Fair Housing in Action: How Fair Housing Rules Work in the Real World
In this lesson, we’ll show how fair housing rules play out in the real world by taking a close look at real disputes resolved through the court system in the last year. The people and particular circumstances of the cases may be unique, but they shed light on what you should—or shouldn’t—do to avoid fair housing trouble.
With disability discrimination claims accounting for more than half of all formal fair housing complaints, we’re starting off by showing how a community fought and won when accused of mishandling a resident’s requests for reasonable accommodations and modifications. The case shows how prompt action—and thorough documentation—can help prove that you acted properly to address disability-related requests.
This lesson also highlights an increasing source of fair housing complaints: Community rules for use of common areas and amenities, particularly those aimed at regulating children’s activities. One case was settled, but it cost the community more than $1.1 million to pay the residents and their attorneys who filed the lawsuit, not to mention what it had to pay for its own legal expenses.
The lesson also shows how rules restricting children’s outdoor activities could lead to a race discrimination claim, how a broken elevator can lead to a fair housing complaint, and how you can lose even when you win in a fair housing case.
In this lesson, we’ll review the law and the cases to show how fair housing disputes end up in court, and offer pointers to help you prevent similar problems at your community. Then you can take the Coach’s Quiz to see how much you’ve learned.
WHAT DOES THE LAW SAY?
The Fair Housing Act (FHA) bans housing discrimination because of race, color, religion, sex, national origin, disability, and familial status (having children under age 18). There are lots of ways to get into fair housing trouble since fair housing law prohibits certain actions against people based on these protected factors, including:
- Refusing to rent, negotiate for, or otherwise making housing unavailable;
- Applying different terms, conditions, or privileges related to the rental or related services or facilities;
- Making or printing discriminatory notices, statements, or advertisements; and
- Retaliating against anyone for exercising—or helping someone exercise—his or her rights under fair housing law.
In addition to generally outlawing housing discrimination, the FHA includes special protections for individuals with disabilities. Chief among them is the obligation to provide reasonable accommodations in rules, policies, practices, or services when they may be necessary to afford an individual with a disability equal opportunity to use and enjoy his or her home. The law also requires communities to permit disabled applicants or residents, at their expense, to make reasonable modifications to the unit or common areas if necessary to afford equal enjoyment of the premises.
REQUESTS FOR REASONABLE ACCOMMODATIONS AND MODIFICATIONS
Case #1: How Prompt Action—and Thorough Documentation—Can Help You Fend off Disability Discrimination Claims
Thorough records kept at the same time as events occur may provide your best defense to a discrimination complaint. Cases can take a long time to work through the system. Memories fade, but the paperwork will preserve your version of what happened.
It’s especially important to keep good records when dealing with requests for reasonable accommodations, such as assistance animals or assigned parking, and reasonable modifications to the unit or common areas. The law doesn’t require communities to adopt formal procedures for handling accommodation requests, but federal guidelines state that it helps to prevent misunderstandings about the nature of the request, and, in the event of later disputes, to provide records that the requests received proper consideration.
Example: In January 2018, a Virginia community successfully defended itself from a disability discrimination complaint with proof that it acted promptly—and properly—in response to a resident’s requests for reasonable accommodations and modifications.
The resident was the disabled mother of three young children living in a two-bedroom unit under a supportive housing program. By the end of January 2016, her medical condition worsened such that she required full-time use of a wheelchair, grab bars for the toilet and shower, and a tub transfer bench. Because she lived on an upper floor, she also needed either installation of a ramp or transfer to a ground-floor unit or one already equipped with a ramp.
After being informed of her needs, the community explored both possibilities (ramp construction and transfer) and documented its communications with the resident, various state and federal agencies, and disability contractors in emails, case reports, progress notes, and narratives that were created between late January and early March 2016. The documentation also addressed the handling of her request for modifications to her bathroom including installation of grab bars near the toilet and a transfer bench for the tub.
The documentation showed that the community responded immediately to her requests for reasonable accommodations and modifications. The community explained that there were no ground-floor units currently available and that it needed time to evaluate whether her medical condition was temporary (she was pregnant at the time) or permanent. The same day, the community’s staff internally discussed concerns about her ability to care for herself and her minor children and contacted child protective services. The community also began taking steps for a feasibility analysis for the potential modifications.
About a week later, the resident provided the community with a doctor’s note indicating that she needed “24/7 assistance for all mobility and is unsafe to be living on her own,” as well as a hospital bed, wheelchair, grab bars, and a tub transfer bench. After receiving the letter, the community contacted child protective services and adult protective services about her eligibility for additional services.
Meanwhile, the community stayed in contact with her on a weekly and almost daily basis providing updates on the process while it investigated the cost to modify her unit versus other options, and reached out to HUD and other government agencies after learning that the modifications would cost more than $8,000 because of the layout of her current unit. The community obtained three quotes for the ramp in a relatively short time and took steps to have HUD modify its grant, which was necessary to fund the ramp construction. During the process, the resident expressed frustration that the community wasn’t moving quickly enough, and several times said that she might leave the program because she feared losing her children.
Within six weeks from her initial request and within less than five weeks from receiving documentation from her doctor, the community had lined up two viable and reasonable options—the structural modifications requested to be fully funded by the community or the near-term transfer to an accessible three-bedroom unit (after “incentivizing” its current resident to move to another unit). She chose the second option—to wait a few weeks while the community got the other unit ready for her—but she soon changed her mind, opting instead to leave the program and take the community up on its offer to help her move out.
A year later, the resident sued the community for failing to provide reasonable modifications and accommodations under the FHA and disability discrimination under Section 504 of the Rehabilitation Act.
The court granted the community’s request for judgment without a trial, dismissing the resident’s case.
The community did not violate fair housing law by denying her reasonable modification requests for installation of the ramp and grab bars. Under the FHA, it’s the resident, not the community, who must pay for reasonable modifications—and the resident never offered to pay for (and was not capable of paying for) the requested modifications.
As a recipient of federal funds, the community may be required to pay for reasonable and necessary modifications under the Rehabilitation Act. But even if the community were required to pay for installation of the ramp and grab bars, the community showed that it didn’t deny her such modifications. Based on the detailed timeline showing the community’s ongoing efforts to investigate her medical condition, its legal obligations, the feasibility and cost of ramp construction and grab-bar installation, and how to permissibly fund this relatively substantial capital expense, the resident couldn’t show that the community denied her reasonable modifications under the FHA, even when it’s applied in conjunction with the Rehabilitation Act.
Although her request to move to an accessible unit (in lieu of making the requested modifications) could be treated as a request for a reasonable accommodation, the resident failed to prove that the community denied her request. Even though the community had no accessible units available at the time she made the transfer request, the community still affirmatively acted to convince another resident to move and, within approximately six weeks from her initial request, had a final plan in place to transfer her to an accessible unit. Not only were the community’s actions reasonable, but she was not denied the accommodation. She accepted that option, but then changed her mind and decided to leave the program and move out.
- Evans v. ForKids, Inc., Virginia, January 2018
Coach’s Tip: Take prompt action in response to reasonable accommodation or modification requests. Under fair housing law, failure to promptly respond to accommodation and modification requests may be considered the same as a denial. In this case, the resident argued that the six-week delay in responding to her accommodation and modification requests was too long, but the court sided with the community, which was able to document all the actions it took to investigate and respond to her requests.
Case #2: How It Can Cost More than $1M to Resolve a Fair Housing Dispute Over Community Rules
Take a look at your rules to make sure they don’t unduly limit children’s activities in common areas. Rules restricting children from playing outside—or requiring adult supervision of children in common areas—could lead to accusations that you are treating families with children less favorably than adults living at the community.
Example: In a case resolved last year, a California condominium community had to pay more than $1.1 million to settle a class action lawsuit involving hundreds of current and former residents with children under 14, who lived there from 2011 through mid-2017.
At the center of the dispute was whether the community’s “no sports play” rule violated federal and state fair housing law by discriminating against families with children. The complaint alleged that the homeowners association had, for many years, enforced the rule to prohibit any children under the age of 14 from being in the community’s common areas without adult supervision and from engaging in any “sports activities” in the common areas.
Last summer, the parties agreed to a settlement, which required the community to pay $800,000 to be divided among the roughly 334 class members, to permanently rescind all no-sports-play rules, and to refrain from adopting any rule that prohibits children from playing in common areas. The parties agreed to let a court decide whether and how much the community had to pay in attorney’s fees to the families.
In November 2017, the court ruled that the community had to pay the attorneys representing the families nearly $300,000—down from the $450,000 originally requested, which the court found to be excessive.
- Lewis v. Silvertree Mohave Homeowners’ Association, Inc., California, November 2017
Coach’s Tip: It can be very costly to resolve discrimination complaints based on policies that affect large groups of people, such as community rules governing resident conduct, because of the considerable number of potential plaintiffs. In addition, the law generally gives the “prevailing party” the right to seek reimbursement of its legal expenses, most notably attorney’s fees—which can add up quickly, depending on the circumstances. And the rule isn’t limited to cases where the resident wins in court—it may also apply to when applicants or residents obtain a significant settlement.
RACE, FAMILIAL STATUS:
Case #3: How Community Rules Could Trigger a Race Discrimination Claim
It’s not only the substance of your rules, but also your motives, that can be called into question in fair housing cases. 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.
Example: In September 2017, a court refused to dismiss claims that an Alabama community’s rules curbing children’s activities were racially motivated.
An African-American family filed the lawsuit, alleging that the community created and enforced 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 only elementary children K-6, not for anyone to hangout or loiter;
- Making the gym and sauna off limits to anyone under 19; and
- Barring children under 19 from being in the pool without an adult.
The community asked the court for judgment without a trial, arguing that the rules were created and enforced to promote a family-friendly environment, address increased residents’ complaints, promote safety, and to deter offensive conduct, excessive noise, and unreasonable disturbances.
The court granted the community’s request to dismiss some of the family’s claims but ruled that further proceedings were needed to resolve the family’s claims of discrimination based on race and familial status under state and federal fair housing law.
In refusing to dismiss the family’s race discrimination claims, the court ruled that the family presented evidence that the community’s actions may have been motivated, at least in part, by a discriminatory purpose. The community denied discriminatory motives, but the family alleged that the new rules were adopted in response to complaints from white residents about black teenagers hanging around the pool, the gym, and outside after dark.
The court also refused to dismiss claims alleging discrimination based on familial status. The adult supervision and curfew rules specifically targeted children and were therefore discriminatory on their face. The same goes for the rule restricting the playground to children in elementary school, barring children under 19 from being in the gym, and requiring adult supervision of children 19 and under in the pool. Because of conflicting evidence about the community’s reasons for adopting the rules, further proceedings were needed to determine whether the community could prove that its rules were justified.
- Belcher v. Grand Reserve MGM LLC, Alabama, September 2017
Case #4: How a Broken Elevator Can Lead to Fair Housing Trouble
If you’ve got only one elevator in your building, your community may be on the hook for damages from a fair housing complaint—on top of the cost of repairs—if it goes out of service for an extended period. Depending the circumstances, you could be accused of disability discrimination unless you adequately address concerns from residents with disabilities living on upper floors who say they can’t get in and out of the building while the elevator was inoperable.
Example: In December 2017, a court refused to dismiss a fair housing case filed against a California community for its alleged failure to accommodate residents with disabilities while the building’s only elevator was out of service.
A group of former and current residents sued, accusing the community of disability discrimination because of its failure to maintain the building’s only elevator. The complaint alleged that the community advertised the property as a “mobility impaired living enhancement property,” and that it knew that some residents could not use the stairs to go in and out of the building because of mobility impairments. Nevertheless, the residents said that the elevator frequently broke down and was out of service for long periods of time; at one point, they said it was out of service for more than 10 days.
After a series of proceedings, the community asked the court to dismiss the case.
The court dismissed some claims, but ruled that residents could pursue their claims that the community unlawfully denied their reasonable accommodation requests during a 10-day elevator outage.
According to the complaint, each of the residents made at least one request for reasonable accommodations and the community denied those requests. Among other things, the residents said that they asked the community to expedite immediate repairs to the elevator and to pay for their hotel accommodations in accessible rooms while the elevator was inoperable. The resident claimed that the community refused those requests, alleging that the community provided two residents with hotel rooms that were inaccessible, failed to pay for the hotel rooms, and didn’t compensate them for additional expenses.
- Moore v. Equity Residential Management LLC, California, December 2017
Case Note: In 2016, a New York community was ordered to pay nearly $40,000 in attorney’s fees to a resident after settling a disability discrimination claim stemming from the planned five-month repairs to the building’s only elevator. Under the settlement, the community agreed to pay to move the resident to a first-floor unit before taking the elevator out of service [NG v. King Henry Realty, Inc., New York, October 2016]. In contrast, a court refused to order a building’s new owner to pay nearly $55,000 in attorney’s fees after settling fair housing claims filed by disabled residents who said they were stranded when the building’s only elevator was out of service. To resolve their claims, the community installed a chairlift between the first and second floors, but the court ruled the residents were not entitled to attorney’s fees because they could have avoided litigation if they had alerted the building’s new owner to their disability-related concerns before going to court [Collado v. 946 Bushwick Ave., LLC, New York, June 2017].
DISABILITY: ASSISTANCE ANIMALS
Case #5: How Fair Housing Litigation Can Cost You—Even If You Win
It can take time and effort to invest in your fair housing program, but it can be far more costly to face a lawsuit alleging violations of fair housing law. In this lesson, you’ve seen how expensive it can be to litigate and resolve lawsuits accusing you of housing discrimination.
Even when you win the case, fair housing litigation can be expensive, because you’ll still have to pay your own attorney to defend you from discrimination claims. Though fair housing law generally allows the winning party to recoup its attorney’s fees from the losing party, the law makes it much tougher for communities and other defendants to get reimbursed for attorney’s fees from applicants and other plaintiffs than it is the other way around.
Example: In December 2017, a court denied a community’s request to recover more than $17,000 for its attorney’s fees from a resident who unsuccessfully sued the community for denying her request for an assistance animal.
The resident alleged that she had a disability under fair housing law because she had panic attacks and post-traumatic stress disorder and that she needed her dog, a six-month-old pit bull, as an assistance animal. The community had a policy that prohibited pit bulls and requested additional information before allowing the dog to live there. She submitted a letter from her doctor confirming that she was “in need of her assistant animal for her disabilities.” The community requested additional information, but the doctor declined to provide it without payment. As a result, the community refused to allow the dog to live there.
The resident sued the community for denying her reasonable accommodation request to keep the dog in her unit as an exception to its policy banning pit bulls. During pretrial proceedings, the parties conducted depositions (that is, questioning under oath) of the resident, her doctor, and the property manager.
Two days after the doctor’s deposition, the community asked the resident to dismiss the case, but she persisted and sought to supplement her initial disclosures. Mediation was held a week later, during which the community made two settlement offers.
A month later, both parties asked for judgment without a trial. Siding with the community, the court granted its request for judgment without a trial and dismissed the resident’s claims.
The community asked the court to order the resident to pay for its legal costs and attorney’s fees. As the “prevailing party,” the community argued that it was entitled to recoup more than $17,000 in attorney’s fees from the resident because her claims were frivolous.
The court declined to order the resident to reimburse the community for its attorney’s fees, though the resident had to pay $1,200 for the community’s court costs.
Under fair housing law, the court may award attorney’s fees for the community’s defense costs if it finds that the resident’s claim was “frivolous, unreasonable or groundless, or that she continued to litigate after it clearly became so.” The test was whether, after considering all the factors, the claim was “entirely without foundation.”
The court noted that the resident filed her lawsuit armed with a letter from her doctor that confirmed she was in need of her assistance animal because of her disabilities. Ultimately that letter—and the initial opinion of her doctor—weren’t enough to win, but it couldn’t be said that her claim was entirely without foundation.
Even if her initial complaint wasn’t frivolous, the community argued that it was entitled to attorney’s fees because the resident persisted in litigating the case after it became apparent during the depositions that her claims were not supported by any evidence.
The court disagreed, ruling that the community’s two settlement offers, and their timing, suggested that it was not readily apparent that her claims were frivolous even after the depositions. After taking the doctor’s deposition, it may have been apparent to the community that it would win the case, but its sense of certain victory didn’t mean that the resident’s continued litigation of this matter was frivolous, unreasonable, or groundless.
- Adams v. Monterey Lake, LLC, Florida, December 2017