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Fair Housing Laws

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The agency assuages the concerns of rental property owners over phony comfort animals while enforcing the need for reasonable accommodations for those with a genuine need.

In an earlier blog, we said that the days are numbered for dubious and predatory websites that sell certificates, registrations and licensing documents for assistance animals to anyone who answers certain questions or participates in a short interview and pays a fee.

The number of these websites has grown exponentially with at least one offering a how-to manual on suing a landlord when an assistance animal is turned away. HUD has expressed skepticism over these letter mills and after issuing concrete guidance on assessing a person’s request to have a reasonable accommodation under the Fair Housing Act (FHA), the agency has finally provided some structure and clarity regarding an apartment’s owner’s prerogative to accept pets.

While we know this can be an emotional subject for many, Bornstein Law wants to reiterate that we are not against pets, no more than we oppose handicapped parking spaces.

We do believe, however, that rental property owners and operators should be the final arbiter of what goes on in their units, and that a mandate to accept animals should be reserved for tenants who require an animal for an equal opportunity to use and enjoy their homes.

This sentiment was echoed by the National Multifamily Housing Council in a statement that the heretofore lack of clarity in the law puts an undue burden on housing providers and “undermines the intent of the Fair Housing Act to help those truly in need of an emotional support animal.”

In stating their position, the NMHC goes onto say that the sorely needed guidance “will help rental housing providers mitigate abuse, ensure better compliance with fair housing laws, and, vitally, improve the ability of owners and operators to protect the rights of disabled persons to live with their service animals and emotional support animals.”

Disabilities saw and unseen

HUD’s new tutelage has made a clear distinction between a person with a non-obvious disability and in those situations when a disability is not readily apparent, documentation from a medical professional may be required. Although housing providers have less rope to hang themselves, we still need to be careful about prodding too much, or in the event a disability is obvious, asking for any documentation whatsoever.

The terms floating around can be like consuming a box of animal crackers

Many rental housing providers have gotten tripped up over the categorization of animals, whether the furry or scaly friend is a bona fide service animal, an assistance animal, an emotional support animal, comfort animal, a companion animal or other terms they can be lumped in, or simply just a pet.

Let’s compartmentalize animals into one overarching term – assistance animals – and divide these into two parts.

The definition of a service animal has remained unchanged. Namely, it is “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” Other species of animals are not service animals under the definition of the American with Disabilities Act (ADA).

While guide dogs for the blind are the first thing to come to mind, service animals can perform a host of other tasks like alerting their owner to signs of a seizure, retrieving items such as medicine or the telephone, interrupting impulsive or destructive behaviors, among other duties.

There are, however, “other trained or untrained animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities” that are considered assistance animals. This broader category of assistance animals need not be dogs and indeed, the media has made a laughing stock out of potbellied pigs, peacocks, turkeys, alligators, and other species that have been allowed to board airplanes or allowed into rental units, because these animals aide their owners.

Interestingly, HUD probes into whether the animal question is a common household pet.

In promulgating its guidelines, HUD offers a question and answer format, and one question is whether the animal is “commonly kept in households.” If the answer is in the affirmative, the owner or property manager should make reasonable accommodations under federal and state fair housing laws.

If the tenant who would otherwise be entitled to a reasonable accommodation seeks to co-exist with an animal that is not considered commonly kept in households, accommodation would not be required unless it falls under the rarest of circumstances. No kangaroos or monkeys allowed.

Conclusion

It is uncontested that a disabled person deserves reasonable accommodations under federal and state law – HUD’s new guidelines have not changed the landlord’s duty to accommodate residents with disabilities, but has provided a framework to get to the heart of the question: what is a disability?

In a balanced approach, the agency has painstakingly offered a framework for rental providers to evaluate the veracity of a tenant’s claim they are disabled while ensuring reasonable accommodations are not stripped away from tenants who are in fact disabled.

You can read the unabridged notice here… 

HUD takes the stance that animals should only assist tenants with a genuine need and not a mere assertion of a disability.

Dogs have evolved from man’s best friend to must-have accessories while their owners are dining, shopping or lingering in other public places. We don’t want to single out K-9s in this discussion, so we’ll add to this list cats, pot bellied pigs, peacocks, alligators, ponies, and other fury friends allowed into a rental unit when the tenant says they need emotional support.

It’s been some time since Bornstein Law has addressed the concerns of landlords who are called upon to accommodate comfort/emotional support animals, or “assistance animals” in the vernacular of HUD, but after the feds have now paid attention to this emotionally charged subject, it is time for us to revisit it.

While measures were put into place to balance the safety concerns with the right of passengers with disabilities to access air transportation, we are beginning to see some semblance of sanity on the ground as the government takes aim at websites that are essentially letter mills that crank out certifications of a tenant’s claimed disability without third party verification, much less an evaluation from a medical professional.

At least one website has a how-to manual on suing landlords if an emotional support animal is denied by the landlord.

Today, landlords have to define what an animal is, be it a comfort animal, an emotional support animal, an assistance animal, a bona fide service animal, or an ordinary pet. Heeding calls to add clarity to this wilderness, HUD has finally recognized that the system can be manipulated by tenants who falsely claim they need their animals to cope with a fictitious disability.

What’s reasonable?

When we first announced that HUD is scrutinizing bogus claims by tenants that they need these companions to alleviate anxieties, an astute observer on social media said “all animals are comfort and emotional support.” We agree. Animals bring joy to our lives, something we can attest to as pet lovers.

We also know that animals pose some serious issues to landlords in terms of their ability to assess pet deposit fees and apply policies that are uniform and in compliance with fair housing laws.

In a press release, Housing and Urban Development (“HUD”) Secretary Ben Carson expressed his disfavor with certain websites that peddle phony assistance animal documentation, stating that these animals should be reserved for those with a legitimate disability and not a means for opportunistic websites to profit by churning out documentation indiscriminately.

As the most qualified pediatric neurosurgeon to ever head HUD, his medical credentials are beyond reproach.

“These certificates are not an acceptable substitute for authentic documentation provided by medical professionals when appropriate…. these websites that sell assistance animal certificates are often also misleading by implying that they are affiliated with the federal government. Nothing could be further from the truth. Their goal is to convince individuals with disabilities that they need to spend hundreds of dollars on worthless documentation to keep their assistance animal in their homes.”

Anna Maria Farias, HUD’s assistant secretary for fair housing and equal opportunity, goes a step further saying these “pay for disability on demand” websites not only smell fishy, but they actually harm those who are in genuine need.

“Websites that sell verification for assistance animals take advantage of persons with disabilities who need a reasonable accommodation to keep their assistance animal in housing, she says, before going on to say the request for Federal Trade Commission action “reflects HUD’s ongoing commitment to protecting the housing rights of persons with disabilities.”

It’s as if an able-bodied person parks in a handicap spot. Cracking down on fraudulent claims is not peeling back the protections of the disabled. It advances them.

When a tenant merely asserts the need for a companion of any species, it has an impact on the landlord’s ability to assess pet deposits and fees and to apply policies relating to animals. If an assistance animal is denied co-tenancy, the rental property owner can be exposed to fair housing complaints.

An assistance animal should not be confused with a service animal trained to perform certain tasks such as helping a blind person navigate, alert to impending seizures, or aid in hearing impaired individuals.

Coined the “Fair Chance” ordinance, lawmakers in Berkeley have introduced a measure that would prohibit landlords from conducting criminal background checks in vetting most applicants for rental housing throughout the city.

Owner-occupied properties that are triplexes, duplexes and single-family residences would be exempted, a concession made after mom-and-pop landlords shared unique concerns they live in close quarters with tenants.

The sweeping ordinance would be the first of its kind in California, though we hasten to say San Francisco and Richmond have banned criminal background checks in a smaller subset of affordable or subsidized housing. San Francisco illegalized criminal background checks in public housing, while Richmond’s ban goes a step further by applying the ban to all subsidized affordable housing and nonprofit housing.

Elsewhere, Portland and Seattle have inked similar laws that cover private rentals, though Seattle’s groundbreaking ordinance is mired in legal disputes. It seems that similar arguments are being made for and against Berkeley’s proposed amnesty against renters with a checkered past.

Predictably, tenants’ advocates led by Alameda County Fair Chance Housing Coalition and Just Cities, point out the structural barriers for ex-offenders reintegrating into society. Some studies cited find that formerly incarcerated people are almost 10 times more likely to be homeless than the general public, as their rental applications are discarded. On its website, the organization articulates in mission statement.

By creating equal opportunities for housing applicants, we can ensure that formerly incarcerated residents aren’t boxed out of housing and have a stable and healthy life upon release.

This sentiment is shared by Berkeley Mayor Jesse Arreguin and a chorus of others who note ex-offenders have paid their dues to society, and raise other concerns like unreliability of criminal reports, wrongful convictions, and a tendency for some landlords to promote fear-mongering.

A competing narrative by property owners and their advocates

Meanwhile, landlords argue for their free speech, property rights and the safety of neighboring tenants, claiming that such “ban the box” laws leave them blind to relevant public information about rental risks.

The law’s premise ‘is this paternalistic idea that the city gets to decide what information is relevant or important to a landlord’s decision making process.’

~ Ethan Blevins, an attorney at the Pacific Legal Foundation

If the ordinance is passed, aggrieved tenants could sue landlords over violations, similar to remedies afforded to tenants under Berkeley’s ban on discrimination against housing voucher holders. It seems that thus far, the city has not had the capacity to bring affirmative lawsuits against landlord offenders who blatantly advertise their disfavor of Section 8.

Yet as a sidebar, we urge property owners not to get a false sense of bravado from a lack of enforcement. There are many enterprising attorneys who can fill the void. A case in point is a San Diego attorney who recently single handedly filed more than 50 lawsuits on behalf of clients, alleging apartment listing ads contained language like “NO Section 8,” in violation of a local ordinance.

In an earlier blog, we went over a confluence of factors that have concealed rental risks. Limitations in technology, a culture of amnesty and new laws that impede the ability to detect evictions and other blemishes make it vital for landlords to do proper tenant screening on the front end, something our founding attorney accentuated in this video.

Our takeaways from Berkeley’s proposed ordinance and those that mirror it

Our role at Bornstein Law is not to take sides or legislate, but merely to advise owners and real estate practitioners on the legal implications of their policies and actions. The law attempts to strike a balance between the interests of property owners and the societal interest of transitioning stigmatized ex-offenders into normal life.

RELATED BLOG: Criminal background checks in tenant screening

Regardless of the fate of Berkeley’s ordinance, we can offer some emphatic statements.

If your rental business has a blanket ban against renting to tenants with a criminal history, it is likely a violation of fair housing laws and if you use criminal records to screen tenants, the policy must be narrowly tailored, meaning owners or their agents must weigh the nature and severity of the offense, and whether there is actual danger presented if renting to the tenant.
These carefully thought out policies should also be applied uniformly. If you deny a tenancy based on a criminal background check, yet welcome another ex-offender into rental units, you are inviting liability.
It’s also worth noting that landlords need explicit permission and signature from applicants to conduct a criminal background check. The field can be narrowed, however, by screening only those applicants who survive other checks, such as a credit report. Let’s move on to a larger, parting thought.

California defines housing discrimination more broadly than federal law, as a pool of “protected” classes are ever-expanding. When denying a tenancy, less communication is more, because common factors in costly lawsuits are landlord statements that shoo away certain groups or favoring others.

A landlord need not accept a certain tenant who is considered protected or vulnerable, but the prospective tenants cannot be given the cold shoulder simply because of their status.

For those of you who have followed us for any period of time, we are probably preaching to the choir. But even saying that may fly in the face of fair housing laws because of a religious connotation.

Renters who rely on Social Security Disability have no control over when they receive their check in the mail and so landlords who have a blanket policy of demanding rent on the first of the month may have to bend a little to accommodate SSDI recipients, suggests a federal court ruling. First, some backdrop.

Landlords are always a moving target when it comes to costly housing discrimination lawsuits and especially in California, a state which defines discrimination much broader than federal law. Tenants who profess a need for comfort animals or medical cannabis, recipients of housing vouchers, illegal immigrants and several other groups have successfully lobbied for added protections.

With the envelope of protected classes constantly being pushed, landlords find themselves walking on eggshells when denying tenancies or setting rules that may be perceived as favoring any group over another. Although California has defined disability more expansively than the federal government and has carved out new categories of renters entitled to increased safeguards, there are efforts underway in Congress to add teeth to tenant protections. This Kaine-Hatch bill would expand the Fair Housing Act and ban discrimination based on the source of income or veteran status.

Courts warming up, too

Fair Housing Rights Center in Pennsylvania v. Morgan Properties Management Company, LLC is a case that has percolated to our radar after a federal district judge in Pennsylvania ruled that landlords can expose themselves to liability if they refuse to adjust due dates for SSDI recipients who may get their checks after the first of the month. Landlords who do not budge on when the rent is due can create a “disparate impact” on disabled tenants, the court ruled.

Although the case can be considered persuasive law and is not binding in California, it sets a precedent and there is no reason to believe that its logic will not be transplanted in a state that has more ensconced protections than any other in the Union.

Parting thoughts & takeaways

Landlords should always exercise caution when fielding rental applications and talking with tenants on source of income, among other swampy subjects that can invite potential liability. We noted in an earlier post that when it comes to this type of communication, less is more. This is all the more true because there are “testers” who attempt to entrap landlords by documenting acts of discrimination. That’s right – their sole intention is to catch a landlord in the act of violating fair housing laws. In our day and age, then, every request for an accommodation should be treated as a potential test case intended to ensnarl the landlord in a costly lawsuit, the likes of which are proliferating throughout the Bay Area.

Finally,  Bornstein Law admonishes landlords and property managers to establish well thought out policies that are uniform, and we are strong advocates for education. If there is any slip up when it comes to fair housing laws, courts will make no distinction between the landlord and his or her agents.

When in doubt, contact our office for informed advice.

Immigration was a divisive topic in 2017, but California has been the capital of democratic resistance in the Trump era, making a concerted effort to protect immigrants from the rhetoric and anticipated changes coming down the pike.

One example is the passage of AB 291, or the Immigrant Tenant Protection Act, which prevents rental housing providers from using an individual’s immigration status against tenants.

Under existing California Law, it is not permissible for landlords to inquire as to a tenant’s immigration status, but AB 291 was designed to address the unfortunate acts of intimidation some owners have used to influence tenants to vacate the unit or face being reported to immigration authorities. It adds greater teeth to anti-discrimination laws for renters that are already on the books. Specifically, AB 291:

  • Prohibits landlords from threatening to report tenants to immigration authorities, whether in retaliation for engaging in legally-protected activities or to influence them to vacate.
  • Bars landlords from disclosing information related to tenants’ immigration status.
  • Provides tenants the right to sue landlords who report them to immigration authorities.
  • Codifies an existing defense to unlawful evictions based on immigration status.
  • Prohibits questions about tenants’ immigration status in discovery or at trial.
  • Prohibits attorneys from reporting, or threatening to report, the immigration status of persons involved in housing cases.

Watch David Chiu (D-San Francisco make his case for the Bill on the Assembly floor.

The new law isolates the few bad apples, and so it will not affect the day-to-day operations of most law-abiding rental businesses; however, it does highlight the duty of care that landlords must use with the information they glean from their relationship with tenants.

This includes their social security numbers, native languages, the times they are home, the identity of their families among other sensitive information, and so landlords must use caution to make sure that any information is not misused.

Calvin Coolidge once said that “advertising is the life of trade.” For the rental property industry, we might also add that advertising is the life of discrimination lawsuits that are proliferating in the Bay Area and beyond.

We see a built-in collision between good advertising and federal housing laws. Clearly, effective advertising is warmly and immediately human. It deals with human needs, wants, dreams and hopes, and coddles a sense of belonging. To win the hearts and minds of people, advertising aligns the core values of people by painting a broad brush with words and images that matter. What is intuitive for advertisers, then, may not be advisable for investment property owners.

In achieving its purpose, advertising can easily cross a line with buzzwords that indicate a preference, discrimination, or limitation based on color, race, sex, religion, handicap, national origin, sexual orientation, or familial status.

For its part, Craigslist has a page dedicated to the Fair Housing Act and instructions here.

Being warmly welcomed in a Hispanic community may be good advertising. Living within walking distance of a synagogue may be appealing to a Jewish family, just as a well-to-do household may enjoy being within proximity to a country club, but these representations also create discriminatory preferences that fair housing organizations, testers, aggrieved tenants and their attorneys are all too willing to enlarge. This short video explains these semantics.

Such blatant use of words, phrases, symbols, or visual aids that convey a preference are easy enough to avoid, but HUD peels the onion deeper by prohibiting advertising that selectively uses media, human models, logos, and locations that may signal a preference or limitation.

At Bornstein Law, we advise the industry to include persons with disabilities and ethnically diverse models in its advertising campaign and verbiage that highlights fair housing compliance policies.

We hasten to say that advertising is more than the traditional staples of billboards, commercials, newspaper ads and postings on Craigslist. It also encompasses flyers, banners, leaflets, brochures, deeds, applications, and the like.

It extends even further to anything the landlord or staff members verbally say or imply to prospective tenants. These statements might be uttered in person, sent in an email, condensed in writing, or made during a phone call.

An extended phone conversation is a particularly insidious breeding ground for housing discrimination claims, as the landlord or property manager attempts to conduct a full-blown interview to weed out undesirable applicants. No matter how scripted or conscious of fair housing laws the interviewer is, these types of open-ended calls give plenty of rope for landlords to hang themselves, which leads us to advise against them.

In parting, we want to stress that staying in compliance with fair housing laws is not limited to ads in print or on the web. The key is to instill a culture where words matter, and one that places compliance with fair housing laws over attraction.

Toward that end, education is key. With high employee attrition, property management companies are especially vulnerable to a culture of ignorance, when new employees do not have a solid understanding of the law and need to be trained in the many nuances of housing discrimination.

For those of you who have followed us for any length of time, we were going to say that we are preaching to the choir. But even that would be exclusionary under fair housing laws.

 

With Facebook embroiled in controversy as of late, it’s gone from bad to worse. Now is the perfect time for landlords and property managers to heed this lesson: brush up on fair housing laws.

If you’ve ever posted photos on Facebook of your kids at soccer practice, talked about being a stay-at-home mom or a disabled veteran, “liked” Telemundo or wrote about learning English as a second language, Facebook advertisers may have been able to target you – or exclude you – from viewing housing ads.

That was the claim by a recently filed federal lawsuit lodged by civil rights groups that don’t “like” the “egregious and shocking” discrimination perpetrated by the social media giant that has been allegedly serving up ads that fly in the face of the Fair Housing Act.

The $440 billion advertising company has built its success around the ease by which marketers can finitely target audiences, but now the magic of transmogrifying every like, status update and mouse click into a detailed consumer profile has the potential to enable marketers to exclude groups based on “ethnic affinities,” from seeing ads.

“Facebook’s platform is the virtual equivalent of posting a for-rent sign that says ‘No families with young kids’ or ‘No women’… But it does so in an insidious and stealth manner so that people have no clue they have been excluded on the basis of family status or sex.” 

~ Fred Freiberg, executive director of Fair Housing Justice Center and a plaintiff in the lawsuit

The lawsuit comes in the wake of Facebook’s loose handling of data, the likes of which the company has never seen in its 14-year history of addressing privacy concerns.

It’s been said that the Internet is the largest experiment in anarchy that humans have ever had, but Bornstein Law predicted early in the Airbnb phenomena that the law will eventually catch up with technology and restore order to the anarchism. Sure enough, regulators reined in the laissez-faire nature of unregistered short-term rental units and now have the upper hand. There is no reason to believe that lawmakers and regulators will not restore a similar equilibrium with Facebook and ensure the real estate industry will not use the platform as a proxy to minorities.

We have always preached that rental housing providers should couch their words carefully when using Craigslist and other online portals when adverting their rentals. Seemingly innocuous language can easily cross the lines into fair housing law violations.

Defending these type of discrimination lawsuits can be a hugely expensive undertaking, and unlike tech giants, owners and property managers do not have the vast legal resources and billions of dollars in their coffers.

Avoiding perilous discrimination suits begins with an education of all employees. With a high attrition rate, property managers are especially vulnerable to exposing themselves to discrimination claims through the actions of employees that have not familiarized themselves with what is permissible and what is not.

Finding a model tenant who pays rent on time, studiously cares for the rental unit, and is a good neighbor can be a challenging endeavor, driving landlords and property managers to be overzealous in the tenant screening process and stepping precariously close to crossing the lines of housing discrimination.

About the only thing worse than seeing a car parked on your lawn, a party on the porch, and your freshly-painted, well-kept apartment in shambles is being named in a housing discrimination lawsuit, the likes of which are proliferating here in the San Francisco Bay area and throughout California.

RELATED POST: Housing Discrimination Often Begins In The Tenant Application Process

It should go without saying that under State and Federal Law, it is illegal for rental housing providers to discriminate against a person because of the person’s race, color, religion, sex, marital status, national origin, ancestry, familial status, disability, sexual orientation, or source of income. Indeed, the California Legislature has declared that the opportunity to seek, obtain and hold housing without unlawful discrimination is a civil right, a proclamation codified in Government Code Section 12921(b) and in the Unruh Civil Rights Act, Civil Code Section 51.

Tenant hoarders, emotionally challenged people who require a comfort animal, even ex-offenders, are reshaping housing policy in California, which defines disability more broadly than Federal law, but today, the focal point is a tenant’s source of income.

Most rental property owners know that you can set income requirements as income requirements do not conflict with Fair Housing laws. It is common practice for landlords to require that income is 2 or 3 times the amount of rent to instill more confidence in the tenant’s ability to pay rent and meet other obligations such as car payments, insurance, utilities, and the like, and these parameters are entirely acceptable. In a pool of candidates, it is also legal to rent to the highest qualified income earner.

Although rental housing providers are on solid legal footing to set income guidelines, it is landlords’ balking at the source of income which exposes them to potential liability. Expressing a preference for one occupation over another is another pitfall we’ve seen all too often.

It doesn’t matter who signs the check.

California Government Code §12921 prohibits housing discrimination based on source of income as does §12955(d). Section 12955(p) defines “source of income” as “lawful, verifiable income paid directly to a tenant or paid to a representative of a tenant.” Since “source of income” is a protected class, it is illegal to dictate or selectively choose where the tenant’s income comes from. The law makes no distinction between income sources, so long as it is “legal.” These legal sources of income may include disability insurance, Social Security benefits, alimony, child support, pensions, veteran benefits, and the like. Many people sow their entrepreneurial oats and are self-employed, creating the infusion of legal income which can be documented through bank statement records or tax records to verify income.

The takeaway is that if the applicant’ income is legal and verifiable, it must be accepted.

When it comes to these type of communications, less is more.

As we noted in an earlier article on an Airbnb host’s blatant racial slur, most forms of housing discrimination are less recognizable and surface in extended conversations that attempt to weed out undesirable candidates or prying too much over the phone.

For instance, you tell an applicant, “I’m really looking for someone with a Google paycheck,” or a self-employed prospect is told, “Congratulations on starting your business, but we prefer someone who has a more stable income.” Maybe you encounter someone receiving government benefits and you say, “Thanks for your interest, but there is too much paperwork involved, and I don’t want the hassle,” or “I’ve found that there are other problems with people on welfare, so I really want to avoid these problems.” If someone has alimony or child support, some landlords may be inclined to utter something like, “That sounds like a messy process with the courts, I’m sorry but I’d rather not risk it.” If you make statements like any of the above, you have a discrimination lawsuit brewing, folks.

The best practice is to provide objective information about the rental unit and general criteria, encourage the applicant to visit the property and submit a written application.

A word about Section 8 housing

Section 8 Housing Choice Vouchers are not considered tenant income under California law, and thus, landlords are not required to accept a voucher, with exceptions. There are a handful of municipalities that have taken matters into their own hands by enacting local ordinances that require housing providers to accept Section 8 and other rental assistance.

One such city is Berkeley, which passed Ordinance №7,568-N.S., adding to the Berkeley Municipal Code Chapter 13.31. With a shortage of landlords enrolled in Berkeley’s Housing Voucher Programs and the city’s perceived discrimination to explain the lackluster participation, the city prohibits landlords from, among other things, discriminating against housing assistance payments. Read the full ordinance here (PDF)…

The overarching point is that if you say “no” to a tenant receiving Section 8 assistance, it may be tantamount to discrimination, and so it’s advisable to seek the guidance of an attorney before closing the door on Section 8 applicants.

Certainly, most affordable housing properties that are financed with federal funds and tax credits are required by law to accept Section 8 vouchers.

As always, Bornstein Law is happy to answer any questions and protect your rights as a rental property owner, a mission we continue after 23 years of practicing landlord-tenant law.