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Measure 91 – High Times for Oregonians.  According to OregonLive.com, here, there are 23 states that currently have medical marijuana laws on the books. Oregon was one of them. On November 4, 2014, Oregon joined a smaller group of pot-friendly states (Washington, Colorado, Alaska, and the District of Columbia), to permit the recreational use of cannabis.[1]  I will leave it to the wordsmiths to explain how the term “recreational use” found its way into our lexicon when discussing the use of marijuana.  “Recreation” is the last thing one thinks about when taking a toke – or so I’m told….  

State and Federal Laws. The Federal Controlled Substances Act, 21 U.S.C. § 801, et seq., says that marijuana is illegal to grow, process, distribute, and possess, even when state law authorizes its use. Furthermore, federal law supersedes state law where there is a direct conflict between them.  That would seem to suggest that federal law, being more restrictive, would trump Oregon law.  However, this is not the case.

HUD and the Oregon Bureau of Labor and Industries, both of whom enforce fair housing violations, including discrimination based upon disabilities, have taken a laissez faire, or “hands off” approach, i.e. they are not enforcing the laws at the current time.  Accordingly, it is my belief that on both a state and federal level, landlords may properly prohibit growing, processing, distribution and possession of marijuana, even though the user holds a valid medical marijuana card. This opinion was extensively covered in my two articles, here and here.

How Are Landlords Affected by Measure 91?  Now that Oregon has legalized recreational use of pot, how does this change the equation for community owners?  The short answer is that it does not change the issues.  If anything, dealing with the use of recreational pot is the easy part.  The substance can be controlled, should an owner so desire, by a rule change, prohibiting the cultivation, processing, sale or use of marijuana within the community. 

The issues surrounding the legal use of medical marijuana, i.e. by card-carrying tenants, remains the same, i.e. can a park owner prohibit it?  I believe the answer is “Yes.”  But before explaining how, let’s look at the new law that everyone is toking talking about.

Oregon’s New Marijuana Law. An interesting article gleaned from a website called “The Daily Chronic” contains and interesting, though not exactly unbiased, analysis of Measure 91, here.  What follows is a short summary taken from the longer article:

·      It passed by 57% to 43%;

·      Public consumption of pot is prohibited;

·      The Measure does not go into effect until July 1, 2015;

·      Until that time, possession of less than one ounce of marijuana remains a misdemeanor and is subject to a fine of up to $650;

·      You must be 21 or older to possess marijuana;

·      Homemade cannabis extracts (when made with solvents)[2] are prohibited, i.e. one may not produce, process, keep, or store them;

·      Up to 1 ounce of cannabis extracts are permitted, but only if they are obtained through a licensed retailer;

·      Cultivation of up to four plants per household is permitted,[3] but they may not be visible from a public space;[4]

·      The Oregon Liquor Control Commission (“OLCC”) is in charge of regulating commercial cannabis cultivation, processing and retail sales;

·      Of course, there is a tax levied on sales. It is paid by the producers;

·      There are four types of businesses Measure 91 will license:

o   Producers, who will cultivate the pot;

o   Processors, who purchase it from the producers and convert it into assorted products with names, colors, flavors, and scents, reminiscent of the UC Berkley campus circa 1968;

o   Wholesalers, who purchase the pot and pot products for sale to retailers; and

o   Retailers, who will sell directly to consumers.

Sample Policy.  As mentioned above, I believe that community owners may both prohibit the cultivation, processing, retailing, selling and use of pot, inside the community, regardless of whether the user has a lawfully issued marijuana card.  This can be done prospectively, by including the prohibition in the Statement of Policy, the rules, and/or the rental agreement.  It can also be done by a rule change that affects the residents already in the community.  However, I do not believe it may or should be done retroactively to those legal card holders already in the community. Here is a sample policy:

Sample Cannabis Policy For A Rules Change

[To be enacted pursuant to ORS 90.610(3)]

Background. Under the Federal Controlled Substances Act, 21 U.S.C. § 801, et seq., it is illegal to manufacture, distribute, and possess marijuana, even when state law authorizes its use. In Oregon, medical use of cannabis is legal, subject to the limitations set forth in ORS 475.300 to 475.342.  Federal law supersedes state law where there is a direct conflict of laws.  The Federal Fair Housing Amendments Act provides that a disability does not allow the illegal use of a controlled substance under the Controlled Substances Act.

Our Policy. All Residents, their guests, invitees, contractors, employees, and others coming to the resident’s home, space, or common areas in the Community, are subject to the following rules regarding the manufacture, processing, distribution, sale or use of cannabis, or  for any purpose, including medical purposes.

Prohibition.  This Community strictly forbids the manufacture, processing, growing, distribution, sale or use of cannabis, or cannabis products or extracts, for any purpose, including medical purposes. Resident is responsible for informing their guests, invitees, contractors, employees, and all others of this Policy.

Reasonable Accommodation.  This Community will not agree to make a reasonable accommodation for this prohibition, including medical purposes, to any residents, their guests, invitees, contactors, employees or others coming to the Resident’s home, space or common area, based upon the State or Federal Fair Housing Laws.

Violation. Violation of this policy shall constitute a breach of the terms of Resident’s right of occupancy, and entitle Management to issue Resident a thirty (30) day curable notice of violation under ORS 90.630(1).  A repeat violation will result in a twenty (20) day non-curable notice of violation under ORS 90.630(4).  Resident is responsible for informing their guests, invitees, contactors, employees or others coming to Resident’s home, space or common area guests of this Policy and for ensuring compliance.  Notwithstanding the preceding, Management reserves the right, upon its sole discretion, to issue Resident a non-curable 24-hour notice of violation under ORS 90.396 if Resident’s violation of this policy could reasonably result in danger to the health, safety or welfare of others in the Community. 

Effective Date.  This Policy shall apply from and after _______________________ (“Effective Date”), until modified or amended.  It shall not be applied retroactively to any current Resident whose legal use of cannabis, or cannabis products or extracts for medical purposes, preceded the Effective Date.

The above sample policy can be added as an Addendum to Rental or Lease Agreements and given to prospective tenants, as well. It is sufficient to insert into the Statement of Policy, the following:

Marijuana.  This Community strictly forbids the manufacture, processing, growing, distribution, sale or use of cannabis, or cannabis products or extracts, for any purpose, including medical purposes. Resident is responsible for informing their guests, invitees, contractors, employees, and all others of this Policy.  This Community will not agree to make a reasonable accommodation for this prohibition, including for medical purposes, to any Residents, their guests, invitees, contactors, employees or others coming to the Resident’s home, space or common area, based upon the State or Federal Fair Housing Act.

[1] The World Health Organization defines cannabis here, as follows: Cannabis is a generic term used to denote the several psychoactive preparations of the plant Cannabis sativa. The major psychoactive constituent in cannabis is ∆-9 tetrahydrocannabinol (THC). Compounds which are structurally similar to THC are referred to as cannabinoids. In addition, a number of recently identified compounds that differ structurally from cannabinoids nevertheless share many of their pharmacological properties. The Mexican term 'marijuana' is frequently used in referring to cannabis leaves or other crude plant material in many countries. The unpollinated female plants are called hashish. Cannabis oil (hashish oil) is a concentrate of cannabinoids obtained by solvent extraction of the crude plant material or of the resin.

[2] For those truly interested in the extraction process using solvents, go to the following link, here.

[3] In other words, a four member household (all 21 or over) would not qualify for 16 plants.  The same rule applies to the right to possess up to one ounce of extracts. There is no multiplier effect.

[4]  I suspect that in community where the backyards are fenced, growing would be permitted so long as they were obscured from the streets and sidewalks.

Legal Risk: “Source of income” discrimination is among the fastest growing areas of fair housing litigation, generating 1,713 complaints in 2022, a year-over-year increase of 39.8 percent, according to the NFHA. Source of income discrimination occurs when landlords reject applicants or evict tenants not because they can’t afford the rent but because they use something other than traditional income from employment to pay, such as Section 8 or other housing vouchers, welfare, disability, unemployment, veteran, or other government benefits. The case can be made that source of income discrimination violates the FHA to the extent that racial minorities, people with disabilities, and other FHA-protected classes rely on these income sources at disproportionate rates. However, the principal risk of liability stems from the 20 states and over 70 major cities whose fair housing laws expressly ban source of income discrimination.

States that Ban Source of Income Discrimination in Housing: California, Connecticut, Colorado, Delaware, District of Columbia, Hawaii, Maryland, Massachusetts, Minnesota, New Jersey, New York, North Dakota, Oklahoma, Oregon, Rhode Island, Texas (covers homeowners associations only), Utah, Vermont, Virginia, Washington, Wisconsin (doesn’t cover housing vouchers)

Solution: There are five steps you can take to guard against inadvertent liability for source of income discrimination:  

Accept all forms of legal income;

Don’t charge fees or impose less favorable rental conditions based on a tenant’s source of income, for example, by requiring a tenant to get the lease guaranteed because they don’t pay in cash;

Don’t require prospects or tenants to be employed if they have the non-employment income necessary to pay rent;

Be careful about imposing minimum income requirements or credit score benchmarks; and

Keep your ads free of statements, images, or other content that express or imply a preference for or against prospects with housing vouchers or other forms of income.

You Make the Call

Can you reject a rental applicant who’s unemployed and dependent on welfare and alimony because she doesn’t meet your community’s income requirements?

a.         Yes, as long as you consistently reject other applicants who don’t meet your income requirements

b.         No, because rejecting her would be discrimination based on sources of income

c.          Yes, because applicants who don’t have steady jobs are too great a financial risk

Answer:

a. If an applicant has the lawful funds to pay her rent each month, you can’t reject her simply because you object to where those funds come from. On the other hand, you don’t have to accept an applicant with insufficient income. So, a. is the right answer.

Wrong answers explained:

b. is wrong because an insufficient amount of income, regardless of source, is a legitimate, non-discriminatory reason for rejection as long as you consistently apply the income standard with all prospects.

c. is wrong because requiring applicants to have a steady job is a form of source of income discrimination that the laws ban. As long as applicants can get the money they need to pay rent from legal sources, the source of that income is none of your concern.

Answer: The statute you are referring to is 90.302, and it provides the following: • A landlord may charge a tenant a fee for each occurrence of the following: o A late rent payment; o A dishonored check; o Removal or tampering with a properly functioning smoke alarm,smoke detector or carbon monoxide alarm; o The violation of a written pet agreement or of a rule relating to pets in a facility; o The abandonment or relinquishment of a dwelling unit during a fixed term tenancy without cause; • A landlord may charge a tenant a fee for a second noncompliance or for a subsequent noncompliance with written rules or policies that describe the prohibited conduct and the fee for a second noncompliance, and for any third or subsequent noncompliance, that occurs within one year after a written warning notice. o The fee may not exceed $50 for the second noncompliance within one year after the warning notice for the same or a similar noncompliance or o $50 plus five percent of the rent payment for the current rental period for a third or subsequent noncompliance within one year after the warning notice for the same or a similar noncompliance. • The landlord must: o Give the tenant a written warning notice that describes:  A specific noncompliance before charging a fee for a second or subsequent noncompliance for the same or similar conduct; and  The amount of the fee for a second noncompliance, and for any subsequent noncompliance, that occurs within one year after the warning notice. Give a tenant a written notice describing the noncompliance when assessing a fee for a second or subsequent noncompliance that occurs within one year after the warning notice. Give a warning notice for a noncompliance or assess a fee for a second or subsequent noncompliance within 30 days after the act constituting noncompliance. • The landlord may terminate a tenancy for a noncompliance instead of assessing a fee, but may not assess a fee and terminate a tenancy for the same noncompliance. • The landlord may not deduct a fee from a rent payment for the current or a subsequent rental period. • The landlord may charge a tenant a fee for occurrences of noncompliance with written rules or policies as provided above for the following types of noncompliance: o The late payment to futility or service charge that the tenant owes the landlord; o The failure to clean up pet waste from the space; o The failure to clean up garbage,rubbish and other waste from the space; o For parking violations; o For the improper use of vehicles within the premises; o For smoking in a clearly designated nonsmoking area within the community other than the home; 1 o For keeping an unauthorized pet capable of causing damage to persons or property. • The landlord is not be required to account for or return to any fees to the tenant. • Other than for early termination of a fixed term lease (discussed above) a landlord may not charge a tenant any form of liquidated damages, however designated. • Nonpayment of a fee is not grounds for termination of a rental agreement for nonpayment of rent (i.e. under ORS 90.394), but is grounds for a 30-day notice of termination for cause under 90.630 (1). • This law does not apply to: o Attorneyfeesawarded; o Applicant screening charges; o Charges for improvements or other actions that are requested by the tenant and are not required under the rental agreement or by law, including the cost to replace a key lost by a tenant; o Processing fees charged to the landlord by a credit card company and passed through to the tenant for the use of a credit card by the tenant to make a payment when:  The credit card company allows processing fees to be passed through to the credit card holder; and  The landlord allows the tenant to pay in cash or by check; or  A requirement by a landlord in a written rental agreement that a tenant obtain and maintain renter’s liability insurance. • NOTE: The fees must be described in a written rental agreement. o Since ORS90.100(38)defines“rental agreement”to mean“…all agreements,written or oral, and valid rules and regulations, it would seem that including the fines in the rules would suffice. 2

Answer: The answer is found in ORS 90.302 (Fees allowed for certain landlord expenses). What follows is a brief summary: (1) A landlord may not charge a fee at the beginning of the tenancy for an anticipated expense (i.e. one that has not actually occurred). (2) A landlord may not require the payment of any fee except as provided in this statute. (3) The specific fee must be described in a written rental agreement. (4) The following list are the fees a landlord may charge: a. A late rent payment, pursuant to ORS 90.260. b. A dishonored check, pursuant to ORS 30.701 (5). [Note that the amount of the fee may not exceed the amount described in ORS 30.701 (5) plus any amount that a bank has charged the landlord for processing the dishonored check.] c. Removal or tampering with a properly functioning smoke alarm, smoke detector or carbon monoxide alarm, as provided in ORS 90.325 (2). d. The violation of a written pet agreement or rule relating to pets in a facility, pursuant to ORS 90.530. e. The abandonment or relinquishment of a home during a fixed term tenancy without cause. [Note that the fee may not exceed one and one-half times the monthly rent. A landlord may not assess a fee under this section if the abandonment or relinquishment is pursuant to ORS 90.453 (2) (Termination of tenant who is victim of domestic violence), ORS 90.472 (Termination of tenant who is called to active state service) or ORS 90.475. (Termination of tenant sue to service with Armed Forces)] f. If the landlord assesses a fee under (e) above: i. The landlord may not recover unpaid rent for any period of the fixed term tenancy beyond the date that the landlord knew or reasonably should have known of the abandonment or relinquishment; ii. The landlord may not recover damages related to the cost of renting the dwelling unit to a new tenant; and iii. ORS 90.410 (3) (Effect of tenant failure to give notice of absence) does not apply to the abandonment or relinquishment. (5) Noncompliance with written rules or policies. [Note that the fee may not exceed $50.] (6) A fee may be assessed under paragraph (5), above, only for the following types of noncompliance: a. The late payment of a utility or service charge that the tenant owes the landlord as described in ORS 90.315. b. Failure to clean up pet waste from the tenant’s space other than the home itself. c. Failure to clean up garbage, rubbish and other waste from the tenant’s space other than the home itself. d. Parking violations. e. The improper use of vehicles within the premises. (7) A landlord is not required to account to a tenant for, or return to, the tenant any fee. (8) Except where the tenant abandons or relinquishes the space during a fixed term tenancy [see (4) e above], a landlord may not charge a tenant any form of liquidated damages, however designated. (9) Nonpayment of a fee is not grounds for termination of a rental agreement for nonpayment of rent - but is grounds for termination of a rental agreement for cause. (10) The above laws regarding fines do not apply to: a. Attorney fees; b. Applicant screening charges; or c. Charges for improvements or other actions that are requested by the tenant and are not required of the landlord by the rental agreement or by law.

Under a limited exception, senior housing communities may lawfully exclude families with children, but that exception applies only if your community satisfies specific technical requirements. Unless you meet these requirements, your community could be liable for restricting or otherwise excluding families with children from living there.

In this lesson, we’ll review the law governing familial status and offer 10 rules—the essential Dos & Don’ts—for complying with fair housing law when dealing with families with children. 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) bans discrimination based on familial status. In general, that means you can’t discriminate against applicants or residents because they have, or expect to have, a child under 18 in the household. Specifically, the FHA’s ban on discrimination based on familial status applies when one or more children under the age of 18 are living with:

• A parent;
• An individual with legal custody; or
• An individual who has the written permission of the parent or custodian.

It also applies to pregnant woman and anyone in the process of securing legal custody of one or more children under 18.

In a nutshell, the familial status provisions apply whenever there’s one or more children under 18 living in the household. The children may be living with one or both birth parents—whether they’re married, divorced, single, gay, or straight. The adult could also be an adoptive parent, foster parent, or legal guardian. Individuals with legal custody include family members or others approved by the courts. More broadly, the law applies to people with written permission of the parent or legal guardian.

Senior housing exemption. Under a limited exception, senior housing communities may lawfully exclude children, but only when they satisfy strict legal requirements to qualify as “housing for older persons.” The exemption applies to housing communities or facilities that are governed by a common set of rules, regulations, or restrictions. A portion of a single building is not considered a housing facility or community, according to HUD. And remember: The senior-housing exemption applies only to the FHA’s familial status provisions; the community still must abide by the law’s protections based on race, color, national origin, religion, sex, and disability.

FOLLOW 10 RULES FOR DEALING WITH FAMILIES WITH CHILDREN

Rule #1

DO Make Housing Available to Families with Children

DON’T Deny Housing Because There’s a Child in the Household

Though it’s been unlawful for more than 30 years, communities continue to run afoul of fair housing provisions by denying housing to families with children.

It’s important to remember that familial status is on the same footing as race and any of the other protected classes under fair housing law. Just as it’s unlawful to turn people away because of their race, you can’t turn prospects away because they have one or more children living with them. It doesn’t matter whether you—or your current residents—would prefer to be living among adults; it’s unlawful to deny housing to people—or to treat them differently—because there’s a child under the age of 18 in the household. In fact, simply expressing a preference against families with children can lead to a fair housing complaint.

Example: In February 2020, the owners of a California community and its leasing agency agreed to pay $10,000 to resolve allegations that its leasing agent denied a father of two children the opportunity to rent a condominium. In his HUD complaint, the father alleged that he was denied the opportunity to rent the condo because his two young daughters would be living with him part time. According to the father, the leasing agent refused to consider his application for the unit, saying, “I don’t want to waste your time or mine. Sorry.” The housing providers denied that they discriminated against the family.

“Families today face enough challenges without being denied a place to call home because they have children,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD will continue working to ensure that housing providers meet their obligation under the Fair Housing Act to treat home seekers with children equally.”

Example: In March 2019, a California rental property owner and his management company agreed to pay $15,000 to resolve a HUD complaint alleging that they refused to rent a unit to a couple because they have three children. The case came to HUD’s attention when Project Sentinel, a HUD Fair Housing Initiatives Program agency, filed a complaint alleging that the family was denied the opportunity to rent a two-bedroom unit because they have children. The housing providers denied that they discriminated against the couple.

“Families shouldn’t have their access to housing denied simply because they have children,” Farías said in a statement. “This type of discrimination has been against the law for more than 30 years, and HUD will continue working to make the public and housing providers aware of their rights and responsibilities under the Fair Housing Act.”

Rule #2

DO Follow the Rules to Qualify for the Senior Housing Exemption

DON’T Adopt or Enforce Adults-Only Policy

Although fair housing law generally prohibits discrimination based on familial status, there’s a limited exception that applies to senior housing communities that meet strict legal requirements to qualify as “housing for older persons.” Senior communities that comply with these technical requirements are exempt from the general rules that protect families with children. There’s no middle ground—you either meet those requirements or you don’t. And if you don’t, you’re likely to trigger a fair housing complaint if you adopt or enforce an “adults-only” policy that prevents families with children from living there.

Example: In January 2019, the California Department of Fair Employment and Housing (DFEH) announced a $10,000 settlement to resolve a fair housing complaint against the owner of a six-unit rental community and the real estate brokerage firm that managed it. Fair housing advocates filed the complaint, alleging that the property was advertised online as an “adult complex” and included a restriction of “maximum 2 adults.” During a follow-up call, the property manager allegedly told a tester that children were not allowed. DFEH found that the complex wasn’t a senior citizen housing development and that there was cause to believe a violation of state fair housing law had occurred. The case was settled prior to formal mediation.

“In California, senior housing developments can, with some exceptions, exclude residents under 55 years of age if they have at least 35 units and meet other requirements,” DFEH Director Kevin Kish said in a statement. “All other rental properties violate the law if they categorically exclude families with minor children.”

Rule #3

DO Apply Same Terms and Conditions Regardless of Familial Status

DON’T Treat Prospects Differently Because They Have Children

Treat prospects consistently, regardless of whether there are children in the household. It’s unlawful to impose different terms and conditions of a tenancy on households based on familial status, so you can’t make the leasing process more cumbersome, or quote higher rental terms, for families with children.

Example: In May 2019, a court refused to dismiss a fair housing case against a Virginia couple who engaged the services of a real estate agency to assist them in leasing their five-bedroom, five-and-a-half bath, 8,500 sq. ft. home. Shortly after it was listed for rent at $3,750 per month, a prospect contacted the realty agent about leasing the home for his multigenerational family. When the agent asked how many people would be living there, the prospect said his family consisted of him and his wife, their five minor children, and his two parents.

A few days later, the agent allegedly told the prospect that the owners “were not interested in renting to a large family.” Later, the owner allegedly told the agent that he was willing to rent to the prospects “if they paid more.” According to the prospect, the agent told him that he could rent the home if he was willing to pay “a few hundred dollars” more since there would be two families living there. The prospect said he told the agent that there would not be two families living there. The home was later rented to a family consisting of a husband, wife, and two children for the advertised rent.

The prospect sued the owners and the agency for discrimination based on familial status under state law. The prospect claimed that the agent’s “tone and communications” made him believe that the landlords feared additional wear and tear on the home because his family included five children and that the couple wasn’t willing to rent them the home, despite the prospect’s willingness to pay the advertised rent, because they were “a large family.” According to the prospect, the owner’s use of terms “additional family” and “two families” were code words to mask their preference to refuse to rent to his family because it included five children under age 18.

The court refused to dismiss the case. The owner alleged that his request for additional rent was related to the presence of the additional adults, not the minor children, in the household, but court ruled that further proceedings were needed to resolve the case [Commonwealth ex rel. Real Estate Board v. Tutt Taylor & Rankin Real Estate LLC., Virginia, May 2019].

Rule #4

DO Be Prepared to Justify Reasonableness of Occupancy Standards

DON’T Apply Unreasonably Restrictive Occupancy Standards

Fair housing law doesn’t prevent you from maintaining reasonable occupancy policies as long as you apply them consistently. But it’s illegal to set overly restrictive occupancy standards that have the effect of excluding families with children. If a community’s occupancy policy keeps the number of occupants unreasonably low, it’s likely to discourage families with children from living there unless they’re willing to pay for a larger unit.

To ensure your community’s occupancy standards pass muster, the first step is to check applicable state and local laws, which may limit occupancy based on the number of people, square footage, and other factors. In general, federal fair housing law defers to reasonable state and local restrictions on occupancy, so you have to be familiar with those laws before you set or enforce your occupancy standards.

Subject to state and local law, two persons per bedroom is a reasonable occupancy policy under federal fair housing law, according to HUD guidelines issued in 1991 known as the “Keating memo.” Nevertheless, HUD says that’s only a rule of thumb, which may not be reasonable in certain cases because of the size of the bedrooms and of the overall unit, the age of the children, the unit configuration, other physical limitations of the housing, state and local law, and other relevant factors. Among other things, HUD will look at evidence, such as discriminatory statements or rules, which may suggest that the occupancy policy was adopted as a way to restrict children from living there.

Example: In February 2020, HUD approved a settlement between fair housing advocates and a group of California property owners and managers resolving allegations of discrimination based on familial status. Fair housing advocates filed the HUD complaint, alleging that fair housing testing showed that the owners and two property managers refused to rent to families with children or offered them different lease terms and conditions. The advocates also claimed that the owners and managers implemented an unreasonably restrictive two-person-per-bedroom occupancy policy at two rental properties. The housing providers denied the allegations.

“Families looking for safe, decent housing shouldn’t be penalized because they have children,” Anna María Farías, HUD Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “Today’s agreement reaffirms HUD’s commitment to ensuring that housing providers meet their obligation to treat all applicants the same.”

To avoid fair housing trouble, you’re better off focusing on the number of people who may occupy units, not the number of children you’d prefer to live there. HUD guidelines state that an occupancy policy that limits the number of children in a unit is less likely to be reasonable than one that limits the number of people per unit.

Example: In September 2019, the owners and managers of a large rental home in Idaho agreed to pay $15,000 to settle allegations that they refused to rent the home to a married couple because they had more than four children. Specifically, the HUD charge alleged that the homeowners discriminated against a family attempting to lease their 2,600 square foot, four-bedroom rental home because they had seven minor children. When the couple met with the property manager about renting the home, he allegedly said that the owners had set a limit of four children for the home. The charge also alleged a policy restricting the number of children was written in the rental contract.

“Persons attempting to provide a home for their family should not have their housing options limited because they have children,” Farías said in a statement. “Today’s action will hopefully serve as a reminder to all housing providers of the importance of meeting their obligations to comply with the requirements of the Fair Housing Act.”

Rule #5

DO Be Careful About Applying Occupancy Standards When a Child Joins a Household

DON’T Penalize Residents for Having a Baby

Fair housing rules banning discrimination based on familial status apply not only to families with children under 18, but also to pregnant women and others who have or are in the process of adopting or obtaining custody of a child.

Consequently, it’s unlawful to discriminate against a resident who has a baby, adopts a child, or takes custody of grandchildren. As long as the unit is large enough for the family under applicable state and local occupancy limits, you could face fair housing liability if you evict them, refuse to renew their lease, or insist that they move to a larger unit.

Example: In September 2019, the Justice Department sued the manager and owners of a Missouri apartment complex for discrimination on the basis of familial status. The case began with a HUD complaint filed by a couple, who alleged that the owners and manager terminated their tenancy because of the birth of their second child. At the time, the couple said they and one minor child had been renting their one-bedroom unit at the community for more than a year. The complaint also alleged that the community’s application form, lease agreement, and correspondence with the couple stated an explicit “No children” policy.

Example: In August 2018, HUD charged the owners of a South Dakota community and their property management company with housing discrimination for refusing to let a couple and their newborn baby stay in their one-bedroom apartment because of the community’s occupancy policies. According to the charge, shortly after the new baby arrived, the mother allegedly asked agents of the property management company how long two adults could live in a one-bedroom unit with an infant and was told that they would have to move to a two-bedroom unit. The community claimed that the two-person-per-bedroom occupancy policy was required by the city’s occupancy code. But HUD alleged that the city code was more flexible than that by allowing consideration of additional areas beyond bedrooms that may be considered for sleeping and occupancy purposes.

“Occupancy policies that exclude families with children or make it harder for them to obtain housing are unlawful and have no place in today’s often tight housing markets,” said Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity.

Rule #6

DO Tell Prospects About All Units that Fit Their Needs

DON’T Engage in Unlawful Steering Based on Familial Status

Limiting a prospect’s housing choices because they have children under 18 in the household is a fair housing violation, commonly known as “steering.” In general, steering means guiding, directing, or encouraging prospects to live—or not live—at the community or in certain areas within a community based on familial status or other characteristics protected under fair housing law. Among other things, you may not restrict where families may live by making certain units, floors, or buildings off-limits to families with children.

When discussing vacancies with prospects, tell them about all available units that meet their stated requirements. Even if you believe it might be better for the children, you could trigger a discrimination complaint if you don’t tell families with children about available units on upper floors or near water features, such as a pond or pool.

Example: In December 2017, the owners and operators of a New Hampshire community agreed to pay $25,000 to settle fair housing case for discrimination based on familial status. In its complaint, the Justice Department alleged that a mother of an infant child visited the community to inquire about two-bedroom apartments but was told that the community had a policy of placing families with children under the age of 10 in first-floor units only, and that no first-floor units were available.

Rule #7

DO Adopt Child-Neutral Community Rules

DON’T Allow Rules to Unfairly Target Children

Rules governing residents’ behavior in common areas, such as hallways, parking lots, and outside spaces serve a legitimate purpose: to protect property and ensure safety. But you could trigger a discrimination claim if your rules unreasonably target children or limit their behavior.

As much as possible, avoid adopting rules that specifically target children’s behavior. Rules banning children from playing outside, unduly restricting their access to amenities, or requiring adult supervision of all children under 18 could lead to accusations that you’re treating families with children less favorably than adult households living at the community.

Example: In April 2018, the owner of a 44-unit California community agreed to a $25,000 settlement to resolve claims that the owner’s “house rules” discriminated against families with children. In a complaint filed with state officials, a family alleged that the owner had a number of rules discriminating against children who lived in the complex. According to the family, children were forbidden from using the swimming pool after 6 p.m., even though adults were free to use the pool until 9 p.m. The family also alleged that the rules prohibited children from riding bicycles, using skateboards, or playing with Hot Wheels, wagons, or balls in common areas—rules that were not applied to adults. Allegedly, the family eventually moved out of their unit due to the restrictions on where their child could play.

“DFEH is committed to ensuring that families with children are not discriminated against in housing,” Kevin Kish, Director of the Department of Fair Employment and Housing, said in a statement. “Discriminatory restrictions on children’s use of common areas are not only against the law, but make it difficult for families with children to find and stay in suitable housing.”

Coach’s Tip: Even if your community’s rules apply to all residents—not just children—you could still face a discrimination claim if you enforce the rule only against children. For example, singling out children for breaking the rules against noisy behavior in common areas—but ignoring similar transgressions by adults—could lead to a fair housing claim based on familial status.

Rule #8

DO Focus Advertising on Property, Not People

DON’T Suggest that Children Aren’t Welcome at Your Community

Under the FHA, it’s unlawful to “make, print, or publish…any notice, statement, or advertisement,” that indicates any preference, limitation, or discrimination based on familial status and other protected characteristics. This rule applies to not only discriminatory advertising, but also all kinds of statements, including:

• What you say to prospects, applicants, or residents in person or over the phone;
• What you write in notes, text messages, emails, and perhaps even social media, as well as community rules and policies;
• What you put in your advertising and marketing materials—including words and graphics—in print, online, and other media.

Unlike other prohibited practices, liability for making discriminatory statements doesn’t require proof of discriminatory intent. The test is whether an “ordinary reader or listener” would interpret the statement as indicating a preference for—or against—families with children. According to HUD guidelines, advertisements may not contain limitations on the number or ages of children, or state a preference for adults, couples, or singles.

Example: In April 2019, the owner of a Maine rental property and its rental agent agreed to pay $18,000 to settle allegations that they denied housing to families with children. A fair housing advocacy group filed the HUD complaint, alleging that the community refused to negotiate with fair housing testers posing as families with children, posted discriminatory advertisements indicating that children weren’t allowed, and made discriminatory statements to fair housing testers.

“It’s hard enough for families to find places to live that meet their needs without being denied suitable housing because they have children,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD is committed to working to ensure that housing providers comply with their Fair Housing Act obligation to treat all applicants the same, including families with children.”

Coach’s Tip: To avoid accusations of discriminatory advertising, focus on descriptions of the property available for rent, not the kind of people who may want to live there.

Rule #9

DO Abide by Legal Obligations Involving Lead-Based Paint

DON’T Deny Housing to Families with Children Due to the Presence of Lead Paint

Although lead-based paint was banned for residential use in 1978, HUD estimates that about 24 million older homes still have significant lead-based paint hazards. Lead-contaminated dust is the primary cause of lead exposure and can lead to a variety of health problems in young children; at higher levels, lead can damage a child’s kidneys and central nervous system and can even be deadly, according to HUD.

While an affected community may be tempted to avoid renting to those most at risk—young children—that practice is banned under fair housing law. Regardless of the presence of lead-based paint, you may neither exclude nor discourage families with young children from living there.

Example: In January 2019, a federal appeals court upheld a $43,500 jury verdict against a Massachusetts community. In its complaint, the Justice Department alleged that the owner of a four-unit rental property violated federal fair housing law when he refused to rent a unit to a family because they had children under 6 years old and the units had no lead certificate. According to the Justice Department, the jury found that the owner made an apartment unavailable to the family based in substantial part on their familial status and that the owner retaliated against them after they filed their HUD complaint.

Rule #10

DO Review Student Housing Policies Affecting Students with Children

DON’T Risk Fair Housing Trouble in Student Housing Based on Familial Status

Fair housing experts warn that student housing providers are risking fair housing trouble when it comes to housing decisions affecting students with minor children. If you rent to anyone, including students, it’s a violation of fair housing law to refuse to rent to a student with a young child on the same terms and conditions as you would to other applicants.

Example: In March 2020, the National Fair Housing Alliance (NFHA) announced a settlement agreement with the largest third-party property management company in the nation for campus living. NFHA reports that the agreement will open up access to 140,000 beds across 40 states and 77 cities to families with children.

The settlement resolves NFHA’s lawsuit alleging that the company violated fair housing law by discriminating against families with children. The complaint alleged that the company, although marketing itself as student housing, knowingly rented to non-students while enforcing policies that discouraged families with children, even when the parents were students.

NFHA also alleged that the company, which owns or manages hundreds of apartment buildings throughout the country, had a policy that no more than one person could reside in each bedroom. According to the complaint, the policy wouldn’t permit a mother and her 2-year-old child to live in a large one-bedroom apartment under one lease, so the student and her daughter had to sign two leases and pay double the rent.

Example: In September 2019, the Justice Department sued the owners and managers of residential rental housing in Hawaii, alleging that they violated fair housing law by refusing to rent to families with children. The lawsuit claimed that the three properties were operated as student housing for post-secondary students.

Specifically, the complaint alleged that the communities discriminated against families with children by: (1) refusing to rent or to negotiate for the rental of the three properties on the basis of familial status; (2) steering prospective renters with children who inquired about housing away from the properties to a separate property management company; and (3) making discouraging and other discriminatory statements to potential renters with children who inquired about housing, including that the housing wasn’t “suitable” or the right “fit” for families with children. The complaint contains allegations of unlawful conduct; the allegations must be proven in federal court.

“Owners and managers of rental housing must ensure their housing is open to families with children,” Assistant Attorney General Eric Dreiband of the Civil Rights Division said in a statement. “The Fair Housing Act requires it, and the Justice Department will continue both to enforce the Act vigorously and to seek relief for families victimized by unlawful discrimination.”

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

By: Phil Querin, MHCO Legal Counsel

Current Oregon Law. ORS 90.680 is the statute governing the on-site sale of homes in a manufactured housing community. It previously contained no limitations on landlords who required, as a condition of tenancy, that residents selling their homes must enter into a consignment agreement with the landlord. That will change on January 1, 2016.

New Oregon Law. ORS 90.680 is now amended as follows:
1. It defines the term "consignment" to mean a written agreement in which a resident

authorizes a landlord to sell their manufactured dwelling or floating home in the

community for compensation.

2. It prohibits landlords from requiring as a condition of occupancy, that residents enter

   into consignment agreements with the landlord.

3. It prescribes the specific conditions under which a landlord may sell a resident's home

   on consignment:

a. The landlord must be licensed to sell dwellings under ORS 446.661 to 446.756;

i. The license may be held by a person other than the community owner, so long as there is common ownership between them;

b. The landlord and resident must first enter into a written consignment contract that specifies at a minimum:

1. The duration of the contract, which, unless extended in writing, may not exceed 180 days;

2. The estimated square footage of the home, together with the make, model, year, vehicle identification number and license plate number, if known;

3. The price offered for sale of the home;

4. Whether lender financing is permitted, and the amount, if any, of the

   earnest money deposit;

5. Whether the transaction is intended to be closed through a state-licensed

   escrow;

6. All liens, taxes and other charges known to be in existence against the

   home that must be removed before the resident can convey marketable

   title to a prospective buyer;

7. The method of marketing the sale of the home (e.g. signs posted in the

   community; Internet advertising; print publications, etc.);

8. The form and amount of compensation to the landlord (e.g. fixed fee

   with amount stated; commission percentage, etc.); and

ix. In determining the resident's net sale proceeds, the order by which the gross sale proceeds will be applied toward payoff of the liens, taxes, actual costs of sale, landlord compensation, and other closing costs.

c. Within 10 days after a sale, the landlord is to pay the resident their share of the sale proceeds, and provide a written accounting for all funds received;

d. The above-described process (i.e. through a written consignment agreement with landlord acting as the resident's representative) is the only permissible way a landlord may recover any commission, fee (however designated), or retain a portion of the sale proceeds of a resident's home in the community.

4. In cases in which a landlord is attempting to sell a home under ORS 90.680 and so is a resident in the community, the following new rules will apply:

1. If a landlord advertises a home for sale within the community, a resident selling their home may do so as well, by posting a sign in a similar manner and location;

2. A landlord may not knowingly make false statements to a prospective purchaser about the quality of a resident's home also being offered for sale;

3. Note: Nothing prevents a landlord from selling a home to a prospective purchaser at a price or on terms, including space rent, that are more favorable than the price and terms offered for homes offered by residents.

5. Miscellaneous:
a. If a landlord requires a prospective purchaser to submit an application for

occupancy, upon request from the purchaser, the landlord must provide, a copy

of the application;

2. Upon a prospective resident's request for a copy of the rental/lease agreement,

   the landlord may require payment of a reasonable copying charge;

3. If the prospective purchaser agrees, a landlord may provide these requested

   documents in an electronic format;

4. When a landlord considers an application for tenancy from a prospective

   purchaser of a resident's home, the landlord shall apply substantially similar credit and conduct screening to a prospective purchaser of a home from the landlord;

5. A landlord or resident who sells a home located inside the community is required to deliver title to the purchaser within 25 business days after completion of the sale;

6. If the sale by the landlord or resident includes paperwork whereby the seller is carrying back a contract or security interest and the purchaser is paying some or all of the purchase price with installment payments, where applicable, the landlord or resident is required to notify the county that the purchaser is responsible for property tax payments;

7. If a person violates ORS 90.680 three or more times within a 24-month period, a person damaged thereby has a cause of action against the violator for the damages caused as a result of the third or subsequent violation or $500, whichever is greater.

The CDC has warned against stigmatizing people or groups because of COVID-19. Health officials noted that people in the United States may be worried or anxious about friends and relatives who are living in or visiting areas where COVID-19 is spreading. Some people are worried about getting the disease from these people. Fear and anxiety can lead to social stigma, for example, toward people who live in certain parts of the world, people who have traveled internationally, people who were in quarantine, or healthcare professionals.

Stigma is discrimination against an identifiable group of people, a place, or a nation, according to the CDC. Stigma is associated with a lack of knowledge about how COVID-19 spreads, a need to blame someone, fears about disease and death, and gossip that spreads rumors and myths.

But, as the CDC points out, stigma hurts everyone by creating more fear or anger toward ordinary people instead of focusing on the disease that’s causing the problem. And in multifamily housing communities, stigma against particular people or groups because of COVID-19 could also lead to fair housing trouble.

In this lesson, we’ll review the law and offer six rules to follow to help you avoid fair housing trouble at your community while dealing with COVID-19.

MHCO Tip: The news regarding COVID-19 has been rapidly evolving, so it’s important to stay up to date on the latest developments. For the health information related to virus, visit the CDC’s website at https://www.cdc.gov/coronavirus/2019-ncov/index.html. And check your state, county, or municipal government websites to find out what’s happening in your area.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) is a federal law that prohibits housing discrimination based on race, color, religion, national origin, sex, familial status, or disability—also known as “protected classes.”

In general, fair housing law targets housing practices that exclude or otherwise discriminate against anyone because of their race or other protected class. Owners, managers, and individual employees all may be held liable for discriminatory housing practices, including:

• Refusing to rent or making housing unavailable;
• Falsely denying that housing is available for inspection or rental;
• Using different qualification criteria or applications, such as income standards, application requirements, application fees, credit analysis, or rental approval procedures;
• Setting different terms, conditions, or privileges for the rental of housing, such as different lease provisions related to rental charges, security deposits, and other lease terms;
• Discouraging prospects from renting a unit by exaggerating drawbacks or saying that the prospect would be uncomfortable with existing residents;
• Assigning residents to a particular section of a community or floor of a building;
• Providing different housing services or facilities, such as access to community facilities; and
• Failing or delaying maintenance or repairs.

In addition, the FHA makes it unlawful to advertise or make any statements that indicate a preference, limitation, or discrimination based on race, color, religion, national origin, sex, disability, and familial status. The law also prohibits retaliation by making it unlawful to threaten, coerce, intimidate, or interfere with anyone exercising a fair housing right or assisting others who exercise that right.

Deep Dive: Disability

General Rules: Technically, the FHA bans discrimination based on “handicap,” though the term “disability” now is more commonly used. Under the FHA, disability generally means a physical or mental impairment that substantially limits one or more major life activity. The list of impairments broadly includes a wide range of physical and mental conditions, including visual and hearing impairments, heart disease and diabetes, HIV infection, and emotional illnesses. Examples of major life activities include seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning, and speaking. In sum, the law protects anyone with a physical or mental impairment that’s serious enough to substantially affect activities of central importance to daily life—even if it isn’t obvious or apparent.

The law protects not only individuals who have a disability, but also individuals with a record of such disability (such as medical history of such an impairment), or those who are regarded as having such a disability (such as someone who is believed to have a mental illness, but in fact does not have such an impairment).

Despite the general rule banning discrimination against individuals with disabilities, the law recognizes an exception that allows communities to exclude an individual whose tenancy would constitute a “direct threat” to the health or safety of others—or result in substantial physical damage to the property of others—unless the threat can be eliminated or significantly reduced by reasonable accommodation. But it’s a limited exception—federal guidelines warn against a blanket policy that excludes anyone based upon fear, speculation, or stereotypes about disabilities. Instead, the law requires an individualized assessment of the particular applicant or resident based on reliable objective evidence of current conduct or a recent history of overt acts.

Special Rules: In addition to the general rules banning disability discrimination, there are extra rules that require communities to grant requests for reasonable accommodations or modifications if necessary to allow individuals with disabilities to fully enjoy their dwellings. The law also includes accessibility requirements in the design and construction of covered multifamily communities.

6 RULES FOR COMPLYING WITH FAIR HOUSING LAW

WHILE DEALING WITH COVID-19

Rule #1: Remember Fair Housing Requirements While Responding to COVID-19

Fair housing law may not be the first thing you think of when it comes dealing with the coronavirus crisis, but it’s important to remember that the law bans discrimination on the basis of race and national origin, disability, and other protected characteristics, even if motivated by concerns about COVID-19. It’s certainly on the minds of federal and state fair housing enforcement agencies and advocates.

“As the global response to the COVID-19 pandemic continues, the Justice Department will remain vigilant in enforcing civil rights laws,” Assistant Attorney General for Civil Rights Eric S. Dreiband said in a statement. “We must ensure that fear and prejudice do not limit access to housing, schools, benefits, services, jobs, and information, among other things, on account of race, sex, religion, national origin, disability, or other protected classes.

“It is important that we all work together to address unlawful discrimination, including violent acts or threats based upon protected classes. As in all emergencies, the COVID-19 outbreak has affected people of many different races, religions, and ethnicities, as well as those with disabilities. Unlawful discrimination may also discourage people from coming forward to seek treatment or information. Laws prohibiting unlawful discriminatory behavior must and will be vigorously enforced,” he said.

HUD Secretary Ben Carson echoed those sentiments in HUD’s Statement on Fair Housing and COVID-19:

We all must be vigilant to take protective measures recommended by public health officials to prevent the spread of COVID-19, knowing that many individuals with COVID-19 show no symptoms and have no awareness of exposure to the virus. Regardless of specific laws, now is not the time to evict people from their homes. If a housing provider is concerned that a person has COVID-19 and may pose a threat to the health or safety of others, the housing provider should set aside fear and speculation, and rely on objective medical information and advice from public health officials to determine steps that could mitigate or prevent the risk of transmission.

Likewise, officials in New York State explain that state law bans discrimination against anyone because of a perceived connection between his race, national origin, or disability, and COVID-19. The law prohibits discrimination against anyone assumed to have been exposed to COVID-19 based on any of these traits.

Fast Fact About Face Masks: If an applicant or resident is wearing a face mask as a precaution, he’s still protected against discrimination, warn officials in New York State. The law prohibits discrimination based on a perceived connection between race, national origin, or disability and possible exposure to coronavirus—wearing a face mask doesn’t change this.

Rule #2: Comply with Laws Banning Discrimination and Harassment Against Racial and Ethnic Minorities

Fair housing law bans discrimination based on race and national origin, so it’s unlawful to exclude or otherwise discriminate against racial or ethnic minorities, even if motivated by concerns about COVID-19.

“As the CDC has said, viruses do not target specific racial or ethnic groups,” HUD Chief Ben Carson said in a statement. “Be aware that the Fair Housing Act and other federal laws prohibit the eviction, turning away or harassment of a person in housing because they are profiled, on the basis of race, national origin or other protected class, to be associated with COVID-19. The Fair Housing Act also prohibits retaliation and intimidation against persons who report acts of discrimination they have witnessed to law enforcement authorities, like HUD, or who aid someone who has been the victim of discrimination.”

Of particular concern during the COVID-19 outbreak are increasing reports of discrimination and harassment against Asian Americans. In the first four weeks following its official launch in mid-March, the STOP AAPI HATE reporting center said that it had received nearly 1,500 reports of coronavirus discrimination from Asian Americans across the country. More than half originated in California and New York—the states hardest hit by COVID-19 at the time. Civil rights violations involving workplace discrimination and being barred from businesses and transportation or refused service made up almost 10 percent of incident reports.

In New York City, officials announced the formation of a COVID-19 Response Team to handle reports of harassment and discrimination related to the outbreak. By mid-April, the New York City Commission on Human Rights recorded 248 reports of harassment and discrimination related to COVID-19, over 40 percent of which identify incidents of anti-Asian harassment or discrimination. By comparison, during this same time period in 2019, the commission received just five reports of anti-Asian discrimination.

The COVID-19 Response Team has taken action in 148 cases, including conducting early or emergency intervention, providing information on how to request a reasonable accommodation, referring the individual to another service or agency, or commencing an investigation. The 18 matters currently under active investigation span discrimination in housing, public accommodations, and employment on the basis of race, national origin, disability, and lawful source of income. Additionally, the Response Team has successfully resolved nine matters of COVID-19-related harassment and discrimination.

“In this time of unparalleled crisis, the NYC Commission on Human Rights is dedicated to responding to and investigating reports of bias, harassment and discrimination related to the COVID-19 outbreak in our city,” Chair and Commissioner of the NYC Commission on Human Rights, Carmelyn P. Malalis, said in a statement. Even in the midst of a pandemic, human rights cannot be violated, and we encourage anyone who has experienced COVID-19- related discrimination to report it to us.”

Fast Fact About Retaliation: Fair housing law also bans retaliating against anyone for complaining about discrimination or bias-based harassment, or otherwise exercising her rights under fair housing law. For example, a housing provider can’t evict someone for reporting housing discrimination to a state enforcement agency, explain New Jersey officials.

Rule #3: Don’t Let Fear of Virus to Lead to Disability Discrimination Claims

It’s important to keep fair housing disability rules in mind when dealing with COVID-19. The FHA bans discrimination based on disability, so it’s unlawful to deny housing to people—or to treat them less favorably than others—because of a disability.

As noted by Secretary Carson, “There is much still to learn about COVID-19. We know, however, that persons with disabilities, including those who are older and have underlying medical conditions, are vulnerable and at high risk for a severe, life-threatening response to the virus. HUD recognizes that these persons may face unique fair housing and civil rights issues in their housing and related services. Housing providers are required to make reasonable accommodations that may be necessary to deliver housing and services to persons with disabilities affecting major life activities.”

There are no clear-cut answers about whether individuals who contract COVID-19 qualify for the disability protections under fair housing law. In part, that’s because the nature of the virus itself: For example, the symptoms of the condition vary so widely: Some people have no symptoms at all, while others suffer life-threatening, often fatal, consequences. For another thing, there’s still much that isn’t known about the virus—for example, whether people who have recovered from the virus are no longer contagious, and whether and for how long, they may be immune from the virus.

Under fair housing law, the disability provisions protect anyone who has a physical or mental impairment that substantially limits one or more major life activities. For example, the law would protect people with disabilities from discrimination, even if you believe that they have a higher risk of serious consequences from the coronavirus.

The law is also likely to cover anyone with serious symptoms of the virus, but it’s debatable whether it would cover someone with only mild or no symptoms of the virus. On one hand, even people with mild or no symptoms must self-quarantine to avoid any activities that could spread the virus to others, including work, a major life activity. On the other hand, the self-quarantine period is usually only a few weeks—and the disability provisions generally don’t cover temporary conditions.

Even in people with few, if any, symptoms of the virus, it’s important to remember that fair housing law protects not only individuals who have a disability, but also those who are regarded as having a disability—that is, anyone who is mistakenly believed to have a disability. Consequently, you could face a discrimination complaint if you take adverse action against someone because you believe they have the virus—whether or not they actually do.

Q&A

Q: Can or should I disclose the identity of residents who test positive for the virus to other residents?

A: In general, fair housing law requires that disability-related information be kept confidential, so you should exercise caution concerning what you tell your residents about anyone diagnosed with COVID-19.

The first step is to find out about recommendations of state and local authorities, if any, with respect to your obligation to disclose active COVID cases to the residents at your community. Absent applicable requirements, fair housing expert Doug Chasick says it’s fine to send a general notice to advise residents that there are active COVID cases at the community, but not to disclose the names or unit numbers of people with the virus. Disclosure may not only violate the resident’s privacy, but also trigger discrimination or harassment of the resident by others living at the community.

Rule #4: Carefully Consider Reasonable Accommodation Requests

In addition to the general rules banning disability discrimination, there are extra rules that require communities to grant reasonable accommodations if necessary to allow individuals with disabilities to fully enjoy their dwellings.

Under the FHA, it’s unlawful to refuse to make reasonable accommodations in the rules, policies, practices, or services if necessary for an individual with a disability to fully use and enjoy the housing. By definition, reasonable accommodations are exceptions to your general policies or practices. For example, fair housing attorney Terry Kitay says that if someone wants to break a lease early because she has COVID-19, and needs to be hospitalized for treatment, then a request for early lease termination would be an accommodation to a disability.  

Only individuals who qualify under the FHA’s definition of disability are entitled to reasonable accommodations. For example, someone who isn’t sick, but has lost employment because of stay-at-home policies, isn’t entitled to a payment plan as a reasonable accommodation under the Fair Housing Act, explains Kitay. Instead, this would be a customer service you’re providing for residents because of the pandemic.

In other cases, you could get a reasonable accommodation request for an exception to policies adopted to minimize residents’ exposure to the virus. For example, many communities closed amenities, such as fitness centers and pools, and other areas to slow the spread of the virus, but you could get a request by a resident with a disability, who usually uses the treadmill as part of his therapy, for an exception to the policy as a reasonable accommodation so he could use it.

Even though his request is related to a disability, fair housing law doesn’t require you to grant a request for a disability-related accommodation if it’s unreasonable—that is, it would impose an undue financial and administrative burden on the community or result in a fundamental alteration of its operations. In this case, Kitay says that his request to use the fitness center would probably be considered unreasonable—it would not only pose a direct threat of spreading the virus, but also impose an additional financial and administrative burden on the community to clean and sanitize the facility and the equipment after each use.

Rule #5: Comply with Laws Banning Discrimination, Harassment Based on Sex

Sexual harassment—that is, unwelcome sexual conduct—is a form of discrimination based on sex. Though most sexual harassment claims are filed by women, the law is broad enough to protect both men and women from sexual harassment, regardless of whether the perpetrator is a man or a woman.

Since the COVID crisis began, there have been increasing reports of landlords pressuring women unable to pay rent due to lost income from the COVID crisis into “arrangements” and sexual conduct, according to Khara Jabola-Carolus, Executive Director of the Hawaii State Commission on the Status of Women. Though the law temporarily protects renters from evictions, there’s no official policy for rent forgiveness. About one-third of Americans were unable to pay their rent on April 1—and male landlords were taking advantage of the intensifying financial pressure, she said. 

In response to reports of sexual harassment during the pandemic, Attorney General William Barr directed federal prosecutors throughout the nation to deploy all available enforcement tools against anyone who tries to capitalize on the current crisis by sexually harassing people in need of housing.

“As the country adopted drastic measures to slow the spread of COVID-19, many Americans have lost their jobs and many more have seen their wages curtailed,” Barr said. “These losses have forced many to seek abatements or suspensions of their rent, with reports that nearly one-third of Americans were unable to pay their April rent at the beginning of the month.”

Though many landlords responded by trying to work with their tenants to weather the current crisis, Barr said that others have responded to requests to defer rent payment with demands for sexual favors and other acts of unwelcome sexual conduct. “Such behavior is despicable and it is illegal,” he said. “This behavior is not tolerated in normal times, and certainly won’t be tolerated now.”

In a statement, HUD Secretary Ben Carson praised the Attorney General for devoting all “necessary resource” to aid HUD investigations into reports of landlords demanding sexual favors in exchange for rent.

“The Fair Housing Act embodies the spirit of this great Nation where everyone is entitled to equal opportunity and respect,” Carson said. “No one should have to endure sexual harassment and degrading treatment, especially to keep a roof over their heads. I’m pleased Attorney General Barr has partnered with HUD to fully investigate and prevent sexual harassment in housing particularly during this difficult time in our country.”

Rule #6: Treat Applicants and Residents Consistently

Don’t treat people differently based on whether they have—or you believe they have—been exposed to COVID-19. Absent a positive COVID test, it can be difficult, if not impossible, to tell whether someone has the virus, because so many people have few, if any, symptoms of the virus.

It’s discriminatory to assume that someone has been exposed to the virus, simply based on where they—or their ancestors—were born. For example, enforcement officials in New Jersey explain that owners or managers can’t refuse to make necessary repairs to a unit because the resident is Asian and they’re afraid of contracting COVID-19. Nor can an owner or manager refuse to rent a property to someone based on these reasons. Fair housing law doesn’t prohibit a landlord from taking reasonable steps to protect himself or other residents from COVID-19, but such reasonable steps wouldn’t include actions premised on stereotypes based on race or national origin.

Consistency is key to fair housing compliance, says fair housing expert Doug Chasick. During the COVID crisis, for example, many communities have suspended regular maintenance operations, responding only to emergencies, to avoid the risk of exposure between residents and staff. When responding to emergency repair requests, it’s important for maintenance staff to respond to requests using the same safety practices to avoid potential discrimination claims.

Kitay agrees. When dealing applicants and residents, she says it’s a good idea to assume that everyone is positive, so you go into every situation with the same protocol.

Fair Housing Compliance Basics

• Suspend Judgment
• Think: Equal, Not Fair
• Be Consistent, which doesn’t mean “treat everyone the same”
• Manage Expectations
• Be Transparent – Communicate the “Why”
• Appreciate that Perception Is Reality

The Department of Justice has announced a settlement of a case involving an Indiana manufactured home community for violations of the federal Fair Housing Act. The $130,000 fine settles a federal lawsuit filed in May 2015, wherein the owner of a 173-lot manufactured home community in Crown Point, Indiana, was alleged to have violated the Fair Housing Act by refusing to allow families with children to live at the community.

"The Fair Housing Act guarantees families with children the right to choose a home without facing unlawful barriers of discrimination," said Principal Deputy Assistant Attorney General Vanita Gupta, head of the Justice Department's Civil Rights Division.  "The Justice Department will continue its vigorous enforcement of the Fair Housing Act to ensure that equal access to housing - a bedrock of the American dream - remains a reality for all families in our country."

The federal Fair Housing Act prohibits discrimination in housing on the basis of race, color, religion, sex, familial status, national origin and disability. 

From Chicago Tribune (3-23-26):

Crown Point mobile home park accused of violating federal law by not allowing children to live there has agreed to stop its ban and to pay $130,000.

Gentle Manor Estates, at 1350 E. North St., reached a consent decree agreement with the federal government to settle a lawsuit filed in May against the mobile home park's policy of not renting homes to families with children.

According to court records, the U.S. Department of Justice had two "testers" call Gentle Manor in September 2014 to see if it would lease homes to those with children. When a woman called saying she, her husband and their child wanted to lease a home, Gentle Manor told her they didn't allow anyone younger than 40 to live there, including her child, records show.

Another tester, a man who said he would live by himself and was older than 40, was told he could lease a home.

Remove any ban based on arrests. The first thing to do is to check whether your policy includes any ban based on arrest records, Richer said. HUD's guidance clearly states that records of arrest should not be used to deny housing or terminate a lease. There may be circumstances where a criminal event has occurred and the arrest record might justify further research into the behavior, but an arrest alone can't be used to deny housing eligibility.

Include statement of the purpose served by criminal screening. When documenting your resident selection policies, include a statement that the policies serve to reduce risk to your communities and residents. As you review your policies and make adjustments, be prepared to show that your policies are set to improve your communities' and residents' safety, and that the policy is substantial, legitimate, and has no discriminatory interest.

Remove blanket/generalized felony bans. Check whether your policy includes any "blanket" exclusions for all convictions or all felonies. Those policies are likely to be challenged by disparate impact claims.

Determine most serious and violent crimes. Replace any generalized felony or conviction bans with only the most serious or violent crimes that accomplish your goal of reducing risk. These may include both felony and misdemeanor crimes as long as consideration has been given to the nature of the crime.

Include look-back periods and exit from incarceration. Keep recidivism rates in mind when setting look-back periods. Look-back periods may be based on the conviction date or the date of exit from incarceration.

Address applicants with multiple unrelated violent and nonviolent felony convictions. A pattern of criminal activity may present a risk to your community (especially if it's recent), so you may want to consider the number of criminal events within a period of time. The events may be unrelated, but a pattern of crimes may show a propensity toward risky behaviors over a short period of time or within a recent period of time.

Remember the FCRA. Add language that informs applicants that when criminal records are found, they may have an opportunity to appeal and provide circumstances surrounding the criminal events.

As you review your policies and make adjustments, keep in the back of your mind the goal you have-to demonstrate that your policies are set to improve your community's and resident's safety, and that the policy is substantial, legitimate, and has no discriminatory interests, Richer says. You will also want to consider if there is any less discriminatory practice that could achieve the same goal.

And don't forget, your policies may come under scrutiny from testers, she warned. Take the time to train your staff properly, and for them to properly communicate your policy regarding criminal records. You want to be sure your policy isn'tbeing communicated in an abbreviated fashion, and that your staffers aren'tdiscouraging applicants with criminal histories from applying to your communities.

Appeals of Rejections/Individualized Assessments

In addition to developing a complex policy that includes a graduated tier of look-back periods that relate to the seriousness of the crimes, Williams said that another way to defend your criminal history policy is to include in the policy a description of an applicant's right to appeal a rejection.

Each rejection should inform the applicant that she has a right to obtain a copy of the criminal record on which the rejection is based. If you use a third-party screening company, these records should be provided by your screening company.

Decide who in your company will conduct these appeals, Williams suggested. It often proves useful to assign appeals to the same person or persons so they can develop some expertise in how to conduct these hearings, including the factors that prove to be the strongest to indicate a rejection should be maintained or reversed.

Williams often uses the term "individualized assessment" when reviewing whether an applicant is able to explain mitigating circumstances that may change the original determination to reject an application due to a criminal record. There are a number of factors that can be considered during the appeal, including:

• The seriousness of the criminal offense;
• The relationship between the criminal offense and the safety and security of residents, staff, or property;
• The length of time since the offense, with particular weight being given to significant periods of good behavior;
• The age of the household member at the time of the offense;
• The number and nature of any other criminal convictions; and
• Evidence of rehabilitation.

If you are holding an apartment, this process obviously needs to be completed as soon as possible, so it's a good idea to put time limits on all aspects of an appeal, Williams said. In conventional housing, if it is going to take more than a week or two for the hearing and decision to occur, Williams said it makes sense to move forward with leasing the apartment to another applicant. In federally funded housing, the result may be different due to HUD's appeal requirements.

There has not been a defined time frame by HUD, so Richer said it will depend on your housing availability and the length of the waiting list. In some cases, it may make sense to hold the apartment for a few days. If the time period expires, the apartment becomes available to another qualified applicant. You could set a reasonable time frame for the applicant to provide the necessary information for your appeal and provide him with the "next available" apartment in the event that the initial time frame expired.

During the presentation, Williams was asked whether this process was taking the housing industry back to a subjective review of the applicant. Those concerns were legitimate, she said. The federal government is asking housing providers to consider whether their criminal history policies reflect a genuine concern for safety or are merely based on generalized stereotypes of the dangers posed by ex-offenders.

While the country works to address difficult problems with the criminal justice system, Williams said that housing providers are tasked to treat applicants with criminal records somewhat similarly to residents who request reasonable accommodations. As you know, these are decided on a case-by-case basis, and companies are developing employees with expertise to make these decisions. Due to the seriousness of this issue, Williams suggested that housing providers devote a similar commitment to administering criminal history screening policies and give applicants an opportunity to explain their individual situations.

Fair housing law generally prohibits discrimination based on familial status, but there’s a limited exception that applies to senior housing communities that qualify as “housing for older persons.” To qualify, senior housing communities must meet strict technical requirements. Unless they satisfy those requirements, communities may not enforce “adult only” policies or impose age restrictions to keep children from living there.

The focus of this article is on federal law, but it’s important to check the law in your state governing senior housing communities. The specifics may vary, but you could draw unwanted attention from state enforcement agencies if you exclude families with children without satisfying legal requirements to qualify for the senior housing exemption.

Example: In January 2019, the California Department of Fair Employment and Housing (DFEH) announced a $10,000 settlement in a fair housing complaint alleging familial status discrimination against the owners of a six-unit rental community and a residential real estate brokerage firm that managed the property.

Fair housing advocates filed the complaint, alleging that the property was advertised online as an “adult complex” and included a restriction of “maximum 2 adults.” During a follow-up call, the property manager reportedly told a tester that children weren’t allowed. DFEH found that the complex wasn’t a senior citizen housing development and that there was cause to believe a violation of state fair housing law had occurred.

“In California, senior housing developments can, with some exceptions, exclude residents under 55 years of age if they have at least 35 units and meet other requirements,” DFEH Director Kevin Kish said in a statement. “All other rental properties violate the law if they categorically exclude families with minor children. By identifying such policies through testing, fair housing organizations such as Project Sentinel play an important role in ensuring that families with children have access to housing.” 

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) bans housing discrimination based on race, color, religion, sex, national origin, familial status, or disability—what’s known as “protected classes.”

Congress added familial status to the list of federally protected classes when it amended the FHA in 1988. In a nutshell, the familial status provisions make it unlawful to discriminate against applicants or residents because they have, or expect to have, a child under 18 in the household. Specifically, the FHA’s ban on discrimination based on familial status apply to one or more children under 18 living with:

• A parent;
• An individual with legal custody; or
• An individual who has the written permission of the parent or custodian.

The familial status provisions also apply to pregnant woman and anyone in the process of securing legal custody of one or more children under 18.

Nevertheless, Congress recognized the need to preserve housing specifically designed to meet the needs of senior citizens. Consequently, the 1988 amendment created an exemption from the FHA’s familial status requirements for communities that qualified as “housing for older persons.” Congress later amended the law in the Housing for Older Persons Act of 1995 (HOPA), resulting in the current version of the federal exemption for senior housing.

The exemption allows senior housing communities that meet specific requirements to legally exclude families with children. The exemption applies to housing communities or facilities, which are governed by a common set of rules, regulations, or restrictions. A portion of a single building isn’t considered a housing facility or community, according to HUD. The senior housing exemption applies only to the FHA’s familial status provisions; communities must still abide by the law’s protections based on race, color, national origin, religion, sex, and disability.

The law describes three types of communities that are eligible for the senior housing exemption:

• Publicly funded senior housing communities: Housing communities where HUD has determined that the dwelling is specifically designed for and occupied by elderly persons under a federal, state, or local government program;
• 62-and-older communities: Communities intended for, and occupied solely by, persons who are 62 or older; and
• 55-and-older communities: Communities that house at least one person who is 55 or older in at least 80 percent of the occupied units and adheres to a policy that demonstrates intent to house persons who are 55 or older.

7 RULES TO FOLLOW TO AVOID FAIR HOUSING TROUBLE

IN SENIOR HOUSING COMMUNITIES

Rule #1: Comply with Technical Requirements for Senior Housing Exemption

Senior communities must adopt policies and procedures to ensure strict compliance with the technical requirements of the senior housing exemption. If you don’t comply with the law’s requirements, then you lose the exemption, which in essence makes your community automatically liable for excluding or discriminating against families with children. 

Complying with the law governing the 62-and-older exemption is relatively straightforward. To qualify, the community must be intended for and occupied solely by persons aged 62 and older. For example, HUD regulations explain that a 62-and-older community would have to refuse the application of a 62-year-old man whose wife is 59. In the same vein, a community would lose its exemption if it allowed continued residency by a current resident who married someone under the age of 62.

Complying with the law governing the 55-and-older exemption is more complicated. To qualify, the community must satisfy each of the following requirements:

• At least 80 percent of the occupied units must have at least one occupant who is 55 years of age or older;
• The community must publish and adhere to policies and procedures that demonstrate the intent to operate as “55 or older” housing; and
• The community must comply with HUD’s regulatory requirements for age verification of residents.

1. 80 percent rule. To meet this requirement, a community must ensure that at least one person 55 or older lives in 80 percent of its occupied units. The law doesn’t restrict the ages of the other occupants in those units. Furthermore, there are no age limits for the occupants of the other 20 percent, so communities may accept families with children, although they don’t have to do so.

The 80 percent rule applies to the percentage of “occupied units,” which includes temporarily vacant units if the primary occupant has resided in the unit during the past year and intends to return on a periodic basis. That means that a unit would count toward the 80 percent requirement if its 55-year-old occupant resided in the unit for only part of each year.

To maintain eligibility for the exemption, it’s a good idea to ensure that more than 80 percent of your occupied units are occupied by at least one person aged 55 or older. If you skate too close to the line, your community could be forced into a difficult situation—for example, if a 60-year-old resident dies, leaving a 54-year-old surviving spouse.

To prevent just such a problem, HUD advises communities to plan with care when renting the 20 percent portion of the remaining units to incoming households under age 55. Such planning should address notice to incoming households under the age of 55 regarding how the community will proceed in the event that the 80 percent requirement is threatened.

2. Intent to operate as senior housing. A community must publish and adhere to policies and procedures that demonstrate its intent to operate as housing for persons 55 years of age or older. HUD offers some examples of the types of policies and procedures to satisfy this requirement, including:

• The written rules, regulations, lease provisions, or other restrictions;
• The actual practices of the community used to enforce the rules;
• The kind of advertising used to attract prospective residents to the community as well as the manner in which the community is described to prospective residents; and
• The community’s age-verification procedures and its ability to produce, in response to a familial status complaint, verification of required occupancy.

3. Verification of occupancy. To qualify under the 55-and-older exemption, communities must able to produce verification of compliance with the 80 percent rule through reliable surveys and affidavits.

HUD regulations require communities to develop procedures to routinely determine the occupancy of each unit, including the identification of whether at least one occupant is 55 or older. The procedures may be part of the normal leasing arrangement. And, every two years, communities must update, through surveys or other means, the initial information to verify that the unit is occupied by at least one resident age 55 or older.

In addition, communities must establish procedures to verify the age of the occupants in units occupied by persons 55 and older through reliable documentation, such as birth certificates, driver’s licenses, passports, immigration cards, military identification, and other official documents that show a birth date. HUD regulations also allow a certification signed by any member of the household aged 18 or older asserting that at least one person in the unit is 55 or older.

Rule #2: Market Your Community as Senior Housing

For 55+ communities, it’s essential to ensure that your advertising and marketing doesn’t undercut your ability to qualify for the senior housing exemption.

To qualify for the senior exemption, the law requires communities to demonstrate an intent to provide housing for older persons. The manner in which your community is described to potential residents is among the relevant factors listed in HUD regulations to determine whether a community has complied with the intent requirement. Using the wrong words to describe yourself not only may trigger a fair housing complaint, but also undercut your ability to demonstrate your intent to operate as “55 or older” housing.

As an example, fair housing expert Doug Chasick points to the increasing number of housing developments that market themselves as “Active Adult” or “Empty Nester” communities. Yet, he points out, using the term “Adult Only” housing was outlawed back in 1988, when President Reagan signed amendments to the FHA into law. He says that some state and local enforcement agencies claim that using these phrases are always illegal because they’re incompatible with the intent requirement.

HUD doesn’t take it that far. It’s true that HUD regulations state that “Phrases such as “adult living,” “adult community,” or similar statements in any written advertisement or prospectus are not consistent with the intent that the housing facility or community intends to operate as housing for persons 55 years of age or older. But HUD says that the use of these terms does not, by itself, destroy the community’s ability to meet the intent requirement, according to HUD. If a facility or community has clearly shown in other ways that it intends to operate as housing for older persons, meets the 80 percent requirement, and has in place age verification procedures, then HUD says that the intent requirement can be met even if the term “adult” is occasionally used to describe it.

That’s not to say that Chasick says it’s a good idea to use those terms in your advertising or marketing materials. In fact, he recommends against it unless you want to be caught up in an expensive investigation or enforcement action. Instead, Chasick recommends using words like “senior housing,” “senior living community,” “a 55 and older community,” or even a “55 and Better Community” when describing your community to demonstrate your intent to operate as housing for older persons.

Rule #3: Don’t Discriminate Based on Race or Other Protected Characteristics

The FHA’s senior housing exemption is limited: It offers protection from federal fair housing claims based upon familial status as long as your community meets the FHA’s requirements to qualify as housing for older persons. It doesn’t exempt senior housing communities from any claims based on race, color, national origin, religion, sex, or disability, or other characteristic protected under state or local law.

That means that senior communities must take steps not only to qualify under the senior housing exemption, but also to ensure they don’t exclude or otherwise discriminate against applicants or residents based on race or other protected characteristic. For example, senior communities must adopt nondiscriminatory policies and procedures governing the application process and treatment of residents in addition to complying with the age-verification and other requirements to qualify for the senior housing exemption. And train your staff to apply those policies consistently to all applicants and residents, regardless of race, color, national origin, religion, sex, or disability, or other characteristic protected under state or local law.

Rule #4: Enforce Rules to Prevent Harassment by or Against Residents

Take steps to enforce rules to prevent harassment or other misconduct by or against residents. If a resident complains about being harassed by other residents based on her race, sex, or any other protected class, then you should take the complaints seriously.

You shouldn’t be expected to police the behavior of your residents, but you should make it clear that bullying or any other forms of harassment based on protected characteristics won’t be tolerated. Depending on the circumstances, you could face liability under fair housing law if you knew that a resident was subjected to severe and persistent abuse from other residents, but you did nothing to stop it.

Example: In August 2018, a federal court reinstated a fair housing case against an Illinois retirement community for harassment and retaliation. The complaint alleged that the resident endured months of physical and verbal abuse by other residents because of her sexual orientation, and that despite her complaints, the community did nothing to stop it and in fact, retaliated against her because of her complaints.

Fair housing law prohibits discriminatory harassment that creates a hostile housing environment. To prove the claim, the resident had to prove that: (1) she endured unwelcome harassment based on a protected characteristic; (2) the harassment was severe or pervasive enough to interfere with her tenancy; and (3) there was reason to hold the community responsible.

The resident’s complaint satisfied the first and second requirements. She alleged that she was subjected to unwelcome harassment based on her sex, and the community agreed that the court’s earlier ruling—that employment discrimination based on sexual orientation qualifies as discrimination based on sex—applied equally to housing discrimination claims. And the alleged harassment could be viewed as both severe and pervasive—for 15 months, she was bombarded with threats, slurs, derisive comments about her families, physical violence, and spit.

The complaint also satisfied the third requirement. When the case goes back for further proceedings, the focus will be on the management defendants to determine whether they had actual knowledge of the severe harassment that the resident was enduring and whether they were deliberately indifferent to it. If so, then they subjected the resident to conduct that the FHA forbids [Wetzel v. Glen St. Andrew Living Community, August 2018].

Rule #5: Watch for Potential Disability Discrimination Claims

Senior housing communities must pay particular attention to fair housing protections for individuals with disabilities. The FHA prohibits communities from excluding individuals with disabilities or discriminating against them in the terms, conditions, and privileges of the tenancy.

Example: In December 2018, the owners and operators of a California senior housing complex agreed to pay $2,500 to resolve claims that they violated state fair housing laws by denying housing to a prospective resident because she has a disability.

In her complaint, the prospect alleged that the property manager initially approved her tenancy application but rescinded the approval after meeting her and seeing that she uses a wheelchair. The prospect’s daughter had handled most aspects of the application process, including viewing the unit. When the prospect arrived in a wheelchair to sign the lease, the property manager allegedly refused to rent her the unit and accused her and her daughter of misrepresenting the prospect’s identity by bringing other individuals to view the unit.

“The Fair Employment and Housing Act promises that all tenants, regardless of disability, have equal access to housing,” Kevin Kish, Director of the California Department of Fair Employment and Housing, in a statement. “Housing providers have a legal obligation to eliminate unlawful bias from every stage of the housing application process.”

Fair housing law bans discrimination against applicants and residents because they—or someone they’re associated with—is a member of a protected class. HUD says that the FHA’s disability provisions were intended to prohibit not only discrimination against the named tenant, “but also to prohibit denial or housing opportunities to applicants because they have children, parents, friends, spouses, roommates, patients, subtenants or other associates with disabilities.”

Example: In December 2018, HUD announced that a New Jersey condo association representing residents of a 55-and-older condominium development has settled a complaint alleging that it refused to sell a condo to a man with disabilities and his wife because the couple planned to have their adult disabled daughter live with them. The settlement requires the association to pay a $9,000 civil penalty to the United States, undergo fair housing training, and make changes to the associations’ bylaws as they relate to reasonable accommodations. The wife, now a widow, is pursuing claims against the association in state court. The association denies that it discriminated against the family.

“No family whose members have disabilities should be denied the reasonable accommodations they need to make a home for themselves,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “Hopefully, today’s ruling will remind homeowner associations of their obligations under the Fair Housing Act and encourage them to follow the law” [Secretary, HUD v. Tamaron Association, December 2018].

Senior communities must be prepared to comply with the full array of disability protections. For example, the FHA requires communities to make reasonable accommodations to rules, policies, practices, or services to enable an individual with a disability to fully enjoy use of the property. The law also requires owners to permit residents with a disability, at their expense, to make reasonable modifications to the housing if necessary to afford them full enjoyment of the premises.

Example: In December 2017, the owner and property manager of a California community agreed to pay $11,000 to resolve a HUD complaint alleging disability discrimination against a resident with a mobility impairment. According to her complaint, the resident requested to have a live-in aide and a key to a locked gate near her unit to make it easier for her to come and go. In both instances, she said that the owner and property manager asked her intrusive questions about her disability, challenged whether she really had a disability, asserted that the development was for individuals who could live independently, and ultimately denied her requests.

“Residents with disabilities have the right to reasonable accommodations that allow them to use and enjoy their home, without unnecessary and invasive questioning,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD will continue to work with housing providers to ensure they meet their obligation to comply with national fair housing laws.”

Example: In December 2018, the Fair Housing Justice Center (FHJC) announced that a settlement has been reached with the remaining defendants in two federal lawsuits against the operators of dozens of nursing homes and assisted living facilities for allegedly refusing to make American Sign Language (ASL) interpreter services available to deaf and hard-of-hearing residents. Though denying the allegations, the defendants in the latest settlement agreed to pay $245,675 in damages and attorney’s fees to resolve the case.

The FHJC says that the settlements in these cases ensures that deaf and hard-of-hearing people will have access to ASL services and other auxiliary aids and services as a reasonable accommodation in 61 nursing homes and 35 assisted living facilities in the New York City region. The settlement agreements reached with the defendants in these two cases also yielded a total monetary recovery of nearly $1.2 million in damages and attorney’s fees.

Rule #6: Review ‘Independent Living’ Requirements

Depending on the circumstances, you could face a fair housing complaint for imposing independent living requirements on applicants or residents. Courts have found that a policy requiring applicants to demonstrate an ability to live independently violates fair housing laws protecting individuals with disabilities [Cason v. Rochester Housing Authority, August 1990].

Example: In September 2017, the owner and managers of a 41-unit community in California agreed to pay $18,500 to resolve allegations of discrimination against elderly residents with disabilities who relied on support from caregivers. A fair housing organization filed the complaint on behalf of an elderly resident facing eviction after returning from the hospital with support from a part-time caregiver. Allegedly, the owner and property manager said that they didn’t want the “liability” of her remaining in her home, threatened to call the county to have her “removed,” ordered her to move out, and asked invasive questions about the extent of her disabilities. According to the organization’s complaint, its investigation corroborated the resident’s allegations and revealed that testers calling for disabled relatives were told that the complex was for “independent living” and people who “can take care of themselves.”

Example: In Michigan, fair housing advocates recently sued an affordable senior housing apartment complex, alleging that the community applies “independent living” requirements to force residents with disabilities to move, even if those residents are meeting all the requirements of the lease. The complaint asks the court to recognize the community’s practices as discriminatory and prevent the complex from forcing tenants with disabilities to leave their homes when they remain capable of meeting all of their lease obligations.

“Civil rights laws ensure that people with disabilities can decide for themselves where and how to live in the community of their choosing,” says Susan Silverstein, Senior Attorney at AARP Foundation. “The law doesn’t allow landlords to refuse to accommodate tenants with disabilities,” adds a lawyer for the Michigan Clinical Law Program, “and it certainly doesn’t allow landlords to refuse to let tenants age in place just because they might need some outside help.”

Example: And in New York, fair housing advocates and two individuals sued the state and four adult care facilities, alleging that they maintained and enforced blanket policies barring wheelchair users, regardless of their individual needs or abilities, and steered applicants who use wheelchairs to nursing homes.

One of the individual plaintiffs, an elderly woman with disabilities, alleged that she was barred from returning to one of the communities once she began using a wheelchair. According to the woman, the community tried to evict her because of an internal policy barring admission of people who use wheelchairs and state health department regulations that supported such policies at these and other facilities.

The lawsuit also alleges that New York State promotes disability discrimination through its regulations and policies, including its policy permitting adult homes to ban wheelchair users from admission. Until recently, state health department regulations stated that adult homes and assisted living programs should not admit or retain people who are “chronically chairfast.”

The state has since amended the regulations to eliminate the phrase “chronically chairfast” and to add language that operators may not exclude individuals solely because they primarily use a wheelchair for mobility and must make reasonable accommodations as necessary to comply with the law. Last fall, the court issued an order directing the community to allow the elderly woman to return to her home. The case is still pending in federal court.

Rule #7: Comply with Applicable State and Local Laws

It’s critical to review applicable state and local fair housing laws because the laws affecting senior housing may vary substantially, depending on your location. For example, HUD points out that federal fair housing law doesn’t cover age discrimination, which is a protected characteristic under some state and local fair housing laws.

Moreover, HUD notes that some state and local governments with fair housing laws that have been determined to be substantially similar to the federal law may not include an exemption from the familial status discrimination for housing for older persons.

Alternatively, some state or local laws impose different standards for the senior housing exemption. In California, for example, the legislature adopted more stringent requirements on senior housing than is required under the FHA “in recognition of the acute shortage of housing for families with children” in that state. The law imposes specific requirements related to accessibility, common areas, and refuse collection.

Still other state and local laws apply an older version of the federal exemption. Under the original 1988 legislation, 55-and-older communities had to have “significant facilities and services specifically designed to meet the physical or social needs of older persons” to qualify for the exemption.

Though Congress eliminated the “significant services and facilities” requirement from federal fair housing law, some states didn’t follow suit. In Georgia, for example, communities are still required to furnish “significant facilities and services specifically designed to meet the physical or social needs of older persons” to qualify for the senior housing exemption.

Tip: HUD urges communities to check all relevant state, local, and federal laws, as well as any requirements imposed as a term of governmental financial assistance before implementing policies and procedures that limit residents’ eligibility. Because of the complexity of the issues involved, you should get legal advice from an attorney well versed in the legal requirements for senior housing issues in your jurisdiction.