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Not All “Equal” Animals are Truly Equal

The gap between animal lovers and non-animal lovers can be as difficult to bridge as many of the differences between our two major political parties. But just as the issues that divide our nation have nuances, so do the pro- and anti-animal advocates in the multifamily industry. Some of us can remember the day when apartment owners could hold the line on pets. Markets were strong and the bar could be raised to preclude all un-caged pets to avoid all the issues pets can create. But markets became soft and the need to take pets became commonplace and market driven. Now demand is stronger and some operators would like to return to the “no pets allowed” days. But even if the markets will support that policy, not all pets are equal. No, pets, per se, are not a protected class. However, “assistance animals” must be allowed as a “reasonable accommodation” under Section 504 of the Rehabilitation Act and the Fair Housing Act.  This probably trumps reasonable weight limits as well. The question as to whether an “assistance animal” qualifies comes down to “whether or not the animal performs the disability-related assistance or provides the disability-related benefit needed by the person with the disability”. For an excellent discussion of this topic, see Jennifer L. Owen’s feature in Briefcase in the February 2012 issue of Rooflines.  The fair-housing laws can be a minefield and it is important that, at a minimum, we provide whoever is responsible for compliance in our organizations with ample......
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Watch Out for the Non-Renewal Trap!

Countless times over the years I have heard “We do not have to give a reason for a non-renewal of a lease”.  And for many of you, depending on your state and local landlord/tenant laws, that is technically the case.  (And if you do not know what your state and local landlord/tenant laws say about renewals, then for Pete’s sake, find out.)  But here is the fair housing trap, which can loom large and with teeth, just waiting to catch unsuspecting you in its formidable jaws…   …While perhaps you do not have to give a reason, you darn tootin’ better have a reason that is documented. And here is why.  Let’s say that Mrs. Fahed did not pay her rent on time for 3 of the 12 months she has lived at your community.  You have also had several noise complaints (which you independently verified) and her young son broke windows at the community on three (count ‘em) occasions.  Does it make good business sense to consider and decide on a non-renewal of Mrs. Fahed’s lease.  Of course!  Does it make good business sense not to get into a dialogue about this with her.  Of course!  (Because she will argue with you or promise to pay on time, be quiet and lock her child in the closet in order to convince you to renew her lease.)  But while you may not have to share with her these reasons for the non-renewal, your records should reflect the late payments, the noise......
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Fair Housing and Rental Policy Conflicts

I recently came across the topic of a questionable Fair Housing violation regarding a rental that already had a tenant.  The issue arose from the present tenant marrying an individual who has been recently released from incarceration due to a felony charge.  While congratulations to the newlyweds is certainly in order, this does raise some concerns for a property that has a policy established as to what is required on a background check to approve the application.  Here’s what you need to know about Fair Housing compliance in delicate situations:   Your Policy is Key: An established rental policy that complies with Fair Housing requirements must be adhered to.  Should you sway from it and a lawsuit is filed, you have a precedent that can be used against you.  Exceptions apply only if the matter pertains to a flexible portion of your policy that is not explicitly specified.   Be Objective: Methods such as tenant screening and proof of employment are used to make the application process naturally fit with Fair Housing requirements.  The moment you begin to use subjective reasoning as your basis for a decision, you create an unfair standard for all applicants.   Know Your Rights: No one likes to be denied – period.  Applicant’s may be upset for your decision and threaten to take action on a legal level.  If you are going to deny someone make certain your policy has a clear explanation as to why they were denied so no Fair Housing violations can ......
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I Am Not a Hoarder...

…if I were, I would not be sharing tidbits on the topic that I gleaned from attending a NAA session on hoarding presented by my friends DJ Ryan, Kathy Belville and Craig McMahon from the Kimball, Tirey & St. John’s law firm.  I took copious notes (what a good student am I) and want to share some highlights with you.  This is a very intricate issue with a fair housing component, and it still amazes me how many multifamily industry folks have been dealing with this (as the show of hands at the NAA session revealed).  Now I won’t share all I learned (not because I am greedy, but because that would make this post way too long), but here goes: There are lawsuits involving hoarders (as in you, the landlord get sued) because management either did not act soon or enough or did not respond appropriately. Hoarding is affecting an increasing number of seniors (senior housing alert!). There are more opportunities today to impulse buy – think QVC and the internet. “Collectors” do not create health and safety issues; hoarders do. Hoarding is a disability and you MUST reasonably accommodate under the Fair Housing Act. Hoarding becomes an issue when it affects the health and safety of the residents, others, or your property. Sanitation – this is not a cosmetic issue; it is a health and safety issue when there is no access to sinks, tubs, or toilets, or there are insects and/or rodent droppings. Volume is an issue if......
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The Whiny Resident Revisited

Back last November (November 3, 2011 to be exact) I posted a suggested response for multi-family folks to make to those residents who want to know why you have given another resident “special treatment” (which is of course the whiny resident’s view of what you know to be a reasonable accommodation based on disability).  Usually this will come in the context of someone having an animal that is not pet policy compliant, or perhaps their having a reserved parking space.  At that time I shared a good suggestion from DJ Ryan: “We don’t disclose private information about other residents, just as we wouldn’t disclose private information to other residents about you.”   More recently I was one of the Fair Housing 5 presenting at NAA and this topic arose; in the ensuing dialogue between panelists and the audience, another suggested answer came up.  (I apologize for not being able to remember who came up with this as I do like always to give attribution.)  The suggested response, which the audience seemed to both like and agree with, positions the potential situation as a need, not a want, and shows your willingness (without actually saying it) to address and respond to reasonable accommodation based on need.  So if you are ready for it, here it comes: “We sometimes must make exceptions for our residents.  Do you have a need for us to make an exception for you?”

 

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3 ways to improve your application process

I have been in a discussion during the past week about how to choose a company to provide tenant screening.  I was conversing with several industry professionals on the matter and while we didn’t always see eye to eye, there were absolutely some common beliefs and great recommendations on what to look for.  Here are some of the hot topics we focused on for making certain you find the best option as well as reasoning for being so cautious. Not All Data is the Same! It’s true, pulling a credit report on an applicant will likely yield similar results because it will generally be retrieved from one of the 3 major bureaus (Experian, Equifax, TransUnion).  Beyond this, however, any background screening done on an applicant can vary drastically.  How a company receives its’ information, analyzes it, filters it, and compiles it can change based on the system that company uses.  Always question what a tenant screening company does to bring you your report. Know Your States Laws! Did you know that being caught with a small amount of marijuana in California is a misdemeanor offense, but in Arizona the same crime is considered a felony?  It is because of discrepancies like this that it is imperative to have a written standard for approval and denial criteria and verify it with a lawyer who is competent in FCRA (Fair Credit Reporting Act) and Federal / state Fair Housing Laws.  An applicant who feels they are denied tenancy unfairly may have a so......
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All Cocker Spaniels are Dogs...

…But not all dogs are cocker spaniels.

 

Therefore your Fair Housing analogy goes like this:

 

  • All guide dogs are service animals…
  • But not all service animals are guide dogs.

 

In fact, service animals can include dogs that are for emotional support or companionship.  And service animals can include animals that are not dogs but that are “working” (such as a guide horse or assistive monkey) or providing emotional support or companionship (cats, fish, birds – even an iguana).  

 

If a person with a disability needs the animal because of their disability, the animal is, plain and simple, a service animal.  And that is whether it been trained to assist or provides comfort.

 

Just saying.

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Yield!

Most fair housing instructors will tell you to “Document, document, document”.  While there is no legal requirement to do so (in theory you never have to write down anything from a fair housing perspective), it sure is a wise business and risk management policy.  And why is that?  Because our ability to process what we see and remember it is colored by many subjective factors, and that leads to inaccuracies.  Speaking of “colored”, I will offer this as an example:  What color is a yield sign?  Did you say yellow?  You are wrong.  Since the 1970s, yield signs have been red and white (the change from yellow was a long time ago!).  But perhaps your recollections were wrong?  Could wrong recollections hurt you in a fair housing lawsuit.  You bet!

 

Thank you to Mike Williams with Fowler, Hein, Cheatwood & Williams, P.A. for the great example.

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Do You Need Fair Housing Insurance?

Note: I didn’t write this by myself, but rather I was merely one of three co-authors, the others being Anne Sadovsky, CSP, CAM, CAPS, RAM and DJ Ryan, Fair Housing Specialist, Kimball, Tirey & St. John, LLP, and is based on an article that we wrote years ago for NAA’s Units Magazine.  But even though the article is old (and that may well be an adjective some might dare to use for all 3 authors), it is still relevant (and that should be an adjective that you should use for all 3 authors).  So here goes:  Pick up any magazine within the multi-family housing industry or attend an educational conference, and it is likely you will find something about fair housing.  This issue is important to our industry for many reasons, including the dollar impact of not being in compliance with the fair housing laws. If you are charged with discrimination, the defense costs are high, not to mention perhaps having to pay to either settle the case or satisfy a judgment.  You have protected your business and yourself from the ramifications of a fire, a slip-and-fall, or the myriad of other events that create liability for you as a landlord.  But what about fair housing insurance coverage?  Do you have it?  Do you not have it?  Do you know?  Do you really need it?  Do you care (probably, since you are reading this post)?  Is there really any such thing?    Yes, there is coverage available. But it is up to you......
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Do Property Managers Discriminate Against Applicants?

Eviction DiscriminationThis article was posted June 6, 2012 by Ryan Green. We had an article posted on our site earlier to be on the lookout for this subject below! I though I would paste this on here for others to read! “Property managers who use eviction records in the application screening process are discriminating against their applicants!” This, according to a Fair Housing presentation last month in Tacoma, Washington, during which the most prevalent point made, was that a higher percentage of minorities have prior evictions and therefore, referencing eviction records in the approval criteria may lead to discrimination. The use of eviction records is meant to be an objective method of qualifying an applicant as a good candidate for a property because, as we all know, using subjective information in the rental decision opens the door to fair housing violations such as discrimination allegations. What needs to be kept in focus is a balance between protecting your property, your current tenants and staff, and the applicants themselves. The purpose of eviction records is not to discriminate against any particular protected class of people, but to protect your property against individuals who show a factual history of not meeting their prior lease agreements. When requesting an eviction search, it is vital to keep these key factors in mind before making a rental decision: The date of the judgment: Per the FCRA, §605 – civil suits, civil judgments, and records cannot be taken into account in the rental decision if they are older......
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