Legal Update: Highlights from Recent Fair Housing Cases

In this month’s lesson, the Coach offers highlights from recent court rulings on fair housing law. For each case, we’ll review what happened and how it landed in court. Then, we’ll explain the fair housing issues involved, and what the court decided and why—so you can understand how to avoid similar fair housing 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 Fair Housing Act (FHA) is a federal law that bans housing discrimination in just about all types of rental housing. Under the FHA, it’s unlawful to deny housing to anyone—or to treat someone differently—based on race, color, religion, national origin, sex, disability, and familial status.

In addition, the FHA offers special provisions protecting individuals with disabilities. Under the FHA, a disability means a physical or mental impairment that substantially limits one or more major life activities. Among other things, the law requires housing providers to consider requests for reasonable accommodations or modifications when necessary to allow an individual with a disability to use and enjoy use of the home. The law also includes accessibility requirements in the design and construction of covered multifamily communities.

In addition to outlawing discriminatory rental practices, the FHA bans retaliation by making it unlawful to “coerce, intimidate, threaten, or interfere with” anyone for exercising his rights under fair housing law—as well as anyone who helps or encourages someone to do so. In retaliation claims, it doesn’t matter whether the resident had a good reason to file the discrimination complaint in the first place. Under fair housing law, discrimination and retaliation are separate violations, so you could be liable for retaliation, for example, if you take adverse action against a resident solely because he filed a discrimination complaint against you—even if the discrimination claim is ultimately dismissed.

NO-SMOKING POLICY

Resident Accuses Community of Disability Discrimination

Based on Enforcement of Smoking Ban

In a recent ruling, a court ruled that an Idaho community was not liable for disability discrimination or retaliation stemming from the enforcement of its no-smoking policy.

The case was filed by a couple who moved into the community in 2011. The husband said that exposure to second-hand smoke exacerbated his disabilities, including heart and lung impairments, so they moved there because of the community’s no-smoking policy. The lease provided that smoking was prohibited in the units or the breezeway. It also banned residents, guests, and others from smoking in common areas, and identified those areas to include corridors, breezeways, hallways, stairways, and the area immediately outside of apartments.

In 2012, the couple began complaining of tenant smoking violations, when they noticed their next-door neighbor smoking on his porch. They said they made several requests to a former on-site manager, asking him to tell the neighbor to stop smoking on his porch, but the requests were denied.

Allegedly, the community’s on-site managers interpreted the no-smoking policy to mean that smoking was prohibited in units and anywhere around the buildings, but allowed people to smoke on their porches and outdoor common areas away from the buildings. Once the husband began complaining of smoking violations, the community said that the policy was clarified to include porches in the smoking ban.

That neighbor moved out in 2013, but the couple suspected their new neighbor also smoked because they saw an ashtray on his porch. Outraged by the belief that the community moved another smoking tenant next door, they contacted several legal representatives to help in their efforts to enforce the no-smoking policy.

After various communications, the community established a designated smoking area next to the community center, a considerable distance away from the residential buildings. The husband protested that he couldn’t use the community center because of exposure to second-hand smoke. The community worked with the couple and their legal advisor to move the designated smoking area to a grassy picnic area away from the community center and away from their unit. Still dissatisfied, the couple didn’t want a designated smoking area anywhere on the community property.

The community reportedly sent notices to residents, reminding them about the no-smoking policy, and informing them that it would be strictly enforced. The couple made several complaints to management over smoking violations; the community often followed up and issued warnings to residents smoking outside the designated smoking area.

The husband also personally investigated alleged smoking violations by photographing other residents he caught smoking. After receiving three complaints from other residents, the community issued a lease violation reminder to the husband, asking him stop photographing other residents. He ignored that notice—and did the same after receiving a second warning a year later.

The husband’s photographing activities on two occasions resulted in calls to police. The first time, in 2013, a resident called to report that the husband was taking her picture without her permission; when a police officer responded, a manager directed him to the couple’s unit. The second time, in 2014, the husband called police after getting into a verbal altercation with another resident smoking on his lawn. There was no record that anyone was charged with a crime due to either police incident.

Meanwhile, the couple filed a HUD complaint, alleging fair housing violations. After an investigation, HUD dismissed the complaint, finding that no reasonable cause existed to believe that a discriminatory housing practice occurred.

The couple sued the community for disability discrimination and retaliation. Among other things, the couple alleged that the community failed to provide them with a reasonable accommodation by not enforcing the no-smoking policy.

Both parties asked the court for judgement without a trial.

Decision: In favor of the community.

The court granted judgment to the community, rejecting the couple’s claim that the community failed to accommodate the husband’s disability by not enforcing the no-smoking policy in the lease. Though the lease’s no-smoking provisions prohibited smoking in apartments and breezeways, the couple interpreted the policy to ban smoking anywhere at the community. They argued that enforcement of the no-smoking policy on the entire property, including the designated smoking area, was necessary for the husband to enjoy an equal opportunity of the use of his unit and other common areas at the community.

Even if his request was reasonable, the court said that the husband wasn’t entitled to the accommodation of his choosing—a smoking ban on the entire community property. In an effort to accommodate the husband, the community established a designated smoking area so he could feel more comfortable about his neighbors who smoked by avoiding the single designated smoking area on the premises. The community even went so far as to relocate the designated no-smoking area to a location that was not used by the husband and far from both his unit and the community center. This was an alternative accommodation and change to the community’s policies, which would effectively meet the husband’s disability needs to limit his exposure to second-hand smoke.

• Stein v. Creekside Seniors, L.P., March 2016

Case Note: The court also ruled against the couple on their retaliation claims. Among other things, they claimed that the community retaliated against the husband by reporting him to police for photographing other residents he caught smoking. The court said the evidence showed that it was a neighbor, not the community, who called the police. Nor did the community retaliate against the husband by issuing the warning notices, asking the husband to stop photographing other residents.

ASSISTANCE ANIMALS

Did Community Unlawfully Deny Resident’s Request for Assistance Animal?

Here’s an update to a case from the Virgin Islands that the Coach covered in May 2014. The case recently went to trial, ending in a ruling in favor of one of the two residents who originally sued over a condo community’s no-pet policy.

When the resident bought the condo unit in 2004, she knew about community rules prohibiting pets of any kind to be kept there. In 2009, however, she rescued a 7-pound stray Chihuahua and brought it home to live with her. She said that having the dog comforted her in the aftermath of several traumatic events that occurred that year. In the months just before and after getting the dog, she was notified of a close friend’s suicide, witnessed her friend’s murder by gunmen, learned of her brother’s death in a head-on collision with a drunk driver, and heard of the drowning death of another close friend. After these events, according to the resident, she became depressed, had panic attacks, insomnia, and nightmares, but the dog helped her cope and made her feel safe. 

Three months after she brought the dog home, the community notified her that pets were prohibited and that she had to remove the dog or face fines and possible legal action. When she didn’t respond, the community fined her for violating the no-pet policy. In reply, she sent a letter, explaining that the dog was a necessary companion; she said she was told that her request for a “pet” wasn’t sufficient, but she was never told what type of documentation was needed.

Eventually, the community sued to prevent her from keeping the dog in the unit. She said that she explained that her dog was a service animal and asked what documentation was needed to keep her dog, but that the community didn’t respond.

The resident moved out and sued the community for disability discrimination. Though she later rented out the unit, she asked for a court order allowing her to return to the community with the dog.

After a series of proceedings, the court held a trial on her fair housing claims.

Decision: In favor of the resident.

The court ruled that the community violated fair housing law by unlawfully denying the resident’s request to keep her assistance animal as a reasonable accommodation for her disabilities.

To prove her claim, the resident had to prove that she qualified as an individual with a disability, that she requested a reasonable accommodation, that the requested accommodation was reasonable and necessary, and that the community denied her request.

The resident satisfied all those requirements. Though the community disputed whether she qualified as an individual with disabilities under fair housing law, the court ruled that she was disabled because her anxiety disorder and depression substantially limited a number of her major life activities. The court also ruled that the requested accommodation was necessary for her to use and enjoy her dwelling. 

The court rejected the community’s claim that it never formally denied her reasonable accommodation request. The resident requested a reasonable accommodation when she asked to be exempted from the community’s no-pet policy and be allowed to live there with her emotional support animal.

Nevertheless, the court ruled, the community didn’t respond to her repeated requests to identify the documentation required to keep the assistance animal, ask her for documentation to support her request for a reasonable accommodation, or engage in an interactive process to address its concerns. Instead, the community ignored her requests for information, imposed fines for violating the policy, and then sued her for a court order to keep her from having the dog at the community. Consequently, the court ruled that the community constructively denied the requested accommodation by failing to engage in the required “interactive process” to determine if her request was reasonable and necessary.

Ruling that the community violated fair housing law, the court awarded the resident $12,000 in damages to compensate her for her losses. The court also ordered the community to make any reasonable accommodations necessary for her to return to live there with her dog and to remove any pet fines and associated interest or attorney’s fees.

• Nelson v. Long Reef Condominium Homeowners Association, August 2016

Case Note: The court also ordered the community to pay the resident $45,000 in punitive damages, ruling that the community was aware of its obligations under fair housing law, but acted with “reckless or callous indifference” to her federally protected right to request a reasonable accommodation. In addition, she was entitled to reasonable attorney’s fees in an amount to be determined after further proceedings.

RACE

Community Accused of Race Discrimination

Based on Handling of Maintenance Requests

A court recently ruled that a property management company was liable for race discrimination based on allegations that a manager ignored an African-American resident’s maintenance requests, but satisfied similar requests from his white neighbor.

The owner of the Oregon community hired the property management company to oversee operations at the community; the company assigned a manager, who was white, to authorize repair and maintenance projects at the property.

The African-American resident lived at the community with his mother and son for more than a decade. His next-door neighbor, who lived there for much of the same time, was white. Over the years, the neighbor reported various problems at her unit, including a bulging ceiling and rotting subflooring in her bathroom. She also requested new closet doors. Each time, the problems were repaired, and new closet doors were installed.

The African-American resident said that when he requested similar repairs for his unit, the manager asked for permission to enter his unit whenever she wanted or needed to enter to facilitate repair work. The resident refused, asking her to contact him in advance so he could be there for the repairs. The parties disagreed about what the manager said in response. According to the resident, the manager said that if she couldn’t come in whenever she wanted to make repairs, she simply wouldn’t make them. The manager denied making that statement, but the court later found the resident’s version was more credible.

In 2013, the resident said he asked the manager to repair a large “bubble” in the ceiling and another hole in his kitchen, but it was not repaired. He said the same thing happened when he reported rotting subflooring in the bathroom. He also requested new closet doors, but he said he didn’t get them until after he reported that he tripped and was injured because of problems with the door.

Around the same time, the resident failed to pay his rent. The community gave him timely notice, and then filed an eviction proceeding for nonpayment of rent. The court sided with the community, terminating his tenancy and ordering him to pay $3,200 in back rent and expenses.

A year and a half later, the resident sued, accusing the community of discriminated against him in the provision of services because of his race.

The community asked the court to dismiss the case, arguing that he couldn’t sue for discrimination because of the prior eviction action against him. According to the community, he could have raised the issue during the eviction proceedings, but didn’t and now it was too late.

The case went to trial on his fair housing claims.

Decision: In favor of the resident.

The court ruled that the property management company was liable for race discrimination based on the way the manager handled maintenance requests.

Fair housing law bans discrimination against anyone in the provision of services or facilities because of a protected characteristic. In particular, it’s unlawful to fail or delay maintenance or repairs of rental dwellings because of race, color, religion, sex, familial status, national origin, or disability, according to HUD regulations.

The resident proved that the manager treated him differently than she treated other residents—specifically, the next-door neighbor—in providing maintenance services, at least in part, because of his race. He didn’t have to prove that his race was the only reason that the manager treated him differently—only that it was a “motivating factor.” The court awarded him $15,000 in damages for emotional distress and humiliation caused by the community’s unlawful, racially discriminatory conduct.

The community unsuccessfully argued that the resident’s fair housing claim was barred by the prior eviction. The law prevents anyone for suing again for claims decided in an earlier court ruling. However, that rule didn’t apply to this case because the resident didn’t raise discrimination as an issue at the eviction hearing. Nevertheless, the court ruled that the community was entitled to an offset for the back rent and expenses owing at the end of his tenancy.

• Moye v. The Connifer Group, July 2016

Coach’s Tip: To avoid fair housing trouble from your maintenance operations, it’s a good idea to provide maintenance and repair requests on a first-come, first-served basis—unless the request involves an emergency, such as smoke or overflowing toilets, which would justify an immediate response. Implement procedures for handling maintenance requests—and document when each request was received, how it was handled, and any other relevant information. These basic procedures ensure that the community provides maintenance services consistently based on reasonable, objective criteria as opposed discriminatory factors such as the race or other protected characteristic of the resident making the request.

RETALIATION

Fire Official Accuses City of Firing Him

for Cooperating with Fair Housing Investigators

A court recently ruled that an assistant fire chief, who claimed he was fired for cooperating with fair housing investigators, could sue the city for retaliation under fair housing law.

The assistant fire chief worked for a city in Idaho. After being appointed as head of the fire prevention bureau, he said that he ordered an investigation because of fire safety concerns at two housing communities. The assistant chief alleged that he informed some of the city’s elected officials, including the mayor, of his concerns, and indicated that he may need to issue orders to have the building owners either make improvements or be shut down. According to the assistant chief, the mayor didn’t think that was a good idea, but the assistant chief did it anyway. He was later placed on leave, and ultimately fired.

He sued, accusing the city of retaliating against him in violation of fair housing law. He alleged that, while still on the job, he was contacted by fair housing advocates to aid in a fair housing investigation at the two housing communities. He said he directed a subordinate to turn over potentially incriminating evidence of fair housing violations to the advocates, which ultimately led to his termination. The city disputed his claims, citing poor management skills and lack of judgment as the reason for his termination.

The city asked the court for judgment without a trial, accusing the chief of trying to turn the dispute over the termination of his employment into a fair housing case. The city argued that he couldn’t sue under fair housing law because his job wasn’t related to housing and the city had nothing to do with housing rights of anyone living at the two housing communities.

Decision: Judgment without a trial denied.

The court denied the city’s request for judgment without a trial, allowing the case to go forward for further proceedings.

The court ruled that fair housing law’s broad ban on retaliation could apply to this case. The court explained that the law is violated when a defendant retaliates against someone who “aids or encourages any other person in the exercise or enjoyment of their fair housing rights.” That’s what he alleged here—and it will be up to a jury to decide why he was really fired.

• Strosnider v. City of Nampa, July 2016

Case Notes: Under fair housing law, it’s unlawful to retaliate against anyone for asserting his fair housing rights. Retaliation claims come up most often in cases filed by residents who, for example, accuse a community of discriminating against them, and retaliating against them for complaining about it. But retaliation claims can be filed on their own—because the law also protects anyone who helps someone else to exercise his fair housing rights. It means that you could face a retaliation claim if you fire an employee for helping a resident with a discrimination complaint or for cooperating with fair housing investigators.

DESIGN & CONSTRUCTION RULES

Do FHA Design & Construction Rules Apply to Rehabbed Factory?

The FHA’s design and accessibility requirements don’t apply to residential units in a building converted from an old factory, according to a federal appeals court.

The factory, which was built in Philadelphia in 1912, had been abandoned and fallen into disrepair until it was purchased in 2010 by developers for conversion into rental housing and retail space. The building was almost gutted—walls and windows were removed—but the floors were left intact. The result was the conversion of a building originally used for manufacturing into a residential building with 163 residential units and ground-floor retail space. The building began accepting tenants in 2013.

A year later, a fair housing organization sued the developers and others, alleging violations of design and accessibility requirements of the Fair Housing Act. The FHA’s accessibility requirements apply to the design and construction of most types of multifamily dwellings built for first occupancy after March 13, 1991.

The developers asked the court to dismiss the case, arguing that those requirements didn’t apply because the building was constructed and used for decades before the law’s effective date. The organization countered that the law did apply, even though it was an old building, because the residential units were constructed and first occupied after the law’s effective date.

Siding with the developers, the court dismissed the case, and the fair housing organization appealed.

Decision: In favor of the developers.

The court affirmed, ruling that the FHA’s design and construction standards didn’t apply to the residential units in the rehabbed building. The court pointed to HUD regulations and other guidance, which had already resolved this issue by interpreting “first occupancy” to mean “a building that has never been used for any purpose.” HUD has consistently said that the FHA’s design and accessibility requirements don’t apply to buildings like this because it was not newly constructed and not first occupied after the effective date of the requirements.

• Fair Housing Rights Center in Southeast Pennsylvania v. Post Goldtex GP, LLC, May 2016

Case Note: The FHA requires certain accessibility requirements in the design and construction of communities with four or more units that were built and first occupied after March 13, 1991. Those accessibility features include:

• Accessible entrance on an accessible route;
• Accessible common and public use areas;
• Doors sufficiently wide to accommodate wheelchairs;
• Accessible routes into and through each dwelling;
• Light switches, electrical outlets, and thermostats in accessible location;
• Reinforcements in bathroom walls to accommodate grab bar installations; and
• Usable kitchens and bathrooms configured so that a wheelchair can maneuver about the space.

These requirements apply to all public and common use areas—and to all rental units, if the building has an elevator. In buildings without an elevator, the standards apply only to ground-floor units.