Keeping Your Community Safe: Fair Housing Considerations

This month, Fair Housing Coach highlights how to comply with fair housing requirements while protecting the safety and security of your community.

To cut the risk of crime, safety experts offer a variety of tips, many of which are aimed at keeping criminals from moving into the community. For example, the experts advise communities to fully screen their applicants, but you could be vulnerable to a fair housing complaint unless you apply the policy consistently to all applicants.

In this month's issue, we'll give you six rules to follow for protecting the safety and security of your community without violating fair housing law. Then, you can take the COACH's Quiz to see how much you have learned. And this month, in the Spotlight feature, we'll take a look at crime-free rental housing programs.

COACH'S TIP: Owners of federally assisted housing must comply with federal law and related regulations regarding criminal background checks and removal of residents based on criminal activity.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) prohibits housing discrimination based on race, color, national origin, sex, religion, familial status, and disability. In addition, state and local laws may prohibit housing discrimination based on other characteristics, including marital status, age, or criminal history. Communities must comply with applicable federal, state, and local fair housing laws, or they could face penalties, litigation expenses, and potentially costly damage awards.

Nevertheless, fair housing law does not prevent your community from taking steps to protect employees, residents, and property from criminal activity. Crime takes a toll on communities—not just in the danger it poses to your employees and residents, but also in its impact on your bottom line. Safety experts warn that community owners pay a high price when criminals and other destructive residents operate out of rental property, including property damage, civil and criminal liability for nuisance, loss of rent during the eviction and repair periods, not to mention fear and frustration when dealing with dangerous and threatening residents.

To avoid discrimination claims based on your community's security measures, you must treat all prospects, applicants, and residents consistently.

A criminal background check is one example. Unless restricted by state or local law, communities may require applicants to pass a criminal background check. But you will risk a fair housing complaint if you apply the requirement only to applicants whom you suspect of having a criminal record. Under the FHA, it is illegal to impose different qualification criteria or application procedures because of a protected characteristic. Furthermore, some communities may be limited in efforts to conduct criminal background checks because of state or local fair housing laws that restrict the information an owner may obtain about an applicant's criminal past.

The same goes for your response to complaints about troublesome residents. You may adopt reasonable, nondiscriminatory rules governing resident misconduct, but you must apply them consistently to avoid fair housing trouble. In addition, you may be challenged in how to respond if a resident with a disability asks you to overlook a violation of your rules as a reasonable accommodation.

6 RULES FOR PROTECTING SAFETY WITHOUT VIOLATING FAIR HOUSING LAW

Rule #1: Do Not Exclude Applicants Based on Stereotypes

Safety experts say that staff members should follow their gut instincts to avoid being victimized by criminals, but it is illegal under federal law to discriminate against a prospect based on stereotypes about his race, national origin, or other protected characteristic. Treating a prospect like a troublemaker because of the way he looks, talks, or is dressed could lead to a discrimination complaint.

Take steps to prevent stereotypes from unlawfully affecting your community's operations. Adopt a fair housing policy to emphasize that your community does not discriminate based on race, color, national origin, sex, religion, disability, or familial status, as well as any other characteristic protected under state and local law. Train your staff to treat all prospects and applicants politely and professionally—both in person and on the phone—regardless of their personal opinions about the way the person speaks or dresses.

Warn employees not to engage in unlawful steering based on stereotypes about a prospect's race, color, national origin, or other protected characteristic. Under the FHA, it is illegal to make units unavailable or otherwise restrict prospects’ housing choices for discriminatory reasons. For example, you can't discourage families with teenagers from living in your community because of preconceived notions that teenagers are more likely to cause trouble at your community. If you do, you could be accused of discrimination based on familial status.

Rule #2: Thoroughly Screen All Applicants

Safety experts advise communities to minimize the likelihood that criminals will take up residence by thoroughly screening all applicants using credit checks, prior rental history, and other means.

To prevent discrimination claims from the screening process, you should develop a written policy that describes your application procedures and the criteria that your community uses to select residents, including credit and rental history requirements. The policy should explain whether the community uses an outside screening service, and how the information is used to decide whether applicants are accepted.

As part of the screening process, many communities require applicants to submit to criminal background checks. Some state and local laws restrict the practice, but federal fair housing law does not prevent you from conducting criminal background checks, as long as you do so consistently for all applicants—not just the ones you suspect may have a past history of criminal conduct.

If you conduct criminal background checks, your policy should describe the specific screening criteria, including the type of criminal conviction and how long ago it occurred, that will result in a rejected application. To make sure the policy is reasonable, ask your attorney for help in setting the age and scope of the disqualifying criteria based on criminal history.

To prevent unauthorized occupants from taking up residence in your community, safety experts recommend requiring applicants and all adult members of their households to meet the same requirements regarding criminal background checks. They warn that criminals often try to avoid the screening process by moving in with someone else—such as a family member or girlfriend—who fills out the application. Depending on state or local law, your community may require all applicants and adult members of their households to submit to criminal background checks to prevent this from happening.

COACH'S TIP: Ask your attorney whether your community is subject to state or local fair housing laws that prevent or restrict the use of criminal background checks in rental decisions. The laws often restrict the type and age of convictions that may be used to refuse an application and impose procedural and recordkeeping requirements that communities must follow to avoid a fair housing complaint.

Rule #3: Consider Requests for Reasonable Accommodations Based on Disability

To comply with fair housing law, your community may have to make an exception or otherwise modify screening policies and other security measures for an applicant or resident with a disability. The FHA requires communities to make reasonable accommodations in rules, policies, practices, and services to allow individuals with disabilities an equal opportunity to use and enjoy the dwelling.

Fair housing law does not protect anyone whose addiction is caused by current, illegal use of a controlled substance, but an applicant with a history of drug addiction or alcoholism may qualify as an individual with a disability under the FHA. If a criminal background check reveals past conduct related to these conditions, then you must consider a request to make an exception to the screening criteria as a reasonable accommodation.

Nevertheless, fair housing rules protecting individuals with a disability do not require you to overlook an applicant's criminal history or a current resident's misbehavior in all cases. Although it is illegal to discriminate against an individual with a disability, the FHA does not require you to accept individuals whose tenancy poses a “direct threat” to the health or safety of your other residents, or would result in substantial physical damage to your property.

Before excluding an applicant on that basis, communities are required to look at the specifics of each case to determine whether a particular applicant or resident poses a direct threat because of his recent history or current misconduct. You must consider reliable, objective evidence of:

• The nature, duration, and severity of the risk of injury;

• The probability that injury will actually occur; and

• Whether there are any reasonable accommodations that will eliminate the direct threat.

If the threat is based on past history, the law requires you to consider whether the applicant has received intervening treatment or medication that has eliminated a significant risk of substantial harm. But you don't have to take his word for it—the law permits owners to request documentation about how the circumstances have changed so that the applicant no longer poses a direct threat as well as satisfactory assurances that he will not pose a direct threat during the tenancy.

COACH'S TIP: It's a good idea to get legal advice before evicting a resident with a mental disability for serious misconduct, such as threatening his neighbors. Fair housing law requires you to examine reliable, objective information about the particular circumstances to determine whether he presents a direct threat to the health and safety of other residents. If he asks you to allow him to stay as a reasonable accommodation, then you may request reasonable assurances that he will receive treatment, such as appropriate counseling and periodic medication monitoring, so that he will no longer pose a direct threat during his tenancy. If the resident refuses, then HUD guidelines suggest that you may go forward with the eviction proceeding, since the resident continues to pose a direct threat to the health or safety of other residents.

Rule #4: Establish Rules for Showing Units

Safety experts warn that employees may be vulnerable to criminal activity while showing units, so it's important to develop policies and procedures to protect the safety of your employees during community tours. Training your staff to follow the rules consistently will minimize the risks of assault—and reduce the chances of a fair housing complaint.

As a security precaution, safety experts recommend requiring prospects to furnish identification before showing them units. If you do, you must require all applicants to comply, even if they don't seem dangerous, to avoid a discrimination complaint. And get legal advice about what type of identification will satisfy your requirements. If you require prospects to supply a U.S.-issued identification, then your community could be accused of discrimination based on national origin.

If your community has a policy against showing units at particular times, then you should post the policy in a prominent place in your leasing office. It will counter any impression that the leasing agent is refusing to conduct the tour for discriminatory reasons.

The policy also should address what to do if a leasing agent feels uneasy about showing a unit to a particular prospect. According to security experts, an unexplained fear or apprehension may signal that you are in danger.

Many communities give leasing agents the discretion to handle these situations—for example, by making up an excuse to reschedule the tour. When a leasing agent turns away a prospect who made her feel uncomfortable, she should record the prospect's name, the date and time of the incident, and the details about the prospect that explain the reasons for the agent's decision.

The report will permit you to review whether the agent's actions were based on concerns about a particular prospect, not a stereotype about his race, nationality, or other protected characteristic. The report also will provide documentation in case the prospect later files a discrimination claim.

Rule #5: Promptly Respond to Complaints About Residents

To ensure safety and security at your community, you should respond promptly and fairly to a resident's complaints about harassment or criminal activity by a neighbor. A resident may be the first to detect unauthorized occupants or residents who are engaged in drug sales or other criminal behavior, so the complaint may alert you to a dangerous situation at your community.

When a resident complains about another resident, you should always take the complaint seriously. If you ignore complaints from some residents or treat them less seriously than others, then you may be vulnerable to a fair housing complaint if the resident making the complaint is a member of protected class. For example, you could be accused of discrimination based on disability if you ignore a resident's complaints about her neighbors because you believe the resident has emotional problems.

On the flip side, you could be accused of discrimination by the subject of the complaint if you treat complaints against some residents more seriously than others. They could accuse you of enforcing rules only against residents of a particular race or other protected characteristic—or say that the complaint served as an excuse to cover up your real motives—unlawful discrimination.

Be prepared to respond if you receive a complaint from a resident that a neighbor is discriminating against or harassing her because of her national origin or other protected characteristic. If you don't take complaints about such conduct seriously, you could be held liable for the resident's behavior under fair housing law if the court finds you knew about the resident's behavior, but you failed to do anything to stop it.

Develop policies and procedures to address residents’ complaints about their neighbors. Ask them to put complaints in writing with details about the questionable behavior and the names of any witnesses. Note the date and time you received the complaint in case you need proof that you responded promptly. Take all complaints seriously and conduct an objective investigation of each one.

COACH'S TIP: Take a firm stand against sexual harassment by residents, employees, and contractors working at the community. Turning a blind eye toward what you may consider to be harmless, though inappropriate comments, could leave your community vulnerable to a fair housing complaint. Furthermore, sexually charged comments may signal—or escalate—to inappropriate behavior, including physical violence. If one of your residents falls prey to sexual assault by a resident, employee, or contractor, you could be found liable for damages if the victim can prove you knew about the danger but did nothing to stop it.

Rule #6: Take Corrective Action When Necessary

Enforce your safety and security measures by taking action against residents who violate lease terms or community rules. If a resident behaves in a manner that justifies eviction—for example, by engaging in criminal activity or threatening other residents—then you may initiate eviction proceedings, even if he is a member of a protected class or has a fair housing complaint pending against you.

In many cases, a resident will assert a fair housing claim as a defense in eviction proceedings. He could accuse you of trumping up charges against him because he filed a fair housing complaint against your community. Or he could accuse you of singling him out for violating your rules based on discriminatory reasons by showing that you turned a blind eye toward other residents engaged in the same activity.

Be prepared to counter accusations of discrimination or retaliation raised during eviction proceedings. Develop reasonable, legitimate policies and procedures that outline how your community deals with troublemaking residents. Put it in writing and document that you applied the policy consistently. And it's a good idea to get legal advice before evicting a resident who has a fair housing complaint pending against you.

COACH'S TIP: Good recordkeeping will help you ward off discrimination claims by documenting that you had a legitimate reason to take action based on a resident's misconduct. Keep records of complaints by other residents, police reports, and photos of property damage or injuries. Document your efforts to investigate complaints, such as statements by residents and witnesses, and how you responded, such as written warnings you sent to the resident before initiating eviction proceedings.

Fair Housing Act: 42 USC §3601 et seq.

Sidebar

TIME OUT!

Are communities liable to pay damages to residents who have been the victims of crime?

With some exceptions, most courts have ruled that the law generally does not impose a responsibility on owners of rental communities to protect residents from criminal attack. The underlying principle is that the owner is not responsible for the acts of a third party unless the owner knew or should have known about the likelihood of criminal attack, and the owner did something—or failed to do something—that allowed the attack to occur. In some cases, courts have held communities liable to pay damages for a resident's injuries when the owner's failure to maintain or repair door locks, outside lighting, or other security measures, allowed the criminal attack to occur.

If the perpetrator is another resident, courts have been less likely to hold owners responsible when the injured resident blames the attack on the owner's failure to exclude, monitor, or evict the perpetrator because of his criminal history. Among other reasons, courts have ruled that it would place an unrealistic burden on owners to screen out applicants with a criminal past, or to keep tabs on or evict residents because of their past criminal behavior.

Sidebar

Spotlight on Crime-Free Multihousing Programs

Across the country, many communities are subject to local laws requiring or permitting them to participate in the Crime Free Rental Program, a three-part program designed to keep drugs, gangs, and crime out of rental communities. According to the Mesa, Ariz., police department, where the program got its start in 1992, the program has spread to nearly 2,000 cities in 44 U.S. states as well as Canada, Mexico, England, Finland, Japan, Russia, Malaysia, Nigeria, Afghanistan, and Puerto Rico. Earlier this year, a bill to adopt a crime-free rental program statewide was passed by the Washington Senate.

The first phase of the program consists of an eight-hour training, taught by police, covering topics such as the benefits of resident screening, lease agreement and eviction issues, and ongoing security management monitoring. In the second phase, police conduct a survey to evaluate lighting, security features, and other aspects of the community. The final phase is a commitment by communities to remain crime free. Property managers can become individually certified after completing training in each phase, and the property becomes certified upon successful completion of the program.

In some cities, participation in the program is mandatory and requires communities to pay an annual fee based upon the number of rental units, in addition to obtaining a business license. In addition, the laws may require use of a crime-free lease addendum, a form modeled after the lease clause that federally assisted communities are required to use, which gives owners the right to evict if a resident engages in criminal activity.