Fair Housing Trends – 2015

As we approach the end of the year, it is interesting to look back on 2015 and review the trends in fair housing that affect how we manage our properties. 2015 was an extremely active year from a fair housing perspective, and included a landmark Supreme Court Decision. Here are some of the major occurrences in the fair housing field over the past year.

• HUD increased its focus on “retaliation” It is important to remember that even if an original claim is dismissed, retaliation is a separate offense. Do not in any way retaliate against a person for lodging a fair housing claim – even if the claim is completely bogus.
• Legalization of marijuana – both for medicinal and recreational use – is a growing (forgive the pun) trend. However, the use of marijuana for any reason – including medical – violates federal drug laws. This means that for purposes of the federal fair housing act, a reasonable accommodation does not have to be made for a person who wants to use medical marijuana. However, while federal law generally trumps local or state laws, if you manage property in a state that permits the use of medical marijuana, check with your attorney before denying the request of a disabled person to use medically prescribed marijuana.
• HUD is getting very strict with communities that enforce rules that have the effect of discriminating against families with children. Safety rules for children are fine, but don’t single out the behavior of children in your community rules. Also, you must be willing to waive certain rules as a reasonable accommodation to a person with a disability.
• Documentation continues to be a major weakness in many fair housing cases. Owners and managers should document all interaction with residents and prospects and keep the records until your attorney gives the OK to destroy them.
• Disparate Impact is no longer a legal “theory;” the Supreme Court ruled in the Summer of 2015 that a case may be brought based on policies that have a discriminatory effect on members of protected classes – even if the discrimination is not intentional. Owners and managers should examine all policies and practices for negative impacts based on protected characteristics.
• In 2015, HUD strongly reiterated its intention to pursue cases where landlords refuse to grant reasonable accommodations to disabled persons. All owners should have a reasonable accommodation policy. All decisions relative to granting or denying reasonable accommodation requests should be made at the corporate (not property) level. When requests are denied, owners should always work to find a workable alternative. In 2015, many cases involved refusal of landlords to permit assistance animals. Owners must fully understand the difference between the Americans with Disabilities Act and Fair Housing Act definitions of what constitutes an assistance animal.

As we enter 2016, it is good to remember the fair housing basics:

1. Thousands of fair housing complaints are lodged each year. Have a procedure for responding to such complaints – and follow the procedure. Make sure all employees fully understand the procedure.
2. Many states and localities have fair housing laws in addition to the federal laws – know them!
3. Review all written material on a regular basis for potentially discriminatory statements. Train employees regarding what to say – both in person and on the phone, and ensure that email responses to inquiries are consistent and non-discriminatory.