How and Why to Keep Good Records

In this Special Issue, we’re tackling recordkeeping—a task that’s essential to protect your community from fair housing trouble.

Why is having the proper paperwork so important? Because it puts you in the best position to prevent fair housing violations—and to defend yourself if you ever face a discrimination complaint. Good recordkeeping helps your community to:

• Set the tone that you don’t practice or tolerate discrimination. Having written nondiscrimination policies and procedures lets everyone—your staff, prospective and current residents, advocacy organizations, and enforcement authorities—know that your community takes fair housing seriously.
• Foster consistent application of fair housing requirements. Good records allow your staff to look at what was done in the past when addressing current concerns.
• Monitor compliance by employees, agents, and outside vendors. Good recordkeeping helps you spot—and address—potential problems that could lead to fair housing trouble.
• Facilitate a quick response to potential problems to ward off fair housing complaints. Just be careful: It’s okay to attempt to produce records to clear up any misunderstandings, but it’s unlawful to discourage anyone from filing a fair housing complaint.
• Defend yourself if a discrimination complaint is filed. Thorough records kept at the same time as events occur may provide your best defense to a discrimination complaint. Cases can take a long time to work through the system. Memories fade, but the paperwork will preserve your version of what happened.
• Respond to fair housing investigations. Good recordkeeping could help explain why, for example, fair housing testers were told different things about whether a unit was available. Records showing that the unit was rented in between the two calls would document a legitimate, nondiscriminatory reason that the testers were treated differently.

In this issue, we’ll explain fair housing requirements and offer 10 rules on good recordkeeping practices. Among other things, we’ll review the various kinds of records that you should maintain—and how long to keep them—to maximize your community’s fair housing compliance efforts.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) is a federal law that forbids housing discrimination because of race, color, religion, sex, national origin, disability, and familial status (having children under age 18). In addition, many state and local fair housing laws have added protections based on sexual orientation, marital status, and other protected characteristics.

And there are lots of ways to get into fair housing trouble. Among other things, the law prohibits certain actions against anyone based on a protected class, such as:

• Refusing to rent, negotiate for, or otherwise making housing unavailable;
• Applying different terms, conditions, or privileges related to the rental or related services or facilities;
• Making or printing discriminatory notices, statements, or advertisements; and
• Retaliating against anyone for exercising—or helping someone exercise—his rights under fair housing law.

In addition to these general rules, there are special protections for individuals with disabilities. The FHA requires communities to provide reasonable accommodations in rules, policies, practices, or services when they may be necessary to afford an individual with a disability equal opportunity to use and enjoy her home. The law also requires communities to permit disabled applicants or residents, at their expense, to make reasonable modifications to the unit or common areas if necessary to afford equal enjoyment of the premises.

COACH’s Tip: Though it’s generally unlawful to deny housing to families with children, there’s an exception for senior housing communities that qualify as housing for older persons. Under the exception, those communities may lawfully exclude or restrict children from living there, but it applies only if the community satisfies specific statutory requirements, including recordkeeping rules. If you operate a senior housing community, then you must be able to produce, when called upon, the documents required under the statute or face liability for discrimination based on familial status.

10 RULES FOR GOOD RECORDKEEPING

Rule #1: Don’t Put Paperwork on the Back Burner

Fair housing sounds simple—don’t discriminate based on race, color, or any other protected characteristic. But it’s more complicated when you put it into practice because it affects many aspects of your operations, including leasing, marketing, and maintenance, to name a few.

You probably already have a system for keeping important business records, such as personnel, tax, and insurance documents. And for business reasons, you’ll have paperwork associated with leasing, advertising, marketing, maintenance, resident relations, and other operations.

You don’t need to start a whole new system to protect yourself from fair housing trouble. In most cases, you’ll merely need to beef up your current recordkeeping system by checking what you have and adding what you need to keep track of some FHA-specific issues.

The next question is how long to keep records. The short answer: as long as possible. There’s a limit for how long someone has to file a fair housing complaint, but it depends on where and how it’s filed. In general, the FHA requires that complaints to HUD must be filed within one year of the occurrence or termination of the alleged discriminatory act; and it’s two years if the party decides to file a lawsuit in court.

But it’s not as simple as it sounds since there are many ways to extend the time frame, which would open the community up to liability for things that happened much further back. Let’s say, for example, a prospect filed a HUD complaint about something that happened a year ago, but HUD dismissed the complaint 18 months later. You might think that it’s too late to file a lawsuit, since the law requires lawsuits to be filed within two years and it’s now more than two-and-a-half years since the alleged discrimination. But it doesn’t work that way: The law stops the clock while the HUD investigation was pending, which means that the party still has six months to file the lawsuit.

The bottom line: Check with your attorney before throwing out old records. In some cases, the time limit might be longer for claims filed under other federal or state laws, so it’s a good idea to find out about laws applicable to your community so you don’t inadvertently dispose of documents that you may need.

COACH’s Tip: Don’t even think about getting rid of records related to an imminent or pending fair housing complaint. In reviewing your records, you might turn up information that could be used against you. You might be tempted to dispose of them, but tampering with the evidence will probably backfire once it comes to light. In most cases, enforcement officials and the courts will assume the worst and come down harshly against the community in assessing damages and penalties for fair housing violations.

Rule #2: Put Your Fair Housing Policy in Writing

Though not required under federal law, it’s a good idea to have—and to prominently display—a written nondiscrimination policy. It’s how you formally acknowledge compliance with fair housing laws so that everyone—from your staff to prospective and current residents to fair housing enforcement agencies and advocacy organizations—understands that discrimination is not tolerated at your community.

The policy simply states that your community follows fair housing laws and doesn’t discriminate based on race, color, religion, sex, national origin, disability, and familial status or any other characteristic protected by state or local law. Include the policy in your rental applications and leasing agreements, and post it in your office, alongside the fair housing poster required under HUD regulations.

You can use our Model Nondiscrimination Policy (see link at the end of this article), which was adapted from one used in a recent Justice Department settlement. Check with an attorney in your area so you can include any additional state and local fair housing requirements.

Rule #3: Review Your Policies and Procedures

Review your policies and procedures—and put them in writing—to ensure compliance with fair housing law. Your written procedures provide the basis for employee training and, if you ever face a discrimination complaint, they establish that—whatever the details of the complaint—you had legitimate, nondiscriminatory reasons for your actions.

Among other things, your written procedures should describe your qualification standards for prospective residents. Specify the reasonable and objective criteria you use to screen applications, such as financial requirements, and your procedures for evaluating rental applications. Your policy should describe the kind of information and documents that must be provided with an application. It should also explain how the information is used and what would cause an application to be rejected. Be sure to comply with all legal requirements, including federal and state credit reporting laws.

Example: In June 2014, a Massachusetts couple agreed to pay $23,000 to resolve allegations of housing discrimination and credit reporting violations. Among other things, state officials accused them of violating federal and state law by failing to provide applicants with an “adverse action notice” when applications were denied because of poor credit histories. Those laws require communities to provide applicants with notice of negative decisions based on credit histories so that they have the opportunity to correct inaccurate or incorrect information. As part of the settlement, the landlords agreed to adopt a credit-screening policy that requires them to send adverse action notices to any applicant who is denied a unit due to credit history, and to use an alternative process for determining whether a resident who receives public assistance has the ability to pay rent.

“Equal and fair access to housing is a right of all residents of the Commonwealth,” Massachusetts Attorney General Martha Coakley said in a statement. “Massachusetts residents must be provided with proper notice about the use of their credit histories in housing decisions so that they can make sure that landlords base their decisions on reports that are accurate.”

COACH’s Tip: Schedule a time each year to review and update your policies and procedures. It’s also a good time to sit down with your staff—not only to give them refresher training, but also to get feedback on how to formally address any problems that arose during the year that aren’t adequately covered in your current policies and procedures.

Rule #4: Beef Up Employee Files

Good employee records will help you respond to any complaints from prospective and current residents about how they were treated by employees. Your records should document your efforts to train employees on fair housing obligations, investigate all complaints about employees, and take corrective measures for any violations.

Good employee records also help you defend yourself from any fair housing complaints brought by employees themselves. The FHA protects employees from retaliation for upholding fair housing rules. If you document the reasons for all disciplinary actions taken against employees—for example, that you fired an employee for misconduct, not for anything related to fair housing law—then you’ll have evidence to defend against a retaliation charge.

Finally, keep a separate file detailing how you train employees—from property managers to maintenance staff—on fair housing rules. All new hires, regardless of their position, should be trained in your nondiscrimination policy and how to apply it in their particular jobs. It’s a good idea to arrange for annual refresher training for all employees, even if they’ve had training in the past. Your file should document what was covered in the training as well as attendance records showing the time and date of employee attendance.

COACH’s Tip: Keep good records about any complaints about outside vendors. Document what you did to investigate the complaint and how it was resolved. The records will help to dispel allegations that you knew about discriminatory conduct by a contractor and didn’t do anything to stop it.

Rule #5: Keep Track of Available Units

Keep good records about when units become available. It’s particularly important if your community is the subject of fair housing testing, which usually involves inquiries by matched pairs of equally qualified testers—one of whom is a member of a protected class. Complaints often result when testers are told different things about whether units are available or rental terms, such as the monthly rent or security deposit. You’ll need the records to demonstrate a nondiscriminatory reason for the difference—for example, that a unit became available in between the two calls.

Keep a master list of available units, with specifics about the unit number, monthly rent, security deposit, and when it became available. The list should be updated and checked frequently, so that leasing agents all have the same information about whether and what units are available.

If you have a waiting list for available units, you should have written uniform standards for selecting prospects from the list. Maintain the list by keeping track of the date and time to show that you don’t give preferential treatment to some applicants over others based on a protected characteristic.

Rule #6: Keep Good Records for Showing and Filling Vacancies

You’ll need good systems for documenting compliance with fair housing rules in showing and renting available units at the community. The records demonstrate that your community has objective, nondiscriminatory policies and procedures and that you applied them consistently.

Among other things, you should have documentation to show that leasing agents followed standard procedures during the application process. For example, you could create a checklist to show that with every prospect they:

• Explained your procedures for submitting applications and accompanying documentation;
• Reviewed your selection criteria and the standards used to evaluate applications; and
• Gave each prospect a rental application and copy of your policies and procedures.

Prospective resident log: Keep a record of every prospect who contacts you—by phone, email, online, or in person—to inquire about available units at the community. It doesn’t matter whether you keep track on the computer or maintain phone logs and guest cards on paper, but you should record relevant information from each prospect, such as his name and contact information, the date and time of the inquiry, the type of unit the prospect is looking for, and desired move-in date. The log should also record how the inquiry was resolved—if and when, for example, the prospect set up an appointment to see available units.

Record the date of visits and what occurred. If the prospect was shown units, the records should identify which units and when they were shown. And make a note about whether the prospect took or filled out an application—or decided not to apply.

Rental applications: Keep copies of all rental applications, even if they haven’t been fully completed, along with all accompanying documentation. If you consider applications on a first-come, first-served basis, then include the date and time it was received.

Approval/rejections: Keep a written record of all applications you’ve approved or rejected to show that you had legitimate, nondiscriminatory reasons for rejecting an applicant—or for choosing one applicant over another. Keep copies of all documentation obtained through the application process and all communications with the applicant, including letters explaining why an application was rejected.

Rule #7: Keep Good Records on Accommodation and Modification Requests

Keep good records on disability-related requests for reasonable accommodations, such as assistance animals or assigned parking, and reasonable modifications to the unit or common areas. The law doesn’t require communities to adopt formal procedures for handling accommodation requests, but HUD says that it helps to prevent misunderstandings about the nature of the request, and, in the event of later disputes, to provide records that the requests received proper consideration.

Requests: Keep all written accommodation and modification requests, along with the date and time each was received. The law doesn’t require that requests for reasonable accommodations or modifications be made in a particular manner or at a particular time, so you may request—but not require—that requests be made in writing. You must still consider the request, even if the person refuses to put it in writing or use your standard form, but it’s a good idea to make notes about the date, time, and nature of the request for your files.

Verifications: While there’s a general rule against asking applicants and residents about their disabilities, there’s a limited exception that permits disability-related inquiries when necessary to respond to a reasonable accommodation request. Under the exception, you may ask for information needed to evaluate whether the requested accommodation is necessary because of a disability, but you can’t ask for documentation if both the individual’s disability and need for the requested accommodation are obvious.

On the other hand, you can request documentation if either the disability or the need for requested accommodation or modification isn’t readily apparent. If the request is for someone who doesn’t have an obvious disability, for example, then you may ask for reliable disability-related information to verify that the individual meets the FHA’s definition of disability—and, if necessary, that the requested accommodation is needed because of a disability.

But you can’t demand to see the applicant’s doctor or his medical records. Depending on the circumstances, verification can come from a doctor or other medical professional, a peer support group, a non-medical service agency, or “a reliable third party who is in a position to know about the individual’s disability.” It could also come from the applicant himself, such as proof that he receives Social Security disability benefits or “a credible statement by the individual,” according to federal guidelines.

When you need verification, fair housing experts recommend sending a form directly to the third-party verifier. Ask the person making the accommodation or modification request to sign the form to release the third party to disclose the information. Then you can send the form directly to the third party and have it sent directly back to you.

Responses: The law requires that communities respond promptly to accommodation and modification requests. Put your response in writing and document the reason for your decision, along with any correspondence related to the request. Before denying any request, you should attempt to engage in an interactive process with the person making the request to discuss possible alternatives that might effectively meet the individual’s disability-related needs. It’s a good idea to get legal advice for handling and documenting negotiations to resolve disputed accommodation and modification requests.

Confidentiality: In processing requests for reasonable accommodations or modifications, you must take reasonable measures to protect the confidentiality of any information or documentation disclosed in connection with the requests. The law requires housing providers to keep disability-related information confidential; it may not be shared with others (absent disclosure required by law) unless they need it to evaluate the accommodation or modification request. Keep separate files with disability-related requests and accompanying documentation in a secure location to which only designated persons have access, except as otherwise required by law.

COACH’s Tip: For Model Forms that you can adapt and use at your community, see “Documenting Disability-Related Accommodation and Modification Requests,” available here.

Rule #8: Keep Active Lease Files for Every Resident

You should have an active file for each resident with the lease, the application and related paperwork, condition of the unit at move-in, payment history, and all other relevant records related to the residency.

It should also include documentation of any complaints by or about the residents, including the date and nature of the problem. Encourage residents to put their complaints in writing; if they don’t, keep your own records of your conversations with them. And keep a record of how you investigated the complaint and what you did to resolve it. That way, you’ll be able to prove you took action to correct the problem when a legitimate issue is raised. It also will help you defend yourself if you are unfairly accused of discrimination when taking action against a troublesome tenant.

Rule #9: Keep Good Records on Maintenance and Repair

Fair housing rules apply to the way in which communities provide maintenance and repair services, so you’ll need records to show you consistently followed your policies and procedures when providing those services. Put your policies and procedures in writing, so residents understand how your community handles maintenance requests.

Keep records about each request for maintenance and service—including time and date; contact information; when and who is assigned to do the work; when and how it was completed; the reasons for any delays, such as the need to order a replacement part; and any other relevant information. And document any complaints about maintenance services—and what you did to resolve the issue.

Rule #10: Keep Track of Advertising and Marketing Materials

Keep good records about how and where you advertise and market available units. It’s a separate violation of fair housing law to make, print, or publish discriminatory statements or advertising—both online or in traditional media outlets. Be careful to avoid questionable phrases or buzzwords that suggest a preference for or against anyone protected under fair housing law, such as families with children. If such language catches the eye of an advocacy organization, you could find your community the subject of a fair housing investigation.

Example: Real estate brokers in Connecticut recently agreed to pay $24,000 to settle allegations that they published discriminatory listings and advertisements for condominiums specifying that children were not permitted. The complaint was filed by a fair housing organization, which alleged that its tester responded to the ad and was told about the policy prohibiting families with children. The community did not qualify as housing for older persons, according to HUD.

“Refusing to sell or rent housing to families with children is against the law unless the property meets the very specific requirements of housing for older persons,” Bryan Greene, HUD’s General Deputy Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement.

You should also have documentation about where you advertise vacancies. It’s unlawful to select media or locations for advertising that deny particular segments of the housing market information about housing opportunities because of race, color, religion, sex, national origin, disability, or familial status, according to HUD regulations. To defend against accusations of selective marketing, you’ll need to show that your choice of marketing outlets is part of a broad, inclusive marketing campaign.