The ABCs of Fair Housing Law

An area of law with which property managers (and many attorneys) have difficulty is Fair Housing law, particularly with regard to service animals. Admittedly, dealing with these issues can be confusing for a variety of reasons. Property managers need basic knowledge of the issues and law to safely stay within the law’s confines and prevent needless litigation. To that end, below is a basic outline of the “ABCs” regarding discrimination issues under state and federal Fair Housing laws (FHA), and PMLS’ Fair Housing Outline, a PDF full version of the outline, is available for download subject to the terms and conditions of using this website.

Application of Fair Housing Acts (Federal and Florida)

  1. Federal Fair Housing(See also 24 CFR 100.202)
    1. prohibits discriminating acts against protected classes of persons:
      1. race, color, religion, sex, familial status, handicap or national origin.
  2. Florida Fair Housing. FS 760.23
    1. prohibits discriminating acts against protected classes of persons:
      1. race, color, national origin, sex, handicap, familial status, or religion.
    2. Fair Housing Applies to Property Managers
      1. Fair Housing applies to persons who rent a dwelling with the use of a real estate broker, agent, or salesman, or person who is in the business of selling or renting dwellings.
        1. A person is deemed “in the business” and therefore subject to the statute if that person:
          1. has within the preceding 12 months participated as a principal in three or more transactions involving the sale or rental of dwelling or any interest therein;
          2. has within the preceding 12 months participated as an agent, other than the sale of his own personal residence, provided sales or rental facilities or services in two or more transactions involving the sale or rental of any dwelling or any interest therein;
          3. is the owner of any dwelling designed or intended for occupancy by or occupied by five or more families.
        2. Property Owner Using Professional Manager
          1. Property owner renting only one home subject to Fair Housing if he uses a professional property manager. See United States of America v. Hylton, 944 F. Supp. 2d 176 (D. Conn. 2013), aff’d, 590 Fed. Appx. 13 (2d Cir. 2014); but see Michigan Protection & Advocacy Services, Inc., v. Babin, 799 F. Supp. 695 (E.D. Mich. 1992).
        3. Exemption
          1. Rental of a single-family home will be exempted from Fair Housing only if such home is rented:
            1. without the use in any manner of the sales or rental facilities, or services of any person, broker, agent, salesman or employee in the business of selling or renting dwellings;
            2. without the publication, posting, or mailing after notice of any advertisement or written notice in violation of 42 USC § 3604(c) (1968).
          2. “Dwelling” means any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof.
  • NOTE: Posting Fair Housing Poster (24 CFR 110.10). “Any person who claims to have been injured by a discriminatory housing practice may file a complaint with the Secretary pursuant to part 105 of this chapter. A failure to display the fair housing poster as required by this part shall be deemed prima facie evidence of a discriminatory housing practice.” 24 CFR 110.30

Federal Definitions

  1. Federal
    1. United States Code
      1. Handicap is defined as
        1. a physical or mental impairment which substantially limits one or more of such person’s major life activities,
        2. a record of having such an impairment, or
        3. being regarded as having such an impairment
      2. CFR Regulations (24 C.F.R. § 100.201(a)(1), (2))
        1. Handicapped person is defined as a person with:
          1. Any physiological disorder or condition, cosmetic disfigurement or anatomical loss affecting one or more of the following body systems: Neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine; or
          2. Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness and specific learning disabilities.
        2. The term “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, Human Immunodeficiency Virus infection, mental retardation, emotional illness, drug addiction [so long as it is not a prohibited drug] and alcoholism. 24 C.F.R. § 100.201(a)(2).
          1. AIDS – it is a violation of the fair housing regulations to discriminate in renting to an individual with AIDS.
          2. See, Poff v. Caro, 549 A.2d 900 (N.J. Super. 1987); Baxter v. City of Belleville, Ill., 720 F. Supp. 720 (S.D. Ill. 1989); Support Ministries for Persons with AIDS, Inc. v. Village of Waterford, N.Y., 808 F. Supp. 120 (N.D.N.Y. 1992); Stewart B. McKinney Found., Inc. v. Town Plan & Zoning Comm’n of Fairfield, Conn., 790 F. Supp. 1197 (D. Conn. 1992).

 Florida Definitions

  1. Handicap defined as
    1. A person has a physical or mental impairment which substantially limits one or more major life activities, or he or she has a record of having, or is regarded as having, such physical or mental impairment; or
    2. A person has a developmental disability as defined in FS 393.063.
      1. “Developmental disability” means a disorder or syndrome that is attributable to retardation, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome; that manifests before the age of 18; and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely.”
    3. “physical or mental impairment which substantially limits one or more of such person’s major life activities”
      1. Obvious Impairment
        1. If a person has an obvious impairment, PM cannot require person to offer additional proof of disability
      2. Non-obvious Impairment
        1. If a person does not have an obvious impairment, PM may request person provide information to verify that the person is handicapped.

Violations of FHA

  1. The following are housing discrimination violations against renters who are handicap:
    1. The refusal to rent.
    2. Refusal to rent or sell a dwelling after a bona fide offer has been made or refusal to negotiate for the sale or rental of a dwelling unit.
    3. Representing to a person that a dwelling unit is not available for rental, when such unit is available for rental.
    4. Engaging in any conduct relating to the provisions of housing which otherwise makes unavailable or denies a dwelling unit.
    5. Giving different treatment under the terms, conditions or privileges of the rental of the dwelling unit, or in the services or facilities provided with the rental unit.
    6. Refusal, if the handicapped individual is willing to pay for the expense, to make reasonable modifications, if the modifications are necessary to afford the handicapped individual full enjoyment of the premises.
      1. Issue: Whether the request made by the handicapped person is necessary. Even if it is necessary, if the handicapped person is not able to afford the expense, then the landlord will not be required to make the modification.
      2. See 24 C.F.R. § 100.203(c) for specific example on “reasonable accommodation”.
    7. Participate in blockbusting, which is defined as attempting for profit, to induce or attempt to induce, any person to sell or rent a dwelling because a person with a handicap will be moving into the neighborhood.
    8. Publish any notice or advertisement regarding the sale or rental of a dwelling unit seeking to exclude a person.
  2. Additional persons, other than renter, included in anti-discrimination statutes:
    1. Persons intending to reside in the dwelling with the renter, and
    2. persons associated with the renter.
  3. Actual and Constructive Discrimination
    1. “The denial of an accommodation ‘can be both actual or constructive, as an indeterminate delay has the same effect as an outright denial.’” Bhogaita v. Altamonte Heights Condo. Ass’n, 2012 U.S. Dist. LEXIS 178183, *18, 2012 WL 6562766 (M.D. Fla. Dec. 17, 2012).
      1. Tip: reasonable accommodations must be allowed timely.

Persons NOT Included as “Handicapped”

  1. DRUG ADDICTS – “handicapped” does not include a person who is currently illegally using or is addicted to controlled substances.
    1. Caveat: persons who are not currently illegally using or addicted, are protected. See 24 C.F.R. § 100.201(a)(2). I.e. recovering addicts are protected. See 42 U.S.C. § 3602(h)(1)(3); 24 C.F.R. § 100.201(d)(2).
    2. Caution: mere speculation of illegal drug use or addiction not enough to discriminate. See Oxford House-Evergreen v. City of Plainfield, 769 F. Supp. 1329 (D.N.J. 1991).
  2. DIRECT THREAT TO SAFETY – A person who is handicapped, but is a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others is not protected. 42 U.S.C. § 3604(f)(9) (1988). Indirect threat not enough.
    1. Note: indirect threats not enough to discriminate.

Discrimination Includes Not Providing or Allowing Reasonable Accommodation:

  1. A refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises (See also, 24 CFR 100.203); and a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.
  2. Landlord must allow reasonable modifications – It shall be unlawful for any person to refuse to permit, at the expense of a handicapped person, reasonable modifications of existing premises, occupied or to be occupied by a handicapped person, if the proposed modifications may be necessary to afford the handicapped person full enjoyment of the premises of a dwelling.

Imposition of Condition to Restore Property – Landlord may, where it is reasonable to do so, condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.

  1. Deposit Required to Pay for Restoration. The landlord may not increase for handicapped persons any customarily required security deposit. However, where it is necessary in order to ensure with reasonable certainty that funds will be available to pay for the restorations at the end of the tenancy, the landlord may negotiate as part of such a restoration agreement a provision requiring that the tenant pay into an interest bearing escrow account, over a reasonable period, a reasonable amount of money not to exceed the cost of the restorations. The interest in any such account shall accrue to the benefit of the tenant.
  2. Good Workmanship Conditions Imposed
    1. A landlord may condition permission for a modification on the renter providing a reasonable description of the proposed modifications as well as reasonable assurances that the work will be done in a workmanlike manner and that any required building permits will be obtained
    2. Case Examples
      1. A tenant with a handicap asks his or her landlord for permission to install grab bars in the bathroom at his or her own expense. It is necessary to reinforce the walls with blocking between studs in order to affix the grab bars. It is unlawful for the landlord to refuse to permit the tenant, at the tenant’s own expense, from making the modifications necessary to add the grab bars. However, the landlord may condition permission for the modification on the tenant agreeing to restore the bathroom to the condition that existed before the modification, reasonable wear and tear excepted. It would be reasonable for the landlord to require the tenant to remove the grab bars at the end of the tenancy. The landlord may also reasonably require that the wall to which the grab bars are to be attached be repaired and restored to its original condition, reasonable wear and tear excepted. However, it would be unreasonable for the landlord to require the tenant to remove the blocking, since the reinforced walls will not interfere in any way with the landlord’s or the next tenant’s use and enjoyment of the premises and may be needed by some future tenant
      2. An applicant for rental housing has a child who uses a wheelchair. The bathroom door in the dwelling unit is too narrow to permit the wheelchair to pass. The applicant asks the landlord for permission to widen the doorway at the applicant’s own expense. It is unlawful for the landlord to refuse to permit the applicant to make the modification. Further, the landlord may not, in usual circumstances, condition permission for the modification on the applicant paying for the doorway to be narrowed at the end of the lease because a wider doorway will not interfere with the landlord’s or the next tenant’s use and enjoyment of the premises.

Landlord’s Inquiries Into Handicap  

  1. It is a violation of the Fair Housing Regulations for landlord to inquire:
    1. to determine if an applicant for a dwelling, a person intending to reside in the dwelling after it is rented, or made available or any person associated with that person, has a handicap (24 C.F.R. § 100.202(c); Hirschmann v. Hassapoyannes, 843 N.Y.S. 2d 778 (Sup. Ct. New York County 2007); and
    2. about the nature of the handicap (24 C.F.R. § 100.202(c)).
  2. Acceptable Inquiries to ALL Applicants, Regardless of Handicap (24 C.F.R. § 100.202)
    1. These inquiries must be made of ALL applicants, regardless handicaps. An inquiry regarding:
      1. applicant’s ability to meet the requirements of tenancy.
      2. whether applicant is qualified for a dwelling available only to persons with handicaps or to persons with a particular type of handicap.
      3. whether applicant for a dwelling is qualified for a priority available to a person with a particular type of handicap.
      4. whether applicant for a dwelling is a current illegal abuser or addict of a controlled substance.
      5. whether an applicant has been convicted of the illegal manufacture or distribution of a controlled substance.
    2. Reasonable Inquiries Can Be Made Regarding Accommodation Requests
      1. “This does not mean that a [landlord] must accommodate all requests without question; rather, “[landlords] must instead have…the ability to conduct a meaningful review of the requested accommodation to determine if such an accommodation is required by law. Bhogaita v. Altamonte Heights Condo. Ass’n, 2012 U.S. Dist. LEXIS 178183, *18, 2012 WL 6562766 (M.D. Fla. Dec. 17, 2012).
      2. A housing provider may  request reliable disability-related information that:
        1. is necessary to verify that the person meets the Act’s definition of disability,
        2. describes the needed accommodation, and
        3. shows the relationship between the person’s disability and the need for the requested accommodation.
      3. This inquiry need not be highly intrusive. In most cases, an individual’s medical records or detailed information about the nature of a person’s disability is not necessary.
      4. It is reasonable to require the opinion of a physician who is knowledgeable about the subject disability and the manner in which a service dog can ameliorate the effects of the disability.

Tenant’s Requests for Accommodation 

  1. When tenant or applicant makes requests for reasonable accommodation, reasonable inquiry may be appropriate.
    1. Example Case 1:
      1. a tenant told the landlord that she suffered from cardiovascular disease and she experienced a heart attack in 2009. When tenant requested that she be given a parking spot on the top floor of the parking lot, so she would not have to walk up or down stairs, the manager demanded she produce documentation as to the following: (1) nature of her disability; (2) medical evidence of the disability; (3) her health care provider; and (4) information regarding her health care decal. The court deemed all of the requests to be reasonable and consequently, tenant’s claim for discrimination for production of these documents was dismissed. Solodar v. Old Port Cove Lake Tower Condominium Association, Inc., 2012 U.S. Dist Lexis 61680 (S.D. Fla. 2012).
    2. Example Case 2:
      1. Tenant was an Air Force Veteran who suffers from post-traumatic stress disorder (“PTSD”). The condominium where he lives permitted dogs, but only if they were less than 25 pounds. Tenant requested permission to keep a dog more than 25 pounds because he had a therapeutic relationship with his dog. Tenant’s doctor wrote the condominium association twice that because of his PTSD, tenant needed the dog. The association sent Tenant three sets of questions regarding his disability and why it was necessary for him to keep a dog over 25 pounds even after getting a letter from tenant’s doctor about the necessity of having his dog. The doctor responded to each. The Court stated that these inquiries were sufficient, but the landlord went too far and sent yet another inquiry to the doctor and delivered a notice to the tenant to remove the dog or else will be evicted. The Court ruled that the fourth set of questions went too far as the doctor’s letter sufficed to demonstrate tenant’s need for the dog. Bhogaita v. Altamonte Heights Condominium Association, Inc., 2012 U.S. Dist. Lexis 296 (M.D. Fla. 2012).
    3. Practice Tip: if a medical professional has provided landlord with sufficient information concerning the disability and the necessity of the reasonable accommodation, landlord should allow the tenant the reasonable accommodation and not delay the accommodation.

Handicapped Tenant’s Request for Accommodation Must Be Reasonable 

  1. Failure to make reasonable efforts to accommodate handicapped persons is a violation of Fair Housing Act. 42 U.S.C. § 3604(f)(1)(3).
  2. Test of Whether the Defendant has Made a Reasonable Accommodation to the Applicant.
    1. Tenant must prove:
      1. he suffers from a disability;
      2. requested a reasonable accommodation;
      3. landlord refused to grant the reasonable accommodation; and
      4. the requested modification is both reasonable and necessary. See Hollis v. Chestnut Bend Homeowner’s Association, 760 F.3d 531 (6th Cir. 2014).
    2. Court’s inquiry of “reasonableness”
      1. Court must weigh the benefit of the proposed modification that will accrue to the Tenant against the burden the modification will have on the landlord. This is a highly fact specific. See Hollis v. Chestnut Bend Homeowner’s Association, 760 F.3d 531 (6th Cir. 2014).; Groner v. Golden Gate Garden Apartments, 250 F.3d 1039, 1044 (6th Cir. 2001).
      2. Practice Tip: a modification is reasonable if it imposes no fundamental alterations of a program or undue financial hardship or administrative burden on landlord.
    3. Burden of Proof
      1. The Third, Seventh, and Ninth Circuit Courts of Appeal
        1. burden of proving that the defendant made a reasonable accommodation based on the person’s handicap is initially on the plaintiff, but then shifts the burden to the defendant that the accommodation sought is not reasonable.
      2. Fourth and Sixth Circuit Courts of Appeal
        1. burden of proof is on the plaintiff to prove that the accommodation is reasonable.
      3. Case examples where tenants prevailed on “Failure to Provide Reasonable Accommodation” – APPENDIX C in Fair Housing Outline.
      4. Case examples where landlords did not violate the Fair Housing Act – APPENDIX D in Fair Housing Outline.
      5. Case examples where it is unclear – APPENDIX E  in Fair Housing Outline.
    4. Workmanship Conditions Imposed on Tenant for Reasonable Accommodations
      1. Landlord may condition permission for a modification on the renter providing a reasonable description of the proposed modifications as well as reasonable assurances that the work will be done in a workmanlike manner and that any required building permits will be obtained.
    5. Security Deposits Re: Reasonable Accommodations
      1. Limitations: Where it is necessary to ensure with reasonable certainty that funds will be available to pay for restorations at the end of the tenancy, landlord may negotiate as part of such a restoration agreement a provision requiring that Tenant pay into an interest bearing escrow account, over a reasonable period, a reasonable amount of money not to exceed the cost of the restorations. The interest in any such account shall accrue to the benefit of the tenant.
    6. Landlord Not Required to Modify Property to a Higher Degree Than Non-Disabled
      1. “This section does not require any person renting, leasing, or otherwise providing real property for compensation to modify her or his property in any way or provide a higher degree of care for an individual with a disability than for a person who is not disabled.” FS 413.08

Service Animals

  1. What is a Service Animal?
    1. Americans with Disabilities Act
      1. Acceptable animals
        1. Dog, and
        2. Miniature Horse
      2. Definition of “Service Animal”
        1. Animal is trained to assist a person with a disability.
          1. helping an individual with a psychiatric or neurological disability by preventing or interrupting impulsive or destructive behaviors,
          2. reminding an individual with mental illness to take prescribed medications, or
          3. calming an individual with post- traumatic stress disorder during an anxiety attack.
        2. Two questions staff of public service provider can ask about the animal
          1. is the dog a service required because of a disability?
          2. what work or task has the dog been trained to perform?
        3. Staff are not allowed to request any documentation for the dog, require the dog demonstrate its task, or inquire about the nature of the person’s disability.
        4. Service animal must be under control of disabled person at all times (not meaning that it is on a leash, but must be under the person’s control)
        5. Service Animal Facts Re: Public Accommodation under ADA
          1. There are no “official licenses” or registrations for service animals
          2. A public accommodation cannot exact a surcharge from a service animal user
          3. A public accommodation can charge for damages caused by a service animal
          4. A service animal must be under the control of its user at all times
    2. Fair Housing Act
      1. Any animal can be an emotional support animal
      2. See “Reasonable Accommodations – Service Animals” Below
    3. Florida Statutes – See Below

Reasonable Accommodations – Service Animals

  1. Fair Housing Act (FHA)
    1. Federal Supremacy – FHA trumps any state law or local ordinances or contracts to the contrary
    2. Types of animals
      1. permits any and all types of animals
      2. permits emotional support animals
    3. Criteria
      1. the animal is necessary for a person with a disability for the equal use and enjoyment of the property
        1. “necessary” – the animal lessens the effects of the disability
          1. this is very broad
          2. does not require service animal “certification” or “license”
        2. Housing provider can request information regarding a reasonable accommodation request for a service animal that:
          1. is necessary to verify that the person meet the FHA definition of disability
          2. describes the needed accommodation, and
          3. shows the relationship between the person’s disability and need for requested accommodation
        3. Housing provider cannot
          1. request medical records or releases,
          2. request to speak with doctor directly
          3. review all documents medical professional has relating to the disability and diagnosis
          4. require tenant to take oath
          5. demand depositions with medical professionals
          6. require animal owner register the animal with an association prior to entry into the building
          7. require notarized documents of the animal’s association
          8. require tenant to carry a photo ID of the service animal
          9. require tenant to carry insurance on the animal

How much “proof” does a Tenant need for landlord to be obligated to accommodate service animal request?

  1. If the disability and need is apparent, no proof additional is needed
  2. If the disability is not apparent, provider can request
    1. documentation from a physician, psychologist, psychiatrist, social worker or other mental health professional that the animal provides emotional support that lessens one or more of the identified symptoms of an existing disability
      1. caution: asking for too much documentation may be deemed a denial of the reasonable accommodation request. See Bhogaita v. Altamonte Heights Condominium Association, Inc., 2012 U.S. Dist. Lexis 296 (M.D. Fla. 2012).
    2. the proof need not come from a licensed doctor, but may come from a professional in the field, such as a therapist or social worker.

What information regarding a service animal request can and should be in the letter from professional?

  1. relationship between the resident and medical professional;
  2. type of disability that creates a substantial of a daily life activity; and
  3. nexus between the animal and the disability.

In a request for a service animal accommodation, housing provider cannot:

  1. charge pet fee for service animal
  2. charge extra security deposit
  3. require the use of a service elevator
  4. require dog insurance
  5. require dog to be muzzled

When service animal may be an unreasonable accommodation:

  1. the specific animal poses a direct threat to the safety or would cause substantial physical damage to the property that cannot be reduced by another reasonable accommodation.

Florida Statute 413.08:

  1. Subsection (6): “An individual with a disability is entitled to rent, lease, or purchase, as other members of the general public, any housing accommodations offered for rent, lease, or other compensation in this state, subject to the conditions and limitations established by law and applicable alike to all persons.
    1. “This section does not require any person renting, leasing, or otherwise providing real property for compensation to modify her or his property in any way or provide a higher degree of care for an individual with a disability than for a person who is not disabled.
    2. “An individual with a disability who has a service animal or who obtains a service animal is entitled to full and equal access to all housing accommodations provided for in this section, and such a person may not be required to pay extra compensation for such animal. However, such a person is liable for any damage done to the premises or to another person on the premises by the animal. A housing accommodation may request proof of compliance with vaccination requirements.
    3. “This subsection does not limit the rights or remedies of a housing accommodation or an individual with a disability that are granted by federal law or another law of this state with regard to other assistance animals.”
  2. “Service animals”:
    1. an animal that is trained to do work or perform tasks for an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.
    2. The work done or tasks performed must be directly related to the individual’s disability (…)
    3. A service animal is not a pet.
    4. For purposes of subsections (2), (3), and (4), the term “service animal” is limited to a dog or miniature horse.
      1. This means that subsection (6) (i.e. housing provision), “service animal” includes more than just dog or horse. This is similar to Federal FHA.
    5. The crime-deterrent effect of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for purposes of this definition. This is similar to the ADA. See, Ayyad-Ramallo v. Marine Terrace Assocs. LLC, 2014 U.S. Dist. LEXIS 74411, *26-28, 2014 WL 2993448 (E.D.N.Y. May 30, 2014)( “Emotional support or comfort animals do not qualify as service animals under the ADA. ‘An animal that simply provides comfort or reassurance is equivalent to a household pet, and does not qualify as a service animal under the ADA.’ The ADA’s regulations provide that “[t]he crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.” 28 C.F.R. § 36.104.”)