From the Courts: Lessons Learned on Fair Housing Law

For this month’s lesson, the Coach gathered recent court decisions on fair housing law. Keeping abreast of what’s happening in the courts can help you learn from the experiences of other communities to better prevent—or respond—to fair housing complaints. 

For each case, we’ll review what happened and how it ended up in court. Then we’ll review what the court decided—and why—to explain the lessons you can learn to avoid similar problems at your community. Finally, you can take the Coach’s Quiz to see how much you’ve learned.

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) prohibits discrimination in housing on the basis of race, color, religion, sex, national origin, disability, and familial status. In addition, many states and local governments have expanded their fair housing laws beyond federal requirements to cover marital status, sexual orientation, source of income, and other factors. Taken together, these laws prohibit communities from making housing decisions or treating applicants and residents differently based on any of these protected characteristics.

In addition, the law imposes further requirements to prevent discrimination against individuals with disabilities. Among other things, it’s unlawful to refuse to make reasonable accommodations in rules, policies, practices, or services, when the accommodations may be necessary to afford an individual with a disability the equal opportunity to use and enjoy the unit, along with public and common-use areas. In essence, this means that communities must make exceptions to their general rules for individuals with disabilities when it’s both reasonable and necessary under certain circumstances.

The FHA also bans discriminatory statements—by your employees or in your advertising—that indicate a preference, limitation, or discrimination based on race, color, religion, national origin, sex, disability, and familial status. And the law prohibits retaliation against anyone for exercising his rights under fair housing law or assisting others who exercise their rights.

REASONABLE ACCOMMODATIONS: PARKING

Did Community Have to Grant Couple’s Request for Two Parking Spaces?

No, according to a court, which recently ruled that a community didn’t violate fair housing law by denying a couple’s disability-related request for two dedicated parking spaces.

WHAT HAPPENED: The couple rented a unit at a New York co-op community for many years. Both were disabled and over the age of 65. With the permission of the co-op board, the couple paid for and used two parking spaces for about 13 years.

In early 2016, the couple received notice that, as of May, they would no longer be able to use one of the spaces—the one used by the wife. In April, they said that the superintendent told them that they would have to remove personal belongings from a storage area next to the other space used by the husband. The wife said she asked the board, including the manager and superintendent, not to take away her parking space, because she was disabled. She said that the board asked for medical documentation, but when she asked for an extension, the board allegedly refused and denied her request to keep her space.

The couple sued the community for violating fair housing law by denying their disability-related reasonable accommodation request to keep the second parking space.

The couple asked the court to issue a temporary order to allow their continued use of both parking spaces. The court denied the request, questioning why the couple couldn’t coordinate the use of one parking space.

The community asked the court to dismiss the case. The couple objected, arguing that, because of aging and their disabilities, two parking spaces had become a necessity.

DECISION: Case dismissed.

REASONING: Finding in favor of the community, the court ruled that fair housing law did not require the community to grant the couple’s request for a second parking space.

To establish a claim for discrimination based on failure to reasonably accommodate, the wife had to prove that:

1. She had a disability;
2. The community knew or should have known of her disability;
3. The requested accommodation was necessary to afford her equal opportunity to use and enjoy her home; and
4. The community refused to make the requested accommodation.

Providing a parking space for a resident with a disability may be a reasonable accommodation, but the couple failed to show that a request for two parking spaces by disabled residents was a reasonable accommodation. While having only one parking space may be less convenient to the couple, the law did not require the community to provide the best possible accommodation.

Nor was it necessary to take the couple’s individual preferences into account when choosing the means of accommodation, as long as the chosen means were reasonable accommodations. Though communities must make reasonable accommodations, the law doesn’t require them to provide a disabled resident with every accommodation she requests or the accommodation of her choice.

The couple failed to show that one parking space at the community wasn’t enough to provide them with meaningful access to the benefits to which they were entitled. The couple argued that a second parking space was not just a convenience, but a necessity. The wife said that the second parking space allowed her to come and go to medical treatments and to have independent mobility, but the couple didn’t explain why one parking space wouldn’t allow them to go to medical treatments and have independent mobility.

There was no allegation that either of the two parking spaces was not properly situated to provide a reasonable accommodation. Rather, their complaint seemed to be no different from that of any other couple with only one on-site parking space: that it would be inconvenient for two independent people to share a car. They failed to show that the rules of the complex allowed them, or nondisabled couples, to have two parking spaces or that there was alternative parking available to nondisabled residents that was easier for them to reach.

Indeed, their position seemed to be that renters should be asked to give up spaces ahead of co-op shareholders like themselves, a concern that seems unrelated to their status as disabled persons. Fair housing law wasn’t intended to elevate the couple above their fellow residents. The law requires only equality, not a superior advantage, be given.

• Temple v. Hudson View Owners Corporation, New York, November 2016

LESSONS LEARNED:

• More than half of all fair housing complaints are for disability discrimination, many for refusing to grant reasonable accommodation requests. Be prepared by developing policies and procedures for handling reasonable accommodation requests, and be sure to keep documentation to show that you handled accommodation requests properly.
• Get legal help if a requested accommodation seems unreasonable. Fair housing law doesn’t require a community to make an exception to parking rules unless there’s an identifiable relationship between the requested accommodation and the individual’s disability, but it can be difficult to determine where to draw the line.

FAMILIAL STATUS: REFUSAL TO RENT

Can Landlord Make Upstairs Apartment Off-Limits to Kids?

No, according to a recent court ruling, even if it’s out of concern for a disabled resident living downstairs.

WHAT HAPPENED: The case dates back to 2012, when a prospect called in response to a newspaper ad for an apartment. She spoke with the manager, who managed the property on behalf of the owner, who lived out of state. The manager said that the apartment was available and asked how many people would be living with her. The prospect said three—herself and her two daughters. When asked their ages, the prospect said that they were 7 and one. At that, the prospect said the manager abruptly cut her off and said, “I will not be able to rent to you because of your two small children. There is a disabled person living in the unit below and children that age will drive him nuts.”

The prospect turned to a fair housing organization, which conducted two tests by telephone. Allegedly, the manager told a tester posing as a mother with two small children much the same thing, but told a tester posing as a married woman with no children that the unit was available.

After filing a complaint with the local fair housing agency, the prospect sued the owner and manager for violating fair housing law by discriminating against her based on her familial status.

After a series of proceedings, the owner and manager asked the court to dismiss the case, arguing that the prospect had a criminal record, which would have disqualified her from renting the apartment in the first place.

The prospect asked the court to grant her judgment without a trial.

DECISION: Judgment for the prospect.

REASONING: The manager violated fair housing law by discriminating against the prospect because she had children, and the owner was liable for his misconduct.

As a preliminary matter, the court rejected the request by the owner and manager to dismiss the case. They argued that they would have been justified in denying her the apartment because of her criminal history, so they couldn’t face liability for refusing to rent to her. But, the court said, the manager didn’t know anything about her alleged criminal history at the time of the phone call, so he couldn’t rely on that information to justify his conduct after the fact. The owner and manager couldn’t use his after-the-fact knowledge of her alleged criminal history to assert that she was ineligible to rent the apartment.

The manager discriminated against the prospect because of her family status, and the owner was responsible for the manager’s misconduct. The manager admittedly told her that he wouldn’t be able to rent to her because of her two small children, but he later explained it was out of concern for the children’s safety and the effect of noise on the elderly disabled resident living downstairs.

Even if that were true, the court said that those concerns did not excuse his discriminatory conduct. To the contrary, HUD regulations prohibit landlords from assigning people to particular floors or buildings because of their familial status. The regulations also prohibit communications to prospects that they wouldn’t be comfortable or compatible with existing residents because of familial status. Since the manager offered no legitimate reason for refusing to rent to the prospect, the prospect was entitled to judgment without a trial.

Case Note: In pretrial proceedings, the court rejected requests by the owner and manager to punish the prospect for deleting Facebook entries that would have cast doubt on her claims that she was made homeless and suffered emotional distress because of the alleged discrimination. The law forbids parties to litigation from destroying relevant information, but the court found that the prospect hadn’t deleted the Facebook posts—she just changed her security settings from public to private—which in effect made her posts disappear from public view. The court reprimanded her for changing anything to do with her social media accounts after the court told her not to, but concluded that her actions weren’t bad enough to justify any punishment.

• Thurmond v. Bowman, New York, September 2016

LESSONS LEARNED:

• Fair housing law prohibits housing discrimination based on familial status, which means that you can’t deny housing to people—or treat them differently—because there’s a child under the age of 18 in the household. Unless your community qualifies as senior housing, you can’t screen out or refuse to rent to families with children.
• You have to be careful about what you say—and how you say it—because fair housing law bans discriminatory statements that express a preference for—or against—anyone based on familial status or any other protected characteristic. The law banning discriminatory statements applies regardless of your motives—statements are taken at face value to determine whether you’ve expressed an unlawful preference.
• Depending on the circumstances, owners may face liability for discrimination or harassment by managers, employees—even outside contractors or other residents—if they knew or should have known about the problem, but did nothing about it.

FAMILIAL STATUS: COMMUNITY RULES

Did Community’s Rule Banning Anyone from Playing in Common Areas

Discriminate Against Families with Children?

The answer is probably no, according to a court, which recently denied a family’s request for a court order to prevent enforcement of the rule.

WHAT HAPPENED: A couple filed a fair housing case, alleging discrimination based on familial status at the condominium community where they lived with their two minor children. The couple alleged that the condo association and its management company created an “atmosphere of hostility” against families with children.

Among other things, the couple alleged discrimination and harassment at the community stemming from problems with their downstairs neighbor, who repeatedly complained about noise caused by the children. The couple alleged that they received numerous write-ups and verbal warnings because of her complaints, but the community didn’t do anything to reprimand the neighbor, who they said displayed physical and verbal aggression toward them and their children.

The couple also accused the community of posting discriminatory signs and imposing rules that targeted families with children and limited or prohibited their full and equal use of the property. Specifically, the couple pointed to signs and rules that:

• Prohibited access to the gym for children under the age of 7;
• Required adult supervision in the gym for children between the ages of 7 and 14;
• Prohibited the use of bicycles, roller skates, inline skates, skateboards, and scooters on the property;
• Required adult supervision of children under 14 who use the pool or spa;
• Required children in diapers to wear rubber pants and a bathing suit;
• Prohibited beach balls, rafts, and toys in the pool and spa area;
• Prohibited pool parties; and
• Prohibited playing in any part of the common area.

In pretrial proceedings, the couple asked the court for a court order to prevent the community from enforcing the allegedly discriminatory rules, until the case could be resolved at trial. At the hearing, however, the couple narrowed their request to cover only the community’s “play rule,” which provided that:

No one is permitted to play in any part of the common area, such as: halls, landings, storage areas, corridors, driveways, roofs, lobbies, ramps, streets, elevators, parking areas, stairways, garage gates, planted areas, trees, and lounge. This rule is not child specific.

DECISION: Request denied.

REASONING: In a pretrial ruling, the court denied the couple’s request for an order to prevent the community from enforcing the no-play rule. Though the court ruled against the couple at this point in the litigation, further proceedings will be needed to resolve the couple’s allegations against the community.

When deciding whether to grant the couple’s request, the court had to weigh several factors, including whether they were likely to succeed on their claim that the community’s signs and rules discriminated against families with children.

Ruling against the couple, the court said it was unlikely to conclude that the community’s rules discriminated against families with children. Unlike other cases involving discriminatory rules, the rules at this community did not confine children into certain areas or restrict access to facilities based on residents’ familial status. For example, the community didn’t have a general rule requiring adult supervision of children in common areas, or impose unreasonable limits on children while using the pool or other amenities.

Although its gym and pool rules specifically identified children as presenting special concerns, the community did so for reasons of safety. The couple failed to show that those rules were too restrictive or that the community’s safety concerns were merely an excuse to cover up unlawful discrimination. For example, the pool rule didn’t bar children from using the pool at certain times and didn’t apply to children over the age of 14. Instead, the pool rule complied with state regulations, which requires a sign that children under 14 should not use the pool without adult supervision.

With respect to the play rule, the couple argued that it prohibited children from being anywhere on the community’s property other than inside a unit, but the community pointed out that the play rule wasn’t child specific. The court agreed that the play rule wasn’t specific to children and therefore, interpreted the rule to impose limits where there appears to be a risk of injury to residents or their guests.

• Barkhordar v. Century Park Place Condominium Association, California, October 2016

LESSONS LEARNED:

• Communities may enforce reasonable rules to ensure the peaceful enjoyment of the premises, but it’s important to make sure that the rules don’t impose unfair restrictions on families with children. 

• Rules restricting behavior in common areas could lead to a discrimination claim if the rules target children or unreasonably limit their behavior. Rules banning children from playing outside—or requiring adult supervision of children in common areas—could lead to accusations that you are treating families with children less favorably than adult households living at the community.

SOURCE-OF-INCOME DISCRIMINATION

Do You Have to Allow Residents to Run a Day Care Service in Rental Property?

The answer may be yes, depending on state law. In California, a court recently issued an order to prohibit a landlord from evicting a couple who wanted to run a family day care at their rental home.

WHAT HAPPENED: This case was filed by a couple who rented a single-family home under a one-year lease. After the year was up, the lease converted to month-to-month and required 30-days’ notice of any changes to the tenancy, including termination or rent adjustments.

Soon after their month-to-month tenancy began, the husband said he sent a text message to the landlord asking permission for the wife to operate a small day care service in the home.

The landlord allegedly expressed concerns about liability and refused the request. Later that day, the husband said he emailed the landlord to say they didn’t need permission to operate a small day care and included a link to a website with information about legal issues involving family day care centers. California law generally provides that landlords must allow use of rental property as a “family day-care home” for six or fewer children, provided that notice is given to the property owner.

About a week later, the landlord allegedly served notice to terminate the tenancy, giving the couple two months to vacate. The husband said he responded by sending the landlord a text message that they abandoned their plans to operate the day care, but the landlord didn’t respond. Soon after, the couple contacted a fair housing organization, which sent the landlord a demand letter to rescind the termination notice.

Two days later, the manager allegedly issued a second termination notice, giving the couple an extra month to vacate.

After that, the couple’s attorney sent the landlord another demand letter to rescind the termination notice. The landlord denied the request, explaining that the couple wasn’t being evicted because of the day care, but because of needed renovations to the property.

The couple sued the landlord for violating federal and state fair housing law. After the court issued a temporary order to hold off on the eviction for a month, the couple asked the court to extend the temporary order to prevent their eviction until their case could be resolved at trial.

DECISION: Request granted.

REASONING: The court issued an order to prohibit the landlord from terminating or modifying the couple’s tenancy, without first obtaining the court’s permission. Though the court sided with the couple at this point in the litigation, further proceedings will be needed to resolve the couple’s allegations against the community.

In granting the order, the court found that the couple was likely to succeed on claims that the landlord violated federal and state fair housing law by trying to evict them because of their plans to run a day care service at the property.

The court said that couple could pursue their claims under California fair housing law. The court pointed to a decision by the state appeals court, which recognized that discrimination based on operating a family day care constitutes source-of-income discrimination; it also recognized that discrimination on that basis may have a disparate impact on women or families with children.

The couple could also pursue their claims under federal fair housing law. The court pointed to one unpublished federal court decision, which acknowledged the possibility that landlords must tolerate child care centers on the theory that to do otherwise would be gender discrimination against women.

Arguing against the court order, the landlord denied that she sent the termination notices because the couple wanted to run a day care service at the home. Instead, she said she had a legitimate, nondiscriminatory reason for terminating the couple’s tenancy: the needed renovations to the property.

But the court said the timing was suspicious, since the landlord sent the first termination notice less than a week after she refused to consent to their plans to operate the day care center at the property. The timing of the second notice was also of concern; considering that it was issued the day after the couple’s attorney sent the second demand letter, her motives could have shifted from discrimination to retaliation.

Though the landlord said the termination was justified by the need to conduct renovations at the property, the court said that sounded like an excuse since there was no evidence to indicate that she was considering the renovations before she sent the termination notices.

• Rana v. Gu, California, November 2016

LESSONS LEARNED:

• Get to know state and local fair housing laws, which often go beyond federal requirements. In California, for example, state law bans discrimination based on race, color, religion, sex, gender, gender identity, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information.

Documentation is key to defending yourself from claims of discrimination or retaliation when terminating a resident’s tenancy, whether it’s an eviction, a non-renewal, or ending a month-to-month lease. If your motives are called into question, you’ll need evidence to show that you have legitimate, nondiscriminatory reasons for your actions.