How to Deal with Troublesome Residents
This month, we are going to help you handle residents who cause trouble in your community—either to other residents, the property, or you and your staff—without your violating fair housing laws.
Residents have been known to vandalize or damage community property; violate their leases or community rules; and intimidate, threaten, or harass other residents or guests. They can also make it hard for owners and managers to do their jobs and for residents to enjoy their homes. When you and your staff members don't deal properly with this bad behavior, it can lead to fair housing trouble.
In this month's lesson, we are going to give you 11 rules to help you handle troublesome residents. At the end of our lesson, you can take the Coach's Quiz to see how much you have learned. And you can copy and distribute the “At a Glance” box on the last page of this issue so you and other staff members at your community will have a quick reference to help you remember and comply with the rules.
WHAT DOES THE LAW SAY?
The Fair Housing Act (FHA) makes it illegal to discriminate against prospects or residents based on their race, religion, national origin, color, sex, disability, and/or familial status. It is also illegal under the FHA for anyone to interfere with a resident's enjoyment of his dwelling because of his protected status. Therefore, if resident A threatens, coerces, or intimidates resident B because of resident B's race, religion, sex, or any other protected characteristic under federal, state, or local law, resident A is violating the FHA.
If an owner, manager, or staff member is aware of this behavior and does not take action to stop it, the community could be liable for that fair housing violation as well. For example, if you or a staff member receives a complaint that resident Jones is threatening resident Gomez because Gomez is Hispanic, and you don't take action, you could wind up in fair housing trouble.
Example: In a New York lawsuit, a federal judge found that, because the FHA prohibits residents from discriminating against other residents on the basis of race, religion, or national origin, the anti-Semitic slurs, epithets, threats of bodily harm, and noise disturbances aimed at the complaining residents violated the section of the FHA that guarantees freedom from interference in the peaceful enjoyment of one's dwelling. Significantly, the judge also found that the owners and managers could be held liable for violating the FHA, because they were aware of the residents' complaints about the neighbors' discriminatory behavior and did nothing about it [Ohana v. 180 Prospect Place Realty Corp.].
Be careful, though. If you take action against a troublesome resident, he could claim that your action violates the FHA because he belongs to a protected class. For example, if the troublesome resident is disabled, he might claim that you are trying to evict him because of his disability, not his troublesome behavior, and you could be liable for violating fair housing law.
Determining whether a prospect will be troublesome is almost impossible to do, according to Shirley Robertson, a fair housing expert for Southern Management Corporation. Robertson has found that when you ask for a reference from a prospect's current residence, the housing provider may want to get the resident out of its community so badly that you will not get a truthful reference.
In fact, many apartment communities will only verify the information you have and will not volunteer anything else, because they fear retaliation. “Housing references have gotten as useless as employment references,” says Robertson.
D.J. Ryan, fair housing specialist and director of client education at the California law firm of Kimball, Tirey and St. John, LLP, encourages owners and managers to check with more than one housing reference in the hope that a clearer residential history will emerge.
11 RULES FOR DEALING WITH TROUBLESOME RESIDENTS
Here are 11 rules to help you deal with troublesome residents and avoid violating fair housing laws.
Rule #1: Formulate a Written Policy Defining Unacceptable Resident Conduct
The first step in dealing with troublesome residents is to put all prospects and residents on notice about what conduct your community will not accept. You should have a written policy notifying all prospects, residents, and staff members about what behaviors constitute lease violations. This policy will be dictated to some extent by local landlord/tenant law, advises Nadeen W. Green, senior counsel at For Rent Magazine.
You can notify residents of these written rules either in the lease or in accompanying documents that contain your community's rules. Your written rules should answer the following questions:
How much noise is undue noise?
Will rudeness to staff or failure to cooperate constitute a lease violation?
How many times must an act be committed before it is considered a lease violation?
What are the consequences of troublesome behavior?
How much time will you give a resident to correct his behavior?
How much notice will you give a troublesome resident before you act?
What action will you take?
You should consult an attorney to answer these questions and develop a policy that fits within the framework of your local law, says Green.
Rule #2: Develop a Complaint Process and Put It in Writing
Fair housing law requires owners and managers to intervene when conflicts between residents are based on any of the characteristics protected by law, advises Green. To do that, you should have a written complaint process so your residents and staff know what to do when an issue comes up.
Putting the complaint process in writing will formalize it and put residents and staff on notice about how to proceed when a resident is being troublesome. Robertson suggests that all complaints be put in writing. Often, residents don't want to put their complaints in writing, but that does not mean the staff member receiving the complaint can't write it down. “They can, and they should,” says Robertson. Residents should know whom to approach to make a complaint, and what is needed from them to back it up.
Rule #3: Designate a Staff Member to Receive and Handle Complaints
As part of your complaint process, you should designate one staff member for residents or other staff members to go to with complaints. This way, the designated staff member will have additional training in the complaint process and will be prepared to respond. He will also be aware of all other complaints and should be the one to compile your records about troublesome residents.
He should also be trained to investigate the complaint or, at least, initiate an investigation. If the complaint is complicated or the investigation becomes too complex, consult your attorney and decide how to proceed based on his advice.
Rule #4: Document All Complaints
“Document absolutely everything, or in the end you have nothing,” advises Ryan. Your designated staff member must be trained to write everything down or have the person giving the information record it. This staff member should be instructed to write down all oral complaints or observations about questionable conduct in clear language, and should be able to document all conversations or interviews about the complaints. This applies to the entire complaint process, as well as the investigation.
Having written records accomplishes many purposes. Relying on people's memories can cause problems as time passes. People tend to stick to a version of events once it is written down. Also, if there comes a time when action must be taken, having a well-documented file will be useful if that action is ever challenged, such as in a fair housing complaint by the troublesome resident.
Rule #5: Take All Complaints Seriously and Investigate Each One
All complaints must be taken seriously, whether or not you or your staff members think they have merit. Having a formal complaint process will go a long way toward this end. If the designated staff member does not follow up on each and every complaint, regardless of what he thinks about the quality of the complaint or about the resident making the complaint, you could wind up in fair housing trouble. Your staff should look into even the simplest complaint that doesn't have any documentation or backup.
Failure to take every complaint seriously could cause you fair housing liability in a number of ways. First, and most obvious, the complaint could be valid. A troublesome resident may be discriminating against another resident, and your failure to take action could cost your community financially.
Second, and not as obvious, your failure to investigate a resident's complaint could be viewed as a discriminatory action, by itself. In other words, a complaining resident could claim that you and your staff did nothing because the resident is, for example, a female. If you treat her differently because of her protected status—sex—you would violate fair housing law.
Ignoring a complaint could also become a problem if the behavior complained of is dangerous and results in something bad happening, points out Robertson. This could cost you in terms of fair housing as well as other forms of legal liability.
Rule #6: Conduct and Record a Fair Investigation
The staff member investigating a complaint against a resident should be open-minded and objective. He should not let his personal opinions influence any aspect of the investigation, reminds Robertson. In other words, he should not accept the word of the complaining resident because the resident seems nice or trustworthy. Nor should he reject anyone's version of the events because, for instance, he does not like the person or the way the person dresses.
Similarly, just because there may have been prior complaints about or by a particular resident does not mean this complaint is any more or less worthy of belief and action.
If the designated staff member is acquainted with or friends with any of the parties, someone else should take over this investigation to avoid a conflict of interest or appearance of improper influence, says Robertson.
Any actions taken in the course of an investigation, such as witness interviews or examinations of damage to property, must be documented. Signing and dating reports will show how quickly a complaint was acted on and by whom. This will be a big help if you must later defend your actions as a result of the investigation.
Rule #7: Apply Policies Consistently
All residents and staff need to know what is expected of residents in your community and what is unacceptable. Showing favoritism could get you into fair housing trouble.
Policies and practices must be applied consistently to everyone in your community. Allowing some residents, but not others, to get away with certain behavior could result in a claim of fair housing discrimination. This becomes particularly significant when children are involved.
For example, you can't forgive a complaint of undue noise against an adult and then take action against a family with children because of a complaint of undue noise by children. You must apply the same policies to all, says Robertson. And all residents must receive the same opportunities to correct their problems, says Ryan.
Rule #8: Do Not Be Afraid to Take Action When Necessary
At some point, a resident's complaint may require you to take action against the troublesome resident. You may be afraid to take action because you think the troublesome resident will retaliate. Don't let your fear of retaliation prevent you from applying your policies fairly and consistently. If action is required, don't back down.
Let's say that your designated staff member informs you that he has investigated a complaint that an African-American resident threatened a Muslim neighbor on the basis of religion. The investigation showed that the complaint was true and that this was not the first time this resident has exhibited such behavior. Your community's rules state that this incident requires an eviction proceeding against the troublesome resident. If you do not take this action, you could wind up in fair housing trouble.
Talk to your attorney before you start eviction proceedings, but do not fail to act because you are afraid the African-American troublesome resident will file a fair housing complaint against you, advises Theresa L. Kitay, fair housing attorney and trainer, and a former senior trial attorney for HUD. Just make sure that all of your community's actions are documented and justified.
Rule #9: Make Reasonable and Necessary Accommodations When Appropriate
There are times when a troublesome resident's behavior stems from a disability. If making an accommodation for that resident will resolve the problem, you must do so under the FHA, says Kitay.
It may be difficult to determine whether the behavior being complained of is caused by a disability, says Green. For example, a child who is making lots of noise may have Attention Deficit Hyperactivity Disorder (ADHD) or may simply be acting like a brat. A resident may repeatedly strike a wall because he has a mental disability or because he is just bad-tempered and destructive.
These distinctions are hard to discern, and under the FHA you can't ask whether the problem is because of a disability. However, if the troublesome resident is called to task for his behavior and claims that it is the result of a disability, you may have to suspend your actions against him and give him a chance to resolve the problem. Otherwise, you could incur fair housing liability for discriminating against a person with a disability, counsels Kitay. Very often, the accommodation will be the withdrawal of an eviction proceeding, she points out.
Example: A resident was sued for eviction because of the excessive noise she made and damage she caused by hammering on her apartment walls. The Massachusetts court held that she was disabled, and stopped the eviction proceeding so she could get treatment for her disability [City Wide Assocs. v. Penfield].
However, it is up to the resident to tell you what he is doing to resolve the troublesome behavior. And you can ask for substantiation of that information. You don't have a right to know whether the resident is taking medication, what kind or how much, but you do have a right to know that he is being treated and that the treatment is ongoing, says Kitay.
Also, if you don't take action against a troublesome resident, because you are making an accommodation for his disability, that does not mean he can continue the bad behavior indefinitely, advises Kitay. You and your attorney should decide what your community's policy will be in this circumstance. For example, will you accommodate once, twice, or more? After you establish the community policy, you must enforce it across the board, consistently to everyone.
Coach's Tip: Not all unacceptable behavior by troublesome residents with disabilities requires an accommodation. When a resident's behavior is a direct threat and would result in substantial physical damage or danger to your staff or other residents, there is an exclusion from the fair housing requirement of necessary and reasonable accommodation. In effect, there is no accommodation that can remedy the behavior and safeguard other residents.
Example: A disabled resident who engaged in altercations with residents; chased children with a knife; played loud, vulgar music; and made inappropriate sexual comments, was found by a Louisiana judge to be a direct threat. Therefore, the resident was excluded from the legal requirement of necessary and reasonable accommodation for those with disabilities [Foster v. Tinnea].
Rule #10: Do Not Allow Alcohol or Drug Abuse to Excuse Troublesome Behavior
Alcoholics and former drug abusers are considered disabled under the FHA. Thus, it is illegal to refuse to rent to them or to evict them because they are alcoholics or former drug addicts. However, if alcohol or drug abuse causes these residents to exhibit unacceptable behavior in your community, you can take action against them without getting into fair housing trouble.
As in any situation where the troublesome resident belongs to a group protected by the FHA, you might hesitate to act. But the FHA does not permit alcoholics to cause trouble while drinking or drunk, says Green. Nor does the FHA allow former drug users to cause trouble while using illegal drugs or abusing legal drugs, she says.
Therefore, a resident can't use his disabled status as an excuse to break the community's rules, violate his lease, or harass or discriminate against other residents.
You must apply your policies and rules consistently. If a resident's alcohol or drug use causes him to break a community rule, such as by threatening other residents with physical violence, you should take the same action you would if there were no alcohol or drug use involved. If the troublesome behavior is a lease violation that would require eviction, you can evict the alcoholic or former drug abuser, just as you would any other troublesome resident.
You would take action because the resident's troublesome behavior violated the lease and not because of his protected status under the law. As long as you document what you do and treat all residents the same, you should not have a fair housing problem.
Rule #11: Let All Involved Parties Know Your Decision
After the investigation is completed, you will have to decide what action, if any, is appropriate. You should let the parties involved know what your decision is, says Green. If it is appropriate, you should also tell them the reasons for your decision, she says. Letting the concerned parties know what you decide could help you avoid further problems.
City Wide Assocs. v. Penfield: No. Hd-5438, 1991 Mass. LEXIS 38 (Mass. Sup. Jud. Ct. 1991).
Fair Housing Act: 42 USC §3601 et seq.
Foster v. Tinnea: No. CA 96 2718, 1997 La. App. LEXIS 2965 (La. Ct. App. 1st Cir. 1997).
Ohana v. 180 Prospect Place Realty Corp.: 94-CV-5816(FB), 1998 U.S. Dist. LEXIS 3275 (U.S. Dist. Ct. EDNY 1998).
Nadeen W. Green, Esq.: Senior Counsel, For Rent Magazine, 294 Interstate N. Pkwy., Ste. 100, Atlanta, GA 30339; (770) 434-6347 x. 3003; email@example.com.
Theresa L. Kitay: Attorney at Law, 578 Washington Blvd., Ste. 836, Marina del Rey, CA 90292; (310) 578-9134; firstname.lastname@example.org.
Shirley A. Robertson, CPM: Community Liaison and EHO Compliance Officer, Southern Management Corp., 1950 Old Gallows Rd., Ste. 600, Vienna, VA 22182; (703) 902-9423; email@example.com.
D.J. Ryan: Fair Housing Specialist, Director of Client Education, Kimball, Tirey and St. John, LLP, 1202 Kettner Blvd., 5th Fl., San Diego, CA 92101; 1-800-338-6039; www.kts-law.com.
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|April 2007 Coach's Quiz|