Operations Insights: Fair Housing

WRITTEN BY: JAMES CAMPBELL  |  THIS ARTICLE IS A 7 MINUTE READ

On four successive Thursdays, the National Apartment Association (NAA) presented a series of live webinars under the theme of “April is Fair Housing Month.” These webinars featured expert presenters across a range of topics related to the Fair Housing Act, which was enacted in 1968 to protect people from discrimination when they are renting or buying a home, getting a mortgage, seeking housing assistance or engaging in other housing-related activities. Attendees also learned about NAA’s fair housing course offerings and its two updated toolkits on Emotional Support Animals and Accessible Design and Construction. 

Live questions and answers followed at the end. Webinar recordings are posted on NAA’s website and YouTube channel for on-demand viewing.

Fair Housing Follies 

On April 6, NAA presented its first webinar, “Top Five Fair Housing Follies,” featuring Doug Chasick, That Fair Housing Guy™, Senior Instructor for NAAEI Faculty, and former President of the Fair Housing Institute, Inc. Chasick addressed the most common fair housing complaints facing rental housing professionals:

• Cannabis
• Emotional support animals
• Crime and safety
• Handicapped parking
• Special treatment for the disabled

Throughout, Chasick explained the typical sources of these complaint issues and the uncertainties and dilemmas frequently faced by property managers. For several of these complaint issues, he explored options for property managers including practical solutions for otherwise tricky problems. Chasick also expressed how best to respond to inquiries to help protect rental property owners against costly consequences.

Chasick concluded with a bonus topic about responding to inquiries from prospective renters with Section 8 housing vouchers. He shared his views from over 45 years of investment real estate experience, which combined financial benefits for rental property owners with ethical considerations for this population.

Emotional Support Animals

On April 13, NAA presented its second webinar, “Emotional Support Animals – Answers to Common Questions.” It featured former U.S. Department of Housing and Urban Development (HUD) Trial Attorney Theresa “Terry” Kitay, Shareholder at Baker, Donelson, Bearman, Caldwell & Berkowitz and author of the 2022 edition of NAA’s “Emotional Support Animals: A Practical Guide for Reasonable Accommodation Requests” toolkit.

Kitay began by explaining the Fair Housing Act basis for “reasonable accommodations” for persons with disabilities. She described the differences between assistance animals, service animals and support animals, plus the various obligations of property managers to provide reasonable accommodations to applicants and residents. Kitay provided suggestions for how to evaluate and process such requests, including key questions to ask. 

Kitay covered engaging with third-party verifiers and certification providers of emotional support animals (ESAs); and then addressed frequently asked questions, such as, “Can a housing provider require a resident with an approved ESA to obtain insurance specifically to cover the ESA?” She also described situations property managers may encounter once an ESA has been approved, the effects of state and local laws regarding criminal misrepresentation of animals and how to respond to inquiries about the presence of animals in “no pet” communities. Kitay concluded by reminding viewers that NAA’s Toolkit covers myriad related topics beyond those discussed during the session and encouraged them to use it as a resource.

Fair Housing Nuances 

On April 20, NAA presented its third webinar, “Fair Housing Nuances –- A Watercooler Chat.” It featured two attorneys from Brownlee Whitlow & Praet, PLLC – Todd Whitlow, Partner and Principal, and Norman Praet, Managing Partner – as they relayed typical Fair Housing Act issues of concern for apartment professionals that often come up in their business conversations.

Whitlow and Praet began by discussing sources of income (SOI), specifically how the Fair Housing Act protects rental housing applicants using the Section 8 Housing Choice Vouchers program and other forms of public assistance. They displayed a map of the United States, which detailed the wide range of SOI laws – from states with SOI laws fully in effect to states without any SOI laws in effect, with many states falling somewhere in between.

Whitlow and Praet continued by explaining the differences between disparate treatment and disparate impact, the latter sometimes referred to as “indirect” discrimination, when a neutral policy or procedure has a disproportionately negative impact on a protected class. They presented a three-part, disparate-impact analysis applied by the courts to determine how a plaintiff would have legal standing to file a disparate impact lawsuit. 

Whitlow and Praet explained how family status is considered under the Fair Housing Act. Family status includes the presence or expected presence of children younger than 18, pregnant women, individuals securing the custody of children under 18 and maximum occupancy criteria issues. They described a recent court finding that the defendants had discriminated against families with children in violation of the Fair Housing Act by refusing to issue building access devices to minor residents, prohibiting children from common areas and amenities unless supervised by adults and misrepresenting the availability of units to families with children at multifamily communities.

Whitlow and Praet concluded by explaining the difference under the Fair Housing Act between accommodations and modifications to render access to apartments. They provided counterintuitive examples of reasonable accommodations such as providing a reserved parking space when reserved parking is not otherwise provided, or allowing a live-in aide in a unit with a disabled resident even if the aide exceeds the maximum occupancy guidelines for the property. Whitlow and Praet also provided examples of building modifications such as installing ramps, installing grab bars, widening doorways and installing lifts. Finally, they explained who would typically pay for such modifications, while suggesting guidelines for managing all such requests.

Accessible Design and Construction

On April 27, NAA presented its fourth webinar, “Accessible Design and Construction Requirements for Apartments.” It featured Demetria McCain, Principal Deputy Assistant Secretary (PDAS) for Fair Housing and Equal Opportunity (FHEO) at (HUD), and Scott Moore, Partner at Baird Holm LLP, who is a national expert on disability rights and fair housing laws and author of the 2022 edition of NAA’s “Fair Housing Act Accessibility Toolkit: A Practical Guide to Addressing Accessibility in Multifamily Housing.”

PDAS McCain began by marking the 50th anniversary of the Rehabilitation Act of 1973. She reiterated fair housing law being an outgrowth of the civil rights movement, “to ensure equal opportunity for all, no matter their levels of ability.” PDAS McCain described various scenarios for housing discrimination complaints, noting that disability complaints are the most common complaints received at HUD, with race-related complaints coming in second. 

PDAS McCain highlighted a few HUD announcements of interest to housing providers relating to disability rights in housing, including the agency’s Advance Notice of Proposed Rulemaking, which contemplates potential changes to HUD regulation requiring accessibility and prohibiting discrimination on the basis of disability in HUD-assisted programs. She also promoted the tools available to housing providers to help them understand their accessibility-
related responsibilities.

PDAS McCain concluded by reinforcing the vision of the Fair Housing Act, “where people have the ability to build for life, [and] the opportunity to recover from illness, to search for a job, or to raise a family.” She thanked all in attendance for working with the federal government toward this vision.

Moore proceeded to describe how accessibility in multifamily housing is covered by an overlapping of the Fair Housing Act, the Americans with Disabilities Act and state and local laws. Each of these laws has its own set of standards of which property managers must be aware. 

Moore presented highlights of NAA’s Accessible Design and Construction Toolkit and encouraged attendees to use it as a resource. These highlights included:

• A comprehensive overview of the Fair Housing Act design and construction requirements
• A detailed design and construction checklist with diagrams and photos
• Examples of common design and construction issues
• Best practices to follow during the design and construction process
• Best practices for property managers to follow to identify and remedy ongoing accessibility issues
• A list of common accessibility misconceptions that can lead to noncompliance
• How accessibility complaints arise, who can be sued and how to respond

Moore referenced visual aids to help attendees understand compliant versus noncompliant design of apartment communities. He encouraged property managers to take an active role in accessibility, even before construction is complete, as they cannot rely on local building inspections to understand whether their communities comply with Fair Housing Act requirements.

Watch the webinars, review assorted fair housing resources and purchase the toolkits.

James Campbell is NAA’s Senior Manager of Industry Operations.