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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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Raise your right paw...

…do you solemnly swear that you have been a good dog, and that you have not attacked or bitten any other living creature?   Wouldn’t it be loverly if before a dog (pet or service animal) moved into a property that a landlord could ask it about its previous history.  Of course this is not a real plan, because dogs might not answer truthfully, even if under oath (maybe because they have been told to “lie” down so often).   But wait!  How about if the landlord asks the dog’s owner.  Next time you are updating your rental applications or other animal related paperwork, you may wish to consider two questions:  (Please have your own attorney help you with the wording – I am giving concept here, not legal advice):    To the best of your knowledge, has this animal ever attacked and/or bitten another animal? To the best of your knowledge, has this animal ever been cited as a “dangerous animal” (or similar designation) by any animal control authority?   Why might you choose to do this?  Because it might (might – not will) be a favorable factor if (more likely when) you are someday sued for allowing a dog at your community that harms someone or their pet.  When someone says “You should have known this would happen!” you can show that you at least inquired into the background of the animal.   BTW – I know that some applicants will not answer these questions honestly (gasp!).  But you......
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Fair Housing Does Have “Costs” And Should Be Part Of The Discussion

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......
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A horse is a horse, of course, of course...

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. ·    It’s not just cats…that can see in the dark!  Miniature horses can see clearly in almost total darkness.  They have independent eye movement, meaning that danger can be seen with each eye, and the resulting range of......
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Every Dog Does Not Have His Day...

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......
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Risk: It’s Everywhere!

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......
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Hooray for May! It's Multiple Chemical Sensitivity Month!

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.   HUD concluded in 1992 that MCS can be a disability under the FHA; ordinary allergies do not rise to this standard.  MCS has been determined to be a disability in Federal court cases, State court cases, and by other Federal agencies.  One court case defined MCS as: an acquired disorder characterized by recurrent symptoms, referable to multiple organ systems, occurring in response to demonstrable exposure to many chemically unrelated compounds at doses far below those established in the general population to cause harmful effects. (Hey, I have a law degree, not a medical degree; those lawyers could have said “some folks systems can be severely impacted if they cannot cope with even small amounts of chemicals that the rest of us manage with just fine”.)   So with heightened awareness......
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No Need to Accommodate Service Animals...

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......
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"Can We Talk?"

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 40th 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......
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The History of the Fair Housing Act

Lyndon Baines Johnson signing Civil Rights Bill, including Fair Housing Act, April 11, 1968The month of April is designated as Fair Housing Month, to commemorate Congress passing the Civil Rights Act of 1968, which includes the Fair Housing Act. The multifamily industry knows the importance of complying with Fair Housing rules, spending considerable time, resources, and money to ensure compliance across all aspects of rental housing. 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. The History of the Fair Housing Act The beginning of the FHA ultimately rests with the formation of HUD, a Cabinet-level agency created in 1965. President John F. Kennedy proposed the agency in 1961 to restructure U.S. housing policies that dated to the 1937 U.S. Housing Act, and waged battles with Republicans and Southern Democrats who opposed the formation of an agency. It wasn’t until after his assassination that Congress approved the plan. President Lyndon Johnson signed the bill to form HUD with Robert C. Weaver, the first African-American to be appointed to a Cabinet position, at the helm. A Harvard scholar and former vice chairman of the New York City Housing and Redevelopment Board, Weaver was administrator of the Housing and Home Finance Administration (HHFA). With HUD under way, the administration sought a law that w......
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