How to Enter Residents' Apartments Without Violating Fair Housing Law

This month, we'll discuss how to enter residents' apartments without violating fair housing law. There are many reasons why you and other staff members might need to enter a resident's apartment. You might need to perform routine maintenance, such as changing air-conditioning filters or spraying for bugs; inspect the apartment; make repairs; or show the apartment to a prospective new tenant. Or you might need to enter a resident's apartment to respond to an emergency, such as a burst pipe that's flooding the apartment below.

But if you don't follow certain rules when entering residents' apartments, you could wind up violating fair housing law. In this month's lesson, we'll give you 12 rules to follow to help you avoid fair housing trouble when entering residents' apartments. As always, you can take our Coach's quiz at the end of the lesson to see how much you've learned. And you can copy and distribute the “At a Glance” box on the last page of this issue so you and other staff members will have a quick reference to help you remember and comply with the rules.

WHAT DOES THE LAW SAY?

The Fair Housing Act makes it illegal to discriminate against residents on the basis of race, color, religion, gender, mental or physical disability, family status, or national origin. Many states and localities also ban discrimination on other bases, such as age, military status, sexual orientation, source of income, or student status. If the procedure you follow when entering residents' apartments discriminates based on any of these factors, you may be violating fair housing law, according to Nadeen W. Green, fair housing law expert and senior counsel at For Rent Magazine.

For example, you may have an Orthodox Jewish resident who observes the Sabbath from Friday at sundown until Saturday at sundown. If you try to enter his apartment during that time without his permission and for a routine matter, he may feel that you're discriminating against him because of his religion, and may file a fair housing complaint against you. Such a complaint may or may not succeed, depending on whether your behavior is part of a wider pattern of similar behavior on your part. But you can reduce the likelihood of such complaints—if not eliminate them completely—by following certain rules for entering residents' apartments, Green points out.

12 RULES WHEN ENTERING RESIDENTS' APARTMENTS

Here are 12 rules to follow to avoid fair housing trouble when entering residents' apartments:

Rule #1: Establish Written Policy on Entering Residents' Apartments

To avoid fair housing problems, your community should set a written policy governing the procedures to follow when entering residents' apartments, Green suggests. Having a well-thought-out policy—rather than improvising with respect to each situation that arises—should help you and other staff members avoid many of the obvious mistakes people make when entering residents' apartments, she explains. For example, your community's policy could require you and other staff members to notify residents in advance when you're going to need to enter an apartment (see Rule #3, below). If your community doesn't have such a policy, speak to the manager or your supervisor about creating one.

Rule #2: Apply Policy Consistently

Having a policy on entering residents' apartments isn't enough. You and other staff members must apply it consistently, advises Maryland attorney Stuart L. Sagal. As with most fair housing law issues, it's always best to apply a policy consistently. If you're ever accused of fair housing violations, treating all residents alike (except where disabilities require you to make reasonable accommodations) can go a long way toward convincing a court or HUD that you don't discriminate, he says.

So, if your community's policy requires you to notify residents in advance when you're going to need to enter their apartments, make sure you do so for all residents, says Sagal. If you give advance notice only to the white residents you happen to be friendly with, then African-American residents to whom you give no notice may accuse you of discrimination, he explains.

Rule #3: Give Notice of Need to Enter Apartment

Before entering a resident's apartment for any reason other than an emergency, give the resident notice that you intend to enter his apartment and why you need to do so, says Green. While giving notice might not technically be required under fair housing law, doing so can help you avoid fair housing complaints, she says. Residents who know that you need to enter their apartments, and why, are less likely to feel discriminated against, she explains.

What kind of notice should you give? All of the experts with whom we spoke agreed that oral notice is sufficient, but written notice is better. “Good risk management dictates that notices should be in writing,” Green says. By putting your notices in writing, you have proof if a resident later says, in the context of a fair housing complaint, that you entered her apartment without her knowledge or consent. Proof that you notified the resident could be especially important if, for example, you forgot to knock before entering her apartment and the resident was undressed. “Maintenance staff is regularly accused of all sorts of improprieties, most often unfounded, so before entering a resident's apartment, it just makes sense to provide written notice,” she explains.

Ken Walden, an attorney with Access Living, an organization that defends the rights of people with disabilities, suggests that your written notice should explain the following:

• Why you need to enter the apartment;

• When you plan to do so, including the day and approximate time you expect to arrive at the apartment (without being so specific that you lock yourself into a strict appointment); and

• Approximately how long you expect to be in the apartment.

Keep a copy of the notice you send, he suggests. Then, if the resident later makes a fair housing complaint against you, you can at least show that you notified him that you would be entering the apartment and that you had a valid reason for doing so.

Coach's Tip: Fair housing law requires you to communicate effectively with residents, Walden points out. If a resident is disabled, you should notify him of your intent to enter his apartment in a way that is most effective for him, he says. For example, you could give oral notice over the phone to a vision-impaired resident. And if a resident is hearing-impaired, you could give him written notice, which is better for both you and the resident. Or you could use a text telephone (also known as a TTY or TDD device), which is a telecommunications device that lets hearing-impaired people communicate by typing messages back and forth using a keyboard and screen attached to a standard telephone.

If your community doesn't have a text telephone, you can place your call using a relay service operator. (For more on dealing with hearing-impaired residents, see “How to Deal with Hearing-Impaired Prospects, Residents Without Violating Fair Housing Law,” Fair Housing, Aug. 2005.)

Rule #4: Choose Attire, Protective Gear Based on Job to Be Done, Not on Resident

Different types of work in residents' apartments might require you and your service technicians to wear special clothing and/or protective gear. For instance, if you will be painting a resident's apartment, you might want to wear a mask over your mouth and nose to protect yourself from the fumes. But choose both your attire and the protective gear you wear to a resident's apartment based on the job to be done there—and not on the resident, advises Sagal. Otherwise, you could get into fair housing trouble.

Example: If a resident is HIV-positive and you show up at her apartment wearing a surgical mask and gloves to change the air-conditioning filters (and you don't wear these protective items when changing the filters at other residents' apartments), the resident might feel that you are discriminating against her based on her disability, and file a complaint.

It's not certain that merely wearing a surgical mask and gloves to enter a resident's apartment is discriminatory, says Max Lapertosa, an attorney for Access Living. But that could constitute a portion of a discrimination complaint, and if the resident can point to other ways in which you have discriminated against her on the basis of her disability, such a complaint could succeed, he says.

Rule #5: Ring Doorbell or Knock Before Entering Apartment

Even if you have notified a resident in advance that you will be coming to his apartment, never enter an apartment without first either ringing the doorbell or knocking on the door, says Sagal. If you don't, you could leave yourself open to a fair housing complaint. Entering an apartment without first ringing the doorbell or knocking on the door can be considered sexual harassment, says Green. Sexual harassment violates fair housing law because it's discrimination against a person on the basis of gender, she explains.

Rule #6: If No One Responds to Doorbell or Knock, Announce Arrival in Doorway Before Entering

If no one responds after you have rung the doorbell and/or knocked on the door, you may enter the apartment, says Sagal. But before doing so, open the door, wait in the doorway, and announce your arrival in a loud, clear voice, he says. After all, it's possible that the resident didn't hear the doorbell or knock. Simply announcing your arrival before entering the apartment can avoid fair housing complaints and embarrassing situations, he says.

But some of the experts with whom we spoke said that if no one responds after you have rung the doorbell and/or knocked on the door, consider leaving the apartment and trying again later. The decision to leave or not is up to you and may depend on practical issues, such as your community's level of tolerance of the risk that a resident will file a fair housing complaint. Certainly, leaving an apartment and trying again later, when practicalities allow, will avoid misunderstandings that could lead to fair housing complaints, but doing so isn't strictly necessary under fair housing law, says Sagal. Whichever procedure your community chooses should be included in its policy on entering residents' apartments.

Rule #7: Never Enter an Apartment When the Only Person Present Is Under Age 18

Entering a resident's apartment when the only person home is under age 18 is so fraught with risk that all of the experts with whom we spoke were strongly against doing so. Legally, it is risky to put yourself in a position where you're alone in an apartment with a minor. And if you are later accused of improprieties, it will look very bad for you and the community, even if you are ultimately exonerated. The only time you should make an exception to this rule is in an emergency.

If the only person home when you arrive is under age 18, leave the apartment and notify a supervisor of the situation, Sagal advises. Then make a record of what happened, detailing the date and time of day, and why you chose not to enter the apartment. And reschedule the appointment for a day and time when an adult will be at home.

Rule #8: Don't Enter Apartment if Environment Is in Any Way Inappropriate

If the environment inside an apartment is in any way inappropriate—for example, if the resident is watching a pornographic video or comes to the door undressed—don't enter, warns Green. An inappropriate environment creates too many possibilities for misinterpretation. These are just the kinds of situations that lead to fair housing complaints, she notes. If you are faced with such a situation, try to handle it discreetly. For example, tell the resident that you forgot a part needed for the repair or that you must leave to respond to an emergency call.

If you refuse to enter an apartment because of what you consider to be an inappropriate environment inside it, immediately notify a supervisor of the situation; create a record of what happened, detailing the date, time, and your reasons for not entering the apartment; and reschedule the appointment, says Green.

Coach's Tip: If, after you have entered an apartment, the environment becomes inappropriate, you should leave. For example, if the resident disrobes or makes sexually explicit comments, the wise decision is to leave. Immediately report the incident to your supervisor and document what happened.

Rule #9: Make Reasonable Accommodations for Residents' Disabilities

Fair housing law requires you to make reasonable accommodations for residents' disabilities, unless doing so would cause you an undue administrative or financial burden. This issue sometimes arises with residents who have multiple chemical sensitivities, asthma, or other conditions that make them vulnerable to cleaning products, paint, or other environmental particles, Lapertosa explains. In such cases, you should take reasonable measures to accommodate the resident's disability, he says. But you don't have to take unreasonable, extreme measures, he notes.

Example: A Maryland resident with extreme allergies refused to let the owner inspect her apartment unless the person conducting the inspection complied with certain requirements, including the following:

• Used something other than an ordinary laundry detergent to wash his clothing;

• Didn't wear deodorant;

• Hadn't recently had his clothing dry-cleaned;

• Hadn't recently had his shoes polished;

• Hadn't put gas in his car that morning; and

• Came directly to her apartment from his house, as his first work activity of the day.

An appeals court ruled that the owner didn't violate fair housing law by refusing to comply with the resident's demands. The court noted that an owner has to make only reasonable accommodations for a resident's disability. And it wasn't reasonable to require everyone who entered the resident's apartment to make wholesale changes to their lifestyle and personal hygiene [Solberg v. Majerle Mgmt.].

Rule #10: If Reasonable to Do So, Respect Religious, Cultural Traditions

Fair housing law doesn't require you to abide by a resident's religious or cultural traditions, Sagal emphasizes. For example, you aren't required to remove your shoes when you enter a Japanese resident's apartment for whom that's a cultural preference. And, in fact, doing so may be dangerous if the work at the apartment could be done more safely with shoes on, he says.

On the other hand, you can't show a consistent disrespect for residents' religious and cultural traditions. If you do, it will most likely lead to fair housing complaints, Sagal emphasizes. You don't have to accommodate religious and cultural differences, but if you go out of your way to offend people of a certain religion or national origin, you could wind up with fair housing complaints filed against you.

If you must make certain repairs to all of your community's apartments on a Saturday, you needn't make special arrangements for an Orthodox Jewish resident. However, if you consistently show up at his apartment on Saturdays insisting on doing work that could just as easily be done on a different day, that pattern of behavior could constitute religious discrimination.

Bottom line: When it's reasonable to do so, respect your residents' religious and cultural traditions. Extending that courtesy will most likely be appreciated by your residents, and can help to avoid fair housing complaints.

Rule #11: Make Appropriate Exceptions for Emergencies

In emergencies, you can disregard any and all of the rules discussed above, says Green. “If there's fire, flood, or blood, all the rules go out the door,” she says. If a broken hose is flooding a downstairs apartment or someone reports a fire in an apartment, get into the apartment as fast as possible, she says. But don't fake emergencies as a guise to enter an apartment you otherwise wouldn't have the right to enter, she warns. For example, don't claim to have smelled gas coming from an apartment just because you didn't want to wait to enter an apartment.

Rule #12: Never Use Entry to Harass Residents

Never use entry to harass residents. For example, don't constantly come up with excuses to enter the apartment of a resident in whom you're romantically interested. If she can show that you intentionally fabricated excuses to make repairs in her apartment, it will most likely lead to fair housing trouble for discrimination based on gender, according to Green.

• Fair Housing Act: 42 USC §3601 et seq.

• Joel Truitt Mgmt., Inc. v. Dist. of Columbia Commission on Human Rights: 646 A.2d 1007 (D.C. Ct. App. 1994).

• Solberg v. Majerle Mgmt.: 879 A.2d 1015 (Md. Ct. App. 2005).

Coach Sources

Nadeen W. Green, Esq.: Senior Counsel, For Rent Magazine, 294 Interstate N. Pkwy., Ste. 100, Atlanta, GA 30339; (770) 434-6347; nadeen.green@forrent.com.

Max Lapertosa, Esq.: Director, Fair Housing Enforcement Program, Access Living Center for Service, Advocacy, and Social Change for People with Disabilities, 614 W. Roosevelt Rd., Chicago, IL 60607; (312) 253-7000, x131; MLapertosa@accessliving.org.

Stuart L. Sagal, Esq.: Partner, Sagal, Cassin, Filbert and Quasney, P.A., The Jefferson Bldg., Ste. 400, 105 W. Chesapeake Ave., Towson, MD 21204; (410) 823-1881; ssagal@sagallaw.com.

Ken Walden, Esq.: Senior Attorney/Civil Rights Team Leader, Access Living Center for Service, Advocacy, and Social Change for People with Disabilities, 614 W. Roosevelt Rd., Chicago, IL 60607; (312) 253-7000, x136; KWalden@accessliving.org.

Sidebar

TIME OUT!

It's not enough that you and other staff members comply with these best practices; any contractors you hire to do work in residents' apartments must comply with it, too. For example, a District of Columbia management company employee warned her building's regular plumber to avoid servicing a particular resident's apartment because the resident might have AIDS. Later, when the plumber came to make repairs at the building, he demanded proof of medical safety before he would even enter the resident's apartment. The management company sent a memo to the resident demanding “certification from a qualified health authority” that it was safe to enter the resident's apartment, that there was no danger of anyone's catching the disease, and that there were no needles lying around from which anyone could get AIDS.

The resident sued the owner for discrimination based on his disability. Even though it was the plumber, and not the owner, who refused to make the repairs, a court ordered the owner to pay the resident $35,000. The court found that the owner's memo implied that no repairs would be made unless the resident got the certificate. Since the memo was given to the resident only because he had AIDS, it was discriminatory [Joel Truitt Mgmt., Inc. v. D.C. Commission on Human Rights].