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National Apartment Association Education Institute

Legal Aspects

Legal Aspect Objectives

• Explain how Fair Housing laws apply to the multihousing industry

• Identify major components of the Fair Housing law

• Apply Fair Housing concepts to the responsibilities and duties of a Leasing Professional

Legal Aspect Objectives

• Relate to their positions the provisions of:– Equal Credit Opportunity Act– ADA– Criminal Background Checks– Lead Paint Safe Work Practices

• Implement basic emergency contact procedures when required

• Outline the basics of legal compliance, risk management and risk reduction

Overview of Fair Housing

• The Civil Rights Act of 1866

• The 14th Amendment to the U.S. Constitution

• The Fair Housing Act and related legislation– Title VIII of the Civil Rights Act of 1968

– 1974 Amendments

– 1988 Amendments

– November, 1998 Initiative

– January, 2000 HUD Final Ruling

Current Fair Housing Laws Involve:

Responsibility

Liability

Penalties

Responsibility

Liability

Penalties

The Civil Rights Act of 1866

“All citizens of the United States shall have the same rights in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real

and personal property.”

The Fair Housing Act of 1968

• Race

• Color

• Religion

• National origin

• Sex was added in 1974

The Fair Housing Act Amendments of 1988

• Race

• Color

• Religion

• Sex

• National Origin

• Familial Status

• Handicapped

The Fair Housing Act Amendments of 1988

• Renters Can Really Sue Now for Housing Violations

The Differences Between the 1968 & 1988 Acts

1. If HUD finds reasonable cause to believe that the law has been violated, it now has the authority to bring the case to a hearing before an Administrative Law Judge (ALJ).

2. Private enforcement has been strengthened by removing the limitations on punitive damages and making the standard for awarding attorney's fees more like the standard used in other civil rights laws.

3. It expanded the statute of limitations to 2 years for lawsuits.

The Purposes of the 1988 Amendments1. To create an administrative enforcement

mechanism that is subject to the use of court enforcement by private litigants and federal enforcement agencies

2. To extend equal housing opportunity to disabled persons

3. To extend equal housing opportunities to families with children.

The Result of the 1988 Acts

Leases

Applications

Guest Cards

Newsletters

Advertisements

Make ‘Em Pay Initiative

• Closer partnership between HUD and the U.S. Department of Justice (DOJ)

• Closer partnership between HUD, state and local government fair housing agencies

• Better fair housing training for federal, state and local government fair housing staff and private fair housing groups

• Expanded use of HUD’s Web site as a fair housing dissemination and reporting tool

• Increased penalties for housing violations

Guidelines for Fines

$0

$10,000

$20,000

$30,000

$40,000

$50,000

$60,000

$70,000

1st Violation 2nd Violation 3rd Violation

In 2006, Claims to HUD

• 39% Race Related

• 40% Disability Related

• 14% Familial Related

HUD Final Ruling• Effective January 27, 2000, an

Administrative Law Judge (ALJ) can assess a separate civil penalty against a respondent for each separate and distinct discriminatory housing practice.

• The old procedure could only assess a single civil penalty in cases regardless of how many acts of housing discrimination occurred.

HUD Final Ruling - ALJ• Actual monetary

damages

• An injunction prohibiting any such actions in the future or similar relief

• Attorneys fees and costs

• Civil Penalties

$0

$10,000

$20,000

$30,000

$40,000

$50,000

$60,000

1st 1+ 2+

HUD Final Ruling – Court• Actual and punitive

damages

• An injunction prohibiting any such actions in the future

• Attorney’s fees and costs

• Civil Penalties

$0

$20,000

$40,000

$60,000

$80,000

$100,000

1 1+

Filing a Fair Housing Complaint

• Contact with a local or regional HUD

Office

• Attorney general office

• Fair housing alliance

• Advocacy group

• HUD

Fair Housing

• Treat everyone the same

• Be consistent

2 Golden Rules

Fair Housing Discrimination

Disparate Treatment • Is a result of treating or behaving

differently toward someone because they are a member of a protected class.

Fair Housing Discrimination

Disparate Impact

• Is due to a policy or procedure that has a different impact on persons of protected classes.

  Prohibited Practices Activity

1. Failure to accept or consider a bona fide offer to lease an apartment home from a member of a protected class.

2. Use of different qualifying criteria, rental standards, or procedures that are different from normal with any member of a protected class.

3. Use of different provisions in leases with members of protected classifications.

  Prohibited Practices Activity

4. Limiting the use of privileges, services, or facilities associated with an apartment community because of the protected classification of a resident or their guest.

  Prohibited Practices Activity

5. Discouraging any person from inspecting or leasing an apartment home because of their protected classification.

6. Discouraging the leasing of an apartment home to protected classes

by exaggerating the drawbacks or failing to inform any person of desirable features.

  Prohibited Practices Activity

7. Employing codes or other devices to segregate, or reject, or refuse someone because they are of a particular protected classification.

8. Using words, phrases, photographs, illustrations symbols, or forms that convey that apartment homes are or are not available to a protected class.

9. Expressing a preference for or a limitation of any resident in a protected class.

  Prohibited Practices Activity

10. Selecting media or advertising that leaves out particular segments of the housing market regarding housing opportunities.

11. Providing false or inaccurate information regarding the availability of an apartment home for rental to any person.

  Prohibited Practices Activity 12. Threatening, intimidating, or interfering with

residents, visitors or associates of such residents in their enjoyment of an apartment home when these persons are included in the protected classification.

13.Threatening an employee or agent with dismissal or an adverse employment action, for any effort to assist a person seeking access to the rental of an apartment home.

  Prohibited Practices Activity 14. Intimidating or threatening any person because

that person is engaging in activities designed to make other persons aware of, or encouraging other persons to exercise rights granted or protected by the Fair Housing Act.

15. Retaliation against any person because that person

has made a complaint, testified, assisted, or participated in any manner in a proceeding under the Fair Housing Act.

Fair Housing Verdict Activity

Case #1

Residents with AIDS

Case #2

Sexual Harassment

Fair Housing Verdict Activity

Familial Status Defined

• A parent or a legal custodian• The designee of the parent• The custodian with evidence of

written permission

• Any person who is pregnant or is in the process of securing legal custody of any individual under the age of 18.

One or more individuals under theage of 18 years living with:

Occupancy Standards

Case #1

Ms. Davis and her son

Fair Housing Activity:Familial Status

Case #2

Marlene & Michael Briggs

Fair Housing Activity:Familial Status

Case #3

Muslim Families

Fair Housing Activity:Familial Status

Fair Housing and Disability Status

 A physical or mental impairment that substantially limits one or more major life activities.

The definition does not include illegal use of or addiction to a controlled substance.

Physical Impairment Includes:

• Any physiological disorder or condition

• Cosmetic disfigurement

• Anatomical loss affecting specific body systems.

Mental Impairment Includes:

• Any mental or psychological disorder

– mental retardation

– organic brain syndrome

– emotional or mental illness

– specific learning difficulties

Major Life Activities Means:

• Caring for one's self

• Performing manual tasks

• Walking

• Seeing

• Hearing

• Speaking

• Breathing

• Learning

• Working

Fair Housing and Disability Status

Reasonable modifications Under Section 504, Federally Assisted Housing, the owner is responsible for the expenses of making reasonable modifications.

Reasonable accommodations– Rules

– Policies

– Practices or services

Prohibited Practices

• Make Inquiry into Person’s Disability

• Deny Housing due to Disability

• Discriminate in Terms of Services Due to Disability

Case #1Business Center

Fair Housing DisabilityStatus Activity

1

Case #2“Multiple Chemical Sensitivities”

Fair Housing DisabilityStatus Activity

1

Scenario #1

Leasing Tour

2 Fair Housing DisabilityStatus Activity

Scenario #2

Carpet

Fair Housing DisabilityStatus Activity

2

Fair Housing Testers

• Fair Housing testers (shoppers) help enforce Fair Housing laws.

 

• Shoppers generally operate in pairs or teams.

Shopping Report

The Solution

• Treat everyone the same

• Be consistent

Additional Leasing Procedures to Avoid Discrimination

• Treat everyone fairly and consistently

• Documented information

• Follow company policies

• Maintain good records

• Document which apartments are shown

• Update with regular training

• Maintain a consistent professional attitude

Additional Leasing Procedures to Avoid Discrimination

• Use a specific, defined tour route

• Comply with Occupancy Guidelines

• Ask how many occupants will be living in the apartment

• Refer any disabled prospective residents to a supervisor

• Ask your supervisor before promising anything

• Offer the same rates, fees, concessions, and specials

• Know your local and state Fair Housing laws

• Review the Fair Housing laws regularly

Leasing in the Multicultural Marketplace

• Be sensitive to prospects from different countries and cultures

• Treat all prospects with respect

Fair Housing Issues on the Horizon

• Linguistic Profiling

• Visibility

• Domestic violence victim eviction

• Target Marketing

• Source of Income

• Limited English Proficiency

Resources for Fair Housing Information

National Disability

Rights Network900 Second Street, NE, #211,

Washington, DC 20002

202/ 408-9514

www.napas.org

National Fair Housing Alliance1400 Eye Street, #530

Washington, DC 20003

202/898-1661www.nationalfairhousing.org

Resources for Fair Housing Information

U.S. Department of Housing and Urban Development (HUD)

Office of Fair Housing and Equal Opportunity

451 7th Street, SW,

Washington, DC 20410

202/708-1112

www.hud.gov

The Fair Housing Institute

www.fairhousing.net

The Americans with Disabilities Act (ADA)

Title I – Employment

Title II ‑ Public Services

Title III - Public Accommodations and Services Operated by Private Entities

Title IV – Telecommunications

Title V - Miscellaneous Provisions

The Equal Credit Opportunity Act

Makes discrimination unlawful with respect to any aspect of a credit application on the basis of:

• Race • Sex

• Color • Martial Status

• Religion • Age

• National Origin • Source of Income

When an application is declined or denied, the applicant must be given an adverse action notice.

Fair Credit Reporting Act (FCRA)

• Designed to protect the privacy and insure the accuracy of consumer report information

• Credit report

Fair and Accurate Credit Transactions Act (FACTA)

• Limits how businesses can use non-public information

• Impact types of records that will be submitted to collection agencies

• Impacts procedures for verifying collection account accuracy

• Limits sharing information

Additional Consumer Protections

• Do not call/ Do not fax

• CAN-SPAM Act of 2003

Applicant Screening Criteria May Include:

• Credit History

• Income

• Rental History

• Eviction Records

• Criminal Background

• Social Security Number

Criminal Background Checks

• Reviewing the criminal background of all rental applicants promptly

• All applicants must be informed that the check will be done

• Consistent process and criteria will be used for all applicants

The Lease and Legal Issues

• Leases are Contracts that include:– Addresses– Fees– Damage to the Apartment– Maintenance Requests– Utilities– Subletting– Authorized Occupants– Notices

Lead Paint Safe Work Practices

• Distribute EPA pamphlet

• Repair any defects

• Dust test any repair work

• Notify residents of repair

• Keep records

• Provide HUD-approved training

Lead Paint Safe Work Practices

• Inspectors and testers are certified

• Use lead-safe work practices

• Monitor and re-evaluate lead-based paint areas

• Maintain lead-based painted areas

• Test bare soil play areas

Resident’s Personal Safety Activity

Case #1

Resident Fire

Resident’s Personal Safety Activity

Case #2

Murder

Safety Practices

• Proper labeling and storing of chemicals

• Ensuring and inspecting self-closing gates

• Communicating policies regarding grill use

• Contact authorities first in an emergency and then the owner.

Resident Safety Practices

• Never leave a window or door unlocked• Maintain renter insurance on all property• Mark all valuables with an Identifying number• Keep an inventory of all valuables• Communicate with your neighbors • Do not give keys to anyone • Call police for suspicious occurrences• Report all crimes • Never unlock door to anyone unknown• Devise escape plan

“Is an Area Safe?”

“Please understand that I along with any other apartment community cannot guarantee your personal safety. In fact no place in the U.S. today is 100% safe. It is best if you use good common sense and practice basic safety precautions as you would anywhere else. For more information regarding the safety of our community I encourage you to go online to find out more about this area and its safety records.”

You be the Judge Activity

Case #1

Unidentified intruder

You be the Judge Activity

Case #2

“Security”

You be the Judge Activity

Case #3

Lead Poisoning

Emergency Contact Situations

1. Notify the fire department

2. Evacuate the building

3. Cut off utilities when safe

In the event of a fire

Steps to Diminish the Possibility or Impact of a Fire

• Know where – All cut-off valves are located– All charged extinguishers are located and how to use them

• Clean– Out Storage Areas– Up after painting jobs– Check electric appliances

• Keep furnace room clean & fire door closed

• Check alarm systems regularly

• Request annual inspections from local fire department

Steps to Reduce Risk

• Eliminate Master Key

• Keep Vacant Apartments Locked

• Utilize Secure Locks

• Maintain Proper Lighting

• Do not Keep Cash

• Inform Others when Leaving the Office

To Summarize, You are Now Able to:

• Explain Fair Housing laws apply to the multi-housing industry

• Identify major components of the Fair Housing Laws

• Apply Fair Housing concepts to the responsibilities and duties of a Leasing Professional

To Summarize, You are Now Able to:

• Relate to Equal Credit Opportunity Act, ADA, Criminal Background Checks and Lead Paint Safety Work Practices

• Implement basic emergency procedures

• Outline the basics of legal Compliance and Risk Management

Legal Aspects