Archive for category Fair Housing / Discrimination

HUD Issues New Rule On “Discriminatory Effect” a.k.a Disparate Impact

Feb 20

Posted by Tristan R. Pettit, Esq. in AASEW, Fair Housing / Discrimination, Legislation, Protected Classes, Screening Tenants | 3 Comments

HUD has issued a new Fair Housing “disparate impact” rule that may cause problems for landlords during the screening process.  The new rule creates a new provision entitled “Prohibiting Discriminatory Effects” which defines “discriminatory effect” as situations in which a facially neutral (i.e. not discriminatory) housing practice can become discriminatory if it actually or predictably has an effect on a group of persons that are members of a protected class.

The concern is whether or not this new rule will restrict landlord’s use of criminal background checks on prospective tenants.  Recently Pepsi Co. agreed to pay $3.13 Million to resolve allegations of hiring discrimination against African-Americans based on Pepsi’s use of the African-American’s arrest records.

This recent settlement when read in conjunction with HUD’s new rule causes concern regarding whether it will be considered discriminatory to use a person’s criminal arrest or conviction as a basis for rejecting a rental applicant when such use would result in members of a protected class being rejected as tenants.  For more on this issue and
please read Tim Ballering’s blog post entitled ‘Will Criminal Background Checks For Screening Be Restricted By Proposed Federal Rule?”

In light of this concern, the AASEW’s Executive Committee submitted the following comments to HUD:

The Apartment Association of Southeastern WI, Inc. is a trade association representing approximately 575 owners and managers of rental housing in the Metro Milwaukee area.

Our organization supports Fair Housing as well as community efforts to reduce the effects of crime within the neighborhoods that our members own and manage rental housing.

We are concerned that this proposed rule will restrict the  legitimate and necessary use of criminal arrest and conviction records in screening tenants to exclude those who will cause disruption and harm to other occupants, the neighborhoods those properties are located in, and to our properties.

Many communities in southeastern Wisconsin have “Nuisance Property Ordinances” that hold owners accountable for the misdeeds of their tenants.  For example Milwaukee’s Nuisance Ordinance does not require the conviction, nor the arrest of the tenant or their invitees, rather simply repeat law enforcement activity will trigger the enforcement provisions of that ordinance.

As part of your proposed rule property owners need “bright line” guidance, establishing what background screening criteria and methods will remain acceptable under this proposed rule as well as protections from potentially conflicting local requirements.

It would be inequitable, causing unnecessary costs and harm to property owners if such guidance is not provided in advance of the implementation and enforcement of this proposed rule.

Hopefully additional guidance will be provided.  If and when it is I will be sure to provide everyone an update.

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You Will Not Want To Miss AASEW’s Fourth Annual Landlord Boot Camp on Saturday Feb. 25th

Jan 3

Posted by Tristan R. Pettit, Esq. in AASEW, City of Milwaukee, Collections, Credit Checks, De Novo Hearings, Earnest Money, Emergency Assistance, Evictions, Execution of Writ, Fair Housing / Discrimination, Holdover Damages, Landlord Liability, Late Fees, Lead-Based Paint, Milwaukee County, Mitigation of Damages / Re-Renting, Notices, Pets, Property Management, Protected Classes, Reasonable Accomodations, Reasonable Modifications, Rejecting Rental Applicants, Rental Agreements, Rental Documents, Right of Entry, Roommates, Screening Tenants, Security Deposit, Self-Help Evictions, Seminars, Small Claims Court, Smoke Detectors, State of Wisconsin, Tenant Damage, Untenantability, Walkthroughs | 2 Comments

Landlording can be pretty complex, with a seemingly never ending myriad of paperwork, rules, landlord-tenant laws and simple mistakes that can cost you thousands of dollars.

The Apartment Association of Southeastern Wisconsin’s Fourth Annual “Landlord Boot Camp” can help you navigate these treacherous waters and teach you how to run your properties with greater profit and less hassles.

I have given similar landlord-tenant law seminars to fellow attorneys, landlords, and property manager organizations throughout the state for other state-wide semianr companies that charge attendees $300-$400.  This is your opportunity to learn all of the same information at a huge discount through the Apartment Association.

 

Who:   Taught by Attorney Tristan R. Pettit (who drafts the landlord tenant forms for Wisconsin Legal Blank)

When:    Saturday, February 25th, 2012. 8:30 am – 5 pm

Where:   Clarion Hotel 5311 S. Howell Avenue, Milwaukee [Map]

Included:  100 plus page manual/outline to help you put what you learn into practice plus helpful forms.

Cost:  $159 for AASEW members and $249 for non-members.  If you are not a member of AASEW but are a member of another landlord/apartment association the cost to attend will be $199.

Specials: Not a member?  Pay just a dollar more and enjoy a 2012 AASEW membership.

Wisconsin landlord-tenant laws are constantly changing.  To help keep you up to date we offer prior attendees a $50 discount.

Sign up by going to the AASEW’s Landlord Boot Camp landing page where you can sign up online and pay via PayPal.

 

What you will learn at the Apartment Association’s 2012 Landlord Boot Camp

Landlord Boot Camp covers everything that you need to know about residential Landlord Tenant law in Wisconsin, including:

  1. How to properly screen prospective tenants.
  2. How to draft written screening criteria to assist you in the selection process and protect you from discrimination complaints.
  3. How to comply with both federal and state Fair Housing laws including how to handle with “reasonable modifications”  and “reasonable accommodations” requests.
  4. How to legally reject an applicant.
  5. What rental documents you should be using and why.
  6. When you should be using a 5-day notice versus a 14-day notice, 28-day notice, or 30-day notice and how to properly serve the notice on your tenant.
  7. Everything you wanted to know (and probably even more than you wanted to know) about the Residential Rental Practices (ATCP 134) and how to avoid having to pay double damages to your tenant for breaching ATCP 134.
  8. When you are legally allowed to enter your tenant’s apartment.
  9. How to properly draft an eviction summons and complaint.
  10. What to do to keep the commissioner from dismissing your eviction suit.
  11. What you can legally deduct from a security deposit.
  12. How to properly draft a security deposit transmittal / 21 day letter.
  13. How to handle pet damage.
  14. What to do with a tenant’s abandoned property and how this may affect whether or not you file an eviction suit.
  15. How to pursue your ex-tenant for damages to your rental property and past due rent (and whether it is even worth it to do so).

. . .  and much more.  There will also be time for questions and answers.

You get all this for less than you would pay for an hour of an attorney’s time.

Last year’s AASEW Landlord Boot Camp was filled to capacity and we even had to turn a few people away.  So call early to reserve your spot.

Call the Association at (414) 276-7378, email membership@apartmentassoc.org or go to our Landlord Boot Camp landing page to sign up online and reserve your spot.

Remember that “landlording” is a business — so take the time to educate yourself on how to better manage your business and avoid costly errors!

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New Federal Bill Would Add Two New Protected Classes To Federal Fair Housing Act

Oct 31

Posted by Tristan R. Pettit, Esq. in Fair Housing / Discrimination, Legislation | 4 Comments

On September 26, 2011 both chambers of the U.S. Congress introduced legislation that would extend housing discrimination laws to include protections based on sexual orientation and gender identity.  The HOME (Housing Opportunities Made Equal) Act was introduced by Sen. John Kerry and others.  The bill would amend the Fair Housing Act to prohibit housing discrimination and intimidation on the basis of sexual orientation and gender identity.

Wisconsin is one of 13 states and the District of Columbia that already outlaws housing discrimination on the basis of sexual orientation. However, currently only 8 states afford fair housing protection based on gender identity and Wisconsin is not one of those states.

 

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Three Wisconsin Landlords Charged with Violating Fair Housing Laws

Oct 4

Posted by Tristan R. Pettit, Esq. in Fair Housing / Discrimination, State of Wisconsin | 5 Comments

Three Wisconsin landlords have recently been charged with violating Fair Housing laws by the U.S. Department of Housing and Urban Development (HUD).

First, in late July, HUD announced that it charged a husband and wife who own a rental property in Brown County with violating the Fair Housing Act for allegedly creating
different rental requirements for a single mother and her son.  The charge also alleges that the landlords’ lease agreement includes policies and rules restricting families with children.

Specifically, HUD’s complaint alleges that shortly after accepting a single mother’s rental application, the landlords added a new requirement that the single mother
promise to be present at home whenever her 17 year old son had visitors.  The mother was unwilling to agree to this requirement and as a result the landlords refused to rent to her and her son.  The landlord’s ended up renting the property to a family with no children.  Additionally, it is alleged that the landlords’ lease agreement included clauses that are unduly burdensome on families with children, including a provision that says “no children are allowed to play in common areas of the building” and imposes
a $100 fine and eviction for violating said policy.

Second, on September 9, 2011, HUD charged a West Salem female landlord for violating Fair Housing laws by refusing to rent to a single mother because she did not have a man “to shovel the snow” for her.  The landlord eventually rented the property to two men.

The rental property at issue is a home on a cattle farm and is located in a hollow.  The landlord told the investigators that the winters there are “brutal” and a single mother could not handle the seclusion and the snow removal.  The landlord went on to comment that it was “just common sense” to deny the applicant and then asked the investigator if he would allow his daughter to live alone with a child, a mile and a half from neighbors.  Further inserting her foot into her mouth, the
landlord told the investigator, “[i]f she thinks I discriminated against her, I absolutely did.”  The landlord continued to make matters worse by telling housing authorities that
she “never rents to single mothers, especially in the country,” and had no plans to change.  She added that “single mothers are part of the country’s financial problems” today.

This case should be a “slam dunk” for HUD.  The landlord would’ve greatly benefited from the assistance of counsel – although based on her comments she probably would not have listened to an attorney’s advice.  Anyone care to wager on the outcome of this?  I am expecting a rather large fine to be imposed.

UPDATE 10-31-11 — This ended up being a $15,000 mistake for the West Salem Landlord – who ended up settling the claim.

Third, on September 26, 2011, HUD announced that it charged a La Crosse landlord and property manager with violating anti-discrimination laws for refusing to rent to an
African-American couple because of their race.  It is alleged that the owner and property manager refused to show available apartments to the black couple.  Additionally, they told the couple and other black applicants, that no rental units were available, while just minutes later they told white applicants of the available rental units and encouraged them to apply.  This behavior allegedly occurred over a period of 2 months.  Both black and white “testers” were sent to the property and confirmed that the black
testers were told no rental units were available while the white testers were told of open units and encouraged to apply.

Every day I hear of more and more landlords and property managers being charged with violating both federal and state Fair Housing laws.  I wish that more landlords would take the time to educate themselves on these laws.  Read some of my earlier posts on Fair Housing issues here, here and here.

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Largest Settlement of State Fair Housing Claim Occurs in Arizona

Jul 28

Posted by Tristan R. Pettit, Esq. in Fair Housing / Discrimination | No Comments

A 2007 Fair Housing complaint filed by two Arizona tenants alleging that their apartment managers discriminated against them based on their race, nationality and religion, has resulted in the largest state Fair Housing claim to date.

In 2007, Soha Abdelrahman and her husband Hany Obrahim filed a lawsuit against their Tempe, Arizona apartment managers claiming discrimination based upon their Arabic race, Egyption nationality and Muslim religion.  The defendant in the lawsuit is Texas-based Hall Financial Group, Ltd., which manages rental properties in various states — but no longer in Arizona.

The Arizona Attorney’s General Office announced that Hall Financial Group agreed to pay a total of $227, 5000 to settle the lawsuit.  $197,500 of the settlement amount will go to the tenants and $30,000 will go to the Arizona AG’s Office to enforce civil rights laws in Arizona.

The settlement did not include an admission of wrongdoing by Hall Financial Group.   However the lawsuit alleged that Hall discriminated against the tenants based on their race, religion and nationality, when the tenants applied to rent an apartment in 2006.  Allegations included claims that Hall’s agents discouraged the tenants from aplying for housing, inspected their apartment and possessions during their move-in, and ignored requests for repairs to the apartment.  The lawsuit also claimed that once the tenants alleged discrimination the managers attempted to evict them.

You can read more about this settlement in the Arizona Republic.

If you would like to learn more about Fair Housing and what the protected classes are I have written about that issue in a prior blog post as well as discussing what actions by landlords are covered under Fair Housing law.

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A Landlord’s Primer on “Reasonable Accomodations”

Jan 11

Posted by Tristan R. Pettit, Esq. in Fair Housing / Discrimination, Reasonable Accomodations | 9 Comments

I am seeing an increase in tenants making ”reasonable accomodations” requests during their tenancy.  While similar to “reasonable modifications,” which I blogged about a few weeks ago, reasonable accomodations are different.

A reasonable accomodation request is one in which a tenant who has a disability asks his/her landlord to make an accomodation to the landlord’s rules, policies, practices or services as a result of that disability.  Wisconsin’s Open Housing law, states that a landlord may be found to have discriminated against a tenant if the landlord refuses to make reasonable accomodations in rules, practices, policies or services that are associated with housing when such accomodations may be necessary to afford the person equal opportunity to use and enjoy housing, unless the accomodations would impose an undue hardship on the owner of the housing.  Sec. 106.50(2r)(4), Wis Stats. 

NOTE:   For the most part, Wisconsin’s Open Housing Law has adopted the language of the federal Fair Housing Act, so when when I mentione one or the other in this blog post,  essentially I am referring to both.

So whereas reasonable modifications involve changes to the physical structure of a rental unit, building or grounds, reasonable accomodations would be a change to the landlord’s rules, policies, procedures, and/or services.  A request to install a wheelchair ramp would be a request for a reasonable modification whereas a request to allow a comfort/companion animal to reside with a tenant in a “no pets” building would be a request for a reasonable accomodation.

If requested (and all other requirements are met) a landlord must make reasonable accomodations at any stage of the rental process, including the application process, screening process, during tenancy, post tenancy.  Therefore a reasonable accomodations request can be made by an applicant, not just a tenant.

Similar to the law regarding reasonable modifications, an applicant or tenant is not entitled to reasonable accomodations unless the accomodation has been requested.  That request can be in writing or oral and can be made by the applicant or tenant or by someone on their behalf.

A person is considered to have a disability if the individual (1) has a physical or mental impairment that substantially limits one or more major life activities, (b) is regarded as having such an impairment, or (c) has a record of such impairment. 

A “physical or mental impairment” includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, HIV, mental retardation, emotional illness, drug addiction (other than addiction caused by current, illegal use of controlled substances) and alcoholism.

A “major life activity” can include, but is not limited to, any activity that is of central importance to daily life, such as seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning and speaking. 

Just like with a reasonable modifications request, there must be an identifiable “nexus” or relationship between the disability and the accomodation request.  If there is no “nexus” then a landlord can legally decline to make the accomodation.

If the applicant or tenant’s disability is not outwardly obvious, a landlord is allowed to request reasonable disability-related information that will:

a.    Verify that the applicant or tenant meets the federal Fair Housing Act or Wisconsin’s Open Housing law’s definition of  a person with a “disability.”

b.   Describes the requested accomodation.

c.   Shows the relationship between the disability and the accomodation request.

I hope that it goes without saying that any information obtained during this procees must be kept confidential by the landlord.  If a person’s disability is obvious or otherwise known and the need for the requested accomodation is also readily apparent or known, then the landlord may not request any additional information.

A landlord can legally deny a request for reasonable accomodations in certain circumstances.  I have already mentioned a few situations that would allow a denial, such as a person who does not have a disability, or a circumstance where there is no “nexus” between the disability and the request.  Additionally, a request could be denied if there is no disability-related need for the accomodation or if providing the accomodation is not “reasonable.” 

What is “reasonable” or not will be determined on a case by case basis, however the Department of Justice and H.U.D. have indicated that a request may be unreasonable if it would impose an undue financial and/or administrative burden on the landlord or of it would fundamentally alter the nature of the landlord’s operations.

An example of an unreasonable accomodation request would be a tenant that has mobility limitations who requests that his landlord take him to the grocery store once a week.

Here are a few more examples of situations where the courts have upheld a tenant’s request for reasonable accomodations.

-  Accepting late rent and postponing the filing of an eviction against a tenant that is late with his/her rent because they have been hospitalized.

-  Allowing a tenant with a vision disability to have a guide dog reside with her even though the landlord has a “no pets policy.”

-  Allowing a mobility impaired person to be assigned a parking spot closest to the apartment complex even though the landlord’s has a “first come, first served” policy and does not allow assigned parking spaces.

- Allowing a tenant with severe arthritis to move from her 3rd floor unit to a vacant 1st floor unit so she can avoid having to climb stairs.

- Allowing a “companion/comfort animal” to reside with a tenant that has an anxiety disorder even though the landlord has a “no pets” policy.

     NOTE:  Requests for companion/comfort animals are so frequent these days — and so abused — that I will devote an entire blog post to this topic in the near future.

The Department of Justice and the U.S. Department of Housing and Urban Development have published a Joint Statement on Reasonable Accomodations Under The Fair Housing Act, that is a great resource for those landlords that have additional questions on this topic.

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“Reasonable Modifications:” What A Landlord Needs To Know About This Important Topic

Dec 21

Posted by Tristan R. Pettit, Esq. in Fair Housing / Discrimination, Reasonable Modifications, Remodeling / Renovation | 6 Comments

The term “reasonable modifications” is used throughout the federal Fair Housing Act as well as Wisconsin’s Open Housing law (which for the most part adopts federal law).  Requests for reasonable modifications by tenant are on the rise. 

The Basics:

Wisconsin’s Open Housing law, which can be found at sec. 106.50, Wis. Stats., states that a landlord cannot refuse to permit, at the expense of a person with a disability, reasonable modifications to the housing by a tenant, if the modifications are necessary to afford the disabled tenant the full enjoyment of the housing.  Sec. 106.50(2r)(3), Wis. Stats.

Reasonable modifications can include structural changes to the interior of the property or the exterior of the property.  Reasonable modifications can be made to common areas and public use areas of the property as well. 

The tenant is responsible for paying for the reasonable modifications to the property. It is also the responsibility of the tenant to maintain the modification if it is used exclusively by the tenant.  If the modification is in a common area and other tenants also use the modification, the upkeep would be the responsibility of the landlord

Requesting A Reasonable Modification

A tenant is not entitled to a reasonable modification unless the modification is requested.  The request can be verbal or written. 

A tenant must obtain the landlord’s approval before the tenant can move forward with the modification.

A landlord cannot condition the approval of the modification on the tenant obtaining special liability insurance.

There Must Be A Nexus Between the Disability and the Reasonable Modification

There must be an identifiable relationship or “nexus” between the requested modification and the tenant’s disability.  For instance an identifiable nexus would exist if a tenant using a wheelchair requests that a ramp be installed leading up to the apartment’s front door.  There would not be an identifiable relationship if a tenant that is mobility impaired requests that the landlord permit him to change the roofing from shaker shingles to clay tiles and fiberglass shingles becasue he believes the original shingles are less fireproof.

Examples of Reasonable Modifications:

- Installation of a ramp for a person using a wheelchair.

- Widening of the doorways in an apartment so that a tenant’s wheelchair can pass through.

- Installing grab bars in a shower for a person with with mobility/balance issues.

- Allowing a tenant with a hearing disability to install a peephole and an extra loud doorbell.

- Replacing doorknobs with levers for a tenant with severe arthritis who has difficulty turning a doorknob.

What Is Reasonable?

There is not a clear “black and white” definition of what is reasonable in terms of a tenant’s request for a reasonable modification.  What is “reasonable” is a very fact intensive question and depends on the specific situation.  Asking a landlord to tear down a wall dividing the two lower rental units in a 4-family so that the tenant using a wheelchair would have additional space, would most likely not be found to be reasonable as such a modification would greatly affect the landlord’s rental property by changing it from a 4 family to a 3 family.  But asking a landlord to lower the light switches throughout a unit as well as the counter tops in the kitchen, to allow a person using a wheelchair to enjoy full enjoyment of their apartment, would more than likely be found to be reasonable.

In the end, what is “reasonable” will be determined on a case by case basis by a Circuit Court Judge or an Administrative Law Judge, should a tenant file a discrimination complaint against a landlord for denying a request for reasonable modifications.

What Information May A Landlord Request From A Tenant To Support A Request For Reasonable Modifications?

A landlord can request that a tenant provide him/her with reliable disability-related information that: (a) is necessary to verify that the person meets the Act’s definition of a “disability,” (b) describes the needed modification; and (c) shows the relationship between the person’s disability and the need for the requested modification.

I hope it goes without saying — but I will say it anyway — that a landlord must keep any requested information confidential. 

Additionally, if a person’s disability is open and obvious or otherwise known, and the need for the requested modification is also readily apparent or known, the landlord may not request any information from the tenant.  An example of such a situation would be a tenant that has cerebral palsy who uses braces to walk, makes a request that the landlord replace the doorknobs with levers to assist the tenant with opening the doors.

The Tenant Must Pay For The Reasonable Modifications

In case you missed this very important point in the definition above, I wanted to reiterate it.  The number one comment/question I receive from landlord’s on the topic of reasonable modifications is “This is not fair. I can’t afford to pay for these modifications. Why do I need to pay for this?”  You don’t have to pay for it.  The law clearly states that it is the tenant’s responsibility to pay for any reasonable modification that is requested.

Restoration Agreements

A landlord may condition permission for a reasonable modification — to the inside of the property — on the tenant entering into an agreement to restore the interior back to the condition that it was in before the modifications were made.  Sec. 106.50(2r)(3), Wis. Stats.

Restoration Agreements cannot apply to the outside of the property.  So a landlord cannot require a tenant to pay to uninstall a wheelchair ramp that leads to the front door, for instance.

It is improper for a landlord to require a larger security deposit from a person with a disability to cover the cost to return a unit to its original condition, but it is perfectly legal to require a tenant to place the monies to return a unit to its original condition under a restoration agreement.

A Practical Matter

I would strongly reccomend that a landlord be involved in the process of determining who is hored to make the reasonable modifications.  It is the landlord’s property after all and s/he needs to protect it from damage and protect the tenant from shoddy workmanship. 

While it is probably not reasonable for a landlord to require a tenant to use a specified contractor to make the modifications, I would argue that it is also not reasonable for a tenant to require a landlord to allow the tenant’s little brother’s best friend, who is not insured or bonded, and has failed to pull the required permits, to do the work.  The landlord and tenant should work together to find a contractor that is qualified and reliable and meets both the tenant’s and the landlord’s needs.

A Great Resource:

The U.S. Department of Justice and the U.S. Department of Housing and Urban Development have issued a Joint Statement on Reasonable Mondifications Under The Fair Housing Act.  This March 2008 publication is a great resource to turn to on the topic of reasonable modifications.

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