First in a series of articles dealing fair housing issues when addressing residents who break the rules.
Fair housing problems can arise when dealing with residents who break the rules. The specifics will vary, but all residents have to abide by some basic rules: They must pay rent, avoid damage to the unit (subject to reasonable wear and tear), and refrain from interfering with the quiet enjoyment of other residents.
But what happens when residents break the rules? They may fail to pay their rent, ignore community policies, damage the property, or disturb their neighbors. Whatever the problem, you have the right to enforce the lease and community rules, subject to applicable landlord/tenant laws. It doesn’t have to be a fair housing problem, but it can quickly become one if you’re not careful.
Over the next couple weeks we will cover eight rules —the essential ‘dos and don’ts’—for dealing with residents who break the rules and keep the housing provider from violating fair housing laws.
WHAT DOES THE LAW SAY?
The federal Fair Housing Act (FHA) prohibits discrimination in housing because of race, color, religion, sex, familial status, national origin, and disability. Fair housing law bans communities from denying housing to anyone—or discriminating against them in the terms, conditions, or privileges of residency—based on any of these protected characteristics.
The law doesn’t stop you from holding residents accountable for their own bad behavior, but they may accuse you of discrimination when taken to task for breaking the rules. They may claim that you’re falsely accusing them of breaking the rules—or treating them more harshly than other residents for similar infractions—because they’re members of a protected class.
Sometimes the rules themselves come under attack. Communities may enforce rules to ensure safety, prevent property damage, and protect the quiet enjoyment of the property by other residents, but it’s unlawful to do so in a way that unreasonably interferes with the right of families with children to use and enjoy the community’s common areas and amenities.
Moreover, fair housing law may exempt some residents from following the rules under certain circumstances. As part of the law’s ban on disability discrimination, it’s unlawful to refuse to make reasonable accommodations to rules, policies, practices, or services to enable an individual with a disability to fully enjoy use of the property. Because a community’s policies may have a different effect on people with disabilities than on others, HUD says that treating residents with disabilities exactly the same as others will sometimes deny them an equal opportunity to use and enjoy the premises. So you may be required to make exceptions to your rules—such as no-pet policies or parking restrictions—as a reasonable accommodation for a resident with a disability.
Fair housing law doesn’t require communities to approve all accommodation requests. For example, a request for a reasonable accommodation may be denied if providing the accommodation is not reasonable—that is, if it would impose an undue financial and administrative burden on the community or result in a fundamental alteration of its operations. In such cases, federal guidelines say that communities should engage in an “interactive process” with the person making the request to discuss whether there’s an alternative accommodation that would effectively address his disability-related needs.
8 DOS & DON’TS FOR DEALING WITH RESIDENTS WHO BREAK THE RULES
RULE #1:
DO Hold Residents Accountable for Rules Violations
DON’T Be Afraid to Take Action When Necessary
You may expect all residents to abide by the lease and community rules, and you may take action against anyone who fails to do so. Fair housing law bans discrimination against members of protected classes, but it doesn’t excuse residents from following the rules, regardless of their race or any other protected characteristic.
Don’t let your fear of a fair housing claim prevent you from applying your policies fairly and consistently. If action is required, don’t fail to act because you’re afraid the resident will file a fair housing complaint against you. Just talk to your attorney first to make sure that all of your community’s actions are documented and justified.
Example: In 2013, a Washington public housing community fought off a fair housing complaint filed by a resident who was threatened with eviction for feeding pigeons and allowing them to nest on his deck. The community’s rules prohibited the feeding of stray animals and wildlife, so he received several warnings that he’d be evicted if he didn’t stop. He eventually complied and no further action was taken against him, but the resident sued the community for discriminating against him because of his race. He failed to prove that he was being falsely accused since he admitted that he allowed the pigeons to nest on his deck. And the court rejected his claim that nonminority residents fed the pigeons and were not disciplined, noting that other residents viewed the pigeons as a nuisance and were trying to get rid of them in various ways, including poison [Bahati v. Seattle Housing Authority, September 2013].
To ward off fair housing trouble, it’s a good idea to have a written policy detailing your standards of conduct so all prospects, residents, and staff members understand what behaviors constitute lease violations. Putting it down on paper heads off claims that the resident didn’t know about the rules or understand the consequences of breaking them.
Make sure that your rules conform to state and local requirements by asking your attorney for help in drafting a policy that defines what conduct is considered a lease violation. Make the rules as specific as possible—for example, by quantifying how many times an act must be committed before it’s considered a lease violation, how much time you’ll give a resident to correct his behavior, and so on. Your policy should also detail the procedures for investigating, resolving, and documenting complaints against residents for violating the lease and community rules.
Over the next couple weeks, MHCO will be posting articles that go into detail on the remaining 7 rules for dealing with residents who break the rules.
RULE #2:
DO Apply Community Rules Fairly and Consistently
DON’T Make Exceptions for Residents Simply Because You Like Them
RULE #3:
DO Be Prepared for Reasonable Accommodation Requests
DON’T Ignore Disability-Related Requests for Exceptions to the Rules
RULE #4:
DO Consider Accommodation Requests for Assistance Animals
DON’T Refuse to Make Any Exception to Pet Policies
RULE #5:
DO Enforce Rules to Prevent Harassment, Maintain Safety
DON’T Ignore Accommodation Requests Related to Disruptive Conduct
RULE #6:
DO Enforce Rules Governing Common Areas
DON’T Unreasonably Limit Children’s Activities
RULE #7:
DO Be Prepared for Potential Retaliation Claims
DON’T Crack Down Because of a Prior Fair Housing Complaint
RULE #8:
DO Keep Good Records to Counter Discrimination, Retaliation Claims
DON’T Neglect Your Paperwork