LANDMARK: $7.4 Million Retrofitting Is Part of Largest Fair Housing Disability Settlement

Fair housing cases involving retrofitting come with great frustration. It's not just that the needed changes are often costly, but it's the notion that the expenses — not to mention the underlying inaccessibility problem — could have been avoided had the building's owner and architect been aware of (and taken seriously) all applicable accessibility laws.

Here's how retrofitting cases usually play out:

1. A building constructed for first occupancy after March 13, 1991 that was supposed to have been built in compliance with the Fair Housing Act's (FHA) design and construction requirements wasn't.


2. Tenants with mobility impairments who live in the building struggle to enjoy their apartment living, having difficulty with basic activities such as navigating through their apartments and accessing outlets and switches.


3. The tenants bring a fair housing complaint against the owners for violating the FHA's ban on disability-based discrimination.


4. The court finds in favor of the tenants and, in addition to assessing damages and other penalties, orders the owners to retrofit the building to get it in compliance.

On Wednesday, the National Fair Housing Alliance (NFHA) and its member fair housing organizations announced a record settlement with California-based A.G. Spanos Companies ("Spanos"), the nation's fifth-largest housing developer.

Within three years, Spanos has agreed to retrofit 12,300 units in 82 buildings in 14 states — at an estimated cost of $7.4 million. The number of buildings would have been 123, but 41 Spanos-owned buildings have too many complications to undergo retrofitting. Instead, Spanos has agreed to commit $4.2 million over five years to a national accessibility fund, aimed at offering retrofitting grants for apartments across the United States.

On top of the retrofitting, Spanos has agreed to pay $1.325 million in attorneys' fees, $950,000 in compensatory damages, $750,000 for the establishment of local retrofit funds, $100,000 toward a national media campaign, and $40,000 for the creation of an accessibility coalition.

The settlement is considered a record for fair housing accessibility. Click here for a full summary of the settlement, courtesy of the NFHA.

Interesting to note:

• Spanos was reportedly "shocked" to learn that the buildings weren't built in compliance with the FHA's design and construction requirements. According to a report from the San Diego Union Tribune, the company claims to have hired and relied on competent architects and other professionals to ensure compliance with all applicable laws, but they apparently dropped the ball.


• Alex Spanos, who founded A.G. Spanos Construction in 1960, has owned the San Diego Chargers since 1984 and formed the Chargers Community Foundation in 1995.

Fair Housing Helper™ Ushers in 2010 With Fairhousingresources.com

Fair Housing Helper™, owner of Fair Housing Blog, is pleased to announce the launch this week of Fair Housing Resources by Fair Housing Helper™, or Fairhousingresources.com.

Designed for multifamily professionals, tenants, apartment hunters, and others seeking reliable information about housing discrimination laws in the United States, the site offers visitors access to an abundance of useful information directly from the home page.

At Fairhousingresources.com, you can find:

• Information on Fair Housing Helper™ training and Fair Housing Blog by Fair Housing Helper™, with a scrolling showcase of the latest blog posts.


• The full text of the Fair Housing Act (FHA), which you can search or browse by section.


• The official FHA regulations from the U.S. Department of Housing and Urban Development (HUD).


• The latest fair housing news from across the Web.


• Information on state fair housing laws, including a handy, interactive "Protected Classes Tool."


• Links to important fair housing cases and enforcement efforts by HUD and the Department of Justice.


• A summary chart of related laws, including descriptions and links to the laws and their regulations.


• Key government guidance, from reasonable accommodations to terrorism concerns.


• Links to topical articles written by Fair Housing Helper™'s founder and president, Ron Leshnower, for the Apartment Living / Rental site of About.com, a part of The New York Times Company.


• Industry jobs and events listings, with the ability to post your own jobs and events for free.

Fairhousingresources.com is the third addition to the Fair Housing Helper™ family of Web sites. Fairhousinghelper.com offers training for multifamily professonals, and Fairhousingblog.com is dedicated to covering a variety of interesting, timely housing discrimination issues while inviting thoughtful discussion.

New HUD Charge Shines Spotlight on Interracial Dating

"I do not have any blacks on my property and I am aware that we have a biracial president, but no federal law will make me rent to anyone I do not want to."

No federal law other than the Fair Housing Act (FHA), that is. The manager of a trailer home in Alabama reportedly made this statement to an investigator from the U.S. Department of Housing and Urban Development (HUD), following accusations of race and color discrimination from tenants.

While the owner and manager had no issue with the race of their tenants (who were white), they apparently were perturbed by the fact that one of the tenants had a black boyfriend who visited her in the trailer during a college break. After making things difficult for the tenants by disconnecting the water during his visit, the owner and manager finally just ordered the tenants to leave.

Having concluded its investigation, HUD announced yesterday that it has charged the owner and manager with violating the FHA's ban on race and color discrimination. The two will now have a chance to defend themselves before an administrative law judge. In addition to compensatory damages and a civil penalty, they may face punitive damages for what the HUD Assistant Secretary for Fair Housing and Equal Opportunity labeled an "overt act of discrimination."

Familial Status Definition Shows Its Breadth

If you're wondering what the Fair Housing Act's (FHA) ban on familial status is all about, the short answer is that it aims to protect people who have at least one child under 18 living with them. But the law defines "familial status" broadly, making clear that the protection "shall apply to any person who... is in the process of securing legal custody" of any such child.

A mother of seven in Las Vegas, Nevada is no doubt happy about that. Last December, she applied to rent a four-bedroom house for herself and three of her four biological children (the fourth being away at school). The landlord's broker thought that would be fine. But when the mother then added that she's in the process of adopting three more children, the broker said enough's enough — even though the house apparently could legally accommodate them all.

The U.S. Department of Housing and Urban Development (HUD) recently charged the landlords and the broker with familial status discrimination. They now risk that an administrative law judge may order them to pay damages and a civil penalty.

Interesting to note:

• The landlord instead rented the house to a family with one child. So, this case also illustrates that it's possible to violate the FHA's ban on familial status discrimination even if a landlord denies one family with children in favor of another.

GAO Says DOJ Should Indicate Reasons for Rejecting Fair Housing Complaints

On December 3, the U.S. Government Accountability Office (GAO) released a report on how the Department of Justice's (DOJ) Civil Rights Division can increase its enforcement efforts. After reviewing the Division's activities between 2001 and 2007, the GAO recommends that the Division alter its Interactive Case Management System (ICM) to include a field for capturing the reasons that fair housing and other matters are closed. Taking this step would strengthen the Division's ability to account for its efforts, the GAO argues.

The GAO report also noted that most (456 of 517) of the Fair Housing Act (FHA) matters the Division handled were initiated under the DOJ's "pattern or practice" authority, primarily alleging discrimination on the basis of race or disability and involving land use/zoning/local government or rental issues. Most (250 of 269) of the cases filed as plaintiff included an FHA claim. These FHA cases primarily involved rental issues (146) and alleged discrimination on the basis of disability (115) or race (70).

Landlording in a World of Fair Housing Testing

Government and fair housing agencies across the United States have been using so-called "testers" for years to help craft compelling cases of housing discrimination.

Testers are people who call or visit properties to inquire about vacancies. They pretend to be genuinely interested in renting or buying them, but their true, secret purpose is to determine whether a property owner or manager is complying with fair housing laws.

Fair housing testing programs have proven effective at gathering evidence because their targets don't realize they're under investigation and therefore often have their guard down (and their mouth open).

For a good example of how much testers can help a case, you needn't look far into the past. A complaint filed November 23, 2009 by the Department of Justice (DOJ) against an Illinois landlord for discrimination based on race and color shows the type of useful evidence testers can obtain.

According to the complaint, the Illinois landlord allegedly refused to rent a single-family house in a Chicago suburb to a black couple because of their race. The couple suspected race as a factor because after they arrived to look at the property, the landlord was quick to tell them he just rented the house to a white prospect. The landlord also insisted that the couple wouldn't be interested in his other vacancy.

The next day, the wife decided to call the landlord to ask the status of the property they had just visited, without identifying herself. When the landlord told her it was available, this confirmed the couple's suspicions and led them to pursue a fair housing claim.

A local fair housing agency and the DOJ each dispatched testers to contact the landlord in the hope of gathering more evidence to bolster their discrimination case against him.

Here's what the testing produced, according to the complaint:

• The landlord didn't return a phone call from a black tester inquiring about the house.



• The landlord separately told two white testers that the house was available and invited them to see it. While showing the property to each of the white testers, the landlord: a) asked the tester if her husband was black (to which each one said no); b) told the tester about problems he had after unknowingly renting the house to an interracial couple; c) made various statements against renting to black tenants; and d) claimed to have rejected a black prospect's offer to rent the house at the advertised rent with paying a year's worth of rent upfront. The also landlord told one of the white testers that several black people inquired about the house, and he offered a discounted rent to the other tester because she was white.

If there's a landlording lesson to be learned or advice to be gleaned from this type of story, it's this:

Treat all prospects as if they're testers.

Sure, doing so is smart because it means not helping the government build a case against you. But, more importantly and proactively, if landlords require staff not only to get fair housing training but to keep fair housing concerns in mind when interacting with prospects, they'll be much less likely to say or do something that could lead — fairly or unfairly — to accusations of discrimination.

Interesting to note:

• The Department of Justice (DOJ) launched its testing program in 1992. Since then, the DOJ has recruited and trained over 1,000 employees to pose as testers.

Landlord May Take a Bath for Refusing to Allow Modification of One

After refusing to let a tenant modify her bathroom to make it more accessible, a Brooklyn, New York landlord has finally come clean. But the delay was costly, as the landlord now faces $80,000 in damages for the alleged harm he caused by taking nearly two years to grant the tenant's reasonable modification request under the Fair Housing Act.

The tenant, who suffered from emphysema, heart disease, sciatica, and rheumatoid arthritis, had requested a walk-in shower to replace the bathtub. She explained in numerous letters to the landlord that she needed the modification for her disability. As The New York Post reported, United Cerebral Palsy agreed to install the more accessible shower for free, and so the replacement would cost the landlord nothing.

As the landlord continued to ignore the tenant's requests, she reportedly often had to travel from her third-floor walk-up several blocks to bathe at her daughter's house. When finally reached for comment, the landlord pointed out that the tenant doesn't pay much for her rent-controlled apartment, and suggested she move to a nursing home.

An administrative law judge didn't buy it. On September 25, the judge ordered the landlord to pay a $50,000 penalty plus $30,000 to the tenant for her mental suffering, and to install the requested shower at the landlord's own expense.

When the tenant returned home from a hospital visit recently, she found the shower she had requested. Although this incident may one day become water under the bridge, this landlord isn't likely to forget that federal law requires landlords to consider requests that disabled tenants make for modifications to their apartments, and then grant them if they're reasonable.

LANDMARK: Landlords Agree to Largest-Ever DOJ Rental Housing Discrimination Settlement

The U.S. Department of Justice (DOJ) announced it filed a proposed consent order to obtain the largest-ever settlement in connection with a rental housing discrimination lawsuit.

Los Angeles Clippers owner and landlord Donald Sterling, his wife Rochelle Sterling, the Sterling Family Trust, and The Korean Land Company, L.L.C. have agreed, without admitting liability or wrongdoing, to pay $2.725 million to settle allegations that they violated the Fair Housing Act by discriminating based on race, national origin, and familial status at apartment buildings they own and manage in Los Angeles.

The complaint, filed in August 2006, alleged that the defendants discriminated against non-Korean prospects and tenants in connection with renting apartments in the Koreatown section of Los Angeles; discriminated against black prospects and tenants in connection with renting apartments in the Beverly Hills section of Los Angeles; and discriminated against families with children throughout the buildings they own or manage in Los Angeles.

In addition to the record monetary award and civil penalty, the consent order, if approved, would require the defendants to obtain fair housing training for employees and monitor their compliance, and maintain non-discriminatory practices and procedures.

The defendants own and manage approximately 119 apartment buildings comprising 5,706 apartments in Los Angeles County. This settlement would also resolve two related lawsuits filed by former tenants at one of their properties.

Looking for Discrimination in All the Wrong Places

The Iowa Civil Rights Commission was happy to announce last week that its search for evidence of familial status discrimination came up empty.

After randomly selecting and then reviewing online and newspaper advertisements for properties in six communities within the state, the Commission interviewed by phone the 35 property owners and managers behind the ads and found that they didn't exclude families with children.

This report builds on two studies the Commission performed in 2008. The first study found that fewer than 1% of 9,646 housing advertisements were likely discriminatory, with 90% of those based on familial status. The second study tested familial status discrimination in Waterloo and found two possible instances (as well as five possible instances of racial steering).

The Commission now plans to turn its attention to testing for other types of discrimination under the Fair Housing Act and state law, including discrimination based on race, national origin, and disability.

Federal Government Takes Aim at LGBT Housing Inequality

The Obama administration recently announced proposals that would give individuals greater rights when it comes to their choice of housing, regardless of their sexual orientation or gender identity.

Chief among these initiatives is a proposed rule aimed at ensuring that the lesbian, gay, bisexual, and transgender (LGBT) community is included in federal housing programs.

This would be accomplished by:

• making clear that the term "family," as used to describe eligible beneficiaries of public housing and voucher programs (which currently provide assistance to over three million families), includes LGBT applicants;
• requiring program participants to comply with state and local fair housing laws that ban discrimination based on sexual orientation or gender identity; and
• specifying that any FHA-insured mortgage loan must be based only on the credit-worthiness of a borrower, without regard to characteristics such as sexual orientation and gender identity.

In addition to the proposed rule, HUD announced it will commission the first-ever national study of discrimination against members of the LGBT community in both the rental and sale of housing.

Missing from the current set of proposals is an amendment to the Fair Housing Act to add sexual orientation and gender identity as protected classes. Will this come next? Should it?

What do you think?

Paying Dearly for Fair Housing Violations, Despite Good Intentions

You might think that a housing provider that markets itself to people with severe disabilities wouldn't likely be the defendant in a lawsuit alleging violation of the Fair Housing Act's (FHA) ban on disability-based discrimination.

But not only has such a provider — New Horizons Village of Unionville, Connecticut — been the subject of a disability-discrimination complaint, it has now reached a settlement with the Connecticut Fair Housing Center (CFHC) and the State of Connecticut Office of Protection and Advocacy for Persons with Disabilities, agreeing to pay a whopping $600,000 in damages and attorneys' fees to a former tenant who claimed the provider's policies were discriminatory.

The tenant's issue was with New Horizons' policy of reviewing applicants' medical records to determine whether they can live independently, according to CFHC. The tenant argued that this policy amounts to illegal discrimination based on the type and severity of a disability. Earlier this year, a federal court agreed, holding that using applicants' medical records to decide which ones are "too disabled" to live independently is discriminatory. The court also noted that New Horizons further discriminated by sharing applicants' private medical information with other tenants.

In addition to the monetary part of the settlement, New Horizons has agreed to revise its tenancy requirements and no longer request applicants' private medical records. Going forward, New Horizons will reportedly determine the need for personal care assistance on a case-by-case basis, and requests for additional personal care assistance by applicants and tenants will be treated as requests for reasonable accommodations under the FHA.

Regarding New Horizons' seemingly good intentions, Judge Janet Bond Arterton, who issued the federal court's opinion, pointed out that "[a] discriminatory housing practice is still unlawful even if made with good intentions if it denies housing to individuals with disabilities based on their disabilities." Laflamme et al. v. New Horizons, Inc. et al., 605 F. Supp. 2d 378 (D. Conn. 2009) (emphasis added).

How much do you think good intentions should count in a fair housing defense? When it comes to alleged violations of the FHA's ban on disability-based discrimination, should a housing provider be treated more favorably if its mission is to help people with severe disabilities?

What do you think?