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Friday, October 23, 2009

Types of Discrimination Against Persons with Disabilities Prohibited by the Fair Housing Act

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The goal of the Fair Housing Act is to ensure “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.” With respect to people with disabilities, the Act serves to:

Give people with disabilities opportunities to choose where they want to live;

Assure that reasonable accommodations and reasonable modifications are made so that a person with a disability can secure and use housing as fully as a person without a disability.

Assure that persons with disabilities are able to live free from intimidation and harassment; and

Require that multi-family housing built for first occupancy after March 13, 1991, has certain accessible features (e.g., a usable kitchen for a person who uses a wheelchair).

The Fair Housing Act prohibits housing providers from discriminating against applicants or residents because of their disability or the disability of anyone associated with them and from treating persons with disabilities less favorably than others because of their disability. The Act also prohibits housing providers from refusing residency to persons with disabilities, or, with some narrow exceptions, placing conditions on their residency, because those persons may require reasonable modifications or reasonable accommodations.

With respect to reasonable accommodations and reasonable modifications:

The Act makes it unlawful for any person to refuse “to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford . . . person(s) [with disabilities] equal opportunity to use and enjoy a dwelling.”

The Act makes it unlawful for any person to refuse “to permit, at the expense of the [disabled] person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises, except that, in the case of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.”

It is important for all real estate professionals to remember that the federal Fair Housing Act prohibits discrimination in housing on the basis of race, color, religion, sex, familial status, national origin and disability.

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To learn more about Fair Housing issues (and many other real estate topics), please visit us at www.123ConEd.com. 123 ConEd LLC (www.123ConEd.com) is a leading online provider of continuing education courses to real estate professionals in Michigan. Our online Michigan real estate con ed courses are fully approved and properly certified by the Michigan Department of Energy, Labor & Economic Growth.

When and How a Tenant Must Request a Reasonable Accommodation or Permission to Make a Reasonable Modification

www.123ConEd.com Under the Fair Housing Act, a resident or an applicant for housing makes a reasonable accommodation request whenever she makes clear to the housing provider that she is requesting an exception, change, or adjustment to a rule, policy, practice, or service because of her disability. She should explain what type of accommodation she is requesting and, if the need for the accommodation is not readily apparent or not known to the provider, explain the relationship between the requested accommodation and her disability.

Similarly, a resident or an applicant for housing makes a reasonable modification request whenever she makes clear to the housing provider that she is requesting permission to make a structural change to the premises because of her disability. She should explain that she has a disability, if not readily apparent or not known to the housing provider, the type of modification she is requesting, and the relationship between the requested modification and her disability.

An applicant or resident is not entitled to receive a reasonable accommodation or modification unless she requests one. However, the Fair Housing Act does not require that a request be made in a particular manner or at a particular time. A person with a disability need not personally make the reasonable accommodation request; the request can be made by a family member or someone else who is acting on her behalf. An individual making a reasonable accommodation or modification request does not need to mention the Act or use the words “reasonable accommodation” or “reasonable modification.” However, the requester must make the request in a manner that a reasonable person would understand to be a request for an exception, change, or adjustment to a rule, policy, practice, or service because of a disability or that a reasonable person would understand to be a request for permission to make a structural change because of a disability.

Although a reasonable accommodation or modification request can be made orally or in writing, it is usually helpful for both the resident and the housing provider if the request is made in writing. This will help prevent misunderstandings regarding what is being requested, or whether the request was made. To facilitate the processing and consideration of the request, residents or prospective residents may wish to check with a housing provider in advance to determine if the provider has a preference regarding the manner in which the request is made. However, housing providers must give appropriate consideration to reasonable accommodation and modification requests even if the requester makes the request orally or does not use the provider’s preferred forms or procedures for making such requests.

Example: A tenant in a large apartment building makes an oral request that she be assigned a mailbox in a location that she can easily access because of a physical disability that limits her ability to reach and bend. The provider would prefer that the tenant make the accommodation request on a pre-printed form, but the tenant fails to complete the form. The provider must consider the reasonable accommodation request even though the tenant would not use the provider’s designated form.

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To learn more about Fair Housing issues (and many other treal estate topics), please visit us at www.123ConEd.com. 123 ConEd LLC (www.123ConEd.com) is a leading online provider of continuing education courses to real estate professionals in Michigan. Our online Michigan real estate con ed courses are fully approved and properly certified by the Michigan Department of Energy, Labor & Economic Growth.

Thursday, September 24, 2009

Michigan Laws Related to Mold

www.123ConEd.com Are there laws in the State of Michigan related to mold issues?

It might seem surprising, but the State of Michigan does not have laws that require anyone to cleanup, remove, or report mold in any indoor environment. Also, the State of Michigan does not have a program to address issues related to mold, other than to provide people basic information about mold clean-up. Moreover, the State of Michigan does not certify or license contractors for mold removal.

However, laws do exist that cover certain situations that involve indoor mold. The following is a list government agencies that may be able to provide guidance if your house or apartment has indoor mold.

Landlord and tenant relationships: If a tenant is renting an apartment or house, that person has the right to expect certain minimum standards referred to as "warranties of habitability" that provide minimum standards of decent, safe, sanitary housing specified in the state or local housing code. For more information on landlord-tenant relationships go to: http://www.tenant.net/Other_Areas/Michigan/index.html.

Fraud in mold remediation companies: If you believe you are a victim of fraudulent business practices from a company involved in mold remediation, contact: Michigan Attorney General's Office, Michigan Consumer Protection Division, P.O. Box 30213-7713, Lansing, MI 48909, (517) 373-1140

Legal issues related to new home construction and mold: If you have questions about laws regarding new housing construction and contractors actions related to mold, contact: Michigan Department of Labor & Economic Growth, Bureau of Commercial Services/Enforcement Division, P.O. Box 30018, Lansing MI 48909, (517) 241-9202

For more information on mold:

Michigan Department of Community Health Toxics and Health hotline and website: 1-800-648-6942, www.michigan.gov/mdch-toxics
Your local public health department, find it at http://www.malph.org/page.cfm/108/
Centers for Disease Control: http://www.cdc.gov/mold/
National Center for Housing and the Environment: http://www.stopmold.org/

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To learn more about a variety of real estate topics, please visit us at www.123ConEd.com. We are a leading online provider of Michigan real estate continuing education. All of our courses are fully approved and properly certified by the State of Michigan, and are offered online.

Sunday, March 22, 2009

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Examples of Discriminatory Advertisements

Although not an exhaustive list, these examples should give you some idea of what might constitute a discriminatory housing advertisement under fair housing laws. Most of these examples are obvious and should come as no surprise, but it never hurts to have a short refresher on this important topic.

1. Race/Color

Ads stating a preference for the race of a desired applicant (e.g., “no blacks,” “whites only,” etc.)

Ads describing the race of current occupants of the complex or neighborhood (e.g., “African-American neighborhood,” “most residents are Asian,” “lots of Hispanic families,” etc.)

2. Religion

Ads stating a preference for the religion of a desired applicant (e.g., “Christians only,” “no Muslims,” etc.)

Ads describing the religion of current occupants of the complex or neighborhood (e.g., “nice, Christian neighborhood,” “Jewish family seeks roommate,” etc.)

3. National Origin

Ads stating a preference for a certain national origin (e.g., “no immigrants,” “no foreigners,” “Irish preferred,” etc.)

Ads posted only in a language other than English

Ads describing the national origin of current occupants of the complex or neighborhood (e.g., “predominately Latino neighborhood,” “mostly Asian residents,” etc.)

4. Handicap/Disability

Ads stating a preference for able-bodied tenants (e.g., “no wheelchairs,” “must be able to live independently,” etc.)

Ads describing the complex as unable to accommodate people with disabilities (e.g., “units are not accessible”, “no pets, even seeing eye dogs”, etc.)

5. Familial Status

Ads stating a clear preference for families without children (e.g., “no children,” “no kids and no pets,” “single occupancy only,” etc.)

Ads that could discourage families with children (e.g., “ideal for working professionals,” “perfect for single or couple,” “nice, quiet, mature, neighborhood,” etc.)

6. Sex/Gender

Ads stating a preference for one sex over another (e.g., “no young men,” “female preferred,” etc.)

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To learn more about Fair Housing issues (and many other topics affecting Michigan real estate professionals), please visit us at www.123ConEd.com. 123 ConEd LLC (www.123ConEd.com) is a leading online provider of continuing education courses to real estate professionals in Michigan. Our online Michigan real estate con ed courses are fully approved and properly certified by the Michigan Department of Labor & Economic Growth. All of our courses are designed to offer our students the most information, as quickly and economically as possible.

What should I consider before running ads with human models?

Fair housing laws apply to all types of advertising and marketing used in home sales and purchases, including ads in newspapers, on the radio, in magazines, on the Internet, on television, on flyers, even in comments for a listing in the Multiple Listing Service. But what should you consider before running ads with human models?

Selective advertising may involve an advertising campaign using human models primarily in media that cater to one racial or national origin segment of the population without a complementary advertising campaign that is directed at other groups. Another example may involve use of racially mixed models by a developer to advertise one development and not others. Similar care must be exercised in advertising in publications or other media directed at one particular sex, or at persons without children. Such selective advertising may involve the use of human models of members of only one sex, or of adults only, in displays, photographs or drawings to indicate preferences for one sex or the other, or for adults to the exclusion of children.

Avoid using pictures or images that show preference or discourage people because of their protected class. If you use advertising with photographs or drawings of people, try to show men, women, children, people with disabilities, and people of all races, nationalities and ages in a way that reflects the population as a whole. A series of newspaper ads run over a period of weeks using only white models could be found to be a violation of fair housing laws.

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Who qualifies as a person with a disability under the Fair Housing Act?

The following is a summary of what it takes to qualify as a "person with a disability" under the Fair Housing Act.

The Fair Housing Act defines a person with a disability to include (1) individuals with a physical or mental impairment that substantially limits one or more major life activities; (2) individuals who are regarded as having such an impairment; and (3) individuals with a record of such an impairment. The Act defines certain terms as follows:

The term “physical or mental impairment” includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, Human Immunodeficiency Virus (HIV) infection, mental retardation, emotional illness, drug addiction (other than addiction caused by current, illegal use of a controlled substance) and alcoholism.

The term “substantially limits” suggests that the limitation is “significant” or “to a large degree.”

The term “major life activity” means those activities that are of central importance to daily life, such as seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning, and speaking. This list of major life activities is not exhaustive.

It's important for all real estate professionals to remember that the Fair Housing Act prohibits discrimination in housing on the basis of race, color, religion, sex, familial status, national origin and disability.

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Types of Discrimination Against Persons with Disabilities Prohibited by the Fair Housing Act

Give people with disabilities opportunities to choose where they want to live;

Assure that reasonable accommodations and reasonable modifications are made so that a person with a disability can secure and use housing as fully as a person without a disability.

Assure that persons with disabilities are able to live free from intimidation and harassment; and

Require that multi-family housing built for first occupancy after March 13, 1991, has certain accessible features (e.g., a usable kitchen for a person who uses a wheelchair).

With respect to reasonable accommodations and reasonable modifications:

The Act makes it unlawful for any person to refuse “to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford . . . person(s) [with disabilities] equal opportunity to use and enjoy a dwelling."

The Act makes it unlawful for any person to refuse “to permit, at the expense of the [disabled] person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises, except that, in the case of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.”

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Department of Justice Sues a Large Multi-Family Housing Developer Alleging Disability-Based Housing Discrimination

Here is another example of a lawsuit that was recently filed by the United States Department of Justice ("DOJ") to enforce the Fair Housing Act. I try to post summaries of these types of cases in order to provide timely updates to real estate professionals about the "dos and don'ts" under the Fair Housing Act, since fair housing is such an important issue.

On March 4, 2009), the DOJ filed a lawsuit against JPI Construction L.P. (“JPI”) and six JPI-affiliated companies for failing to provide accessible features required by the Fair Housing Act and the Americans with Disabilities Act at multi-family housing developments.

Since 1991, when the Fair Housing Act first required most new multi-family housing to contain accessible features, JPI and its affiliates have built more than 200 apartment, condominium and other housing complexes in twenty-six states and the District of Columbia.

According to the DOJ’s complaint, the defendants failed to design and construct accessible dwelling units and public and common use areas at several of its complexes that are located in various states throughout the country. According to the complaint, certain complexes designed and constructed by the defendants have inaccessible steps and curbs leading to units, steeply sloped routes leading to units, and no accessible routes to site amenities, including inaccessible trash facilities, barbecue grills and cookout tables. In addition, certain housing units have narrow doors and hallways; kitchens that lack accessible clear floor space at the sinks, ranges and refrigerators; bathrooms that lack accessible clear floor space at the toilets and tubs; and thermostats that are mounted too high to be accessible to a person using a wheelchair. The lawsuit filed by the DOJ is an allegation of unlawful conduct, and the allegations must still be proven in court.

The lawsuit seeks money damages to compensate victims and a civil penalty to be paid to the government. The lawsuit also seeks a court order requiring the defendants to modify the complexes to bring them into compliance with federal laws. This case is currently pending in the United States District Court for the Northern District of Texas.

As every real estate professional should already know, the Fair Housing Act prohibits discrimination in housing on the basis of race, color, religion, sex, familial status, national origin and disability. This case demonstrates that failing to design and construct multi-family housing with basic features of accessibility can lead to a violation of fair housing laws.

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Sunday, March 1, 2009

In the wake of the attacks of September 11, 2001, is it okay to screen housing applicants on the basis of their citizenship status?

The question often arises whether is it okay to screen housing applicants on the basis of their citizenship status. This question seems to have come up more often in the wake of the attacks of September 11, 2001.

The Fair Housing Act does not prohibit discrimination based solely on a person's citizenship status. Accordingly, asking housing applicants to provide documentation of their citizenship or immigration status during the screening process would not violate the Fair Housing Act. In fact, such measures have been in place for a number of years in screening applicants for federally-assisted housing. For these properties, HUD regulations define what kind of documents are considered acceptable evidence of citizenship or eligible immigration status and outline the process for collecting and verifying such documents. These procedures are uniformly applied to every applicant. Landlords who are considering implementing similar measures must make sure they are carried out in a nondiscriminatory fashion.

It is important to keep in mind that it is still unlawful to screen housing applicants on the basis of race, color, religion, sex, national origin, disability, or familial status, since those are protected classes under the Fair Housing Act.

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Some Examples of Discriminatory Advertisements in Real Estate

As every real estate professional should already know, the Fair Housing Act prohibits discrimination in housing on the basis of race, color, religion, sex, familial status, national origin and disability. Fair housing laws prohibit making, printing or publishing any notice, statement, or advertisement that indicates any preference, limitation, or discrimination based on a protected class.

Although not an exhaustive list, the following are a few examples of what might constitute a discriminatory housing advertisement.

1. Race/Color

Ads stating a preference for the race of a desired applicant (e.g., “no blacks,” “whites only,” etc.)

Ads describing the race of current occupants of the complex or neighborhood (e.g., “African-American neighborhood,” “most residents are Asian,” “lots of Hispanic families,” etc.)

2. Religion

Ads stating a preference for the religion of a desired applicant (e.g., “Christians only,” “no Muslims,” etc.)

Ads describing the religion of current occupants of the complex or neighborhood (e.g., “nice, Christian neighborhood,” “Jewish family seeks roommate,” etc.)

3. National Origin

Ads stating a preference for a certain national origin (e.g., “no immigrants,” “no foreigners,” “Irish preferred,” etc.)

Ads posted only in a language other than English

Ads describing the national origin of current occupants of the complex or neighborhood (e.g., “predominately Latino neighborhood,” “mostly Asian residents,” etc.)

4. Handicap/Disability

Ads stating a preference for able-bodied tenants (e.g., “no wheelchairs,” “must be able to live independently,” etc.)

Ads describing the complex as unable to accommodate people with disabilities (e.g., “units are not accessible”, “no pets, even seeing eye dogs”, etc.)

5. Familial Status

Ads stating a clear preference for families without children (e.g., “no children,” “no kids and no pets,” “single occupancy only,” etc.)

Ads that could discourage families with children (e.g., “ideal for working professionals,” “perfect for single or couple,” “nice, quiet, mature, neighborhood,” etc.)

6. Sex/Gender

Ads stating a preference for one sex over another (e.g., “no young men,” “female preferred,” etc.)

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Requirements for Using Fair Housing Logos and Posters

Using the fair housing logo is a great way to show a commitment to fair housing. Many housing providers use the Equal Housing Opportunity logo in their ads and on their written materials to show that they do business in compliance with fair housing laws.

HUD requires that owners and managers display a fair housing poster with its logo at rental offices. This applies to rentals covered by the federal Fair Housing Act, and to dwellings rented through a real estate broker/agent. See 24 C.F.R. §§ 110.1 – 110.30.

Who Is Required to Display a Fair Housing Poster?

HUD’s regulations require the following:

If a single-family dwelling (one that is not being offered for sale or rental in conjunction with the sale or rental of other dwellings) is offered for sale or rental through a real estate broker, agent, salesman, or person in the business of selling or renting dwellings, such person must post and maintain a fair housing poster at any place of business where the dwelling is offered for sale or rental. 24 C.F.R. § 110.10(a)(1).

With respect to all other dwellings covered by the Fair Housing Act, a fair housing poster must be posted and maintained at:

o Any place of business where the dwelling is offered for sale or rental, and

o The dwelling (except that with respect to a single-family dwelling that is being offered for sale or rental in conjunction with the sale or rental of other dwellings, the fair housing poster may be posted and maintained at the model dwellings instead of at each of the individual dwellings). 24 C.F.R. § 110.10(a)(2).

With respect to new construction, the fair housing poster must be posted at the beginning of construction and maintained throughout the period of construction and sale or rental. 24 C.F.R. § 110.10(a)(3).

HUD does not require the posting and maintaining a fair housing poster on vacant land. 24 C.F.R. § 110.10(b)(1).

All real estate brokers and agents must post and maintain a fair housing poster at all of their places of business. 24 C.F.R. § 110.10(c).

Location of Posters

All fair housing posters must be prominently displayed “so as to be readily apparent to all persons seeking housing accommodations or seeking to engage in residential real estate-related transactions or brokerage services.” C.F.R. § 110.15.

Availability of Posters

Fair housing posters can be obtained from HUD’s regional and area offices. A facsimile may be used if the poster and the lettering are equivalent in size and legibility to the poster available from HUD. 24 C.F.R. § 110.20.

Effect of Failure to Display Poster

Any person who claims to have been injured by a discriminatory housing practice may file a complaint with HUD. And consistent with that, a failure to display the fair housing poster as required by this part shall be deemed prima facie evidence of a discriminatory housing practice. 24 C.F.R. § 110.30

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A Housing Provider Can't Condition Approval of a Request for a Reasonable Modification on the Requester Obtaining Special Liability Insurance

The question often arises whether a housing provider or homeowner’s association may condition the approval of a request for a reasonable modification (under the Fair Housing Act) on the requester obtaining special liability insurance.

The answer is, no. Imposition of such a requirement would constitute a violation of the Fair Housing Act.

For Example: Because of a mobility disability, a tenant wants to install a ramp outside his unit. The housing provider informs the tenant that the ramp may be installed, but only after the tenant obtains separate liability insurance for the ramp out of concern for the housing provider’s potential liability. The housing provider may not impose a requirement of liability insurance as a condition of approval of the ramp.

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How Does A Housing Provider Know If An Accommodation Or Modification Request Is “Reasonable”? When Can The Housing Provider Refuse A Request?

Under the Fair Housing Act, a person with a disability may be entitled to a reasonable accommodation or modification. A reasonable modification is a structural change made to the premises whereas a reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service. A person with a disability may need either a reasonable accommodation or a reasonable modification, or both, in order to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces.

An accommodation or modification is reasonable if:

It is related to the resident’s disability needs;
Is not an undue administrative and financial burden for the housing provider;
Does not fundamentally alter the nature of the provider’s operations.

Undue Burden: The request must not impose an undue financial and administrative burden on the housing provider. The determination of undue financial and administrative burden must be made on a case-by-case basis involving various factors, such as the cost of the requested accommodation, the financial resources of the provider, the benefits that the accommodation would provide to the requester, and the availability of alternative accommodations that would effectively meet the requester’s disability-related needs.

Example: An applicant who uses a walker prefers a third-story rental in an older walk-up building – the housing provider does not have to install an elevator if such a modification is cost-prohibitive.

Fundamental Alteration: The requested accommodation or modification must not require the housing provider to make a fundamental alteration in the essential nature of the provider’s operations.

Example: A resident with a disability cannot do his own housekeeping and the housing provider does not supply housekeeping for residents. A request for such services is not reasonable.

Refusing a Request: When a housing provider refuses a requested accommodation because it is not reasonable, the provider should discuss with the requester whether an alternative accommodation would effectively address the person’s disability-related needs. If an alternative accommodation would effectively meet the person’s needs and is reasonable, the provider must grant it.

A failure to reach an agreement on an accommodation request is in effect a decision by the housing provider not to grant the requested accommodation. Someone who was denied an accommodation may file a fair housing complaint to challenge that decision.

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Instances When a Housing Provider Can Deny a Request for a Reasonable Accommodation Without Violating the Fair Housing Act

A housing provider can deny a request for a reasonable accommodation if the request was not made by or on behalf of a person with a disability or if there is no disability-related need for the accommodation. In addition, a request for a reasonable accommodation may be denied if providing the accommodation is not reasonable (i.e., if it would impose an undue financial and administrative burden on the housing provider or it would fundamentally alter the nature of the provider’s operations). The determination of undue financial and administrative burden must be made on a case-by-case basis involving various factors, such as the cost of the requested accommodation, the financial resources of the provider, the benefits that the accommodation would provide to the requester, and the availability of alternative accommodations that would effectively meet the requester’s disability-related needs.

When a housing provider refuses a requested accommodation because it is not reasonable, the provider should discuss with the requester whether there is an alternative accommodation that would effectively address the requester’s disability-related needs without a fundamental alteration to the provider’s operations and without imposing an undue financial and administrative burden. If an alternative accommodation would effectively meet the requester’s disability-related needs and is reasonable, the provider must grant it. An interactive process in which the housing provider and the requester discuss the requester’s disability-related need for the requested accommodation and possible alternative accommodations is helpful to all concerned because it often results in an effective accommodation for the requester that does not pose an undue financial and administrative burden for the provider.

Example: As a result of a disability, a tenant is physically unable to open the dumpster placed in the parking lot by his housing provider for trash collection. The tenant requests that the housing provider send a maintenance staff person to his apartment on a daily basis to collect his trash and take it to the dumpster. Because the housing development is a small operation with limited financial resources and the maintenance staff are on site only twice per week, it may be an undue financial and administrative burden for the housing provider to grant the requested daily trash pick-up service. Accordingly, the requested accommodation may not be reasonable. If the housing provider denies the requested accommodation as unreasonable, the housing provider should discuss with the tenant whether reasonable accommodations could be provided to meet the tenant’s disability-related needs – for instance, placing an open trash collection can in a location that is readily accessible to the tenant so the tenant can dispose of his own trash and the provider’s maintenance staff can then transfer the trash to the dumpster when they are on site. Such an accommodation would not involve a fundamental alteration of the provider’s operations and would involve little financial and administrative burden for the provider while accommodating the tenant’s disability-related needs.

There may be instances where a housing provider believes that, while the accommodation requested by an individual is reasonable, there is an alternative accommodation that would be equally effective in meeting the individual’s disability-related needs. In such a circumstance, the housing provider should discuss with the individual if she is willing to accept the alternative accommodation. However, providers should be aware that persons with disabilities typically have the most accurate knowledge about the functional limitations posed by their disability, and an individual is not obligated to accept an alternative accommodation suggested by the provider if she believes it will not meet her needs and her preferred accommodation is reasonable.

When in doubt about whether you can rightfully deny a request for a reasonable accommodation, you should contact your local fair housing office, HUD, or an attorney.

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Friday, February 27, 2009

A Few Exceptions to the Fair Housing Act

The Fair Housing Act applies to all housing transactions (unless exempted by law, see below). Courts have applied the Act to individuals, corporations, associations and others involved in the provision of housing and residential lending, including property owners, housing managers, homeowners and condominium associations, lenders, real estate agents, and brokerage services. Courts have also applied the Act to state and local governments, most often in the context of exclusionary zoning or other land-use decisions.

Most types of housing properties are covered – leased or rented apartments; houses or condominiums that are sold, leased or rented; rooming houses; cooperatives; temporary shelters; mobile home parks; construction sites; and even empty lots. If you are uncertain whether a property is covered, contact any local fair housing agency and ask.

There are a few specific exceptions to the Fair Housing Act. The Act does not apply to:

A religious organization may give preference to persons of the same religion (unless restricted on account of race, color or national origin) in non-commercial transactions;

A private club may provide lodgings for members in non-commercial transactions;

An owner who owns four units or less and lives in one unit;

A private individual owner who does not own more than three single family houses, if the owner does not use the services of a broker, and if the owner does not use discriminatory advertising, and if the owner has not participated in three or more rental or sales transactions in a one year period;

Housing for elders may exclude families with children. For example, housing may be designated for people ages 62 years or older only. Also housing that serves people age 55 and older, where 80% of the housing is occupied by at least one person who is 55 or older, is exempt

In addition, the Fair Housing Act does not protect juvenile offenders, sex offenders, persons who illegally use controlled substances, and persons with disabilities who pose a significant danger to others. For more information about that topic, please see previous blog posting.

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To learn more about Fair Housing issues in Michigan (and many other topics affecting Michigan real estate professionals), please visit us at www.123ConEd.com. 123 ConEd LLC (www.123ConEd.com) is a leading online provider of continuing education courses to real estate professionals in Michigan. Our online Michigan real estate con ed courses are fully approved and properly certified by the Michigan Department of Labor & Economic Growth. All of our courses are designed to offer our students the most information, as quickly and economically as possible.

The Fair Housing Act Does Not Protect . . .

What many agents tend to forget, however, is that the Act does not protect juvenile offenders, sex offenders, persons who illegally use controlled substances, and persons with disabilities who pose a significant danger to others.

Juvenile offenders and sex offenders, by virtue of that status, are not persons with disabilities protected by the Fair Housing Act. Similarly, while the Act does protect persons who are recovering from substance abuse, it does not protect persons who are currently engaging in the current illegal use of controlled substances.

Additionally, the Act does not protect an individual with a disability whose tenancy would constitute a “direct threat” to the health or safety of other individuals or result in substantial physical damage to the property of others unless the threat can be eliminated or significantly reduced by reasonable accommodation. For more complete information about what constitutes a "direct threat" under the Act, please see my previous blog posting on that topic.

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$1 Million Judgment in Sexual Harassment Case Against Cincinnati Landlord

Here is another example of a Fair Housing Act lawsuit that was fairly recently settled by the United States Department of Justice ("DOJ"). I try to post summaries of these types of cases in order to provide updates to real estate professionals about the "dos and don'ts" under the Fair Housing Act, since fair housing is such an important issue.

In September 2008, the DOJ settled a fair housing lawsuit that was brought again a Cincinnati landlord, James G. Mitchell, and his company, Land Baron Enterprises. Mr. Mitchell was the owner and operator of several rental properties in the Cincinnati, Ohio, metropolitan area. The defendants agreed to pay $1 million in monetary damages and a civil penalty, after admitting that they violated the Fair Housing Act. This was the largest monetary settlement that the DOJ has ever obtained in a case alleging sexual harassment violations under the Fair Housing Act.

The DOJ’s lawsuit alleged that Mr. Mitchell had subjected female tenants to unwanted verbal sexual advances and unwanted sexual touching, entered the apartments of female tenants without permission or notice, granted and denied tangible housing benefits based on sex, and took adverse action against female tenants when they refused or objected to his sexual advances.

The DOJ began investigating Mr. Mitchell after Housing Opportunities Made Equal (“HOME”), a Cincinnati-based non-profit fair housing advocacy group, notified the DOJ of several sexual harassment complaints it had received about Mr. Mitchell.

Under the terms of the settlement, the defendants were required to pay $890,000 in compensation to 12 women who Mr. Mitchell sexually harassed and $110,000 in a civil penalty to the United States. In addition, the settlement enjoined Mr. Mitchell from further discrimination and required him to retain an independent management company to manage any future rental properties he acquires. Mr. Mitchell currently does not own or operate any rental properties.

Every real estate professional should already know that the Fair Housing Act makes it unlawful to discriminate in housing on the basis of sex. What many real estate professionals do not realize, however, is that that includes sexual harassment.

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U.S. Department of Justice Sued the Housing Authority in Wayne County, Illinois, for Race Discrimination in Violation of the Fair Housing Act

Yesterday afternoon (Monday, February 23, 2009), the DOJ filed a lawsuit against the Wayne County Housing Authority (“WCHA”) (located in Fairfield, Illinois), as well as against Jill Masterson and Danna Sutton, WCHA’s executive director and assistant director, respectively, alleging that they violated the Fair Housing Act when they tried to discourage a white couple from renting their property in Fairfield to an African-American woman.

The DOJ’s complaint alleges that the defendants discriminated against a white couple who were planning to rent a house to an African-American woman through the Housing Choice Voucher program (also known as Section 8). The Housing Choice Voucher program provides rental assistance to eligible low-income families, the elderly and persons with disabilities. Wayne County, Illinois, receives federal funding from the United States Department of Housing and Urban Development (“HUD”) to administer the Housing Choice Voucher program.

The complaint further alleges that the defendants made racially discriminatory statements to the couple and "failed" their property at the mandatory inspection, which required the couple to make certain repairs and be inspected again before they could rent their unit under the Housing Choice Voucher program.

By contrast, the lawsuit alleges that when the WCHA found similar deficiencies at other properties in the Housing Choice Voucher program, its practice had been to "pass" the property and verbally counsel the landlords to make the repairs. The DOJ’s complaint alleges that the defendants took these actions to discourage the couple from renting the property to the African-American woman. The complaint also alleges that the defendants determined that the property would have to be re-inspected because the couple had complained about racially discriminatory comments allegedly made by Ms. Sutton.

The lawsuit originated from a complaint filed with HUD by the couple. After an investigation, HUD found reasonable cause to believe that unlawful discrimination had occurred and referred the matter to the DOJ, who filed the Fair Housing Act lawsuit. The lawsuit filed by the DOJ is an allegation of unlawful conduct, and the allegations must still be proven in court.

The lawsuit seeks monetary damages for the couple and a court order barring future discrimination. This case is currently pending in the United States District Court for the Southern District of Illinois.

As every real estate professional should know, it is illegal to engage in racially discriminatory housing practices. Public housing authorities are no execption to this rule. Remember that the Fair Housing Act prohibits discrimination in housing on the basis of race, color, religion, sex, familial status, national origin and disability.

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$62,000 Settlement in Fair Housing Disability Discrimination Case Against Apartment Complex for Refusing to Allow Residents to Keep Service Dogs

On May 29, 2008, the United States Department of Justice ("DOJ") settled a fair housing disability discrimination case for $62,000 that was brought against an apartment complex and the on-site manager for refusing to allow residents to keep service dogs. United States v. Stealth Investments LLC; BMT Investments LLC; and Steven Barry Woodhouse, No. 4:07-cv-500, filed in the United States District Court for the Idaho (consent order dated May 29, 2008).

On May 29, 2008, the federal court entered a consent decree that settled this fair housing disability discrimination case brought by the DOJ against an apartment complex and its on-site property manager. The complaint alleged that the defendants engaged in housing practices that discriminated on the basis of disability, including refusing to allow residents with disabilities to keep service dogs at Shadow Canyon Apartments, which was a 77-unit apartment complex located in Idaho Falls, Idaho.

The DOJ'’s lawsuit alleged the following facts. On August 9, 2006, in response to a complaint, a local fair housing agency conducted a telephone test for housing discrimination based on disability at Shadow Canyon Apartments. Testing is a simulation of a housing transaction that compares responses given by housing providers to different types of home-seekers in order to determine whether or not illegal discrimination is occurring.

The local fair housing agency tester called Shadow Canyon Apartments and spoke to Mr. Woodhouse, who was the on-site apartment manager. The tester, who posed as a social worker, informed Mr. Woodhouse that she was inquiring on behalf of a prospective renter who used a wheelchair, about whether there were any one or two bedroom apartments available. Mr. Woodhouse confirmed that both unit types were available and quoted rental rates.

The tester then told Mr. Woodhouse that the prospective renter had a “service dog” and asked about Shadow Canyon Apartment’s procedures. Mr. Woodhouse replied, “We absolutely do not allow dogs. They’re going to have to find somebody else. Even if it’s service, we won’t allow dogs.” When the tester mentioned that the prospective renter had a prescription for the service dog because of his disability, Mr. Woodhouse responded that the prospective renter “might as well just find a different place.”

Mr. Woodhouse then informed the tester that it was Shadow Canyon Apartments' policy to allow service cats but “absolutely no dogs,” adding, “We can regulate the type of pet, service pet allowed.”

The tester then explained that the service dog assisted the prospective renter by helping him move his wheelchair. In reply, Mr. Woodhouse again told the tester that the prospective renter should “find somewhere else to stay,” adding, “[t]here’s lots of other places that accept them.” The tester asked if it was possible for the prospective renter to pay extra money or do anything else to have a service dog, and Mr. Woodhouse responded, “No.” Mr. Woodhouse stated, “The owners are just absolutely downright strict about no dogs.”

On October 27, 2006, the local fair housing agency filed a complaint of discrimination HUD alleging that the defendants discriminated on the basis of disability in violation of the Fair Housing Act. The complainant elected to have the charge resolved in a federal civil action, so the DOJ filed a lawsuit.

Under the terms of the settlement, the defendants were required to pay $24,500 to compensate victims of discrimination at Shadow Canyon Apartments, establish a $12,500 victim fund, and pay a $25,000 civil penalty to the United States. Additionally, the defendants were required to establish and follow non-discriminatory procedures and undergo fair housing training.

This case is yet another example of a blatant violation of fair housing laws. Every real estate professional needs to remember that a service animal is not a "pet." Various fair housing laws require housing providers to modify their "no pets" policy to allow the use of a service animal by a person with a disability. This does not mean the housing provider must abandon its "no pets" policy altogether, but simply that it must make an exception to its general rule for service animals.

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Michigan Real Estate Education and Licensing (www.123ConEd.com and www.1StopConEd.com))

Friday, October 23, 2009

Types of Discrimination Against Persons with Disabilities Prohibited by the Fair Housing Act

When and How a Tenant Must Request a Reasonable Accommodation or Permission to Make a Reasonable Modification

Thursday, September 24, 2009

Michigan Laws Related to Mold

Sunday, March 22, 2009

Get a jump on your Michigan Real Estate Continuing Education!

Examples of Discriminatory Advertisements

What should I consider before running ads with human models?

Who qualifies as a person with a disability under the Fair Housing Act?

Types of Discrimination Against Persons with Disabilities Prohibited by the Fair Housing Act

Department of Justice Sues a Large Multi-Family Housing Developer Alleging Disability-Based Housing Discrimination

Sunday, March 1, 2009

In the wake of the attacks of September 11, 2001, is it okay to screen housing applicants on the basis of their citizenship status?

Some Examples of Discriminatory Advertisements in Real Estate

Requirements for Using Fair Housing Logos and Posters

A Housing Provider Can't Condition Approval of a Request for a Reasonable Modification on the Requester Obtaining Special Liability Insurance

How Does A Housing Provider Know If An Accommodation Or Modification Request Is “Reasonable”? When Can The Housing Provider Refuse A Request?

Instances When a Housing Provider Can Deny a Request for a Reasonable Accommodation Without Violating the Fair Housing Act

Friday, February 27, 2009

A Few Exceptions to the Fair Housing Act

The Fair Housing Act Does Not Protect . . .

$1 Million Judgment in Sexual Harassment Case Against Cincinnati Landlord

U.S. Department of Justice Sued the Housing Authority in Wayne County, Illinois, for Race Discrimination in Violation of the Fair Housing Act

$62,000 Settlement in Fair Housing Disability Discrimination Case Against Apartment Complex for Refusing to Allow Residents to Keep Service Dogs

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