Transcript National Apartment Association Education Institute Legal

National Apartment Association
Education Institute
Legal Aspects
1 – 877
December
2013
– 240 – 4050
1
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
December 2013
2
Legal Aspect Objectives
• Relate to their positions the provisions of:
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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
December 2013
3
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
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Title VIII of the Civil Rights Act of 1968
1974 Amendments
1988 Amendments
November, 1998 Initiative
January, 2000 HUD Final Ruling
December 2013
4
Current Fair Housing Laws Involve:
Responsibility
Liability
Penalties
December 2013
5
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.”
December 2013
6
The Fair Housing Act of 1968
• Race
• Color
• Religion
• National origin
• Sex was added in 1974
December 2013
7
The Fair Housing Act Amendments of 1988
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Race
Color
Religion
Sex
National Origin
Familial Status
Handicapped
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8
The Fair Housing Act Amendments of 1988
• Renters Can Really Sue Now for Housing
Violations
December 2013
9
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.
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10
The Purposes of the 1988 Amendments
1. 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.
December 2013
11
The Result of the 1988 Acts
Leases
Applications
Guest Cards
Newsletters
Advertisements
December 2013
12
Guidelines for Fines
$70,000
$60,000
$50,000
$40,000
$30,000
$20,000
$10,000
$0
1st Violation
December 2013
2nd Violation
13
3rd Violation
In 2010, Claims to HUD
• 34% Race Related
• 48% Disability Related
• 15% Familial Related
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14
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.
December 2013
15
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
$60,000
$50,000
$40,000
$30,000
$20,000
$10,000
$0
1st
December 2013
16
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
$100,000
$80,000
$60,000
$40,000
$20,000
$0
1
December 2013
17
1+
Filing a Fair Housing Complaint
• Contact with a local or regional HUD
Office
• Attorney general office
• Fair housing alliance
• Advocacy group
• HUD
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18
Fair Housing
• Treat everyone the same
• Be consistent
2 Golden Rules
December 2013
19
Fair Housing Discrimination
Disparate Treatment
• Is a result of treating or behaving
differently toward someone because
they are a member of a protected class.
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20
Fair Housing Discrimination
Disparate Impact
• Is due to a policy or procedure that has a
different impact on persons of protected
classes.
December 2013
21
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.
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22
Prohibited Practices Activity
3.
Use of different provisions in
leases with members of protected
classifications.
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.
December 2013
23
Prohibited Practices Activity
5.
6.
Discouraging any person from inspecting
or leasing an apartment home because
of their protected classification.
Discouraging the leasing of an
apartment home to protected classes
by exaggerating the drawbacks or
failing to inform any person of desirable features.
December 2013
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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.
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25
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.
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26
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.
December 2013
27
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.
December 2013
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Fair Housing Verdict Activity
Case #1
Residents with AIDS
December 2013
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Fair Housing Verdict Activity
Case #2
Sexual Harassment
December 2013
30
Familial Status Defined
One or more individuals under the
age of 18 years living with:
• 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.
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Occupancy Standards
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Fair Housing Activity:
Familial Status
Case #1
Ms. Davis and her son
December 2013
33
Fair Housing Activity:
Familial Status
Case #2
Marlene & Michael Briggs
December 2013
34
Fair Housing Activity:
Familial Status
Case #3
Muslim Families
December 2013
35
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.
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Physical Impairment Includes:
• Any physiological disorder or condition
• Cosmetic disfigurement
• Anatomical loss affecting specific body
systems.
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Mental Impairment Includes:
• Any mental or psychological disorder
– mental retardation
– organic brain syndrome
– emotional or mental illness
– specific learning difficulties
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Major Life Activities Means:
• Caring for one's self
• Speaking
• Performing manual
tasks
• Breathing
• Walking
• Learning
• Seeing
• Working
• Hearing
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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
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Prohibited Practices
• Make Inquiry into Person’s Disability
• Deny Housing due to Disability
• Discriminate in Terms of Services Due to
Disability
December 2013
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1
Fair Housing Disability
Status Activity
Case #1
Business Center
December 2013
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1
Fair Housing Disability
Status Activity
Case #2
“Multiple Chemical Sensitivities”
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2
Fair Housing Disability
Status Activity
Scenario #1
Leasing Tour
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2
Fair Housing Disability
Status Activity
Scenario #2
Carpet
December 2013
45
Fair Housing Testers
• Fair Housing testers (shoppers) help enforce
Fair Housing laws.
• Shoppers generally operate in pairs or teams.
Shopping
Report
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The Solution
• Treat everyone the same
• Be consistent
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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
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48
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
December 2013
49
Leasing in the Multicultural
Marketplace
• Be sensitive to prospects from different
countries and cultures
• Treat all prospects with respect
December 2013
50
Fair Housing Issues on the Horizon
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Linguistic Profiling
Visitability
Domestic violence victim eviction
Target Marketing
Source of Income
Limited English Proficiency
December 2013
51
Resources for Fair Housing
Information
National Disability
Rights Network
National Fair
Housing Alliance
900 Second Street, NE, #211, 1400 Eye Street, #530
Washington, DC 20002
Washington, DC 20003
202/ 408-9514
www.napas.org
December 2013
202/898-1661
www.nationalfairhousing.org
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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
December 2013
The Fair Housing
Institute
www.fairhousing.net
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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
December 2013
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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.
December 2013
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Fair Credit Reporting Act (FCRA)
• Designed to protect the privacy and insure
the accuracy of consumer report
information
• Credit report
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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
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Additional Consumer Protections
• Do not call/ Do not fax
• CAN-SPAM Act of 2003
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Applicant Screening Criteria
May Include:
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Credit History
Income
Rental History
Eviction Records
Criminal Background
Social Security Number
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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
December 2013
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The Lease and Legal Issues
• Leases are Contracts that include:
– Addresses
– Fees
– Damage to the Apartment
– Maintenance Requests
– Utilities
– Subletting
– Authorized Occupants
– Notices
December 2013
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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
December 2013
62
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
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Resident’s Personal Safety Activity
Case #1
Resident Fire
December 2013
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Resident’s Personal Safety Activity
Case #2
Murder
December 2013
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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.
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Resident Safety Practices
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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
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“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.”
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You be the Judge Activity
Case #1
Unidentified intruder
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You be the Judge Activity
Case #2
“Security”
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You be the Judge Activity
Case #3
Lead Poisoning
December 2013
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Emergency Contact Situations
In the event of a fire
1. Notify the fire department
2. Evacuate the building
3. Cut off utilities when safe
December 2013
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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
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2013
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fire department
Steps to Reduce Risk
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Eliminate Master Key
Keep Vacant Apartments Locked
Utilize Secure Locks
Maintain Proper Lighting
Do not Keep Cash
Inform Others when Leaving the Office
December 2013
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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
December 2013
75
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
December 2013
76
Legal Aspects
December 2013
77