FAIR HOUSING ISSUES Presented by Abby Lee, Senior Associate Counsel August 19, 2015

FAIR HOUSING ISSUESPresented by

Abby Lee, Senior Associate Counsel

August 19, 2015

Outline

I. Fair Housing Acta. Historyb. Purposec. Protected classes and prohibited actsd. Advertisinge. Fair Housing Posterf. Exemptions

II. Other Laws or Rules Affecting Fair Housing

III. A Closer Look: Familial Status & Disability

IV. Disparate Impact

V. The Complaint Process

VI. Frequently Asked Questions

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Fair Housing Act: History

•In 1968, Title VIII of the Civil Rights Act was passed (and amended in 1988). It is more commonly known as the federal Fair Housing Act. The goal of the Act was to protect the consumer from discrimination in all types of housing transactions.

• At the federal level, the U.S. Dept. of Housing and Urban Development (HUD) administers and enforces the federal Fair Housing Act.

•Texas also has the Texas Fair Housing Act, which is virtually identical to the federal Act.

• At the state level, the Texas Workforce Commission, Civil Rights Division administers and enforces the Texas Fair Housing Act

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Fair Housing: Purpose

• What is the purpose?• Federal Fair Housing Act :To provide, within constitutional

limitations, for fair housing throughout the United States. No person shall be subjected to discrimination because of race, color, religion, sex, handicap, familial status, or national origin in the sale, rental, or advertising of dwellings, in the provision of brokerage services, or in the availability of residential real estate-related transactions.

• Texas Fair Housing Act: 1) Provide for fair housing practices in the state; 2) Create a procedure for investigating and settling complaints of discriminatory housing practices; and 3) Provide rights and remedies substantially equivalent to those granted under federal law.

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Fair Housing: Protected Classes & Prohibited Acts

The Fair Housing Act prohibits discrimination in the sale and rental of housing based on:

Race,

Color,

National origin,

Religion,

Sex,

Familial status, or

Disability.

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Prohibited Acts - It is a violation of the Fair Housing Act : Refuse to rent or sell housing; Refuse to negotiate for housing; Make housing unavailable; Deny a dwelling; Set different terms, conditions, or privileges for sale or rental of a dwelling; Provide different housing services or facilities; Falsely deny that housing is available for inspection, sale, or rental; Engage in blockbusting practices; or Deny anyone access to or membership in a facility or service (such as

multiple listing service) related to the sale or rent of housing. Threaten, coerce, intimidate, or interfere with anyone exercising a fair

housing right or assisting others who exercise that right.

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Unlawful refusal to rent or negotiate for rental housing could include: Failing to accept or consider a bona fide offer because of race, color, religion,

sex, disability, familial status, or national origin. Refusing to rent a dwelling to, or to negotiate the rental of a dwelling with, any

person because of race, color, religion, sex, disability, or national origin. Imposing different rental charges for the rental of a dwelling upon any person

because of race, color, religion, sex, disability, familial status, or national origin.

Using different qualification criteria or applications, or rental standards or procedures, such as income standards, application requirements, application fees, credit analysis or rental approval procedures or other requirements, because of race, color, religion, sex, disability, familial status, or national origin.

Evicting tenants because of their race, color, religion, sex, disability, familial status, or national origin or because of the race, color, religion, sex, disability, familial status, or national origin of a tenant's guest.

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Discrimination in terms, conditions and privileges and in services and facilities could include: Using different provisions in leases, such as those relating to rental

charges, security deposits and the terms of a lease, because of race, color, religion, sex, handicap, familial status, or national origin.

Failing or denying maintenance or repairs of rental dwellings because of race, color, religion, sex, handicap, familial status, or national origin.

Failing to process an offer for the rental of a dwelling or to communicate an offer accurately because of race, color, religion, sex, handicap, familial status, or national origin.

Limiting the use of privileges, services or facilities associated with a dwelling because of race, color, religion, sex, handicap, familial status, or national origin of an owner, tenant or a person associated with him or her.

Denying or limiting services or facilities in connection with the rental of a dwelling because a person failed or refused to provide sexual favors.

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Discriminatory representations on the availability could include: Indicating through words or conduct that a dwelling which is available

for inspection, sale, or rental has been sold or rented, because of race, color, religion, sex, handicap, familial status, or national origin.

Representing that covenants or other deed, trust or lease provisions which purport to restrict the sale or rental of dwellings because of race, color, religion, sex, handicap, familial status, or national origin preclude the sale of rental of a dwelling to a person.

Enforcing covenants or other deed, trust, or lease provisions which preclude the sale or rental of a dwelling to any person because of race, color, religion, sex, handicap, familial status, or national origin.

Limiting information, by word or conduct, regarding suitably priced dwellings available for inspection, sale or rental, because of race, color, religion, sex, handicap, familial status, or national origin.

Providing false or inaccurate information regarding the availability of a dwelling for sale or rental to any person, including testers, regardless of whether such person is actually seeking housing, because of race, color, religion, sex, handicap, familial status, or national origin.

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• Blockbusting (or steering) could include: Engaging, for profit, in conduct (including uninvited solicitations for

listings) which conveys to a person that a neighborhood is undergoing or is about to undergo a change in the race, color, religion, sex, handicap, familial status, or national origin of persons residing in it, in order to encourage the person to offer a dwelling for sale or rental.

Encouraging, for profit, any person to sell or rent a dwelling through assertions that the entry or prospective entry of persons of a particular race, color, religion, sex, familial status, or national origin, or with handicaps, can or will result in undesirable consequences for the project, neighborhood or community, such as a lowering of property values, an increase in criminal or antisocial behavior, or a decline in the quality of schools or other services or facilities.

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Discrimination in the provision of brokerage services could include: Setting different fees for access to or membership in a multiple listing

service because of race, color, religion, sex, handicap, familial status, or national origin.

Denying or limiting benefits accruing to members in a real estate brokers' organization because of race, color, religion, sex, handicap, familial status, or national origin.

Imposing different standards or criteria for membership in a real estate sales or rental organization because of race, color, religion, sex, handicap, familial status, or national origin.

Establishing geographic boundaries or office location or residence requirements for access to or membership or participation in any multiple listing service, real estate brokers' organization or other service, organization or facility relating to the business of selling or renting dwellings, because of race, color, religion, sex, handicap, familial status, or national origin.

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Other prohibited sale and rental conduct could include: Discouraging any person from inspecting, purchasing or renting a

dwelling because of race, color, religion, sex, handicap, familial status, or national origin, or because of the race, color, religion, sex, handicap, familial status, or national origin of persons in a community, neighborhood or development.

Discouraging the purchase or rental of a dwelling because of race, color, religion, sex, handicap, familial status, or national origin, by exaggerating drawbacks or failing to inform any person of desirable features of a dwelling or of a community, neighborhood, or development.

Communicating to any prospective purchaser that he or she would not be comfortable or compatible with existing residents of a community, neighborhood or development because of race, color, religion, sex, handicap, familial status, or national origin.

Assigning any person to a particular section of a community, neighborhood or development, or to a particular floor of a building, because of race, color, religion, sex, handicap, familial status, or national origin.

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Other prohibited sale and rental conduct could include, cont’d: Discharging or taking other adverse action against an employee,

broker or agent because he or she refused to participate in a discriminatory housing practice.

Employing codes or other devices to segregate or reject applicants, purchasers or renters, refusing to take or to show listings of dwellings in certain areas because of race, color, religion, sex, handicap, familial status, or national origin, or refusing to deal with certain brokers or agents because they or one or more of their clients are of a particular race, color, religion, sex, handicap, familial status, or national origin.

Denying or delaying the processing of an application made by a purchaser or renter or refusing to approve such a person for occupancy in a cooperative or condominium dwelling because of race, color, religion, sex, handicap, familial status, or national origin.

Refusing to provide municipal services or property or hazard insurance for dwellings or providing such services or insurance differently because of race, color, religion, sex, handicap, familial status, or national origin.

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Prohibited interference, coercion, or intimidation could include: Coercing a person, either orally, in writing, or by other means, to deny or limit

the benefits provided that person in connection with the sale or rental of a dwelling or in connection with a residential real estate-related transaction because of race, color, religion, sex, handicap, familial status, or national origin.

Threatening, intimidating or interfering with persons in their enjoyment of a dwelling because of the race, color, religion, sex, handicap, familial status, or national origin of such persons, or of visitors or associates of such persons.

Threatening an employee or agent with dismissal or an adverse employment action, or taking such adverse employment action, for any effort to assist a person seeking access to the sale or rental of a dwelling or seeking access to any residential real estate-related transaction, because of the race, color, religion, sex, handicap, familial status, or national origin of that person or of any person associated with that person.

Intimidating or threatening any person because that person is engaging in activities designed to make other persons aware of, or encouraging such other persons to exercise, rights granted or protected by this part.

Retaliating against any person because that person has made a complaint, testified, assisted, or participated in any manner in a proceeding under the Fair Housing Act.

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AdvertisingIt is also illegal under the Fair Housing Act to advertise or make any statement that indicates a limitation or preference based on race, color, national origin, religion, sex, familial status, or disability. Examples:Using words, phrases, photographs, illustrations, symbols or forms which convey that dwellings are available or not available to a particular group of persons because of membership in a protected class.Expressing to agents, brokers, employees, prospective sellers or renters or any other persons a preference for or limitation on any purchaser or renter because of membership in a protected class.Selecting media or locations for advertising the sale or rental of dwellings which deny particular segments of the housing market information about housing opportunities because of membership in a protected class.Refusing to publish advertising for the sale or rental of dwellings or requiring different charges or terms for such advertising because of membership in a protected class

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AdvertisingAccording to a 1995 HUD memo on advertising, the following is policy guidance on certain advertising issues:

1. Race, color, national origin. Real estate advertisements should state no discriminatory preference or limitation on account of race, color, or national origin. Use of words describing the housing, the current or potential residents, or the neighbors or neighborhood in racial or ethnic terms (i.e., white family home, no Irish) will create liability under this section. However, advertisements which are facially neutral will not create liability. Thus, complaints over use of phrases such as master bedroom, rare find, or desirable neighborhood should not be filed.

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2. Religion. Advertisements should not contain an explicit preference, limitation or discrimination on account of religion (i.e., no Jews, Christian home). Advertisements which use the legal name of an entity which contains a religious reference (for example, Roselawn Catholic Home), or those which contain a religious symbol, (such as a cross), standing alone, may indicate a religious preference. However, if such an advertisement includes a disclaimer (such as the statement "This Home does not discriminate on the basis of race, color, religion, national origin, sex, handicap or familial status") it will not violate the Act. Advertisements containing descriptions of properties (apartment complex with chapel), or services (kosher meals available) do not on their face state a preference for persons likely to make use of those facilities, and are not violations of the Act. The use of secularized terms or symbols relating to religious holidays such as Santa Claus, Easter Bunny or St. Valentine's Day images, or phrases such as "Merry Christmas", "Happy Easter", or the like does not constitute a violation of the Act.

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3. Sex. Advertisements for single family dwellings or separate units in a multi-family dwelling should contain no explicit preference, limitation or discrimination based on sex. Use of the term master bedroom does not constitute a violation of either the sex discrimination provisions or the race discrimination provisions. Terms such as "mother-in-law suite" and "bachelor apartment" are commonly used as physical descriptions of housing units and do not violate the Act.

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4. Handicap. Real estate advertisements should not contain explicit exclusions, limitations, or other indications of discrimination based on handicap (i.e., no wheelchairs). Advertisements containing descriptions of properties (great view, fourth-floor walk-up, walk-in closets), services or facilities(jogging trails), or neighborhoods (walk to bus-stop) do not violate the Act. Advertisements describing the conduct required of residents ("non-smoking", "sober") do not violate the Act. Advertisements containing descriptions of accessibility features are lawful (wheelchair ramp).

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5. Familial status. Advertisements may not state an explicit preference, limitation or discrimination based on familial status. Advertisements may not contain limitations on the number or ages of children, or state a preference for adults, couples or singles. Advertisements describing the properties (two bedroom, cozy, family room), services and facilities (no bicycles allowed) or neighborhoods (quiet streets) are not facially discriminatory and do not violate the Act.

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Fair Housing Poster A single-family dwelling (not being offered for sale or rental in

conjunction with the sale or rental of other dwellings): A real estate broker, agent, salesman, or person in the business of selling or renting, must post the poster at any place of business where the dwelling is being offered for sale or rental.

All other dwellings: Post at place of business AND at the dwelling (or if multiple dwellings being offered for sale or rental, at the model home instead of each individual dwelling. It must be posted at the beginning of construction and maintained throughout the period of construction.)

Requirements: The poster must be prominently displayed so as to be readily

apparent. The poster must be 11” x 14” and contain…

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Fair Housing: Exemptions

The Fair Housing Act prohibits discrimination in most types of housing, but there are exemptions.

In some circumstances, the Act exempts:

1.Owner-occupied buildings with no more than 4 units,

2.Single-family housing sold or rented without the use of a broker, and

3.Housing operated by organizations and private clubs that limit occupancy to members.

Regardless of individuals who may be exempt from complying under 1 or 2 above, they still must not discriminate in any advertisement.

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Other Laws and Rules Affecting Fair Housing

The Fair Housing Act prohibits discrimination in the sale and rental of housing based on race, color, national origin, religion, sex, familial status, or disability. Other laws or rules may provide more protection:

1. Texas Real Estate Licensing Act (TRELA) § 1101.652(b)(32): The commission may suspend or revoke a license issued under this chapter or take other disciplinary action authorized by this chapter if the license holder, while acting as a broker or salesperson discriminates against an owner, potential buyer, landlord, or potential tenant on the basis of race, color, religion, sex, disability, familial status, national origin, or ancestry, including directing a prospective buyer or tenant interested in equivalent properties to a different area based on the race, color, religion, sex, disability familial status, national origin, or ancestry of the potential owner or tenant.

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2.Texas Real Estate Commission (TREC) Rule 531.19: No real estate license holder shall inquire about, respond to or facilitate inquiries about, or make a disclosure of an owner, previous or current occupant, potential purchaser, lessor, or potential lessee of real property which indicates or is intended to indicate any preference, limitation, or discrimination based on the following: race, color, religion, sex, national origin, ancestry, familial status or disability. For the purpose of this section, handicap includes a person who had, may have had, has, or may have AIDS, HIV-related illnesses, or HIV infection as defined by the Centers for Disease Control of the United States

Public Health Service.

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3.Article 10, National Association of REALTORS® Code of Ethics: REALTORS® shall not deny equal professional services to any person for reasons of race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity. REALTORS® shall not be parties to any plan or agreement to discriminate against a person or persons on the basis of race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity. REALTORS®, in their real estate employment practices, shall not discriminate against any person or persons on the basis of race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity.

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4. HUD Program Rules: Additionally, housing providers that receive HUD funding, have loans insured by the Federal Housing Administration, as well as lenders insured by FHA, may be subject to HUD program regulations intended to ensure equal access of LGBT persons, including protecting the additional classes of sexual orientation and gender identity. Check with your HUD program for details.

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5. Local ordinances: Local city ordinances may provide more protection by including additional classes like students, elderly, or sexual orientation.

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A Closer Look: Familial Status and Disability

Familial Status Define Exemption – Housing for older persons Occupancy Limits

Keating Memorandum

Disability/Handicap FHA v. ADA Define Reasonable accommodations

Inquiries Assistance Animals

Reasonable modifications

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A Closer Look: Familial Status and DisabilityFamilial Status is defined as any family in which one or more individuals (who have not attained the age of 18 years) live with:

A parent, A legal custodian, or A designee of the parent or legal custodian, with the

written permission of the parent or legal custodian.

Note: The protections against discrimination also apply to any person who is pregnant or is in the process of securing legal custody of an individual who has not attained 18 years.

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Housing for older persons is exempt from the prohibition against familial status discrimination if:

HUD has determined that it is specifically designed for and occupied by elderly persons under a federal, state, or local government program,

It is occupied solely by persons who are 62 years of age or older, or

It houses at least one person who is 55 years of age or older in at least 80% of the occupied units, and adheres to a policy that demonstrates an intent to house persons who are 55 years of age or older which can be verified.

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Occupancy limits can implicate fair housing laws because they have the potential to have an effect on familial status.

Texas law provides a maximum number of adults that a landlord may allow to occupy a dwelling, and that is three times the number of bedrooms in the dwelling.

Adult means an individual 18 years of age or older.

Bedroom means an area of a dwelling intended as sleeping quarters. The term does not include a kitchen, dining room, bathroom, living room, utility room, or closet or storage area of a dwelling.

Exception: A landlord may allow an occupancy rate of more than 3 adults per bedroom:

1) To the extent that the landlord is required by a state or federal fair housing law to allow a higher occupancy rate or

2) If an adult whose occupancy causes a violation of the occupancy limit is seeking temporary sanctuary from family violence for a period that does not exceed 1 month.

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Occupancy limits can implicate fair housing laws because they have the potential to have an effect on familial status.

HUD also provides some guidance on occupancy limits through a document called the Keating Memorandum. The Keating Memorandum (available on HUD’s website) is considered guidance for governmental agencies in determining whether familial status discrimination exists as it relates to occupancy limits .

Essentially, the memorandum states that a landlord’s occupancy policy of two persons per bedroom is reasonable, however a number of factors can rebut that determination, including the size and number of bedrooms, the age of the children, and the configuration of the unit.

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Example from Keating Memorandum of what HUD might consider an unreasonable occupancy policy:

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Disability: Two federal statutes are implicated…FHA – The Fair Housing Act prohibits discrimination on the basis of a disability in private properties.

ADA – The Americans with Disabilities Act (ADA) prohibits discrimination on the basis of a disability in public buildings.

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Disability or handicap means a person with physical or mental impairment which substantially limits one or more of a person’s major life activities; a record (history) of the impairment; or being regarded as having the impairment.

Major life activities means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

The term does not include current illegal use or addiction to a controlled substance, but could protect persons who are recovering from substance abuse.

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It is unlawful to discriminate against any buyer or renter because of a disability of:

The buyer or renter; A person residing in or intending to reside in that dwelling after it is

sold, rented or made available; or Any person associated with the buyer or renter.

Discrimination includes: A refusal to make a reasonable accommodation in rules, practices,

or services if necessary to afford the person equal opportunity to use and enjoy a dwelling; and

A refusal to permit, at the expense of the person having a disability, a reasonable modification of existing premises occupied or to be occupied by the person if the modification is necessary to afford the person full enjoyment of the premises of a dwelling.

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It is unlawful to make an inquiry to determine whether any such person has a handicap or to make inquiry as to the nature or severity of a handicap. Exception: The Act does NOT prohibit the following inquiries, provided these

inquiries are made of all applicants, whether or not they have handicaps: Inquiry into an applicant's ability to meet the requirements of tenancy; Inquiry to determine whether an applicant is qualified for a dwelling available

only to persons with handicaps or to persons with a particular type of handicap; Inquiry to determine whether an applicant for a dwelling is qualified for a priority

available to persons with handicaps or to persons with a particular type of handicap;

Inquiring whether an applicant for a dwelling is a current illegal abuser or addict of a controlled substance;

Inquiring whether an applicant has been convicted of the illegal manufacture or distribution of a controlled substance.

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What is a reasonable accommodation? Reasonable accommodation is a change in rules, policies, practices, or services

that is feasible and practical under the circumstances. Example: Allowing an assistance animal in a property with a “no pets” policy.

Reasonable accommodations are made at landlord’s expense, if there is an expense involved.

A landlord must grant a person’s request for a reasonable accommodation unless:1. The request was not made by or on behalf of a person with a disability;

2. There is no disability-related need for the accommodation;

3. The accommodation imposes an undue financial or administrative burden on the landlord,

4. The accommodation would a fundamentally alter the nature of the landlord's operations, or

5. The tenancy poses a direct threat to the health or safety of other residents or whose the tenancy would result in substantial physical damage to the property of others.

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What kind of information can a housing provider request from a person with an obvious or known disability who is requesting a reasonable accommodation?

A provider is entitled to obtain information that is necessary to evaluate if a requested reasonable accommodation may be necessary because of a disability. If the person’s disability is obvious, or otherwise known to the provider, and if the need for the requested accommodation is also readily apparent and known, then the provider may not request any additional information about the requester’s disability or the disability-related need for the accommodation.

If the requester’s disability is known or readily apparent to the provider, but the need for the accommodation is not readily apparent or known, the provider may request only information that is necessary to evaluate the disability-related need for the accommodation.

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If a disability is not obvious, what kinds of information may a housing provider request from a person with a disability in support of a requested accommodation?In response to a request for a reasonable accommodation, a housing provider may request reliable disability-related information that:(1)is necessary to verify that the person meets the Act’s definition of disability (i.e., has a physical or mental impairment that substantially limits one or more major life activities), (2)describes the needed accommodation, and (3)shows the relationship between the person’s disability and the need for the requested accommodation.

Once a housing provider has established that a person meets the Act's definition of disability, the provider's request for documentation should seek only the information that is necessary to evaluate if the reasonable accommodation is needed because of a disability.

Such information must be kept confidential and must not be shared with other persons unless they need the information to make or assess a decision to grant or deny a reasonable accommodation request or unless disclosure is required by law (e.g., a court-issued subpoena requiring disclosure).

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Reasonable accommodations & Assistance Animals:

What is an assistance animal?

An assistance animal is not a pet. It is an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability. Assistance animals perform many disability-related functions, including but not limited to, guiding individuals who are blind or have low vision, alerting individuals who are deaf or hard of hearing to sounds, providing protection or rescue assistance, pulling a a wheelchair, fetching items, alerting person to impending seizures, or providing emotional support to persons with disabilities who have a disability-related need for such support.

What kind of training must an assistance animal have? None is required under the FHA.

What kind of animals can be assistance animals? While dogs are the most common type of assistance animal, other animals can also be assistance animals.

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A Closer Look: Familial Status and DisabilityHomeowner’s Insurance & Assistance Animals:

What if a homeowner’s insurance policy restricts certain breeds of dogs?

•According to a 2006 HUD memo (available on HUD’s website):

An accommodation is unreasonable if it imposes an undue financial and administrative burden on a housing providers operations. If a housing providers insurance carrier would cancel, substantially increase the costs of the insurance policy, or adversely change the policy terms because of the presence of a certain breed of dog or a certain animal, HUD will find that this imposes an undue financial and administrative burden on the housing provider. However, the investigator must substantiate the housing provider’s claim regarding the potential loss of or adverse change to the insurance coverage, by verifying such a claim with the insurance company directly and considering whether comparable insurance, without the restriction, is available in the market.

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A Closer Look: Familial Status and Disability• Assistance animals “certificates”

• Is it “reliable documentation”?

Emotional Support Animal Certificate

This certifies that Gloria the Parrot is an emotional support animal under the

Fair Housing Act.

Emotional Support Animal, Inc.

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What is a reasonable modification? Reasonable modification means a structural change made to existing premises, in order to

afford such person full enjoyment of the premises. This can include changes to interiors and exteriors of the dwelling, and to common and public use areas.

Example: Install grab bars in a bathroom, flashing lights when someone rings the doorbell, etc.

Reasonable modifications are generally made at the tenant’s expense.

Exception: Under Texas law, if requested for or by a person with a hearing-impairment disability, a smoke alarm must be capable of alerting a hearing-impaired person in the bedrooms it serves, at owner’s expense.

A landlord must grant a person’s request for a reasonable modification unless:

1) The request was not made by or on behalf of a person with a disability; or

2) There is no disability-related need for the accommodation.

In certain situations, a landlord may condition permission…

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When reasonable, a landlord may condition permission for a modification on the tenant agreeing to:

1.Restore the interior of the premises to the prior condition if reasonable to do so, reasonable wear and tear excepted.

2.Provide a reasonable description of the proposed modification, as well as reasonable assurances that the work will be done in a workman-like manner and that any required building permits will be obtained.

3.Pay into an interest-bearing escrow account, over a reasonable amount of time, a reasonable amount of money not to exceed the costs of restoration, if necessary to ensure funds are available for restoration. The interest accrues to the benefit of the tenant. An owner cannot increase the security deposit.

Note: A resident cannot be required to restore common area or dwelling exterior modifications.

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Design and construction requirements:

Buildings consisting of four or more dwelling units and that may have one or more elevators that were first occupied after March 13, 1991, must have at least one building on an accessible route (unless impractical because of terrain) where:

• Public and common areas are accessible to persons with disabilities• Doors and hallways are sufficiently wide enough to allow passage by

handicapped persons in wheelchairs; and • All units have:

•Accessible routes into and through each unit; •Accessible light switches;•Accessible electrical outlets, thermostats and other environmental controls;•Reinforcement in bathroom walls to allow later installation of grab bars; and•Usable kitchens and bathrooms that allow an individual in a wheelchair to maneuver.

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Outline

I. Fair Housing Acta. Historyb. Purposec. Protected classes and prohibited actsd. Advertisinge. Fair Housing Posterf. Exemptions

II. Other Laws or Rules Affecting Fair Housing

III. A Closer Look: Familial Status & Disability

IV. Disparate Impact

V. The Complaint Process

VI. Frequently Asked Questions

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Disparate Impact• In March 2013, HUD issued a final rule stating that the Fair Housing Act

also prohibits practices with an unjustified discriminatory effect, regardless of whether there was an intent to discriminate.

• On June 25th, the U.S. Supreme Court upheld the use of the legal theory known as disparate impact under the federal Fair Housing Act, but with certain limits.

• Although the Supreme Court decided the Fair Housing Act does allow disparate-impact claims, it also imposed significant limitations when making such a claim.

• For instance, the Court made clear that disparate-impact claims cannot be based solely on statistical differences. A plaintiff, like a tenant, would have to show that a defendant’s policy actually caused that discriminatory effect. And defendants cannot be liable under a disparate-impact theory if they can show the particular policy is necessary to achieve a valid, legitimate interest, and a plaintiff cannot prove there is an actual available alternative that has less disparate impact and still serves that interest.

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The Complaint Process

Avoiding fair housing complaints… Be neutral in any matters concerning the race, color,

national origin, religion, sex, familial status, or handicapped status of an applicants.

Treat applicants/tenants uniformly, unless the law requires otherwise.

Document everything

Top Areas for Complaints: Application Process

Evictions

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Who can file a complaint? An aggrieved person, meaning any

person who:

1) Claims to have been injured by a discriminatory housing practice; or

2) Believes that such person will be injured by a discriminatory housing practice that is about to occur.

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What happens when a complaint is filed? HUD/TWC will notify the alleged violator of the complaint and permit that person to

submit an answer;

HUD/TWC will investigate the complaint and determine whether there is reasonable cause to believe the Act has been violated;

During the complaint investigation, HUD/TWC will offer, if feasible, the complainant and the respondent the opportunity to voluntarily resolve the complaint with a conciliation agreement. Once the complainant and the respondent sign an agreement, and HUD/TWC approves the agreement, HUD/TWC will no longer pursue the complaint.

What happens after a complaint investigation? If, after investigating the complaint, HUD/TWC finds reasonable cause to believe that

discrimination occurred, it will inform the complainant and an administrative hearing will be scheduled, unless the complainant or the respondent elect to have a judicial determination.

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If an administrative law judge (ALJ) determines that a violation occurred, a respondent can be ordered:

To compensate the complainant for actual damages,

To provide injunctive or other equitable relief, for example, make the housing available to the complainant,

To pay a civil penalty, and

To pay reasonable attorney’s fees and costs.

If the complainant or the respondent choose to have the case decided in Federal District Court, the Attorney General will file a suit and litigate it on your behalf. Like the ALA, the District Court can order relief, and award actual damages, attorney's fees and costs. In addition, the court can award punitive damages.

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Frequently Asked Questions

I manage a property with a ‘no pets policy’ and we are in the process of leasing it right now. The landlord decided to lease to a hearing-impaired tenant who is requesting her dog, a pitbull, be allowed as her assistance animal. The owner has a homeowner’s insurance policy which prohibits “vicious” breeds, including pitbulls. What can the owner do?

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Generally speaking, the landlord must allow such an accommodation, unless it is unreasonable. An accommodation is unreasonable if it imposes an undue financial and administrative burden on a housing provider’s operations.

According to the 2006 HUD memo on assistance animals and insurance policy restrictions, if a housing provider’s insurance carrier would cancel, substantially increase the costs of the insurance policy, or adversely change the policy terms because of the presence of a certain breed of dog or a certain animal, HUD will find that this imposes an undue financial and administrative burden. When verifying such a claim, a HUD investigator must substantiate the housing provider’s claim, by verifying with the insruance company directly and considering whether comparable insurance, with the restriction, is available in the market.

If a landlord is in such a situation, the landlord may want to ascertain whether comparable insurance is available with the restriction before denying the request.

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In advertising a rental property for a three-bedroom home, which phrase is improper? Quiet neighborhood Near playground Single family home No kids

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I am a property manager. A prospective tenant has submitted a rental application. A criminal background check revealed that the prospective tenant is a registered sex offender. Can the property owner refuse to rent his property based on the fact that the prospective tenant is a registered sex offender?

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Yes. Sex offenders are not protected under the Fair Housing Act.

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A prospective tenant learns from a neighbor that the former tenant was infected with the HIV virus. The prospective tenant contacts the property manager to inquire about whether this is true. Is the property manager required to disclose such information?

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No. The Fair Housing Act prohibits agents from making unsolicited disclosures concerning whether sellers or property occupants have tested positive for HIV or have been diagnosed with AIDS. The TRELA states that licensees shall have no duty to inquire about, make a disclosure related to, or release information related to whether a previous or current occupant of real property had, may have had, has or may have AIDS, HIV-related illness or HIV infection.

NAR provides guidance on how to respond by stating: “It is the policy of our firm not to answer inquiries of this nature one way or the other since the firm feels that this information is not material to the transaction. In addition, any type of response by me or other agents of our firm may be a violation of the federal fair housing laws. If you believe that this information is relevant to your decision to buy/rent the property, you must pursue this investigation on your own.”

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Due to a disability, a tenant requests the ability to have an assistance animal in the rental property as a reasonable accommodation. Can a property owner require the tenant to pay an additional deposit as a condition for allowing a service animal in the dwelling?

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No. The property owner cannot require the tenant to pay an additional deposit as a condition for allowing the assistance animal in the dwelling. However, the tenant would still be legally responsible for any damage caused by such an animal.

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Same facts as previous question. Can the property owner require the tenant to provide documentation evidencing the need for an assistance animal?

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Yes. The property owner is entitled to obtain information that is necessary to evaluate if a requested reasonable accommodation may be necessary because of a disability. If a person’s disability is obvious, or otherwise known to the provider, and if the need for the requested accommodation is also readily apparent or known, then the provider may not request any additional information about the requester's disability or the disability-related need for the accommodation.If the requester's disability is known or readily apparent to the provider, but the need for the accommodation is not readily apparent or known, the provider may request only information that is necessary to evaluate the disability-related need for the accommodation.

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A tenant has requested that she be allowed, as a reasonable accommodation for her severe depression, to have an emotional support animal in the property. The animal she would like to bring in is a pit bull. I’ve heard terrible things about pit bulls, like how dangerous they are. Can I reject this request?

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Possibly, but not without an assessment of whether the accommodation is needed and reasonable. After receiving such a request, the housing provider must consider:

(1) Does the person seeking to use and live with the animal have a disability — i.e., a physical or mental impairment that substantially limits one or more major life activities?

(2) Does the person making the request have a disability-related need for an assistance animal?

If the answer to question (1) or (2) is "no," then the FHA do not require a modification to a provider's "no pets" policy, and the reasonable accommodation request may be denied. If the answers to questions (1) and (2) are "yes," the FHA require the housing provider to make a reasonable accommodation to a "no pets" policy, unless doing so would impose an undue financial burden or would fundamentally alter the nature of the housing provider's services. The request may also be denied if: (1) the specific assistance animal in question poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation, or (2) the specific assistance animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation. Breed, size, and weight limitations may not be applied to an assistance animal. A determination that an assistance animal poses a direct threat of harm to others or would cause substantial physical damage to the property of others must be based on an individualized assessment that relies on objective evidence about the specific animal's actual conduct — not on mere speculation or fear about the types of harm or damage an animal may cause and not on evidence about harm or damage that other animals have caused.

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Can I require a photo ID from an applicant?

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Yes, but only use a photo ID for the purpose of conducting an actual verification of an applicant’s identity and/or check on criminal history, rental history, or credit history. Never use the photo ID to discriminate against the applicant who is a member of a protected class. Be uniform and consistent. If you decide to require photo ID from an applicant, you must require it for ALL applicants.

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Fair Housing Issues

Questions?

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Fair Housing Issues

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Documents

FAIR HOUSING ISSUES Presented by Abby Lee, Senior Associate Counsel August 19, 2015