Going Green: How to Ensure Fair Housing Compliance When Addressing Environmental Concerns

This month, Fair Housing Coach reviews the fair housing implications of how owners and managers handle environmental concerns in the maintenance and upkeep of the community.

Rental housing providers are subject to various laws, health and safety codes, and other regulations that require them to maintain communities in a safe and healthy manner. In general, these rules address noxious substances known to be harmful to human health, such as lead-based paint, mold, radon, carbon monoxide, and other contaminants.

Meanwhile, there are growing concerns about the environmental and health effects of exposure to chemicals and other substances previously thought to be safe. Public health and housing officials have responded with various governmental initiatives that affect how communities perform routine maintenance, such as painting, cleaning, and pest control. Some ban or restrict whether and how some substances are used; others require notice to residents about risks and ways to reduce exposure.

In general, these regulatory measures are beyond the scope of fair housing law. But communities must consider fair housing when addressing environmental concerns because either the problems themselves—or treatment of the problems—may have a disproportionate effect on some residents. Of particular concern are environmental risks to vulnerable populations, including pregnant women, young children, and individuals with disabilities—all of whom are protected under fair housing law.

In this lesson, we offer six rules to help you avoid fair housing trouble when addressing environmental concerns. Then, you can take the COACH’s Quiz to see how much you’ve learned.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) prohibits discrimination in housing because of race, color, religion, sex, national origin, familial status, or disability.

The FHA’s familial status provisions bar discrimination against families with children under 18 unless the community qualifies under strict rules as housing for older persons. In general, the familial status provisions apply when one or more children under age 18 live with a parent, guardian, relatives, friends, and others who have permission to care for the child. They also apply to those in the process of securing legal custody of a child under 18 and pregnant women.

Under fair housing law, it’s illegal to exclude families with young children or pregnant women from rental housing—even if motivated by concerns about health and safety risks posed by environmental hazards. A prime example is lead-based paint, which was widely used before being banned in 1978. Lead is a highly toxic metal that may cause a range of physical and mental health problems, especially in children under age 6. The U.S. Department of Housing and Urban Development (HUD) estimates that 23 million homes in the United States have peeling or chipping lead-based paint or high levels of lead in dust.

To address the problem, federal law requires multifamily housing communities built before 1978 to warn tenants about the hazards of lead-based paint. The law, the Residential Lead-Based Paint Hazard Reduction Act of 1992, requires landlords to provide tenants with a pamphlet, “Protect Your Family From Lead in Your Home,” and to share knowledge of lead-based paint hazards on a disclosure form that both parties must sign along with any available records or reports. Failure to abide by the lead-paint disclosure law can be costly.

Example: In April 2012, an Illinois landlord and 16 related companies agreed to pay an estimated $2.3 million for lead abatement work to settle claims that they violated federal law by failing to properly inform some tenants that their homes may contain potentially dangerous levels of lead. The settlement, which involves 463 housing units in 22 properties in the Chicago area, requires the replacement of windows or the removal of lead-based paint from the windows in 14 buildings and the remediation of lead-based paint on the porches of 10 buildings. The owners and managers also agreed to pay a $125,000 civil penalty.

“It’s absolutely critical that families have the right information so that they can protect their children’s health,” Jon L. Gant, Director of HUD’s Office of Healthy Homes and Lead Hazard Control, said in a statement. “This settlement sends a message to landlords of housing across the country that they make sure to properly disclose the required lead information to the families they rent to.”

Equally important in addressing environmental hazards are the FHA’s disability provisions. Under the FHA, it’s unlawful to discriminate against an individual with a disability, which the law defines as a physical or mental impairment that substantially limits one or more major life activities. That includes individuals with breathing problems, compromised immune systems, or chemical sensitivities, who may be adversely affected by environmental conditions affecting air quality. Of concern is exposure to noxious substances, such as mold and secondhand smoke, as well as materials routinely used in residential housing maintenance, such as chemicals or fumes from paint and pesticides.

To satisfy fair housing law, communities must grant requests for reasonable accommodations or reasonable modifications when necessary to enable an individual with a disability to fully enjoy use of the property. Examples of reasonable accommodations with respect to environmental concerns include changing the type of paint, cleaning products, or pesticides used in or around a resident’s unit. Examples of reasonable modifications include removal of carpeting or installation of air purifiers, at the resident’s expense, if necessary to alleviate problems caused by exposure to allergens and other environmental concerns.

6 RULES FOR COMPLYING WITH FAIR HOUSING LAW

WHEN DEALING WITH ENVIRONMENTAL CONCERNS

 

Rule #1: Don’t Exclude Families with Children to Avoid Lead-Based Paint Exposure

Although the rules are different for federally assisted housing, federal law generally doesn’t require conventional housing providers to remove or remediate lead-based paint hazards. In practice, however, communities may find they have little choice but to remediate lead-based paint hazards since it’s illegal to refuse to rent to those most at risk—families with children under 6 or pregnant women—to avoid potential liability related to lead-based paint exposure.

If a family chooses to live in a unit where lead-based paint hazards are not controlled, HUD says, housing providers must notify families of the risks, but may not decline to let them live there because the family has children. The same rules prohibit communities from terminating the tenancy of a family living in a unit where lead-based paint hazards haven’t been controlled against their wishes because of the presence of young children in the family’s household.

Moreover, it’s illegal for landlords to refuse to rent to an applicant whose child has elevated blood lead levels—even if a unit has lead-based paint hazards, according to an October 2011 blog post by Arlene Halfon, a program analyst in HUD's Office of Fair Housing and Equal Opportunity. Halfon went even further, suggesting that it’s discriminatory for landlords to decide against treating the lead in their rental units with the hope that it will keep families with children from renting.

So, what can landlords do to avoid discrimination and protect vulnerable families? Halfon says the answer is very straightforward: If a child under the age of 6 or with elevated levels of lead in his blood moves in, the landlord must treat the home for lead.

In addition, she suggests that communities hold units that have been treated for lead hazards open for families with young children or children with elevated blood lead levels, so long as the treated units are no less desirable in other ways—for example, inferior location, physical condition, or size—from other available units. If it’s not possible to reserve treated units, she says, landlords can instead give these families priority access to treated units when they become available.

COACH’s Tip: Recent action by the Centers for Disease Control (CDC) will probably mean that more rental housing units with lead-based paint hazards will come to the attention of public health and safety officials. Under current CDC guidelines, an estimated 250,000 American children have elevated blood-lead levels, but that number is bound to rise under revised recommendations that identify lead paint exposure in children earlier based on the amount of lead levels in their blood. Previously, children were identified as having a blood lead level of concern if the test result was 10 or more micrograms per deciliter of lead in blood, according to the CDC. The CDC’s new recommendations cut the level of concern in half—to 5 or more micrograms per deciliter—which means that more children will be monitored by parents, doctors, and public health officials to reduce the risk of future exposure to lead. It’s also likely to draw attention to even more rental housing units still affected by lead-based paint hazards.

Rule #2: Don’t Dismiss Environmental Concerns

Some people are skeptical when they hear complaints about the use of conventional cleaning and maintenance supplies—or demands for organic products. Most agree about the dangers of noxious substances like mold and bedbugs, but every day seems to bring news of unsuspected health and safety risks lurking in things we assumed were safe. It’s difficult to know the truth, particularly since public health experts often disagree about the safe level of exposure to tobacco smoke and chemicals found in conventional painting, cleaning, or pest control supplies.

Whatever your personal opinions about organic vs. conventional products, it’s important to listen closely to determine whether complaints about environmental concerns are related to a disability. In general, the FHA doesn’t impose liability for failure to address complaints about mold or other environmental problems—unless they’re made by or on behalf of an individual with a disability.

Example: In June 2012, a court dismissed a lawsuit filed by residents of a rental unit in Virginia, alleging their landlord violated the FHA by failing to remedy mold problems in their unit. The residents claimed that they complained repeatedly about a water leak from an air conditioning unit and concerns about mold, but the landlord never corrected the problem. Eventually, the landlord terminated the lease, but the residents remained and continued to complain about the mold before finally moving out.

The residents sued under the FHA, claiming that the landlord failed to provide reasonable accommodations to alleviate their exposure to mold and mold spores, and then retaliated against them because of their accommodation requests.

The landlord asked the court to dismiss the case, arguing that the residents were not disabled. The residents countered that they were entitled to protection under the FHA’s disability provisions because the mold problems caused them to have severe allergic reactions, making it difficult to breathe.

Siding with the landlord, the court ruled that the FHA didn’t apply because there was no allegation that the residents had a disability, which caused the failure to remediate the mold to be discriminatory based on a handicap. In contrast to cases where residents with chemical sensitivities and mobility impairments could sue under the FHA for a landlord’s failure to remediate mold, these residents didn’t contend that they had any physical or mental handicap requiring the landlord to provide reasonable accommodations. As noted by other courts, remediation of mold is a duty owed to all tenants and does not, standing alone, support a claim for failure to provide reasonable accommodation under the FHA [Costello v. Malcolm, June 2012].

If an environmental complaint comes from an individual with a disability, then the FHA requires landlords to consider requests to address the problem. Depending on the circumstances, you may request documentation unless the resident’s disability or disability-related need for the request is obvious or apparent.

If it appears that the request reflects a disability-related need for an exception to your policies, practices, or services, then you should evaluate the complaint under your standard policy governing reasonable accommodation requests. Disability-related requests for changes to the interior or exterior of units should be treated under reasonable modification policies.

For example, people who have asthma and other lung diseases may have triggers in their rental housing environments that have been shown to increase asthma symptoms or precipitate asthma exacerbations, according to a joint statement by the American Lung Association and the California Thoracic Society. Among other things, researchers say asthma exposure risks include house-dust mites in carpeting, mold, chemical insecticides, and strong odors and fumes. They suggest that a person with asthma who can document personal exacerbation may be entitled to a reasonable modification—such as removal of wall-to-wall carpeting in his unit—or a reasonable accommodation—such as transfer to a comparable unit without wall-to-wall carpeting.

Rule #3: Carefully Consider Requests Related to Chemical Sensitivities

Fair housing rules may require you to address objections to substances that generally don’t cause problems for most people, but trigger health problems in people who have disabilities. Chemicals or fumes from a variety of products commonly used in cleaning, painting, or pest control operations may aggravate symptoms for individuals with disabilities, particularly those with allergies and sensitivities that may make any level of exposure dangerous.

Though it’s a matter of controversy among medical experts, a 1992 HUD memo recognizes multiple chemical sensitivity (MCS) and environmental illness (EI) as disabilities under the FHA. In contrast to common allergies, which wouldn’t qualify as a disability, HUD says that MCS and EI are conditions that involve an extreme hypersensitivity or allergic reaction to a number of different common substances. Since they may involve a wide array of bodily impairments that limit an individual’s ability to breathe, care for himself, and other major life activities, MCS and EI could satisfy the FHA’s definition of disability, according to HUD.

Because of the law’s broad definition of disability, the FHA may apply to claims of chemical sensitivity even if a resident’s condition doesn’t amount to a qualifying impairment. A community could face liability under the FHA for claims by a resident that she was subjected to discriminatory treatment because she was “regarded as” having a disability.

Example: In February 2012, a federal appeals court upheld a ruling requiring a Virginia community to pay $150,000 in compensatory and punitive damages to a resident who claimed to have multiple chemical sensitivity. For years, the resident complained to the community about sensitivities to paint fumes, tobacco smoke, and mold, which she said caused severe and debilitating physical symptoms. She requested various accommodations to avoid exposure to paint, chemicals, fumes, dust, mold, and other substances. Among other things, she objected to the type of paint used during a renovation project, demanded mold remediation after a water leak, and complained about cigarette smoke emanating from a neighbor’s unit. The community made some efforts to respond to these requests, but it eventually refused to renew her lease, converted her to a month-to-month tenancy at a much higher rent, and refused to allow her to move to another of its properties.

The court ruled that the resident failed to prove that her condition qualified as a handicap under the FHA because she didn’t prove that it substantially affected her breathing. Nevertheless, the court found that the community discriminated against her because it regarded her as having a disability. Its interactions with the resident showed that the community believed she had chemical sensitivities, and it acted with discriminatory intent and retaliated against her because of her disability [Matarese v. Archstone Communities, LLC, February 2012].

Rule #4: Tread Carefully When Dealing with Hoarding Problems

Depending on the circumstances, it’s a good idea to get help to resolve complicated disability-related environmental concerns. Hoarding problems are a prime example. When hoarding gets out of control, it presents all kinds of health and safety concerns—including fire hazards, impaired air quality, mold growth, pest infestation, and structural damage—posing dangers to the resident, his neighbors, and the community at large.

Communities have an obligation to address these problems to ensure the safety and health of all residents. In most cases, however, a resident engaged in hoarding behavior qualifies as an individual with a disability under fair housing law, triggering your responsibility to try to work out a reasonable accommodation. Depending on the extent of the problem, for example, you may have to give him more time to clean out offending conditions in the unit.

But there are limits to your obligation to accommodate a resident with a hoarding problem. A request for an extended period to clean the unit may be unreasonable if conditions pose immediate or serious health and safety risks, particularly if they affect neighboring units.

For example, hoarding problems can make treatment and prevention of bedbug infestation nearly impossible. Concerns about the dramatic increase in bedbug populations led to recent HUD guidelines for federally assisted communities. HUD noted that excess clutter can provide bedbugs with more places to hide, making early detection and targeted control difficult. And, since low-level infestations may be hard to detect, the problem can quickly spread to units on either side and above and below an affected unit.

Environmental hazards due to hoarding also trigger additional fair housing problems if a neighbor raises disability-related concerns. For example, a resident living above, below, or next door could complain that offensive odors from the hoarder’s unit are seeping into her unit and exacerbating breathing problems associated with asthma or other physical impairments.

When faced with such thorny problems, it’s best to get help to work out a solution that satisfies both fair housing requirements and your obligation to ensure the health and safety of all your residents.

Rule #5: Look Closely at Smoking Policies

Secondhand smoke is a common source of environmental complaints. Under fair housing law, communities must consider requests to reduce exposure to secondhand smoke when necessary to enable an individual with a disability to use and enjoy the property. Such requests may come from individuals with serious health impairments, such as heart and lung conditions, cancer, or severe allergies, who may suffer adverse health effects from exposure to secondhand smoke.

Depending on the circumstances, disability-related requests may include reasonable modifications—such as upgrading ventilation systems—or reasonable accommodations—such as a transfer to another unit—to reduce exposure to secondhand smoke. In some cases, an applicant may request replacement of carpeting and other measures for a disability that renders him particularly sensitive to the effects of third-hand smoke—that is, pollutants lingering inside units long after smokers have departed.

Otherwise, fair housing law permits communities to make their own decisions about whether and where to allow smoking, subject to state and local laws. Some communities prohibit smoking in public or common areas, such as leasing offices, fitness centers, entryways, or hallways. Although relatively few restrict smoking inside units themselves, there’s a growing trend to encourage smoke-free policies, particularly in federally assisted and public housing communities.

In June 2012, HUD along with other government agencies and health advocates launched a new set of tools to help the owners of federally assisted housing and public housing authorities to adopt smoke-free policies. The new Smoke-Free Housing Toolkits are aimed at protecting residents from the dangers of secondhand smoke and to reduce property maintenance costs, according to HUD.

The owner’s toolkit includes HUD’s guidance to public housing authorities and multifamily housing owners/managers, including a guide to implementing no-smoking policies, a sample resident survey, frequently asked questions, and other useful resources. The toolkit also advises these communities to:

• Advertise units as non-smoking to attract tenants who either don’t smoke or only smoke outside;
• Talk to prospective tenants about their smoke-free policy when showing the property;
• Include no-smoking policies in lease agreements and read through the rule with tenants as they sign the lease;
• Display no-smoking signage in buildings and on the property;
• Consider partnering with organizations to offer smoking cessation support to residents;
• Inform tenants that if they smoke in their units, they’ll be financially responsible for the costs of restoring the unit;
•  Use the same warning/enforcement methods for smoke-free rule violations used for any other lease infractions; and
• Visit and inspect properties regularly.

“A healthy home is a smoke-free home,” Jon Gant, Director of HUD’s Office of Healthy Homes and Lead Hazard Control, said in a statement. “If we’re serious about promoting healthy living conditions in federally assisted housing, then we have to get serious about promoting smoke-free housing. HUD is pleased to join hands with our partners in this important effort to create a healthy home environment for families and their children.”

COACH’s Tip: As the number of states that allow use of medical marijuana continues to grow, fair housing experts forecast that communities may see disability-related complaints about exposure to secondhand marijuana smoke. The issue is far from settled, since federal law continues to criminalize possession and use of marijuana for any purposes. Just last year, HUD said that public housing authorities and owners of federally assisted housing may not grant reasonable accommodations to allow tenants to use medical marijuana, even if it’s lawful for them to do so under state law. If problems arise with respect to use of medical marijuana, your best bet is to consult your attorney to avoid fair housing and other legal problems.

Rule #6: Consider ‘Green’ Alternatives

Beyond addressing individual complaints about environmental concerns, you may want to review policies about how you maintain your community. You may reduce your overall risk of environmental complaints by finding alternative products that effectively meet your needs without exposing vulnerable residents to potentially dangerous substances.

For example, many communities routinely use pesticides to control pests such as cockroaches, rodents, and bedbugs. Even when used properly, however, use of pesticides may cause health problems in children, pregnant women, the elderly, and individuals with disabilities. To reduce reliance on potentially dangerous chemicals, many communities are turning to Integrated Pest Management (IPM), which promises to stop infestations from growing and spreading disease with much less exposure to pesticides.

Implementing an IPM program may be part of a broader effort to ensure your community offers a healthy home to all its residents. It’s a key element of HUD's nationwide Healthy Homes initiative to reduce housing-related health risks, according to public health officials.

In July 2012, HUD's Office of Healthy Homes and Lead Hazard Control released a new “Healthy Homes Program Guidance Manual,” a comprehensive guidebook focused on Seven Principles of a Healthy Home: “Keep It: Dry, Clean, Safe, Ventilated, Pest-Free, Contaminant-Free, and Maintained.” Though addressed to government agencies and other organizations charged with public health, the manual may be a useful resource for community owners and managers on strategies to address health and safety concerns within their communities.

• Fair Housing Act: 42 USC § 3601 et seq.
• HUD: Healthy Homes Program Guidance Manual, July 19, 2012, http://portal.hud.gov/hudportal/HUD?mode=disppage&id=HHGUIDANCEMANUAL
• HUD Legal Opinion, March 5, 1992: MCS Disorder and Environmental Illness as Handicaps, http://www.hud.gov/offices/adm/hudclips/lops/GME-0009LOPS.pdf: The Fair Housing and Lead Paint Guidance, http://portal.hud.gov/hudportal/documents/huddoc?id=fheoleadbased.PDF
• HUD/DOJ guidance: Reasonable Accommodations Under the Fair Housing Act,

http://portal.hud.gov/hudportal/documents/huddoc?id=DOC_7771.pdf

• HUD/DOJ Guidance: Reasonable Modifications Under the Fair Housing Act,

http://portal.hud.gov/hudportal/documents/huddoc?id=DOC_7502.pdf

COACH Sources

Nadeen W. Green, Esq.: Senior counsel, For Rent Media Solutions™, 294 Interstate N. Pkwy., Ste. 100, Atlanta, GA 30339; (770) 801-2406; nadeen.green@forrent.com.

D. J. Ryan: Fair Housing Specialist, Director of Client Education, Kimball, Tirey & St. John LLP, 7676 Hazard Center Drive, #450, San Diego, CA 92108; (619) 234-1690; DJ.Ryan@KTS-LAW.com.