From the Courts: Recent Developments in Fair Housing Law
In this month’s lesson, the Coach reviews recent court rulings on fair housing law. In each case, we’ll review the events leading up to the dispute and how it landed in court. And we’ll explain the legal issues involved and how the court decided who should win, so that you’ll know what to do—or what not to do—to avoid similar fair housing problems at your community.
Disability: Reasonable Accommodation
Resident Not Entitled to Preferred Accommodation When Community Offers Reasonable Alternatives that Satisfy Her Needs
In a recent ruling, a federal appeals court sided with a Pennsylvania community in a dispute over how to satisfy a disabled resident’s request for a reasonable accommodation.
WHAT HAPPENED: The resident was a condo owner who had various disabilities that required her to use a rolling walker to get around. She used her walker to get from her condo to the lobby and then used her cane from the lobby to her car, which was parked in a reserved parking space in front of the building. She could neither lift her walker, nor fold it, nor put it into her car. Instead, she began to leave it in the lobby when she left.
One day, the resident left the walker in a corner of the lobby and a building staffer took it and stored it in a room behind the concierge desk. The next day, the building manager asked the resident to give the walker to a front-desk staffer when she left, but she refused.
What ensued was a year-long quarrel. The resident kept leaving the walker in the lobby and a staffer kept putting it into storage until she returned and asked for it. Because of her disabilities, she asserted that she needed the walker to be available in the lobby upon her return, so she could independently retrieve it.
Though the community refused to let her leave her walker in the lobby, it offered her four alternative accommodations:
- She could have the staff store the walker and return it to her in the lobby—she could either phone ahead to have it ready for her or sit on a bench to await its retrieval;
- She could have a staffer deliver the walker to her car when she got out of it;
- She could have the doorman load the walker into and take it out of her car’s trunk; or
- She could start parking in the building’s indoor valet-parking garage, where she could leave her walker near the valet station.
She rejected all these alternatives and insisted she needed to leave her walker in the lobby.
To support her request, the resident gave the management several letters from her doctors detailing her medical issues and stating that she needed to have ready access to her walker and she shouldn’t be required to stand awaiting assistance for any period of time. The doctor noted the management’s offer to bring the walker to her car, but he said it was preferable to simply have a walker readily available in the lobby, so she could maintain her independence and not risk having to stand and wait for someone else to get it for her.
Neither side would budge, and the resident sued the community for violating fair housing law, alleging that her preferred accommodation was necessary to equally enjoy her home.
The court dismissed the complaint, acknowledging that keeping her equipment in the lobby may have been her preferred accommodation, but she couldn’t show that it was necessary. The community’s storage and prompt retrieval of her walker when she returned did not deny her a full and equal opportunity to enjoy her housing.
The resident appealed.
DECISION: Affirmed; case dismissed.
REASONING: The resident couldn’t sue the community for refusing to provide the accommodation she wanted because it offered alternatives that would satisfy her disability-related needs. “A disabled resident has a right to a reasonable accommodation that she needs to use and enjoy her home. But if her landlord offers her an alternative that likewise satisfies that need, she has no right to demand the particular accommodation that she wants.”
Under fair housing law, “necessity” was a demanding legal standard—it meant required, indispensable, essential. In short, the law’s necessity element required that an accommodation be essential, not just preferable.
For a housing accommodation to be “necessary” under fair housing law, it must be required for that person to achieve equal housing opportunity, taking into account the alternatives on offer. Courts must consider whether the resident’s requested accommodation and the community’s proposed alternative afford equal housing opportunity. Whether the accommodations do so depend on that particular resident’s abilities and disability, which may require a fact-intensive inquiry. But all the proffered alternatives that afford equal opportunity to use and to enjoy the housing bear on whether a specific accommodation is necessary.
In this case, the resident needed ready access to her rolling walker and wanted to leave it in her building’s lobby. The building managers refused but offered her four other ways to store and access her walker. Leaving the walker in the lobby was her preference; but given the four alternatives offered, she could not claim that it was necessary.
- Vorchheimer v. Philadelphian Owners Association, September 2018
Case Note: Explaining the difference between needs and wants, the court noted that children may say they may need candy, but parents remind them that, while they may want candy, they do not need it. To get the point across, the court quoted some classic song lyrics from the Rolling Stones: “You can’t always get what you want / But if you try sometimes you might find / You get what you need.”
Disability: Assistance Animals
Community Justified in Ordering Resident to Remove Aggressive Dog
A federal appeals court recently ruled that a Florida mobile home park didn’t violate fair housing laws by ordering a resident to remove his dog because its aggressive behavior posed a direct threat to the health and safety of other residents and their property.
WHAT HAPPENED: In 2017, the community notified the resident that he had to remove his dog from the premises or face eviction. The notice cited community rules that gave the management sole and unfettered discretion to remove from the premises any animal that displayed dangerous and aggressive behavior. The notice stated that despite a previous request that he remove the dog because of its aggressive behavior, the resident had the dog living with him again. According to the community, the dog had been observed on numerous occasions growling and lunging at other residents, and the community received complaints that the resident threatened other residents if they reported the dog’s behavior.
Shortly after receiving the notice, the resident sued the community for violating fair housing laws by refusing to allow him to live there with the dog. According to the resident, he had a disability and the dog was an emotional support animal.
In its defense, the community argued that its decision to order removal of the dog was justified because it represented a threat to other residents and their animals. According to the community, it received written and verbal complaints from five different residents about the dog. The park also alleged that the dog routinely attacked other dogs at the park, which revealed the resident’s inability to control the animal and a disregard for the safety of other residents.
While the case was pending, the resident’s dog underwent behavioral training, but the judge ruled that evidence about the dog’s remedial training was inadmissible at trial. After a trial, the jury found in favor of the community.
The resident appealed, claiming that the judge was wrong to exclude evidence of the dog’s remedial training at the trial.
DECISION: In favor of the community.
REASONING: The community didn’t violate fair housing laws by refusing to allow the resident to keep his dog as an assistance animal.
The court acted properly by excluding evidence that the resident gave his dog remedial training after he filed his lawsuit. The issue at trial was whether the community was justified in sending him the notice to remove the dog or face eviction. That required proof that the community made a reasonable judgment to banish the dog after making an individualized assessment that relied on the best available objective evidence to ascertain the nature, duration, and severity of the risk the dog created; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures would mitigate the risk.
Because the community sent the notice to the resident before his dog underwent remedial behavioral training, the training didn’t amount to “objective evidence” that was available to the community when it made its allegedly discriminatory housing decision. The evidence of the dog having received training after the resident filed the lawsuit had no relation to whether an earlier decision by the community that the dog posed a direct threat was reasonable. Therefore, the evidence about the dog’s training was irrelevant and the court did nothing wrong by excluding it at trial.
- Friedel v. Park Place Community, LLC, August 2018
Case Note: Many communities have policies banning so-called dangerous breeds, most notably pit bulls, but HUD says that breed, size, or weight limitations may not be applied to assistance animals. That doesn’t mean that you must allow a resident to keep a dangerous animal, even if it is an assistance animal. Though you can’t apply a blanket rule against certain dog breeds, you can exclude a specific animal that poses a direct threat to the safety of others.
Disability: Transfer Request
Delay in Approving Reasonable Accommodation Request Didn’t Constitute Denial
A court recently ruled that a California community didn’t deny a request to transfer a resident with disabilities to a larger unit to accommodate a live-in caretaker.
WHAT HAPPENED: An elderly Section 8 resident with Alzheimer’s disease rented a studio apartment at a senior living community. She was diagnosed in April 2015 and in June, she requested a reasonable accommodation based on her disability to move “to preferably a two bedroom to accommodate a live-in caregiver or possible one bedroom.”
A month later, the management approved the transfer of the resident to the next available one- or two-bedroom unit as long as she qualified for the unit. However, all two-bedroom units were rented. When the site manager subsequently offered the resident two one-bedroom units, she declined to accept those first two transfers because she preferred a two-bedroom option when it became available. In August, the resident accepted the community’s third offer of a one-bedroom unit. After receiving approval from the local housing commission for a live-in caregiver under her Section 8 voucher, she transferred into the one-bedroom unit in September.
A month later, the resident filed a discrimination complaint with the state’s fair housing commission. She alleged that the site owner had refused reasonable accommodation requests for a larger unit.
Within a few weeks of the complaint, the manager notified the resident that she could transfer to the next available two-bedroom unit when a resident vacated. Three days later, the manager advised her that a unit would be available in January 2016.
In December 2015, an employee told the resident that she was no longer permitted to move to a two-bedroom unit. She wasn’t eligible for another unit transfer under the terms of her Section 8 voucher unless she could satisfy an exception and receive approval from the local housing commission for that transfer. She completed the paperwork for approval for a two-bedroom unit by Dec. 28, 2015, and transferred to a two-bedroom unit at the site on Jan. 5, 2016.
The state’s fair housing commission closed its investigation of the resident’s complaint, finding that she had received the accommodations she requested and there was “insufficient evidence” to show that the accommodations had been denied.
The resident sued the community, claiming that the community denied her request for a reasonable accommodation. Denying the allegations, the community asked the court for judgment without a trial.
DECISION: In favor of the community.
REASONING: The court sided with the community on the resident’s fair housing claims related to her transfer request, but further proceedings were necessary to resolve other claims raised in her complaint.
A reasonable accommodation under fair housing law may include accommodating a disabled resident’s request to transfer to another unit in an apartment building. The evidence showed that the community approved the resident’s request to transfer to a larger unit.
The court rejected the resident’s claim that the one-month delay between her request and her receipt of written approval amounted to a denial of her request. Fair housing law doesn’t demand that housing providers immediately grant all requests for accommodation. She failed to show that the one-month delay was unreasonable or undue.
The resident claimed that the community effectively refused her request because the manager tried to place her into many undesirable one-bedroom units, including units in which a tenant had just died and units where there were known troublemakers living above or below the offered one-bedroom unit.
This argument failed because, although a community may be required to make a reasonable accommodation, it doesn’t have to provide a disabled individual with the accommodation of her choice. Consistent with her written request, the manager offered her multiple one-bedroom units. And her preference for a more “desirable” unit didn’t transform the community’s conduct into a violation of fair housing law.
Furthermore, the community didn’t refuse the resident’s reasonable accommodation request to the extent that she sought to transfer to a two-bedroom unit, because no two-bedroom units were available when she submitted her request. Even with the lack of available units, the manager engaged in an “interactive process” to fulfill her request for a transfer to a two-bedroom unit. The process included notifying the resident that she needed local housing commission approval to transfer into a two-bedroom unit.
- Elliot v. QF Circa 37, LLC, June 2018
Disability: Live-in Aide
Owner Refuses to Let Sister Replace Deceased Mother as Disabled Resident’s Caretaker
A court recently ruled that a New York community was liable under fair housing law for refusing the request of a resident with disabilities to allow her sister and primary caretaker to live in her unit.
WHAT HAPPENED: The resident has various disabilities that require around-the-clock assistance with everyday tasks including cooking, eating, using the bathroom, and dressing herself. She received federal Section 8 housing benefits and lived in the unit for over 30 years. Her mother had been her primary caretaker until the mother’s death in 2016.
When their mother died, the resident’s sister assumed the role of full-time caretaker. After a court granted her guardianship of the resident in 2017, the sister managed virtually every aspect of the resident’s life, including her finances and daily medical care.
The owner has been aware of the resident’s disability for years. Her condition was listed on the family’s original housing application in 1984, and her status was noted on annual recertification paperwork filed by her mother. Her disability was also specifically raised at least four times during the mother’s prior attempts to have the sister added to the family composition.
The owner refused to allow the resident’s sister to move into the unit to care for her sister full time, largely on the grounds that the sister has a poor credit history and a housing court record.
The resident requested a reasonable accommodation under federal, state, and local disability law to allow her sister to live with and care for her. Despite the owner’s refusal to grant an accommodation, when the mother’s illness became severe in early 2016, the sister moved into the unit to care for the resident. In the months following their mother’s death, the sister paid the resident’s monthly rent on time and without incident. In October 2016, the owner commenced eviction proceedings and refused to accept further rent payments.
With eviction proceedings ongoing, the resident sued the community for violating fair housing law by refusing to allow her sister and primary caretaker to live in her unit. The resident asked the court for judgment without a trial.
DECISION: In favor of the resident.
REASONING: The community violated fair housing law by denying the resident’s reasonable accommodation request. To establish a reasonable accommodation claim under fair housing law, the resident had to prove that:
- She had a disability under fair housing law;
- The owner knew or should have known of her disability;
- The accommodation may be necessary to afford the resident an equal opportunity to use and enjoy the dwelling;
- The requested accommodation was reasonable; and
- The owner refused to make the requested accommodation.
The resident proved her case. It was clear that allowing the sister to live in the unit was the only way for the resident to have an “equal opportunity to use and enjoy” the unit. The resident couldn’t live alone and required around-the-clock care. Now that her parents had died, she had no other family or friends willing and able to care for her. Either the sister was allowed to move into the unit to care for her sister, or the resident would have to move out.
The accommodation requested by the resident was reasonable. Under Section 8, the owner would receive the same rent regardless of whether the sister moved into the unit. Furthermore, the sister was responsible for managing the resident’s finances and Social Security payments, so she would be required to pay the resident’s rent regardless. In addition, the sister had paid monthly rent on time and without incident until the owner commenced eviction proceedings and refused to accept further payments.
There was no concrete reason to believe that the sister would be unable to make rental payments. And the resident’s immediate, urgent medical condition and need for care made it reasonable that the sister live in the unit.
- Martinez v. Lexington Gardens Assocs., August 2018
Race, Familial Status: Community Rules
Community Wins in Courtroom Battle Over Rules Restricting Children’s Behavior
Here’s an update to a case the Coach covered in March 2018. The case recently went to trial, ending in a ruling in favor of an Alabama community, which proved that it had legitimate, nondiscriminatory reasons for enacting rules curbing children’s activities.
WHAT HAPPENED: An African-American family filed the lawsuit, alleging that the community created the rules to discriminate against African-American residents and families with children. According to the complaint, the rules allegedly targeted children, particularly black children, by restricting their activities in common areas and amenities. Specifically, the family challenged alleged rules that:
- Required that all children 17 and under be supervised by an adult older than 19 when out on the property, except when going to and from school;
- Required that all children under 18 unaccompanied by an adult to be inside their units no later than 8:30 p.m.;
- Restricted use of the playground by stating that it was for elementary children K-6 only, not for anyone to hangout or loiter;
- Made the gym and sauna off limits to anyone under 19; and
- Barred children under 19 from being in the pool without an adult.
The community denied the allegations of discrimination based on race or familial status, arguing that the former property manager created the rules to promote a family-friendly environment, address increased residents’ complaints, promote safety, and to deter offensive conduct, excessive noise, and unreasonable disturbances. Furthermore, the community argued that the rules were never enforced.
After a series of proceedings, the case went to trial.
DECISION: In favor of the community.
REASONING: The court granted judgment to the community, rejecting the family’s claims of discrimination based on race and familial status under state and federal fair housing law.
There was no credible evidence that the rules were racially motivated. The former property manager, who was African American herself, adopted the rules in a sincere effort to address serious problems caused by children of all races at the complex.
The family’s claims of familial discrimination also failed. Even if rules specifically targeting children’s behavior were discriminatory on their face, the new rules were justified. The evidence at trial revealed a host of problems caused by children running amok at the complex. Among other things:
- Residents found used condoms and marijuana on the playgrounds;
- Children were engaging in sexual activity on the premises and residents found a little girl’s underwear in the sauna; and
- Children were destroying the gym equipment, vandalizing the property, and preventing other residents (including other children) from enjoying the amenities of the complex.
The property manager, a mother herself, said she came up with the new rules for the protection and safety of the complex’s children, in response to legitimate complaints from residents. She didn’t do so for the purpose of discriminating against families or children. It was certainly arguable whether the rules were the wisest or most efficient way to address these concerns, but there was no reason to question her sincerity or good intentions. Regardless, the evidence showed that the new rules weren’t enforced.
- Belcher v. Grand Reserve MGM LLC, September 2018
Case Notes: Disputes over the community’s rules—or the way the rules are enforced—can lead to fair housing trouble based on familial status. When defending community rules restricting children’s activities in common areas, you’ll need proof of legitimate, nondiscriminatory reasons for creating and enforcing the rules. Even then, residents may try to undermine your defense by claiming that your stated reasons for adopting the rules were merely an excuse to cover up unlawful discrimination.
National Origin: Immigration Status
Community Can Face Discrimination Claim for Requiring All Occupants to Verify Lawful Immigration Status
In an update to a case that the Coach covered last year, a federal appeals court recently breathed new life into a fair housing case challenging a mobile home park’s policy requiring all residents to present documentation of lawful immigration status.
WHAT HAPPENED: The lawsuit was filed by four married couples living at the park. All were noncitizen Latinos of Salvadorian or Bolivian national origin; the husbands were lawfully present in the United States, but the wives were not.
For years, the park required all parties to a lease to provide documentation of lawful immigration status, so the husbands signed the leases, which had been renewed over the years. In 2015, the park revised the policy to require all adult occupants to provide certain forms of documentation to prove lawful presence in the United States; the wives were unable to provide the documentation because they were in the country illegally. Because they didn’t comply with the new policy, the community converted their leases to month-to-month tenancies and raised the rent. While the case was pending, three of the families said they had been forced to move out under threat of eviction.
The residents sued the community, arguing that the new policy intentionally discriminated or had the effect of discriminating against them based on their national origin. In a series of proceedings, the court dismissed both claims.
The residents appealed.
REASONING: Further proceedings are needed to determine whether the community could be liable for discrimination against the residents based on their national origin.
This appeal focused on the residents’ disparate impact claim—that is, whether the new policy violated fair housing law because it disproportionately ousted Latinos as compared to non-Latinos, denying them one of the only affordable housing options in the county.
The court ruled that the residents met their initial burden of showing that the policy had a disproportionate effect based their national origin. To support their claim, the residents presented statistical evidence showing that Latinos amounted to 64.6 percent of the total undocumented immigrant population of Virginia, and that Latinos were 10 times more likely than non-Latinos to be adversely affected by the policy, as undocumented immigrants amounted to 36.4 percent of the Latino population compared with only 3.6 percent of the non-Latino population. Based on the statistical evidence, the residents demonstrated that the policy of evicting occupants who were unable to provide documentation of legal status in the United States caused a disproportionate number of Latinos to face eviction from the community compared to the number of non-Latinos who faced eviction based on the policy.
When the case goes back for further proceedings, the community will have to present evidence of its substantial, legitimate, nondiscriminatory interests served by its policy. Assuming it can do so, the burden will shift back to the residents to prove that the community’s legitimate interests could be served by another practice that had a less discriminatory effect.
- De Reyes v. Waples, September 2018
Case Note: Fair housing law protects everyone—whether a U.S. citizen, lawful resident, or an unauthorized immigrant—from housing discrimination based on race, color, religion, sex, national origin, disability, and familial status. Fair housing law doesn’t specifically prevent conventional housing communities from turning away unlawful immigrants, but the law is in flux, so it could be a risky practice.