Dos & Don'ts for Dealing with Residents Who Break the Rules

In this month’s lesson, the Coach looks at fair housing problems that 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.

In this lesson, we’ll review fair housing requirements and offer eight rules—the essential dos and don’ts—for dealing with residents who break the rules without violating fair housing laws. Then you can take the Coach’s Quiz to see how much you’ve learned.

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.

Coach’s Tip: 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.

RULE #2:

DO Apply Community Rules Fairly and Consistently

DON’T Make Exceptions for Residents Simply Because You Like Them

Focus on fairness and consistency when dealing with residents who break the rules. It’s unlawful to treat residents differently because of their race, color, religion, sex, familial status, national origin, disability—or any other characteristic protected under state or local fair housing law. That means you can’t single anyone out for breaking the rules because he—or his family members or guests—are members of a protected class.

Even when you have solid evidence that a resident has violated the lease or your community’s rules, he may try to turn the tables by questioning your motives. Unless you’ve applied the rules fairly and consistently, you could suddenly find yourself on the defense if it looks as though you’re acting in a discriminatory manner.

For example, the resident may argue that you took a hard line against him for breaking the rules only because he was a member of a protected class, and his claim could get some traction if he can show that you allowed other residents—who did not share his protected characteristic—to get away with the same or similar infractions. Evidence of inconsistent enforcement of your rules could lead a court to conclude that his violation of the rules wasn’t the real reason for evicting him, but merely an excuse to cover up unlawful housing discrimination.

Avoid the temptation to bend the rules for some people, but not for others, just because you happen to be friends with them or you think they’re nice people. You may not intend to discriminate against anyone, but treating some residents better than others may give the impression that you have discriminatory reasons for holding other residents to higher standards.

RULE #3:

DO Be Prepared for Reasonable Accommodation Requests

DON’T Ignore Disability-Related Requests for Exceptions to the Rules

Be prepared to handle requests for reasonable accommodations when residents are caught breaking the rules. It may sound like an excuse, but it should alert you to your obligations under fair housing law to provide reasonable accommodations to individuals with disabilities. The FHA requires communities to make exceptions to rules and policies as reasonable accommodations for individuals with disabilities when doing so is necessary to give them an equal opportunity to use and enjoy their dwelling.

And don’t be thrown off by what the resident says or when he says it. Whenever a resident raises a disability-related reason for violating the lease or community rules, you should treat it as a reasonable accommodation request. Under the FHA, an applicant makes a request for a reasonable accommodation whenever he makes clear that he is requesting an exception, change, or adjustment to a rule, policy, practice, or service because of a disability. The law doesn’t require that requests for reasonable accommodations be made in a particular manner or at a particular time.

Don’t dismiss it as an excuse or ignore the resident’s request for an exception to the rules simply because he doesn’t appear to be disabled. The law covers a variety of physical and mental impairments, characterized by few, if any, obvious symptoms to suggest that a particular person qualifies under the FHA’s disability-related provisions. Federal guidelines permit you to request additional information necessary to evaluate the request if either the disability or the need for the requested accommodation isn’t readily apparent.

RULE #4:

DO Consider Accommodation Requests for Assistance Animals

DON’T Refuse to Make Any Exception to Pet Policies

It’s particularly challenging to handle requests for assistance animals by residents who’ve been caught violating your pet policies. The longer the resident has been breaking the rules, the more you may wonder whether he’s unfairly trying to pass off his pet as an assistance animal.

However reasonable your suspicions, it’s necessary to set them aside and handle the request as a request for a reasonable accommodation. Communities may enforce policies to ban or restrict pet ownership, but it’s unlawful to refuse reasonable and necessary accommodations to residents who need assistance animals to help them with their disabilities.

If in doubt about whether the resident has a disability-related need to keep an assistance animal, you should ask for more information so you can respond properly to the request. Rejecting it out of hand can only lead to fair housing trouble.

Example: In January 2015, HUD charged a Brooklyn cooperative community with discriminating against a veteran with a psychiatric disability for refusing to let him keep an emotional support animal. According to HUD, the community wrongfully denied the resident’s request for a reasonable accommodation even though he provided medical documentation verifying his condition and need for the dog and took steps to evict him and his wife in retaliation for filing a fair housing complaint. The case will be heard by an administrative judge unless either party takes the case to federal court [Secretary, HUD v. Trump Village Section IV Inc., January 2015].

If the resident qualifies for a reasonable accommodation to keep an assistance animal, then you’ll also have to waive any extra fees or deposits under your pet policy. According to federal guidelines, communities may not require individuals with disabilities to pay extra fees or security deposits as a condition of allowing them to keep an assistance animal as a reasonable accommodation. If you insist that the resident must pay the pet fee to keep an assistance animal, then you could be hit with hefty penalties.

Example: In November 2014, the owners and manager of a Washington community agreed to pay $25,000 to resolve allegations that they refused to grant a reasonable accommodation to waive a $1,000 pet deposit for a resident with mental disabilities who needed a dog as an emotional support animal. Allegedly, they refused to grant the waiver despite numerous attempts by the resident to provide documentation of her disability and her need for the emotional support animal. The complaint also accused them of retaliating against her for filing a fair housing complaint with HUD [U.S. v. Barber, November 2014].

Coach’s Tip: Though dogs are at the center of many fair housing cases, you should be prepared for requests to keep cats, birds, ferrets, reptiles, and other types of animals as assistance animals. According to HUD, species other than dogs, with or without training, and animals that provide emotional support have been recognized as necessary assistance animals under fair housing law.

RULE #5:

DO Enforce Rules to Prevent Harassment, Maintain Safety

DON’T Ignore Accommodation Requests Related to Disruptive Conduct

Take steps to enforce rules to prevent harassment or other misconduct by or against residents. If a resident complains about being harassed by other residents based on his race or other protected class, then you should take the complaints seriously. Fair housing experts advise that you should investigate the complaints and, if true, take action to stop the harassment.

If a resident with a disability is harassing or otherwise threatening his neighbors, then you may take action, but only after considering the ramifications of fair housing law. For example, you may have to evaluate a request made by a resident who blames his disruptive behavior on a mental disability and asks you to delay eviction proceedings to allow him to pursue treatment.

The FHA doesn’t protect an individual with a disability whose tenancy would amount to a “direct threat” to the health or safety of other individuals or result in substantial physical damage to the property of others unless the threat can be eliminated or significantly reduced by reasonable accommodation, according to HUD.

That means you’ll have to determine whether the resident is a “direct threat” and whether anything can be done to resolve the matter, short of eviction. You can’t make a snap decision. The law requires an individualized assessment of the nature, duration, and severity of the risk of injury; the probability that injury will actually occur; and whether there are any reasonable accommodations that will eliminate the direct threat. And, in evaluating any recent misconduct, you’ll have to consider whether the resident has received intervening treatment or medication that has eliminated the direct threat—that is, a significant risk of substantial harm.

As an example, HUD says that a community must take certain steps before evicting a resident with a psychiatric disability who was arrested for threatening his neighbor with a baseball bat. During the eviction process, the resident’s attorney explains that the resident becomes violent when he stops taking prescribed medication, and asks the community to allow him to remain as a reasonable accommodation. HUD says the community must grant the request only if the attorney can provide satisfactory assurance that the resident will receive counseling and periodic medication monitoring to ensure he will no longer pose a direct threat. If the resident refuses, HUD says that the community may go forward with the eviction proceeding since the resident continues to pose a direct threat to the health and safety of other residents. In practice, applying these rules can be complicated, so it’s best to consult your attorney for guidance.

Example: In 2014, a Texas court ruled against a public housing resident who asked for a reasonable accommodation to avert his eviction for threatening the staff. The resident, who had been warned about increasingly alarming interactions with neighbors, left a threatening voicemail for the director. After the community initiated eviction proceedings, the resident had an outburst in the office, announcing that there would be “bullets for everyone” before storming out. The director, who knew he had a gun, felt threatened and instituted additional safety measures.

The resident’s attorney requested a reasonable accommodation to halt the eviction in favor of an action plan, explaining that the resident had schizophrenia and recently began new medication to better manage his disease. Although a mental health counselor testified that she didn’t think he was a threat, the court rejected his request for a reasonable accommodation and ordered his eviction for violating the lease provisions banning criminal activity by making “terroristic threats.”

An appeals court upheld the lower court’s decision, ruling that the resident wasn’t entitled to a reasonable accommodation, because he failed to prove that his tenancy was terminated by reason of something caused by his disability—that is, that his threats to the staff were causally linked to his disability. There was no proof that his mental disability caused him to threaten violence against the community’s staff. His tenancy wasn’t terminated because of his disability but, instead, because of his failure to abide by the terms of the lease [Heinert v. Wichita Falls Housing Authority, July 2014].

Coach’s Tip: Although fair housing law considers a history of past drug addiction or alcoholism as a disability, you don’t have to excuse criminal or disruptive behavior caused by a resident’s current use of alcohol or illegal controlled substances.

RULE #6:

DO Enforce Rules Governing Common Areas

DON’T Unreasonably Limit Children’s Activities

It’s okay to enforce reasonable rules, especially in common areas, where the community has a legitimate interest in maintaining the property, ensuring safety, and protecting the right of all residents to peaceful enjoyment of their homes.

Just make sure that the rules don’t unfairly target families with children—or anyone else protected under fair housing law. You may have legitimate concerns about outdoor play activities that could disturb neighbors or damage your property, but avoid rules that specifically target children’s behavior. Rules banning children from playing in common areas—or placing unreasonable limits on what they can do outside—could lead to accusations that you are treating families with children less favorably than adult households living at the community.

Example: In January 2015, a court approved a $20,000 settlement in a fair housing case against a California community filed by a mother on behalf of her two young children. The complaint alleged that the children, ages 7 and 5, were repeatedly warned against riding their scooters in the common area of the complex. Allegedly, an employee said they couldn’t ride scooters, bikes, or skateboards and threatened to evict her if he caught them again. When he saw them the next day, the employee allegedly used his cell phone to record them and yelled at them. Some weeks later, the mother said the children were were riding their scooters when the manager ran up and screamed at her son, and then handed her a formal warning.

After receiving another warning, the mother sued the community for discrimination. The parties settled the case by signing a confidential agreement, which called for the court to approve $10,000 payments to each child to be held until they reached adulthood. The court ruled that the settlements were reasonable given the alleged wrongs and injuries described and were consistent with the range of settlements in similar cases [Milton v. Regency Park Apartments, January 2015].

Even if you adopt rules that govern all residents—not just children—you could still face a discrimination claim if you enforce the rule only against children. Singling out children for breaking the rules against noisy behavior in common areas while ignoring similar transgressions by adults could lead to a fair housing claim based on familial status.

RULE #7:

DO Be Prepared for Potential Retaliation Claims

DON’T Crack Down Because of a Prior Fair Housing Complaint

Even with solid evidence that a resident has broken your rules, you run the risk of a retaliation claim any time you take action against a resident who has filed a fair housing complaint against you.

Under the FHA, it’s unlawful to “coerce, intimidate, threaten, or interfere with” anyone who has exercised her rights under fair housing law—as well as anyone who has helped or encouraged someone to do so. This applies whether the resident has a past or pending discrimination complaint, helped another resident to file a complaint, or made a disability-related request for a reasonable accommodation or modification.

And you could be liable for retaliation regardless of whether the resident had a legitimate fair housing claim in the first place. The law applies simply because you took action against the resident for exercising her rights under fair housing law, even if the resident ultimately loses the original case.

You don’t have to tolerate misbehavior by a resident simply because he’s filed a previous discrimination complaint or accommodation request. But before taking action against the resident, you should call your attorney to make sure you have everything in place to dispel any suggestion of retaliatory motives with evidence showing legitimate, nondiscriminatory reason for your actions.

RULE #8:

DO Keep Good Records to Counter Discrimination, Retaliation Claims

DON’T Neglect Your Paperwork

Good recordkeeping is essential to your success in fending off fair housing claims when dealing with residents who break the rules. If challenged, you’ll need proof that you had legitimate, nondiscriminatory reasons for taking action against the resident—that he in fact broke the rules—and that you’ve consistently applied the rules against other residents for the same or similar misconduct.

Be prepared to produce your written policy detailing your community’s standard of conduct and documentation that the resident knew about it. To prove the resident violated the rules, you should have records about his payment history or complaints against him, including evidence about the frequency and severity of the problem behavior.

Keep good records of any investigation you conducted—including witness statements, photos of any property damage or injuries, and repair receipts or medical bills incurred as a result of the resident’s misconduct. Document all your previous earlier attempts to resolve the problem, including written warnings to the resident to stop the offending behavior.

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