don’t do it!”.   Let me share with you what has fairly recently been going on out there…   In New York, white testers were offered information and shown apartments by the agents for a landlord.  I......
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Could Our World Be Rocked?

When you want to rent your apartments, do you expect that potential renters will be able to pay you the rent and honor the terms and conditions of your lease? Do you know that there is the potential that important rental criteria and lease terms could possibly be verboten?   If I have managed now to get your attention, I will now direct that attention to an important case that is due for oral argument with the United States Supreme Court beginning January 21, 2015.  It is not a sexy case (TEXAS DEPARTMENT OF HOUSING AND COMMUNITY AFFAIRS, et al., Petitioners,v. THE INCLUSIVE COMMUNITIES PROJECT, INC., Respondent) but the impact of this decision will be huge (the housing industry will either heave a great collective sigh of relief or begin to operate in a vastly different way).   This is soooo important and impactful, and a challenge for me to bring you up to speed at least in the general sense.  Let me try: The Fair Housing Act (FHA) prohibits discrimination in housing based on race, color, religion, national origin, sex (gender), familial status and disability. The language of the FHA makes it clear that you cannot intend to make harmful decisions based on those protections. The FHA does not address unintentional discrimination, which can happen statistically when a neutral policy (applied across the board for everyone) actually impacts one of the protected groups.  This is called disparate impact. Disparate impact cases do not require intent, and are distinguished from “disparate t......
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Seek (only if ye can) and (perhaps) ye will find…

So many of you in the multifamily housing industry want to “do it right” whatever “right” may mean.  I know this because I am privileged to teach you about fair housing and you ask good questions and struggle with some of the issues that you face as landlords.  One of those challenges is to “do it right” when it comes to reasonable accommodations for those residents who may struggle with emotional (behavioral) or mental (cognitive) disabilities.  You may worry about the older resident who since day one living with you has not been able to find her way from the parking lot to her apartment; you may be dealing with frustrated neighbors who ask you to please, please stop their neighbor disturbing them all through the night.  And you may worry (and rightly so!) about how you handle these situations from a fair housing standpoint. When faced with these types of issues, you may be inclined to reach into the resident’s file and pull out that Emergency Contact form and call the designated contact (often a family member).  But what if that family member says “She is your problem, not mine?”.  What if this is really not an emergency (as important as the issue may be) and your resident is angry that you violated his privacy – “How dare you call my daughter and tell her this”?  And what if it would be really helpful to consult with an outsider – a health care provider, an advocate group, or social services?  Should you or may you do ......
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