What Would You Do? Lessons Learned From Recent Fair Housing Cases
It’s summertime, so this month’s issue of Fair Housing Coach is ditching its usual lesson plan and taking a field trip—to see what’s happened this year in courts around the country.
The cases involve fair housing disputes in various stages in the litigation process, culminating in a written ruling. When reading dry judicial opinions, it’s sometimes easy to forget that each one involves real people—usually applicants or residents on one side and community owners, managers, or employees on the other—and a series of events that led to a dispute, which eventually landed in court.
The people and particular circumstances of each case may be unique, but that doesn’t mean that you can’t learn something by examining the details of each story like a detective. By reviewing the clues about what happened—and why—you can gain insight into how to handle similar problems that could arise in your community at any time.
The lessons learned may just help you to head off formal involvement with the legal system. Losing a fair housing case can be disastrously expensive—liability for damages or penalties can reach into the millions. But it’s costly even if you win—thousands in attorney’s fees, not to mention the drain on your time and resources to defend your community from a fair housing complaint.
So, review each case for clues and then ask yourself: What would you have done? Or even better, what should you do in case you find yourself dealing with a similar fair housing problem? Jot down a few notes as you read each story—then turn to the Coach’s Answers & Explanations to see what the court decided and the lessons to be learned from each case. And no matter how you answered, give yourself a gold star for doing extra credit homework during summer vacation!
THE CASE OF THE BARKING DOG
The Problem: A resident raises a fair housing claim as a defense in proceedings to evict her for having an unauthorized dog and other lease violations.
What Happened: This case involves a 120-unit federally subsidized rental housing community. The resident, who lived there for more than 10 years, had a mental illness that qualified her for protection under federal fair housing laws.
In the spring of 2010, the resident got a dog on the recommendation of her doctor. She said she left a copy of the doctor’s note and other paperwork in the rental payment drop-box. The doctor’s signed note stated that the resident would “benefit from a pet companion on a physical and emotional basis.”
A few weeks later, the property manager told the resident that she needed to complete additional paperwork, including the dog’s vaccination records and proof that it was licensed with the city. Instead of providing the paperwork, the resident placed the dog in the care of friends so that it would no longer live in the unit.
In late August, the resident signed a pet policy agreement with the community. Since the dog wasn’t living with her then, she checked a box indicating that she didn’t have a dog. Although she took the dog back sometime later, she didn’t inform the community or request an accommodation.
In early September, the resident renewed her lease for another year beginning on Oct. 1. Under the lease, the community couldn’t terminate the lease except under certain specified conditions. One of those conditions was the resident’s “material non-compliance,” which included repeated minor violations that disrupted the livability of the community or adversely affected any person’s health, safety, or right to enjoyment of the property.
In early October, the property manager and her assistant inspected the resident’s unit. As she entered, the manager said that the smell of pet urine and feces was overwhelming. She noticed stains on the carpet, damage to the wall, and scratches on the woodwork. Although the dog was kenneled, she said that it barked constantly during the inspection.
The manager later explained that this was her first opportunity to confirm that the resident had a dog in the unit, although neighbors had been complaining for months about offensive odors and constant barking coming from the resident’s unit. Neighbors above, below, and across the hall had filed nine separate written complaints about the overwhelming smell of animal urine and feces seeping into their units as well as the dog’s incessant barking. They also said that the resident let the dog run loose in the hallway and failed to stop it from jumping up on a visually impaired neighbor.
The community served the resident with a notice to quit and vacate the premises for various lease violations, including disturbing neighbors, failing to maintain the unit in a clean and sanitary condition, having a pet without the written consent of the management, failing to provide the dog’s vaccination records, failing to license the dog, and failing to fill out the required service animal agreement with the management.
The resident didn’t respond, so the community initiated eviction proceedings. The resident accused the community of violating fair housing law by failing to grant her a reasonable accommodation.
After a hearing, the court found that the resident’s conduct justified termination of the lease and that the community didn’t violate fair housing law. The resident appealed.
What Would You Have Done?
If you had been the manager, would you have done anything differently? Do you think the community was legally required to allow the resident to remain in the unit? If so, must the community allow her to keep the dog? Write down your answers on a separate piece of paper, then turn to the Coach’s Answers & Explanations to see what the court decided.
THE CASE OF THE DEMAND FOR A SPECIFIC PARKING SPACE
The Problem: A resident insists that the property manager assign her a specific parking spot as a reasonable accommodation for a disability, even though giving her the space she wants interferes with the community’s normal business operations.
Editor’s Note: Since this case remains in litigation, the facts are in dispute, but here’s the gist of the story based on the allegations of the parties.
What Happened: This case involves a condominium complex in Florida with more than 180 units, nearly all of which are located in a 22-story tower. It’s a 55-and-older community, where the average age of the residents is 78.
Residents have assigned parking spaces in an underground parking garage, but there are a few additional spaces in a small lot on the south side of the upper floor of the garage deck. The “south deck lot” is next to the building’s service entrance corridor and provides access for garbage trucks, work trucks, and vans carrying construction equipment, tools, and deliveries. There’s nowhere else for vendors and contractors to park or unload their vehicles, so they often double-park or block access during business hours.
The resident and her husband had assigned parking spaces in the garage. To get to the unit, they had to walk 20 feet through the garage, through a door, and then up 17 stairs, exposed to the elements.
After the resident had a heart attack, her doctor prescribed a handicap parking placard. For the next several months, the resident and her husband parked in the south deck lot, which was immediately adjacent to the front entrance of her unit, although they complained frequently about vendors blocking their car. Following one such complaint, the community notified them of plans to convert the deck lot to vendors-only parking.
In response, the resident requested a handicapped parking space in the south deck lot or alternatively, a “single unit owner loading spot zone.” The community granted the request for the temporary loading zone, but refused to give her the requested parking space. The community later formalized the policy to allow only vendors to park in the south deck lot during business hours.
After hiring an attorney, the couple formally requested a handicapped parking space in the south deck lot. The resident said that she had an impairment of her circulatory system—heart disease—that substantially limited her mobility, including her ability to navigate stairs and walk long distances outside climate-controlled areas.
In response, the community requested more information regarding her disability and her health care professional’s credentials. Although the couple complied, they claimed that this departed from the community’s usual practice of simply accepting the handicap parking placard.
The community refused to assign her the requested parking space but offered to allow the couple, at their expense, to install an automatic door opener to the garage door and to add non-skid traction strips to the stairs leading to their unit. At some point, the community also offered to assign her other parking spaces—one on the deck but farther from her unit and one in the garage beside the elevators.
The couple sued the community for violating fair housing law and asked for a court order to give the resident the requested parking space. In turn, the community asked the court to dismiss the case.
What Would You Have Done?
If you had been the manager, would you have done anything differently? Do you think the community was legally required to give the resident the parking space she wanted? Write down your answers on a separate piece of paper, then turn to the Coach’s Answers & Explanations to see what the court decided.
THE CASE OF THE REQUIRED REFERENCES
The Problem: A community has a policy of requiring applicants to provide three references from existing residents, but the policy has been attacked as racially discriminatory—in intent and effect.
Editor’s Note: Since this case remains in litigation, the facts are in dispute, but here’s the gist of the story based on the allegations of the parties.
What Happened: This case involves two co-op communities consisting of single-family homes, which maintained policies that required potential homebuyers to provide three references from people already living there. Allegedly, less than 1 percent of each community’s residents are African American, although African Americans account for about 35 percent of the surrounding area.
After one of the communities was featured in a newspaper article, a fair housing organization sent two pairs of testers—a white married woman with no children and an African-American couple—to an independent real estate broker who commonly handled sales in the community.
According to the organization, the white tester told the broker that she didn’t know anyone already living in the community, but the broker assured her that the reference policy was merely a technicality. Allegedly, the broker offered to help get the references and that the co-op knew about the practice.
A short time later, the African-American testers visited the broker asking about homes in the community. When they said they didn’t know anyone living there, the broker allegedly refused to show them any homes in the community, citing the reference policy as a solid bar to buying a home there.
The fair housing organization sued the communities and the broker for racial discrimination under federal and state fair housing law. The organization accused the communities of intentional discrimination, arguing that the reference policy was adopted and selectively enforced to discourage African Americans from seeking housing there. The organization also argued that the policy had a disparate impact—that is, it appeared to be a neutral policy, but it had a discriminatory effect on African Americans.
The communities asked the court to dismiss the case.
What Would You Have Done?
If you had been the owner or manager, would you have done anything differently? Could a community face fair housing liability for adopting a screening policy requiring applicants to provide references from current residents? Write down your answers on a separate piece of paper, then turn to the Coach’s Answers & Explanations to see what the court decided.
THE CASE OF HE SAID, SHE SAID
The Problem: In unsuccessful attempts to avert eviction, a few female residents accuse the building superintendent of sexual harassment. The government later files a fair housing claim for sexual harassment against the owner, the property manager, and the superintendent.
Editor’s Note: This case was ultimately resolved without an admission of liability; the facts were hotly contested, but here’s the gist of the story based on the allegations of the parties.
What Happened: The case involves three residential buildings where each of the five female residents lived at one time. During the relevant period, the community owner employed a building superintendent who was a Level 3 registered sex offender and had been imprisoned for crimes committed in 1986 and 1987.
At various times between 2008 and 2009, the community initiated summary eviction proceedings against each of the residents. During the proceedings, some of the residents accused the superintendent of sexual harassment, but the court refused to consider the allegations. In some cases, the residents were evicted and ordered to pay back rent; other cases were settled.
In 2010, the Justice Department filed a fair housing case against the owner and the superintendent for sexual harassment. The complaint accused the superintendent of severe and pervasive acts of sexual harassment against the female residents, including attempting to enter their apartments while inebriated and demanding sex, engaging in unwelcome groping and fondling, subjecting them to unwanted verbal sexual advances, demanding sexual favors in return for tangible housing benefits such as rent reductions, and taking adverse actions against residents who rejected his demands for sex.
The government alleged that the owner was responsible for the superintendent’s actions, arguing that owner knew about his employees’ sexual harassment of the residents because of numerous complaints, but failed to take any steps to stop it. (The government later added a claim against the owner’s son, who managed the properties in mid-2009, for allegedly creating a hostile environment against female residents, and sought to hold the owner responsible for his behavior.)
Denying liability, the defendants accused the residents of fabricating sexual harassment claims in response to the eviction proceedings. They also argued that any alleged sexual activity with residents was consensual, so it didn’t amount to sexual harassment.
The defendants asked the court to dismiss the case, arguing that the housing court rulings against the residents in the eviction proceedings barred them—or the government—from pursuing fair housing claims for sexual harassment. The court was also asked to exclude any evidence about the superintendent’s status as a sex offender and the details underlying his criminal convictions.
What Would You Have Done?
If you had been the owner or manager, would you have done anything differently? Do you think a community owner could be held liable for sexual misconduct by employees? Is the superintendent’s sex offender status or the details of conduct underlying 20-year-old criminal convictions relevant in a fair housing dispute? Write down your answers on a separate piece of paper, then turn to the Coach’s Answers & Explanations to see what the court decided.
THE CASE OF THE RESTRICTIVE RULES
The Problem: A community enforces a policy governing the use of common areas, but the rules are attacked as unfairly targeting children.
Editor’s Note: This case was resolved before trial, but here’s the gist of the story based on the allegations of the parties.
What Happened: A woman and her three children lived in a community that enforced rules governing residents’ activities in common areas. Among other things, the rules required that children under 14 be supervised at all times and banned the use of bicycles, skateboards, scooters, and rollerblades on the premises.
The resident said the problem started when two of her children, an 11-year-old and a 7-year-old, were confronted by the resident manager while they were playing outside with other children. The manager told the children that they had to follow her back to their unit; when they refused, the manager went to the resident’s unit and told her that her children couldn’t play in common areas absent supervision because of complaints from other residents. The resident said that when she complained, the community unlawfully increased her rent in retaliation for doing so.
On behalf of herself and her children, the resident sued the community for violating fair housing law based on familial status because the community’s policy unfairly targeted children. Although the children didn’t require any medical or psychiatric treatment, she sought damages for emotional distress as well as loss of the full use and enjoyment of the premises.
What Would You Have Done?
If you had been the manager, would you have done anything differently? Could enforcement of community rules governing conduct in common areas lead to liability under fair housing law? Write down your answers on a separate piece of paper, then turn to the Coach’s Answers & Explanations to see what the court decided.
COACH’S ANSWERS & EXPLANATIONS
THE CASE OF THE BARKING DOG
Court Ruling: Upholding the eviction, the South Dakota Supreme Court affirmed that the community did not violate fair housing law.
Although the resident qualified for protection under fair housing law, the court ruled that the community was not liable for failure to make a reasonable accommodation because she never asked for one. The community tried at least twice to get information about the dog from the resident so that a reasonable accommodation could be made. She refused to cooperate with the community’s attempts and denied she even owned a dog. A landlord is obligated to provide a reasonable accommodation to a resident only if a request has been made [Meadowland Apartments v. Schumacher, April 2012].
Lessons Learned:
- Keep good records to defend the community against fair housing claims—whether raised in a formal discrimination complaint or as a defense in eviction proceedings.
- Follow standard procedures for handling requests for reasonable accommodations—and document the dates and details of interactions with the resident to ward off allegations that the community ignored or delayed response to accommodation requests.
- Adopt a process to handle neighbors’ complaints about lease violations by residents. Written records of the complaints, the results of a prompt investigation, and the outcome can protect the community from allegations of unlawful discrimination.
THE CASE OF THE DEMAND FOR A SPECIFIC PARKING SPACE
Court Ruling: The case is ongoing, but in a pair of rulings, the federal court in Florida refused to issue the court order—but also refused to dismiss the case.
In February 2012, the court rejected the resident’s request for a court order to allow her to park in the south deck lot, ruling that she was unlikely to succeed in proving that the community failed to provide her with a reasonable accommodation. The court noted that the law didn’t entitle a disabled resident to receive an accommodation of his or her choice, only a reasonable accommodation. Given the evidence about the nature of the small parking lot, it appeared that the community may have acted reasonably by offering several alternatives to satisfy the resident’s needs while balancing the needs of the entire community. Although the accommodation provided by the community wasn’t her preference, that didn’t make it unreasonable [Solodar v. Old Port Cove Lake Point Tower Condominium Association, Inc., February 2012].
In May 2012, the court denied the community’s request to dismiss the case. The community unsuccessfully argued that the resident didn’t qualify as an individual with a disability because there was little evidence that her impairment substantially limited any major life activities. The community also argued that it already offered her several alternative reasonable accommodations and her request for the space in the deck lot was unreasonable. The court refused to dismiss the case, ruling that further proceedings were necessary to determine if the resident qualified as having a disability, whether the community made unlawful disability-related inquiries, and whether it unlawfully refused her request to park in the particular area she wanted [Solodar v. Old Port Cove Lake Point Tower Condominium Association, Inc., Florida, May 2012].
Lessons Learned:
- Disputes about parking are common sources of fair housing complaints, so you should treat requests for disability-related parking accommodations carefully.
- Requests for parking spaces close to a resident’s unit may be considered a reasonable accommodation, but a request for a particular space may be unreasonable.
- Fair housing law generally forbids disability-related inquiries, but the law allows an exception in response to a request for a reasonable accommodation if either the disability or the disability-related need for the requested accommodation is not obvious or apparent. Adopt a standard procedure governing the process, including the type of documentation required, to ensure all accommodation requests are treated consistently.
THE CASE OF THE REQUIRED REFERENCES
Court Ruling: Litigation in the case against one of the co-op communities in the Bronx is ongoing. Claims against the other co-op and the broker were settled.
In March 2012, the court refused the remaining co-op community’s request for a judgment without a trial, ruling that the community could be liable for intentional discrimination for its adoption and enforcement of the reference policy. It didn’t matter that it was an independent broker, not a community employee, who allegedly steered away African-American testers based on the reference policy. The organization wasn’t seeking to hold the community liable for the broker’s statements or actions, but rather that the community’s three-reference policy itself violated fair housing law. Moreover, the fact that real estate professionals communicated the rule’s existence to potential buyers and the broker’s statements about how it was applied were evidence that the rule was an actual barrier to entry for racial minorities, according to the court.
The court also ruled that the policy could violate fair housing law based on its disparate impact on racial minorities. The organization produced statistical evidence showing a significant racial disparity in the demographics of the community. The community disputed the data with statistics of its own, but that meant that the dispute was a typical “battle of the experts,” which should be decided by a jury. Nevertheless, the court said that the existence of the three-reference rule may provide an inference of discrimination when less than 1 percent of the community residents identify themselves as African American [Fair Housing Justice Center v. Edgewater Park Owners Cooperative, March 2012].
Lessons Learned:
- In general, a community may establish reasonable screening criteria for prospective residents, but it could be liable for intentional discrimination if it adopts a policy that’s intended to deny or discourage members of protected classes from living there.
- A community also could face liability for intentional discrimination if it selectively enforced policies against members of protected classes—for example, by requiring African-American applicants to meet certain screening criteria but relaxing the standards for white applicants.
- Fair housing law also recognizes claims based on unintentional discrimination (so-called disparate impact)—that is, a rule or leasing policy that applies to everyone but tends to adversely affect a protected group more than others. In general, this type of claim is proved using statistical evidence.
THE CASE OF HE SAID, SHE SAID
Court Ruling: In May 2012, this case, involving three residential buildings in Manhattan, was settled for more than $2 million—the most recovered in a sexual harassment suit brought by the Justice Department in a fair housing case. Among other things, the settlement permanently banned the superintendent from having any involvement in the management or maintenance of occupied rental housing properties.
The settlement follows on the heels of two court rulings—most recently, in February 2012—involving requests to dismiss the case and to keep out any evidence about the superintendent’s criminal past.
Last summer, the court rejected the owner’s request to dismiss the case. The owner unsuccessfully argued that the government should be blocked from pursuing the fair housing case because the sexual harassment allegations had been considered—and rejected—by the housing court during the eviction proceedings. In general, the law bans the parties in a lawsuit from suing again if they lost a previous court case involving the same allegations. But the court ruled that the results of the eviction cases didn’t prevent the Justice Department from pursuing allegations of a pattern and practice of sexual harassment in violation of fair housing law. Unlike the eviction action where the residents were pursuing their own interests, the government’s lawsuit aimed to protect both the residents’ private interests as well as the public interest in rooting out unlawful housing discrimination [U.S. v. Katz, June 2011].
In February 2012, the court issued a mixed ruling—allowing evidence about the superintendent’s status as a registered sex offender, but blocking evidence about the details underlying the 20-year-old criminal convictions on which it was based.
Federal rules generally exclude evidence of prior crimes or wrongful acts as proof that the person had a propensity to commit such acts on a particular occasion. The rules allow an exception for cases involving sexual abuse and child molestation, but the strength of the evidence must be balanced against its prejudicial effect on the defendant.
The court ruled that the government could introduce evidence of the superintendent’s status as a Level 3 sex offender in the fair housing case. The evidence was relevant in claims against the superintendent to show he had a propensity to commit the alleged acts of sexual harassment.
It was also relevant to the claims against the owner and his son. Since the owner was alleged to have received complaints from female residents, evidence showing that he knew about the superintendent’s criminal history and status as a Level 3 sex offender was relevant to evaluating the owner’s level of intent, recklessness, or negligence—as well as his state of mind in employing the superintendent. It was also relevant in claims against the owner’s son to determine whether he took appropriate action regarding complaints about the superintendent’s conduct after he became the property manager.
In contrast, the court blocked admission of evidence about the details underlying the superintendent’s criminal convictions, which involved sexual acts against children, including his daughter and her playmates, in the 1980s. The prejudicial effects of allowing such evidence outweighed its limited value to show his propensity to sexually harass female adult residents more than 20 years later [U.S. v. Katz, February 2012].
Lessons Learned:
- Owners may face liability for misconduct by employees if they knew or should have known about the employee’s behavior, but fail to take sufficient action to stop it.
- Appropriate screening and oversight of employees may minimize the risk of unlawful behavior, and in turn, the risk that the community may be held liable for their misconduct.
- Adopt policies for handling complaints about discrimination or harassment by an employee; document your efforts to conduct a prompt investigation, and if warranted, the steps taken to remedy the problem.
THE CASE OF THE RESTRICTIVE RULES
Court Ruling: In April 2012, the court approved a settlement in which the California community agreed to pay $10,000, to be split among the resident’s children. As part of the settlement, the community agreed to revise rules governing the use of the common areas that restricted certain activities and required supervision of children at all times.
The court said the settlement amount paid to the children was fair and reasonable, given that none of them required any medical or psychiatric treatment for the injuries they allegedly suffered. The payment was on par with settlements approved in other cases where children had been subjected to similarly discriminatory rules [Bor v. PPC WSSC LLC, April 2012].
Lessons Learned:
- Communities may enforce reasonable rules to ensure the peaceful enjoyment of the premises, but take care that that they don’t impose unfair restrictions on families with children.
- Rules restricting behavior in common areas could lead to a discrimination claim if the rules target children or unreasonably limit their behavior.