Attempt to Add Source of Income and Veteran Status As New Federal Protected Classes

Two U.S. Senators recently introduced a new federal bill that is being referred to as the "Fair Housing Improvement Act" (FHIA).  The FHIA introduces two additional protected classes to the seven protected classes under the Fair Housing Act of 1968.  

The first proposal would make veterans of wars a new federal protected class.

The second, would make "source of income" a new federal protected class.  If "source of income" becomes a federal protected class then landlords would be unable to deny a rental applicant solely because they receive a Section 8 Rent Assistance Voucher.  "Source of income" would also include HUD-Veterans Affairs Supportive Housing (HUD-VASH) vouchers, benefits received through Social Security, income received by a court order, payment from a trust or guardian, or any other lawful source of income.

Currently many states and municipalities already have "source of income" protection laws.  Milwaukee County added the class of "receipt of rental or housing assistance" as a protected class in 2018.  The argument being made is that the states and municipalities enforcement or "source of income" discrimination varies widely, and as such "source of income" must become a federal protected class.

HUD Announces $3 Million Dollar Settlement with California Landlords for Discriminating Against Families With Children By Requiring Supervision and Prohibiting Outside Play

Earlier today, April 10, 2023, HUD announced that two of its housing partners reached a $3 Million settlement with a California property management company and more than 30 owners who were discriminating against families with children by prohibiting any outdoor play activities and requiring adult supervision of all children under the age of 14 years in all common areas.  Its was alleged that tenants who violated those rules faced the threat of eviction.  This discrimination allegedly occurred at more than 48 apartment complexes and was first observed back in 2017.  Review of the Consent Decree shows how involved this investigation was. 

HUD has been focusing on overly restrictive housing rules that adversely affect families with children for awhile now.  Now is the time to review your rental documents, including your rules and regulations, to see if your rules are overly restrictive against children.

GUEST POST: Wisconsin Rental Income Standards and Section 8 Rent Vouchers

Guest post from Tim Ballering  - justalandlord.com
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From a Fair Housing perspective, you probably must account in some manner for the value of the Section 8 payment when calculating an income multiplier guideline.

I’ve read of the argument made in other jurisdictions that if an owner is using a rent multiplier, that it should be on net rent to the tenant. This is probably not a workable answer for either tenant nor the owner. If the net payment by the tenant is $20 with a three times multiplier, a $60 per month income is not going to cover living expenses like heat and lights. A good discussion of this issue from a while ago is at: Bigger Pockets

In WI you must include the value of child support, food stamps and perhaps* Rent Assistance Vouchers in income calculations. So if the gross rent is $800 and the tenant receives $700 RA, $500 in food stamps, they would need to earn $1200 additional to meet the three times multiplier.

*Wisconsin Lawful Source of Income definition:

Wis Admin Code DWD 220.02(8)  “Lawful source of income” includes, but is not limited to, lawful compensation or lawful remuneration in exchange for goods or services provided; profit from financial investments; any negotiable draft, coupon or voucher representing monetary value such as food stamps; social security; public assistance; unemployment compensation or worker’s compensation payments.

There is a 1995 federal case, Knapp v. Eagle Property Management Corp, that found the value of Section 8 vouchers are not required to be included as income.

But that was nearly 25 years ago. Sentiments have changed over that time. I believe that if Knapp was tried today the court would find against the owner on this question as concepts like disparate impact were not widely argued then. Today we are restricted by HUD in using criminal records in screening because of the disparate impact on members of protected classes.

The plain language reading of the WI code makes not including the voucher value in the rent multiplier calculation open to expensive litigation, which the Knapp court determined that their insurer had no duty to defend.

To form your own opinion on this and other WI fair housing standards, a good starting point is:

“STATE OF WISCONSIN Fair Housing Plan Analysis of Impediments to Fair Housing and Actions to Overcome Them Update to the 2015-2019 Consolidated Plan”

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Thanks Tim

Part 2: Landlords Can Be Liable for the Discriminatory Acts of Their Tenants

I received an email from a reader regarding my last post about the Wetzel case.  The reader essentially asked me what a landlord could do to make sure that they do not become liable for the discriminatory acts of their tenants like what happened to the landlord in the Wetzel case.

While I cannot give legal advice (i.e. applying the law to a certain set of facts) via this blog, I can certainly provide general guidelines, so here goes:

1. Don't do anything that the landlord in Wetzel did.  Read the facts of the case - they are egregious.  Do the exact opposite of what the landlord did.
2. If a tenant complains of abuse or harassment by other tenants, investigate the complaints to see if they are valid.  Wetzel advised the landlord that she was called a "fucking faggot" and "homosexual bitch" by other tenants.  Wetzel complained to the landlord that a tenant threatened to "rip her tits off."  Another tenant reveled in his memory of the Orlando massacre at the Pulse nightclub and Wetzel reported this to the landlord.  Wetzel was hit in the back of her head while alone in the mail room sitting on her scooter which resulted in her being knocked from her scooter.  Following the hit on the head, tenants taunted Wetzel openly by rubbing their heads and saying "ouch" when they passed her.  Another tenant spat on Wetzel while in the elevator.  Another tenant hit Wetzel's scooter with his walker. It was alleged that Wetzel reported all of this to the landlord and that the landlord did not do anything to investigate the incidents or protect her.  Instead the landlord chalked everything up to the ordinary squabbling and bickering that occurs among tenants residing in a facility for seniors.
   
3. If your tenant is being harassed or abused by other tenants do not call him or her a liar.  
4. Do not dismiss abusive conduct as accidental if your investigation proves otherwise.  
5. Do not deny a tenant's allegations of abuse and call her a liar.
6. Don't restrict the tenant that is allegedly being abused from accessing portions of the rental property.  The landlord in Wetzel told her that she could no longer eat in the main dinging room and barred her from using the lobby area except to get coffee.  The landlord also stopped providing Wetzel with cleaning service to which she was entitled under her lease. 
7. If a tenant complains of being abused by another tenant, do not retaliate against her for making the complaint, by starting the process to evict him/her.
8. Don't physically hit a tenant.  It was alleged that two of the landlord's employees woke Wetzel up from sleeping in the early morning hours, accused her of smoking in her room, and then one of the employees slapped her across the face.
9. If after your investigation, you believe the allegations occurred - respond appropriately as allowed under landlord-tenant law.  The landlord in Wetzel had the ability to contact the police to report what was going on.  The landlord also could have served the abusive tenant/s with the proper notice (5 day, 14 day, 28 day, or 30 day) depending on the situation.  
10. If the abusive tenants behavior has not been corrected then proceed to evict them, if necessary.

It is quite clear that if the landlord in this case had made any attempt, no matter how little, to protect Wetzel from the abuse that the Court's holding would have not been as far-reaching.  In fact, the Court even wrote in their opinion that "had the management done nothing but listen [to Wetzel] we might have a more limited case."

I hope that this answers your question.

Landlords Can Be Liable for the Discriminatory Acts of Their Tenants

Perhaps one of the most important cases to be published in 2018 affecting landlord-tenant law was the Seventh Circuit Court of Appeals case of Wetzel v. Glen St. Andrew Living Community, LLC, 2018 WI 4057365 (7^th Cir. Aug 27, 2018).  In the Wetzelcase the Seventh Circuit (which includes Wisconsin) held that a landlord may be liable under the Fair Housing Act (FHA) for failing to protect a tenant from known, discriminatory harassment by other tenants.

Within months of arriving at Glen St. Andrew, Wetzel, who was a lesbian, was physically and verbally abused by other tenants. On multiple occasions Wetzel asked staff members to intervene and protect her.  Rather than doing that, staff actually appeared to punish Wetzel by limiting where she was allowed to go in the facility.

Glen St. Andrews own Rules and Regulations document allowed it to evict any tenant who “engages in acts or omissions that constitute a direct threat to the health and safety of other individuals.”  Rather than enforce its rules against the tenants harassing Wetzel, staff told her not to worry about the harassment, dismissed the abuse as accidental, and denied Wetzel’s version of the facts, and even called her a liar.

The Court wrote that had the landlord done nothing but merely listen to the tenant, that its holding might have been more limited, however in this case Glen St. Andrew took affirmative steps to retaliate against Wetzel for complaining.

The Wetzel court interpreted the FHA broadly and ruled that not only does the FHA create liability for a landlord who intentionally discriminates against a tenant based on their protected class status; the FHA also creates liability against a landlord that has actual notice of tenant-on-tenant harassment based on the tenant's membership in a protected class, yet chooses not to take any reasonable steps within its control to stop the harassment.

While the landlord's actions in Wetzel were pretty egregious and faced with a different set of facts the Court may have held differently, the key takeaway from this case is that if landlords fail to curtail discriminatory conduct by tenants on other tenants, when it is possible for for the landlord to do so, the landlord may end up having direct liability under the FHA.

Milwaukee County Passes Ordinance Making "Receipt of Rental or Housing Assistance" A Protected Class

On June 21, 2018 the Milwaukee County Board of Supervisors passed a county ordinance amending Chapter 107 of the County Code of Ordinances (which deals with Fair Housing) adding "receipt of rental or housing assistance" as a protected class.  The ordinance went into effect as of July 19, 2018.  The Milwaukee County's Office of Corporation Counsel shall be responsible for enforcement. 

The revised ordinance defines "receipt of rental or housing assistance" as follows:

"Receipt of rental housing assistance" means the receipt of any form of financial contribution from a third party for the purposes of creating or keeping affordable housing for tenants, purchasers, or other potential housing recipients, including but not limited to, assistance provided pursuant to Title 42, United Housing Code, section 1437f (commonly known as the "Section 8" housing program), the HOME Partnership Program, the Community Development Block Grant program, or any other public rental assistance vouchers or programs.  It shall not be considered unlawful discrimination in housing for a housing provider to (1) refuse to accept emergency assistance funds under s. 49.138, Wis. Stats., or (2) refuse to accept any other public rental assistance or voucher if such rental assistance or voucher does not fully reimburse the housing provider for the amount of rent due at the time a rental assistance or voucher payment is made. 

What this means to landlords and property managers operating in Milwaukee County is that you can no longer advertise that you do not accept "Rent Assistance" or "Section 8" tenants.  It also means that when prospective tenants call you and ask if you accept "Section 8" that you cannot say "no."

What this does not mean however is that you are required to accept any and all tenants receiving rental or housing assistance.  You can still utilize your written screening criteria and if the applicant does not meet your requirements, they can still be denied even though they receive housing assistance.  But your screening criteria can no longer have the receipt of housing assistance as a basis for denial.

This also does not mean that you are now required to enter into a contract with a municipality or its agent, often referred to as a Housing Assistance Payments (HAP) contract, if you do not agree with the terms and conditions of that contract.  A landlord or property management company cannot be forced to enter into a contract that the landlord does not want to be a part of.  Many landlords who are otherwise in support of this ordinance and its intent are not in favor of the terms and requirements of the HAP contract.  Landlords that disagree with the terms of the HAP contract can still refuse to sign it.  In my prior blog post on this issue, I list several of the issues/concerns that some have with the HAP contract. Being part of some of the discussions with the County on the concerns with the HAP contract, I am aware that the County is aware of our concerns with the contract and its representatives have indicated that plan to look into some of these issues.

We will have to wait and see how this all plays out.  I will be discussing this issue more in depth, along with many other important landord-tenant law topics, at my next Landlord Boot Camp on October 20, 2018.

You can read the ordinance here.

Happy Landlording.

Milwaukee County Proposes A New Protected Class in Housing - "Receipt of Rental or Housing Assistance"

Milwaukee County Supervisor Maria Dimitrijevec is sponsoring a resolution to amend the Milwaukee County Code of General Ordinances related to Fair Housing to include a new protected class - the "receipt of rental or housing assistance." The resolution has been referred to the Economic Development Committee and may be scheduled to be discussed at the committee's meeting on March 12, 2018 at 9 AM.

If passed, this resolution would have a significant impact on landlords and property managers. Currently a landlord may legally refuse to accept any applicant if they receive rental or housing assistance. If this resolution passes, landlords in Milwaukee County would no longer be able to do so without risking a discrimination claim.

Under the proposed resolution, "receipt of rental or housing assistance" is defined as including the receipt of any form of financial contribution from a third party for the purposes of creating or keeping affordable housing for tenants, purchasers, or other potential housing recipients, including but not limited to, assistance provided pursuant to Title 42, United States Code, section 1437f (commonly known as the "Section 8" housing program), the HOME Partnership Program, the Community Development Block Grant program, or any other public or private rental assistance vouchers or programs.

Rental or housing assistance in SE Wisconsin is often referred to as "Section 8" or "Rent Assistance" or "RA." The most common form of rental assistance is run through the Section 8 program. Section 8 tenant-based housing assistance is available to low-income families and the subsidy moves with the tenant and can be used to pay toward rent at any conventional market-rate rental units. Essentially the tenant chooses the rental unit where they want to live and if the tenant meets the landlord's screening criteria, the landlord accepts the RA (which will be required in Milwaukee County if this resolution passes), and the rental unit passes an inspection, then the Section 8 program will pay the RA directly to the landlord. The RA typically does not cover the entire monthly rent amount and therefore the tenant will be required to pay the difference to the landlord.

In order for a tenant to receive RA they need to find a landlord that will accept it. In order for a landlord to receive RA on behalf of a tenant the landlord must enter into a contract with the government or its agent. Here is an example of such a contract.

Some things to be aware of when entering into a contract to receive RA include:

1. The government or its agent determines what the maximum amount of rent that can be charged by the landlord for the rental property based on a number of factors. Once that maximum amount is determined, a landlord is prohibited from charging the tenant a higher amount.

2. The government or its agent will inspect the rental unit and it must pass certain housing quality standards and be maintained up to those standards throughout the lease term. If repairs are required to pass the inspection the landlord must pay for them and the landlord may also be cited for building code violations. At a minimum there will be annual inspections. If the standards are not met the government may withhold paying the RA to the landlord.

3. A landlord would not be able to use a month-to-month rental agreement with the tenant as all of the agencies that administer RA require the landlord to enter into an initial 12 month lease.

4. The government does not "screen" the tenant for the landlord - screening remains the landlord's responsibility.

5. The tenant cannot be evicted if the government fails to pay its portion of the monthly rent.

6. The landlord must serve the government with copies of any notice for failure to pay rent or other breach that the landlord serves on the tenant. If this is not done, it can serve as a basis for any ensuing eviction to be dismissed.

7. The government has no liability or responsibility to the landlord for the tenant's behavior (again, the government is not screening the tenant for you).

8. A landlord's lease must be approved by the government. A landlord's lease will be required to include the government's tenancy addendum and ideally the lease term (between the landlord's lease and the government's addendum) will be identical (but if it is not, the government's lease addendum controls).

Accepting RA is not for every landlord. For every landlord that loves the program I have heard just as many landlords that dislike it. Regardless of your view, you must be prepared to give up some control to the government in exchange for receiving the guaranteed RA from the government. There has been a trend around the country of municipalities adding "rental assistance" to the list of protected classes, so I am not surprised to see Milwaukee County joining in.

What Is The Difference Between A Service Animal, An Emotional Support Animal, A Comfort Animal, A Companion Animal, and a Therapy Animal?

There is much confusion regarding the difference between the various terms used for assistance animals. Landlords, tenants, tenant's health care providers, lawyers and even the courts are often confused when it comes to this issue. Hopefully this blog post will help.

I often use the generic term "assistance animal" to refer to any animal that is prescribed for a tenant to assist him or her in some way. The general term "assistance animal" includes all of the terms mentioned below.

Service Animals

The American's with Disabilities Act (ADA) defines a service animal as an dog that is individually trained to do work or perform tasks for the benefit of a person with a disability, including a physical, sensory, psychiatric, intellectual or other mental disability.

• A service animal can only be a dog or a miniature horse (if certain conditions are met).

• The task performed by the animal must be directly related to the person's disability.

• Tasks performed by a service animal may include pulling a wheelchair, guiding a person who is blind, alerting a person to an oncoming seizure, pressing an elevator button, or reminding a person to take his or her medicine.

• Because a service animal is trained, it typically will not cause any problems in rental housing. Service dogs are better behaved than most human beings that I have met. A Landlord rarely needs to be concerned about a service animal causing problems.

• A service animal is allowed to accompany its handler everywhere including public places, private property, rental housing, an airplanes, with a few very limited exceptions.

• There is no government entity that certifies or registers service animals. Those service animal cards, badges, and vests that you have seen can be purchased by anyone and used for animals that are not service dogs.

• Service animals are not pets. They are an assistive device.

Emotional Support Animals, Comfort Animals, and Companion Animals

The terms emotional support animal (ESA), companion animal and comfort animal are interchangeable and refer to an animal that assists a person with a mental or emotional health issue.

• An ESA provides companionship, relieves loneliness, and mitigates the emotions or psychological symptoms associated with the handler's mental health issue.

• An ESA is not specifically trained to work or perform a task.

• Because an ESA is not specially trained like a service animal, an ESA may be poorly behaved and may cause problems in rental housing including, but not limited to, excessive barking, damaging property, running away, and attacking other animals, residents, vendors or management staff.

• An ESA is not restricted by type of animal or breed of animal and may include any and all animals.

• An ESA is not allowed in public places like stores or restaurants as it is not a service animal. An ESA is allowed in rental housing as a reasonable accommodation under the Fair Housing Act. An ESA is also allowed on airplanes.

• An ESA is not a pet.

Therapy Animals

A therapy animal is a pet that is trained to interact with people other than its handler in order to make those people feel better. Therapy animals are typically found in a group setting like a hospital, retirement home, nursing homes, etc.

• A therapy animal can be any type of animal.

• A therapy animal is not specifically trained but typically is well-mannered and will behave safely around all types of people.

• To become a therapy animal, the animal typically must pass a test and may be certified

• A therapy animal does not have any special access rights to public places, private property, rental housing or airplanes, unlike service animals and ESA's
• A therapy animal is a pet.

So in the majority of situations where a landlord is asked by a tenant to keep an animal to assist him or her, the tenant is referring to an ESA/comfort animal/companion animal, even though the tenant may improperly refer to the animal as a service animal. Also remember that the only type of animal that can be a service animal is a dog or a miniature horse (if certain conditions are met).

They key for landlords is to focus on what they animal does for the tenant rather than what the animal is called. Does the animal assist a tenant with a disability? Is the animal prescribed for the tenant as a result of their disability?

It really does not matter to a landlord whether the animal is a service animal or an ESA since both are allowed in rental housing.

Since so many people use the various terms incorrectly, a landlord does not want to put himself is a difficult (and possibly expensive) situation by responding improperly to a tenant's request to keep an animal just because the tenant used the incorrect term. Focus on what the animal does for the tenant and not what the animal is called.

HUD Issues New Guidelines On The Use of Criminal Records In The Rental Screening Process

On April 4, 2016 the U.S. Department of Housing and Urban Development (HUD) dropped a bombshell on owners and managers of residential rental properties in the U.S.

HUD's Office of General Counsel published a 10 page guide entitled "Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real-Estate Related Transactions."

This guide essentially changes the rules as we currently know them with regard to rejecting a rental applicant based on their prior criminal history. I highly recommend that all of you read the document itself -- many times in fact -- as this is a very important change and this issue is not going to go away.

This Policy Is Applicable To All Landlords

HUD's guide applies to ALL HOUSING PROVIDERS. I repeat, this new policy applies to all of you. Some landlords assume that when the see "HUD" that it only applies to federally subsidized housing and public housing. Sometimes that is true, but not in this case. HUD is the federal agency that investigates allegations of fair housing (discrimination) violations. HUD investigates discrimination allegations against all landlords not just landlords of section 8 properties. So this guide published by HUD applies to all of you market rate/conventional housing landlords as well.

Disparate Impact

In order to understand HUD's view on the use of a person's criminal history in the screening process you have to understand something referred to as "disparate impact". In essence, "disparate impact" means that a landlord can have a facially neutral screening policy that is applied equally to everyone but it can still be discriminatory if its use results in a disproportionate impact on a member of a protected class.

HUD's guide includes lots of statistics that show that across the U.S. African-Americans and Hispanics are arrested, convicted, and incarcerated at rates disproportionate to their share in the general population.

As a result of these statistics, if a landlord considers and applicant's criminal history (arrest and/or conviction) as part of the screening process, that landlord may be discriminating against African- Americans or Hispanics based on their race and/or national origin (both of which are protected classes under Fair Housing laws).

So even if your screening policy on its face is not discriminatory and even if you are applying it evenly you may still be discriminating based on race and/or national origin, because your policy affects African-Americans and Hispanics more than others.

Substantial, Legitimate, Nondiscriminatory Interest

So does this mean that a landlord cannot take into consideration a rental applicant's criminal background at all? The answer is both "yes" and "no." HUD states that a landlord may not be discriminating based on race or national origin if his/her screening criteria with regard to the criminal history of an applicant can be proven to be "necessary to achieve a substantial, legitimate, nondiscriminatory interest of the [housing] provider."

What the heck does that mean?

There is no easy definition or explanation of this phrase. Whether a landlord's screening policy with regard to an applicant's criminal history is "substantial, legitimate, and nondiscriminatory" will depend on many specifics. It could depend on the facts of the crime or how old the conviction is or the exact wording of the criteria or how the criteria is applied etc. etc. And it is helpful to keep in mind that one Fair Housing investigator's interpretation of the phrase may be different than another's. And one judge's view may be different than another's.

HUD has tried to further clarify this phrase by boiling it all down to the following statements:

• A landlord must be able to prove through reliable evidence that his/her policy or practice of screening based on criminal history actually assists in protecting resident safety and/or property.

• Merely relying on generalizations or stereotypes that anyone with a criminal history poses a greater risk than a person without such a background is not sufficient.

Prior Arrests

HUD states that if a landlord rejects a rental applicant because of one or more prior arrests -- that have not resulted in a conviction -- that the landlord's policy cannot meet the burden of having a "substantial, legitimate, nondiscriminatory interest." Translation: if you are doing this, you are discriminating.

HUD states that "the fact of an arrest is not a reliable basis upon which to assess the potential risk to resident safety or property posed by a particular individual. For that reason, a housing provider who denies housing to persons on the basis of arrests not resulting in convictions cannot prove that the exclusion actually assists in protecting resident safety and/or property."

So landlords may no longer consider whether a rental applicant has been arrested unless that arrest resulted in a conviction.

HUD does not come out and say this but it would seem to me that by logical extension a landlord also can not deny an applicant who has a criminal case that it still pending (since there has not yet been a conviction).

So the applicant that has a pending "first-degree homicide" charge or a "sexual assault of a child" case that is still winding its way through the criminal justice system or is on appeal - cannot be rejected based on that fact alone.

I understand the whole "innocent until proven guilty" viewpoint, but do you think this will comfort your longstanding tenant that has minor children living with her when a middle-aged white guy charged with "sexual assault of a child" is allowed to move in next door to her because his case has not yet gone to trial and therefore he has not yet been convicted?

Oh just wait, it gets even better.

Criminal Convictions

HUD also states that a landlord that imposes a "blanket prohibition" on any rental applicant with a "conviction record -- no matter when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then -- will be unable to meet this burden."

Translation: If you deny any and all applicants because they have a criminal conviction you are violating Fair Housing laws and therefore discriminating based on race and national origin, even if you apply that criteria evenly against everyone.

HUD goes on to say that even if you have a more tailored policy or practice that excludes individuals with only certain types of conviction you still must prove that your screening policy is necessary to serve a "substantial, legitimate, nondiscriminatory interest." There that pesky phrase again.

HUD recommends that any landlord that wants to consider an applicant's past criminal convictions as part of the screening process must at a minimum consider the following:

• The nature and severity of the crime, and
• The amount of time that has passed since the criminal conduct occurred.

That is the only guidance that HUD has given us. The rest is for you to figure out. And if you don't handle things properly you may get investigated or sued for discrimination.

Exception: Illegal Manufacture or Distribution of a Controlled Substance

There is one point of clarity. The federal Fair Housing Act does contain a section that states that the taking of an adverse action against a person who has been convicted for illegally manufacturing or distributing a controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802) will not be discriminatory. So a landlord is still free to deny a rental applicant if they have ever been convicted of manufacturing or distributing a controlled substance.

Conclusion

What really frustrates me about this whole thing is that landlords are now being told that they must consider a applicant's criminal convictions on a case by case basis. For years we have been told by HUD that the best way to avoid discriminating against someone is to treat everyone the same; your screening criteria must be "objective" and not "subjective. But now HUD seems to be saying that is no longer appropriate.

Now HUD is telling landlords that they will need to become social workers and therapists and try to determine if an applicant who was convicted of a crime in the past has been rehabilitated or not.

Think of the time and effort that will be required for a landlord to travel to the courthouse to review the criminal case file to determine all of the facts surrounding the crime, all of the events that led up to the person engaging in the criminal conduct, the individual's past, to review any pre-sentencing report to see what the evaluator thinks about the defendant etc. None of this information is available on CCAP. You will only get this information from the actual file. Or are you just supposed to listen to the applicant's version of the facts of the conviction and believe them?

It appears to me that HUD might actually be hoping that landlords decide their is too much risk involved in denying any applicant based on their past criminal convictions (except for the conviction for manufacturing or distributing controlled substances - see above) and therefore they should all be accepted.

Landlords will now need to try and determine what convictions might be considered "directly related to the safety of your residents and your property" and hope their interpretation is correct or else risk being investigated and/or sued.

Can A Landlord Deny A Reasonable Accommodation Request For A Pit Bull Companion Animal?

As I have mentioned in a prior blog post I have seen a significant increase in tenant requests for a reasonable accommodation to a landlord's "no pet" policy so that the tenant can keep a comfort/companion animal. As a result of this increase, I am also seeing an increase in reasonable accommodation requests to keep what are often referred to as "dangerous breeds" of dogs -- such as Pit Bill Terriers, American Staffordshire Terriers, German Shepherds, Doberman Pinschers, Rottweilers etc. -- as a companion/comfort animals.

If you have not already read my prior post on comfort animals and reasonable accommodation requests generally you should do so now as this post will assume that you already have a basic knowledge of those issues.

Generally speaking it is a violation of federal and state fair housing laws to deny a request for a dangerous breed companion animal unless a landlord can prove that the specific animal will cause a direct threat. Conversely, a landlord cannot deny a reasonable accommodation request for a "dangerous breed" dog just because the landlord believes that all dogs of that breed are inherently dangerous. Fair housing law does not allow a landlord to engage in stereotyping of dog breeds. So just because a landlord may have had a prior bad experience with a Pit Bull or Rottweiler does not mean that the landlord can ban all Pit Bulls or Rottweilers from being used as companion/comfort animals by his/her tenants. I recently read an online article of a landlord that is being sued by the government for Fair Housing violations due to the landlord's stereotyping of all Pit Bulls as dangerous.

However if the landlord can show that the specific Pit Bull poses a direct threat to the safety of others then the tenant's accommodation request may be legally denied. Such a direct threat could be demonstrated if the specific Pit Bull had previously attacked a person or another animal. But it is important to remember that there must be a direct threat not just a speculative risk. So even if the specific Pit Bull at issue was once dangerous, if the tenant takes the animal to obedience training, administers medication, and/or purchases equipment (such as a muzzle) which causes the animal to no longer be a direct threat, then it may no longer be reasonable to exclude the animal and deny the tenant's accommodation request.

Additionally, if the landlord can show that the specific Pit Bull would cause substantial physical damage to the property of others (and that probability cannot be reduced by another accommodation) the tenant's accommodation request may be legally denied. But again, there must be a direct threat of the Pit Bull causing substantial physical damage. A speculative risk or belief that all Pit Bulls cause substantial damage to property is not sufficient.

The long and short of it is the analysis that must be conducted to determine if a disabled individual's Pit Bull poses a direct threat to safety or will cause substantial damage to property of others is very fact intensive and must be done with great care.

There is one more basis for which it is acceptable to deny a tenant's companion Pit Bull. And that is, if a landlord's insurance carrier would cancel the landlord's insurance policy, substantially increase the costs of the insurance policy, or adversely change the policy terms because of the presence of a certain breed of dog or a certain animal, HUD will find that this imposes an undue financial and administrative burden on the landlord. As such, the landlord may deny the tenant's accommodation request as unreasonable. HUD has even issued a memo (back in June of 2006) stating this but also advises their investigators that they must verify such a claim with the insurance carrier directly and also consider whether there is comparable insurance available in the marketplace, without the restriction, for the landlord to purchase.

AASEW MEETING: "Companion Animals - When A Landlord Must Accept Them" on August 18, 2014

I will be speaking at the AASEW's monthly meeting on the issue of companion/comfort animals and when a landlord must accept them in their rental properties.

Disability-related complaints, including those that involve assistance animals, are the most common complaint filed with HUD over the past few years. While the definition of a "service animal" under the ADA is very limited and requires that the animal be specifically trained (and excludes emotional support animals) that is not the case with the Fair Housing Act or Wisconsin's Open Housing Law. A tenant has the right to request a "reasonable accommodation" to a landlord's "no pet" or "limited pet" policy and a landlord may be legally required to allow them to have a comfort/companion animal to accommodate their disability.

I have seen a surge in tenant's requesting such accommodations as evidenced by a increase in angry telephone calls from clients upset about this issue.

Attend the AASEW's next meeting on August 18, 2014 at 7 pm at the Best Western Hotel located at 1005 S. Moorland Road in Brookfield, and learn about this important and timely topic.

The cost is free to AASEW members and $25 for non-members of expired members.

Hope to see many of you there.

T

Occupancy Standards . . . Not As Simple As "2 Persons Per Bedroom"

Simply stated, occupancy standards focus on how many individuals can live in a rental unit. Landlords have the right to set reasonable, non-discriminatory, limits as to how many people can live in a rental unit.

Many landlords believe that as long as they follow a policy of "2 person per bedroom" that they will be fine. Unfortunately that is not always the case. There is no clear-cut occupancy guideline and as such there is confusion amongst landlords, management companies, and even the attorneys representing them : ).

In what is referred to as the Keating Memo, the Department of Housing and Urban Development (HUD) stated that it believes that "an occupancy policy of two persons per bedroom, as a general rule, is reasonable under the Fair Housing Act." However, the memo goes on to say that "the reasonableness of any occupancy policy is rebuttable" and HUD clarifies that the memos it issued in the past on the subject of occupancy standards do not state or imply that HUD will determine compliance with the Fair Housing Act based solely on the number of people permitted in each bedroom.

In fact, HUD issued the following statement in the final rule implementing the Fair Housing Amendments Act of 1998:

"Thus, the Department believes that in appropriate circumstances, owners and managers may develop and implement reasonable occupancy requirements based on factors such as the number and size of bedrooms and the overall size of the dwelling unit."

In the Keating Memo, HUD sets forth what factors it will consider when reviewing fair housing complaints involving occupancy issues:

1. Size of the bedroom and unit

2. Age of the children

3. Configuration of the unit

4. Other physical limitations of housing (i.e. capacity of the septic, sewer, or other building systems)

5. State and local law

6. Other relevant factors, such as:

- if the landlord has made discriminatory statements

- if the landlord has taken steps to discourage families with children from living in its housing

- if the landlord has enforced its occupancy policies only against families with children

So what occupancy standard can a landlord set forth that will avoid discrimination complaints and keep the landlord out of trouble? I wish that I could provide you with a simple answer but unfortunately there is no bright line rule.

What I can tell you is the key issue or focus in discrimination cases that involve occupancy limits is always whether or not the landlord is discriminating against a family with children. So even if your occupancy policy is reasonable, if you make some discriminatory comment to the applicant, you can forget about hiding behind your occupancy standards. As such, an occupancy policy based on the number of children per unit is much less likely to be found to be reasonable than one which limits the number of persons per unit. A Mississippi property management company learned that lesson the hard way earlier this year.

Margaret Bowitz of the Metropolitan Milwaukee Fair Housing Council stated during a seminar that I attended, that “2 persons per bedroom" is just a starting point. Next, a landlord should look at the size of the bedroom. So if you have a large-sized bedroom than possibly more than 2 persons could sleep there. If the bedroom is smaller than average, maybe only 1 person would be allowed. Consider an occupancy code of 70 square feet per person for one person using the room for sleeping purposes and 50 square feet per person for rooms to be used for sleeping purposes by more than 1 person. Ms. Bowitz added that if the room is less than 70 square feet you would not have to allow it to be used for sleeping purposes, although you could allow it. She also mentioned that one can consider whether or not the area must be allowed to be considered a "sleeping quarter." So for instance, if you have to walk through the room in order to get to another room in the rental unit, you would not be required to allow it to be used for sleeping purposes.

The city of Milwaukee has an ordinance that was created to prevent overcrowding (not to serve as an occupancy standard) that focuses on size (square footage) and ignores the number of bedrooms in a rental unit entirely.

Some states such as California have laws that state that "2 persons plus one" is the occupancy standard that should be used..

So "clear" guidance on this issue is hard to come by.

I am currently defending a landlord against a fair housing complaint for refusing to rent a two-bedroom unit to a family of 5 persons. When speaking with the investigator I was told that HUD's policy is 2 person per bedroom and if that was my client's policy, the case would most likely be dismissed. But later in that same conversation I was asked if the rooms were larger than average and then told that if they were then maybe more than 2 people could live there. I was told that measurements of the room would need to be taken. So obviously, it is not as simple as having an occupancy standard of "2 persons per bedroom." If it was, why would HUD have even investigated this claim against my client.

Another example that demonstrates that the "2 person per bedroom" occupancy standard is not the panacea that some landlords believe it to be, occurred in December of 2012 when 3 real estate groups in Connecticut agreed to pay a local woman $40,000 as a result of a complaint she filed against them for discrimination based on familial status (i.e. children). The woman's complaint alleged that a "2 person per bedroom" occupancy limit was more restrictive than state and local law and therefore unreasonably limits the ability of families with children to rent from the 3 real estate groups. Again, if it was as simple as "2 persons per bedroom" why would the Connecticut case have been investigated and why would the landlords involved have agreed to pay out $40,000 to the complainant.

So it is pretty clear to me that the "2 person per bedroom" occupancy limit is not enough to protect an landlord. However, to confuse the issue further, I have read conciliation agreements (i.e. settlement agreements resolving a claim of discrimination) between HUD and a landlord in which the settlement language requires that the landlord adopt an occupancy standard of "2 persons per bedroom" going forward. What gives?

All I can tell you is there is no "hard and fast" rule for occupancy limits in residential rental housing. Whether or not the occupancy standard that you have in place will be found to be reasonable will depend on the specific facts of your rental property and the specific facts of your interactions with the prospective tenant that says you discriminated against her.

So don't be foolish and assume that you are "safe" as long as you follow the "2 person per bedroom" rule, otherwise you might find yourself on the wrong side of a discrimination claim.

UPDATE 8-26-13: Here is yet another example of the 2 person per bedroom rule no longer being acceptable for HUD.

UPDATE 11-10-14 - Here is another example of the 2 person per bedroom rule being acceptable.

So Let's Talk About . . . Companion/Comfort Animals In Rental Properties

I have been promising that I would blog about this topic for months (could it possibly be over a year even) and the time has finally come. So let's talk about companion/comfort animals in rental properties.

Background:

I will use the terms comfort animals and companion animals interchangeably throughout this post.

So we are all on the “same page" a companion animal is an animal that is NOT specifically trained or certified but rather provides a tenant with a disability with emotional support. Specifically trained and certified animals that assist people with disabilities is beyond the scope of this post.

Wisconsin does not have a specific statute related to comfort animals. Many people improperly think that sec. 106.50(2r)(4)(bm), Wis. Stats. entitled “Animals Assisting People with Disabilities" applies to companion animals. It does not. That section deals only with specially trained and certified animals that help people with mobility, vision or hearing impairments. Comfort animals are not specially trained and/or certified and they do assist people with disabilities afecting more than just mobility, hearing and vision.

So what is the applicable Wisconsin law dealing with companion animals or comfort animals if they do not fall under this provision? Comfort animals are dealt with under a much more broad section of fair housing law dealing with "reasonable accommodations" which can be found at sec. 106.50(2r)(4), Wis. Stats.

A "reasonable accommodation" is a request made by a tenant for a change in a landlord's rules, policies, practices or services that are associated with housing when such accommodation is necessary to afford an individual equal opportunity to use and enjoy housing.

For example, a request by a tenant to keep a companion animal is a request for a reasonable accommodation to a landlord's "no pet" policy.

The Law:

It is considered to be discriminatory to refuse to allow a tenant's request to keep a comfort animal if they meet the following requirements:

1. The tenant meets the definition of having a disability under Wisconsin or federal law ("an individual with a physical or mental impairment that substantially limits one or more major life activities, a person regarded as having such an impairment, or a person with a record of such an impairment").

2. The accommodation must be necessary to afford the disabled tenant an equal opportunity to use and enjoy the rental property.

3. There must be an identifiable relationship (or nexus) between the tenant's disability and the request.

So in the case of a request for a companion animal, the tenant must demonstrate a nexus between their disability and the function or service that the companion animal provides.

A landlord may request reliable disability-related information from a tenant that is necessary to: (1) verify that the tenant meets the definition of having a disability, (2) describes the needed accommodation, and (3) shows the relationship between the two. If the disability is open and obvious then the landlord should not request verification of the disability from the tenant.

The tenant's specific disability need not even be disclosed - just the fact that the tenant has a disability is sufficient.

A tenant's request for a reasonable accommodation may be oral or in writing and the actual term "reasonable accommodation" need not be used. The request can even be made by someone on the tenant's behalf.

Practical Effects:

In case you are wondering, the threshold that a tenant must meet in order to be able to keep a comfort animal is very low.

It is not even required that the tenant's doctor confirm that the tenant has a disability. HUD and DOJ's Joint Statement on Reasonable Accommodations Under The Fair Housing Act (May 17, 2004) states that a doctor or “other medical professional, a peer support group, a non-medical service agency, or a reliable third party who is in a position to know about the tenant's disability" may provide the verification of the tenant's disability.

As mentioned previously, a tenant's comfort animal need not be specially trained or certified. A comfort/companion animal can be any type of animal that the tenant wants. It could be the dog or cat (or mouse, rat, lizard, fish, . . . ) that the tenant owned prior to becoming disabled. It could be the stray dog that the tenant found walking down the alley last week. It could be a cat that the tenant's mother no longer wants in her house. It could be the rat that the tenant bought at the local pet shop.

I have read articles, case law, and been involved in cases in which all kinds of animals have been requested to serve as a tenant's companion animals . . . a miniature horses (because it would live longer than a dog and the tenant's mental health disability would be exacerbated by the death of another dog that wouldn't not outlive her), 5 cats (each one allegedly assisted the person with a different aspect of their disability), snakes (tenant was allergic to dander), and pit bulls (why . . . . just because). There is no limit on the type/breed, size, or age of a companion animal.

So if the tenant wants a Bull Mastiff as their companion animal even though they live in an efficiency apartment and a much smaller dog could serve the same purpose, they can do that.

A landlord can deny a tenant's request for a companion animal if it:

1. Poses a direct threat to the health or safety of others unless the threat can be eliminated or greatly reduced.

2. Results in substantial physical damage to the property of others unless the threat can be eliminated or greatly reduced.

3. Poses an undue financial burden and administrative burden.

4. Fundamentally alters the nature of the housing provider's operations.

For example, a landlord could exclude a tenant's comfort animal if that animal's behavior poses a direct threat because it attacked another tenant.

In order to make a decision to deny a tenant's reasonable accommodation request to keep an animal that poses a direct threat to others safety, you will be required to go through a very fact intensive analysis. You cannot just refuse the tenant's pit bull comfort animal just because you might believe that all pit bulls are inherently dangerous. There must be a direct threat not just a speculative risk. Even if the animal was once dangerous, if the tenant takes the animal to obedience training, administers medication, or purchases the animal equipment (like a muzzle) which causes the animal to no longer be dangerous, then it may no longer be reasonable to exclude the animal.

I have worked with many landlords and management companies in analyzing whether a tenant's request for a reasonable accommodation to keep a companion animal should be granted. Without a doubt the single most difficult concept for my clients to accept is that a comfort animal IS NOT A PET.

I find it easier for landlords to understand this concept if they think of the comfort animal as an assistive device such as a wheelchair, crutches, or pain medication. By thinking this way, many landlords will be better able to keep themselves out of trouble. Let me explain provide an example.

One of my clients generally understood that he had to allow his tenant to keep a comfort animal but he was wondering if he could at the very least require the tenant (and the companion animal) to live in the one building in his apartment complex that allowed pets. It was a very innocent question and one that I sure many landlords might have themselves.

The answer is a resounding “NO." Why is that?

Remember, a companion animal is not a pet. Again, think of the companion animal as an assistive device such as a wheelchair. Would it be acceptable to require all tenants that use wheelchairs to live in one building together? Would it be OK to require all tenants that are prescribed antidepressant medication to live on the same floor? Of course not. Well the same goes with the tenant with the companion animal.

Since comfort animals are not pets a landlord is also not allowed to make the tenant that has one enter into a Pet Agreement or pay a monthly pet fee or even a pet deposit.

Having said that, a tenant that has a companion animal is still responsible for the animal's behavior and any damage that it may cause. For example, the tenant must still pick up after the companion animal. The tenant must still keep the comfort animal on a leash and prevent it from jumping on or harming others. The tenant must still prevent the comfort animal from making excessive noise or damaging the rental property.

If a tenant does not take responsibility for the actions of their companion animal a landlord has every right to serve that tenant with the appropriate notice to correct breach or vacate and evict if them if needed. Since comfort animals are not specially trained or certified poor behavior is often an issue. I have had to evict several tenants with companion animals as a result of their poor behavior. In one case the companion animal which happened to be a dog repeatedly escapeed from the rental unit and ran free in the common areas of the building. Another case the animal (a dog again) bit another tenant. Another, involved a dog that crapped all over the lawn and the tenant refised to pick up after it.

Conclusion:

The popularity of comfort/companion animals is not waning. I expect that landlords and management companies will be getting more and more requests as more people are being diagnosed and treated for mental health issues for which a companion animal may prove helpful. Not to mention that many war veterans are returning with PTSD, depression, and/or anxiety, for which comfort animals are being prescribed. And there will always be those tenants that just want to have a pet without having to pay a pet fee or move to a rental unit that allows pets, so they buy a pet, play the system, and “disguise" their pet as a comfort animal.

If you have not already dealt with a request by a tenant for a reasonable accommodation to your “no pet" or “limited pet" policy, I am certain that you soon will. As such, it is very important that you educate yourself on the applicable laws so that you can properly handle such a request from a tenant and not run afoul of federal or state laws.

If you would like to learn more about comfort animals, reasonable accomodations, and fair housing (discrimination) law considering attending the AASEW's upcoming LANDLORD BOOT CAMP on February 23rd, 2013.

04-30-13 UPDATE: HUD has issued a Notice on Assistance Animals and Reasonable Accomodations For Persons with Disabilities. See my post on this.

5 Things This Landlords' Attorney Wants For Christmas

With the coming of the holidays, comes list of gifts that people want for Christmas. So I thought I would put together one of my own. So here is a list of the top 5 things that this landlords' lawyer would like for Christmas.

5. That Tenants' Requests For Reasonable Accommodations To Allow for the Keeping of Companion/Comfort Animals Would Actually Be "Reasonable"

The past few years -- and especially this past year -- have seen a large rise in requests by tenants for a reasonable accommodation to landlords' "no pet" or "limited pet" policies specifically to allow for the keeping of a companion/comfort animal. A companion/comfort animal does not need to be specially trained and therefore can be any type of animal including the family dog, cat, gunea pig, or even a miniature horse. A tenant can ask for a reasonable accommodation -- and it should be provided -- as long as the tenant has a disability (i.e. an individual with a physical or mental impairment that substantially limits one or more major life activities) and the accommodation request has a "nexus" to the tenant's disability and will allow them to more fully enjoy a major life activity.

However, somewhere along the line tenants seem to have forgotten about the word "reasonable" in "reasonable accommodations."

It is not reasonable in my opinion to need 5 kittens as companion animals (which were recently born to a landlord-approved pet cat) just because the tenant thinks the kittens are cute and does not want to get rid of the litter.

It is not reasonable in my opinion for a tenant to request a pit bull dog as a reasonable accommodation just because the tenant's relative recently lost their home to foreclosure and can't find a place for their pet "pitty" to live.

It is not reasonable to have to allow a miniature horse as a companion animal because the tenant does not want to have a dog instead because dogs do not live as long as horses do, and if the dog should die it would exacerbate the tenant's mental health issues. Whereas the miniature horse will outlive the tenant so her mental health will be unaffected. Who cares what happens to the miniature horse after the tenant passes.

4. That Tenants Who File Bankruptcy Be Required To Disclose To The Bankruptcy Court That They Are Renters and that the Bankruptcy Court Create A More Efficient Process For The Tenant To "Pay and Stay" or Vacate

If a tenant files for bankruptcy something called the "automatic stay" kicks in that prevents any creditors (yes, that includes landlords) from attempting to collect a debt or in the case of landlords - evict a tenant. Now, tenant/debtors are supposed to disclose in their bankruptcy schedules that they file with the court whether or not they have any "executory contracts or unexpired leases." Without fail, tenants and there bankruptcy attorneys always check the box saying that they have no executory contracts or unexpired leases. I have handled at least 30 of these situations for my landlord clients and not once has the tenant advised the court that they were under an unexpired lease.

A landlord is then required to pay a filing fee, file a motion to lift the automatic stay, wait 14 days for the tenant to object, and if so participate in a hearing before the court, to present evidence that the tenant isn't paying their rent and the landlord should be allowed to proceed to evict the tenant. This process can be expensive and time consuming for a landlord whose hands are legally bound from doing anything until the bankruptcy court says he can.

It would be nice if the court or the bankruptcy trustee would confirm whether or not the debtor is a tenant and whether or not they are up to date with rent and if not, determine if the tenant can get caught up so s/he can stay, or advise the tenant/debtor that they must vacate the landlord's property.

To require a landlord jump through all of these hoops in order to remove a non-paying tenant from his rental property is just another financial drain on landlords. A landlord will spend at least one month (if not more) trying to lift the stay in bankruptcy court. Once that is completed, he then needs to serve the tenant with the appropriate notice, and after that time has elapsed, pay more money to file the eviction, and then wait another 2 weeks or so until the initial appearance in eviction court. As you can see, this process can delay things at least 2 months. So I would like to expedite this somehow. Wishful thinking I know . . . but hey, this is my wish list : )

3. That Tenants Stop Using Jury Trial Demands To "Buy" More Time In Evictions

In my 17+ years of law practice I have probably encountered somewhere between 10-15 requests for a jury trial by a tenant that I am evicting. Not one of those cases have ever resulted in an actual jury being selected. Instead the demand is often made just because it will prolong the case. In Milwaukee County when a jury trial demand is made, the case is tabbed to a large claims judge who often has a very busy caseload and is unable to even get the case into court for a Scheduling Conference for 2 months. Oftentimes, a trial isn't scheduled for months after the Scheduling Conference. On the other hand if a jury trial is not made, the small claims judge in Milwaukee County can hear the eviction within a week in most cases.

I have had jury trial demands filed in failure to pay rent cases where the tenant has no legal defense. Tenant didn't pay rent, notice was properly served, tenant didn't pay past due rent within cure period, and an eviction lawsuit was field. Tenant doesn't deny any of it but wants a jury trial. Now my client gets to sit for months with a non-paying tenant before obtaining a judgement of eviction. And no, landlords rarely ever see those rent amounts from the tenant even if they obtain a money judgment against them later because many tenants are not collectible.

I have had jury trial demands filed in cases where the tenant is being evicted for engaging in criminal activity that is scaring (and at times injuring) fellow tenants and neighbors. Yet, with the jury demand having been made, the landlord, along with the law-abiding tenants and neighbors, have to deal with the scofflaw tenant for months, unless they by chance would get arrested.

The law needs to be changed in this regard. While jury trials are an important part of the judicial system this practice that I am seeing more and more of is clearly an abuse of the system. Perhaps requiring that all jury trials must be held within so many days of the initial appearance or in failure to pay rent cases requiring that all past due rent must be paid up and future rent continue to be paid or the tenant loses his/her right to the jury trial. Something needs to happen to stop this frivolous practice.

2. That All Courts Follow the Law with Regard To Granting "Stays" in Eviction Actions

Sec. 799.44(3), Wis. Stats., is very clear that before a court is allowed to "stay" a writ that the tenant must pay all rent and other charges due as well as any rent that will become due during the period of the "stay." This law is often ignored by the courts to landlords' detriment.

I understand that it is difficult to tell a tenant that you are ordering them to immediately vacate the rental property even when the cause of their non-payment of rent is due to no fault of their own - such as losing a job due to downsizing or health issues -- but that is what the law says. If it is a bad law (and I am not saying that it is) then it can and should be changed through the legislative process.

Let me put this in another context. A tenant that has lost their job or that has encountered a serious medical issue may also not have money to buy food for their family, but that doesn't mean that they are allowed to shoplift food from the grocery store. If they did that they would be arrested.

So why is a landlord required to provide housing for a tenant who's tenancy has been properly terminated and after all proper legal channels have been followed? What makes a landlord so special that s/he gets this special treatment that places them in a different category than any other creditor. Why is a landlord required to house the non-paying tenant to the landlord's financial detriment and risk their ability to continue to provide housing for their paying tenants. Again, for those non-landlords that may be reading this post, most tenants are not collectible, so saying that the landlord will be made whole when they obtain a money judgment against the tenant is not realistic.

1. That All Landlords Join a Landlord Association (such as the Apartment Association of Southeastern Wisconsin - AASEW)

There are more private landlords in Wisconsin than there are teachers but landlords' voices are not anywhere near as powerful as are teachers. The reason for this is that landlords are not organized. Landlords tend to be an independent type that enjoy being their own bosses. That is well and good but landlords need to set that independent spirit aside on occasion for the betterment of themselves and all landlords. Only when landlords unit can positive change occur for them as there is strength in numbers. It is very difficult to survive financially as a landlord these days. But by joining a landlord association, a landlord's life can become a little easier. First, through landlord associations, landlords can create a united voice to challenge bad legislation or champion new legislation. Secondly, landlord associations provide educational opportunities for their members on changes in the law so landlords can stay out of legal trouble. Third, there is camaraderie in joining a landlord association which allows members to rub elbows with other landlords may be facing, or have previously faced, the same struggles that you are having.

If all landlords joined a landlord association and became active in them, we have the money and the numbers to create change that would assist our industry.

____

Oh by the way Santa - if you cant give me any of my wishes on this list, I will settle for a new toy bike with red and white streamers dangling from the handlebars : )

Happy Holidays everyone!

HUD Issues New Rule On "Discriminatory Effect" a.k.a Disparate Impact

HUD has issued a new Fair Housing “disparate impact” rule that may cause problems for landlords during the screening process. The new rule creates a new provision entitled “Prohibiting Discriminatory Effects” which defines “discriminatory effect” as situations in which a facially neutral (i.e. not discriminatory) housing practice can become discriminatory if it actually or predictably has an effect on a group of persons that are members of a protected class.

The concern is whether or not this new rule will restrict landlord’s use of criminal background checks on prospective tenants. Recently Pepsi Co. agreed to pay $3.13 Million to resolve allegations of hiring discrimination against African-Americans based on Pepsi’s use of the African-American’s arrest records.

This recent settlement when read in conjunction with HUD’s new rule causes concern regarding whether it will be considered discriminatory to use a person’s criminal arrest or conviction as a basis for rejecting a rental applicant when such use would result in members of a protected class being rejected as tenants. For more on this issue and

please read Tim Ballering’s blog post entitled ‘Will Criminal Background Checks For Screening Be Restricted By Proposed Federal Rule?”

In light of this concern, the AASEW’s Executive Committee submitted the following comments to HUD:

The Apartment Association of Southeastern WI, Inc. is a trade association representing approximately 575 owners and managers of rental housing in the Metro Milwaukee area.

Our organization supports Fair Housing as well as community efforts to reduce the effects of crime within the neighborhoods that our members own and manage rental housing.

We are concerned that this proposed rule will restrict the legitimate and necessary use of criminal arrest and conviction records in screening tenants to exclude those who will cause disruption and harm to other occupants, the neighborhoods those properties are located in, and to our properties.

Many communities in southeastern Wisconsin have "Nuisance Property Ordinances" that hold owners accountable for the misdeeds of their tenants. For example Milwaukee's Nuisance Ordinance does not require the conviction, nor the arrest of the tenant or their invitees, rather simply repeat law enforcement activity will trigger the enforcement provisions of that ordinance.

As part of your proposed rule property owners need "bright line" guidance, establishing what background screening criteria and methods will remain acceptable under this proposed rule as well as protections from potentially conflicting local requirements.

It would be inequitable, causing unnecessary costs and harm to property owners if such guidance is not provided in advance of the implementation and enforcement of this proposed rule.

Hopefully additional guidance will be provided. If and when it is I will be sure to provide everyone an update.

You Will Not Want To Miss AASEW's Fourth Annual Landlord Boot Camp on Saturday Feb. 25th

Landlording can be pretty complex, with a seemingly never ending myriad of paperwork, rules, landlord-tenant laws and simple mistakes that can cost you thousands of dollars.

The Apartment Association of Southeastern Wisconsin's Fourth Annual “Landlord Boot Camp” can help you navigate these treacherous waters and teach you how to run your properties with greater profit and less hassles.

I have given similar landlord-tenant law seminars to fellow attorneys, landlords, and property manager organizations throughout the state for other state-wide semianr companies that charge attendees $300-$400. This is your opportunity to learn all of the same information at a huge discount through the Apartment Association.

Who: Taught by Attorney Tristan R. Pettit (who drafts the landlord tenant forms for Wisconsin Legal Blank)

When: Saturday, February 25th, 2012. 8:30 am – 5 pm

Where: Clarion Hotel 5311 S. Howell Avenue, Milwaukee [Map]

Included: 100 plus page manual/outline to help you put what you learn into practice plus helpful forms.

Cost: $159 for AASEW members and $249 for non-members. If you are not a member of AASEW but are a member of another landlord/apartment association the cost to attend will be $199.

Specials: Not a member? Pay just a dollar more and enjoy a 2012 AASEW membership.

Wisconsin landlord-tenant laws are constantly changing. To help keep you up to date we offer prior attendees a $50 discount.

Sign up by going to the AASEW's Landlord Boot Camp landing page where you can sign up online and pay via PayPal.

What you will learn at the Apartment Association's 2012 Landlord Boot Camp

Landlord Boot Camp covers everything that you need to know about residential Landlord Tenant law in Wisconsin, including:

1. How to properly screen prospective tenants.
2. How to draft written screening criteria to assist you in the selection process and protect you from discrimination complaints.
3. How to comply with both federal and state Fair Housing laws including how to handle with “reasonable modifications” and “reasonable accommodations” requests.
4. How to legally reject an applicant.
5. What rental documents you should be using and why.
6. When you should be using a 5-day notice versus a 14-day notice, 28-day notice, or 30-day notice and how to properly serve the notice on your tenant.
7. Everything you wanted to know (and probably even more than you wanted to know) about the Residential Rental Practices (ATCP 134) and how to avoid having to pay double damages to your tenant for breaching ATCP 134.
8. When you are legally allowed to enter your tenant’s apartment.
9. How to properly draft an eviction summons and complaint.
10. What to do to keep the commissioner from dismissing your eviction suit.
11. What you can legally deduct from a security deposit.
12. How to properly draft a security deposit transmittal / 21 day letter.
13. How to handle pet damage.
14. What to do with a tenant’s abandoned property and how this may affect whether or not you file an eviction suit.
15. How to pursue your ex-tenant for damages to your rental property and past due rent (and whether it is even worth it to do so).

. . . and much more. There will also be time for questions and answers.

You get all this for less than you would pay for an hour of an attorney's time.

Last year’s AASEW Landlord Boot Camp was filled to capacity and we even had to turn a few people away. So call early to reserve your spot.

Call the Association at (414) 276-7378, email membership@apartmentassoc.org or go to our Landlord Boot Camp landing page to sign up online and reserve your spot.

Remember that “landlording” is a business — so take the time to educate yourself on how to better manage your business and avoid costly errors!

New Federal Bill Would Add Two New Protected Classes To Federal Fair Housing Act

On September 26, 2011 both chambers of the U.S. Congress introduced legislation that would extend housing discrimination laws to include protections based on sexual orientation and gender identity. The HOME (Housing Opportunities Made Equal) Act was introduced by Sen. John Kerry and others. The bill would amend the Fair Housing Act to prohibit housing discrimination and intimidation on the basis of sexual orientation and gender identity.

Wisconsin is one of 13 states and the District of Columbia that already outlaws housing discrimination on the basis of sexual orientation. However, currently only 8 states afford fair housing protection based on gender identity and Wisconsin is not one of those states.

Three Wisconsin Landlords Charged with Violating Fair Housing Laws

Three Wisconsin landlords have recently been charged with violating Fair Housing laws by the U.S. Department of Housing and Urban Development (HUD).

First, in late July, HUD announced that it charged a husband and wife who own a rental property in Brown County with violating the Fair Housing Act for allegedly creating

different rental requirements for a single mother and her son. The charge also alleges that the landlords’ lease agreement includes policies and rules restricting families with children.

Specifically, HUD’s complaint alleges that shortly after accepting a single mother’s rental application, the landlords added a new requirement that the single mother

promise to be present at home whenever her 17 year old son had visitors. The mother was unwilling to agree to this requirement and as a result the landlords refused to rent to her and her son. The landlord’s ended up renting the property to a family with no children. Additionally, it is alleged that the landlords' lease agreement included clauses that are unduly burdensome on families with children, including a provision that says "no children are allowed to play in common areas of the building" and imposes

a $100 fine and eviction for violating said policy.

Second, on September 9, 2011, HUD charged a West Salem female landlord for violating Fair Housing laws by refusing to rent to a single mother because she did not have a man "to shovel the snow" for her. The landlord eventually rented the property to two men.

The rental property at issue is a home on a cattle farm and is located in a hollow. The landlord told the investigators that the winters there are "brutal" and a single mother could not handle the seclusion and the snow removal. The landlord went on to comment that it was "just common sense" to deny the applicant and then asked the investigator if he would allow his daughter to live alone with a child, a mile and a half from neighbors. Further inserting her foot into her mouth, the

landlord told the investigator, "[i]f she thinks I discriminated against her, I absolutely did." The landlord continued to make matters worse by telling housing authorities that

she "never rents to single mothers, especially in the country," and had no plans to change. She added that "single mothers are part of the country's financial problems" today.

This case should be a "slam dunk" for HUD. The landlord would've greatly benefited from the assistance of counsel – although based on her comments she probably would not have listened to an attorney’s advice. Anyone care to wager on the outcome of this? I am expecting a rather large fine to be imposed.

UPDATE 10-31-11 -- This ended up being a $15,000 mistake for the West Salem Landlord - who ended up settling the claim.

Third, on September 26, 2011, HUD announced that it charged a La Crosse landlord and property manager with violating anti-discrimination laws for refusing to rent to an

African-American couple because of their race. It is alleged that the owner and property manager refused to show available apartments to the black couple. Additionally, they told the couple and other black applicants, that no rental units were available, while just minutes later they told white applicants of the available rental units and encouraged them to apply. This behavior allegedly occurred over a period of 2 months. Both black and white "testers" were sent to the property and confirmed that the black

testers were told no rental units were available while the white testers were told of open units and encouraged to apply.

Every day I hear of more and more landlords and property managers being charged with violating both federal and state Fair Housing laws. I wish that more landlords would take the time to educate themselves on these laws. Read some of my earlier posts on Fair Housing issues here, here and here.

Largest Settlement of State Fair Housing Claim Occurs in Arizona

A 2007 Fair Housing complaint filed by two Arizona tenants alleging that their apartment managers discriminated against them based on their race, nationality and religion, has resulted in the largest state Fair Housing claim to date.

In 2007, Soha Abdelrahman and her husband Hany Obrahim filed a lawsuit against their Tempe, Arizona apartment managers claiming discrimination based upon their Arabic race, Egyption nationality and Muslim religion. The defendant in the lawsuit is Texas-based Hall Financial Group, Ltd., which manages rental properties in various states -- but no longer in Arizona.

The Arizona Attorney's General Office announced that Hall Financial Group agreed to pay a total of $227, 5000 to settle the lawsuit. $197,500 of the settlement amount will go to the tenants and $30,000 will go to the Arizona AG's Office to enforce civil rights laws in Arizona.

The settlement did not include an admission of wrongdoing by Hall Financial Group. However the lawsuit alleged that Hall discriminated against the tenants based on their race, religion and nationality, when the tenants applied to rent an apartment in 2006. Allegations included claims that Hall's agents discouraged the tenants from aplying for housing, inspected their apartment and possessions during their move-in, and ignored requests for repairs to the apartment. The lawsuit also claimed that once the tenants alleged discrimination the managers attempted to evict them.

You can read more about this settlement in the Arizona Republic.

If you would like to learn more about Fair Housing and what the protected classes are I have written about that issue in a prior blog post as well as discussing what actions by landlords are covered under Fair Housing law.

A Landlord's Primer on "Reasonable Accommodations"

I am seeing an increase in tenants making "reasonable accommodations" requests during their tenancy. While similar to "reasonable modifications," which I blogged about a few weeks ago, reasonable accommodations are different.

A reasonable accommodation request is one in which a tenant who has a disability asks his/her landlord to make an accomodation to the landlord's rules, policies, practices or services as a result of that disability. Wisconsin's Open Housing law, states that a landlord may be found to have discriminated against a tenant if the landlord refuses to make reasonable accommodations in rules, practices, policies or services that are associated with housing when such accommodations may be necessary to afford the person equal opportunity to use and enjoy housing, unless the accommodations would impose an undue hardship on the owner of the housing. Sec. 106.50(2r)(4), Wis Stats.

NOTE: For the most part, Wisconsin's Open Housing Law has adopted the language of the federal Fair Housing Act, so when when I mentione one or the other in this blog post, essentially I am referring to both.

So whereas reasonable modifications involve changes to the physical structure of a rental unit, building or grounds, reasonable accommodations would be a change to the landlord's rules, policies, procedures, and/or services. A request to install a wheelchair ramp would be a request for a reasonable modification whereas a request to allow a comfort/companion animal to reside with a tenant in a "no pets" building would be a request for a reasonable accommodation.

If requested (and all other requirements are met) a landlord must make reasonable accommodations at any stage of the rental process, including the application process, screening process, during tenancy, post tenancy. Therefore a reasonable accommodations request can be made by an applicant, not just a tenant.

Similar to the law regarding reasonable modifications, an applicant or tenant is not entitled to reasonable accommodations unless the accomodation has been requested. That request can be in writing or oral and can be made by the applicant or tenant or by someone on their behalf.

A person is considered to have a disability if the individual (1) has a physical or mental impairment that substantially limits one or more major life activities, (b) is regarded as having such an impairment, or (c) has a record of such impairment.

A "physical or mental impairment" includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, HIV, mental retardation, emotional illness, drug addiction (other than addiction caused by current, illegal use of controlled substances) and alcoholism.

A "major life activity" can include, but is not limited to, any activity that is of central importance to daily life, such as seeing, hearing, walking, breathing, performing manual tasks, caring for one's self, learning and speaking.

Just like with a reasonable modifications request, there must be an identifiable "nexus" or relationship between the disability and the accommodation request. If there is no "nexus" then a landlord can legally decline to make the accommodation.

If the applicant or tenant's disability is not outwardly obvious, a landlord is allowed to request reasonable disability-related information that will:

a. Verify that the applicant or tenant meets the federal Fair Housing Act or Wisconsin's Open Housing law's definition of a person with a "disability."

b. Describes the requested accommodation.

c. Shows the relationship between the disability and the accommodation request.

I hope that it goes without saying that any information obtained during this procees must be kept confidential by the landlord. If a person's disability is obvious or otherwise known and the need for the requested accommodation is also readily apparent or known, then the landlord may not request any additional information.

A landlord can legally deny a request for reasonable accommodations in certain circumstances. I have already mentioned a few situations that would allow a denial, such as a person who does not have a disability, or a circumstance where there is no "nexus" between the disability and the request. Additionally, a request could be denied if there is no disability-related need for the accomodation or if providing the accommodation is not "reasonable."

What is "reasonable" or not will be determined on a case by case basis, however the Department of Justice and H.U.D. have indicated that a request may be unreasonable if it would impose an undue financial and/or administrative burden on the landlord or of it would fundamentally alter the nature of the landlord's operations.

An example of an unreasonable accommodation request would be a tenant that has mobility limitations who requests that his landlord take him to the grocery store once a week.

Here are a few more examples of situations where the courts have upheld a tenant's request for reasonable accommodations.

- Accepting late rent and postponing the filing of an eviction against a tenant that is late with his/her rent because they have been hospitalized.

- Allowing a tenant with a vision disability to have a guide dog reside with her even though the landlord has a "no pets policy."

- Allowing a mobility impaired person to be assigned a parking spot closest to the apartment complex even though the landlord's has a "first come, first served" policy and does not allow assigned parking spaces.

- Allowing a tenant with severe arthritis to move from her 3rd floor unit to a vacant 1st floor unit so she can avoid having to climb stairs.

- Allowing a "companion/comfort animal" to reside with a tenant that has an anxiety disorder even though the landlord has a "no pets" policy.

NOTE: Requests for companion/comfort animals are so frequent these days -- and so abused -- that I will devote an entire blog post to this topic in the near future.

The Department of Justice and the U.S. Department of Housing and Urban Development have published a Joint Statement on Reasonable Accommodations Under The Fair Housing Act, that is a great resource for those landlords that have additional questions on this topic.