Apr 05

On April 4th, 2016 HUD guidelines on the use of criminal records in tenant screening were released. This is a game changer that negates much of what was achieved with the crime-free portion of Wisconsin 2015 ACT 176. It also impacts all screening.

No longer can arrests be considered in screening. Convictions may be considered, but only those convictions that directly relate to the safety of the property or its residents.

“A housing provider with a more tailored policy or practice that excludes individuals with only certain types of convictions must still prove that its policy is necessary to serve a “substantial, legitimate, nondiscriminatory interest.” To do this, a housing provider must show that its policy accurately distinguishes between criminal conduct that indicates a demonstrable risk to resident safety and/or property and criminal conduct that does not”

Amazingly the directive does not appear to allow consideration of neighbors safety, only residents. So does this mean an axe murdering rapist drug dealing member of the local street gang must be allowed to rent any single family as long as they meet your income guides?

The real losers in this will be the law-abiding tenants and their neighbors

Sep 04

There is a discussion over on theApartment Association email discussion group about income criteria for unmarried co occupants vs. married occupants.

A tenant is a tenant, regardless if they are married, cohabitation, straight, gay, white, black or green.

If you are using a reasonable income criteria for screening, that is good as long as you don’t factor in the other things such as marital status.  

Your protection if occupant A departs on month two of a year lease is to let occupant A know you are not releasing them from the obligation they have to you under the rental agreement. Simply moving out does not relieve the vacating tenant from their obligations under the rental agreement. 

As soon as you start analyzing if applicant A has enough income without applicant B for unmarried tenants, but consider the income of both undividedly  for married tenants you are running afoul of Fair Housing, at least in Wisconsin.

While marital status is not a protected class under Federal Fair Housing, it is a protected class under Wisconsin’s Open Housing Law and in a number of other jurisdictions.

Plain English version:

https://dwd.wisconsin.gov/dwd/publications/erd/pdf/erd_9523_p.pdf

Statute:

https://docs.legis.wisconsin.gov/statutes/statutes/106/III/50/1

106.50 Open housing.

(1)  Intent. It is the intent of this section to render unlawful discrimination in housing. It is the declared policy of this state that all persons shall have an equal opportunity for housing regardless of sex, race, color, sexual orientation, disability, religion, national origin, marital status, family status, status as a victim of domestic abuse, sexual assault, or stalking, lawful source of income, age, or ancestry and it is the duty of the political subdivisions to assist in the orderly prevention or removal of all discrimination in housing through the powers granted under ss. 66.0125 and66.1011. The legislature hereby extends the state law governing equal housing opportunities to cover single-family residences that are owner-occupied. The legislature finds that the sale and rental of single-family residences constitute a significant portion of the housing business in this state and should be regulated. This section shall be considered an exercise of the police powers of the state for the protection of the welfare, health, peace, dignity, and human rights of the people of this state.

Apr 30

Over on the ApartmentAssoc Yahoo Group an owner asks:

I’m wondering if we would be discriminating to look for one person rather than two, whether a couple or whatever…because we are both over 55 and can’t take the noise we’ve taken through the years…even between couples yelling at each other. Do we have to declare the house 55 and older and find someone over 55 for the lower?  I thought I read a post that said if you are living in the other unit in the house you can…? 

Seems like Fair Housing question month.

Is this your personal residents?  There is an exemption to the Federal Fair Housing law for owner occupied 1-4 family properties. It is called the Mrs. Murphy exemption.   The exemption does NOT apply in Wisconsin however.  

Wisconsin 106.50 

106.50  Open housing.

(1)  Intent. It is the intent of this section to render unlawful discrimination in housing. It is the declared policy of this state that all persons shall have an equal opportunity for housing regardless of sex, race, color, sexual orientation, disability, religion, national origin, marital status, family status, status as a victim of domestic abuse, sexual assault, or stalking, lawful source of income, age, or ancestry and it is the duty of the political subdivisions to assist in the orderly prevention or removal of all discrimination in housing through the powers granted under ss.66.0125 and 66.1011. The legislature hereby extends the state law governing equal housing opportunities to cover single-family residences that are owner-occupied. The legislature finds that the sale and rental of single-family residences constitute a significant portion of the housing business in this state and should be regulated. This section shall be considered an exercise of the police powers of the state for the protection of the welfare, health, peace, dignity, and human rights of the people of this state.

If you do not live in WI here is a good reference to state laws on the “Mrs. Murphy” exemption:

Even under the Federal “Mrs.Murphy” exclusion you are not permitted to advertise an otherwise discriminatory preference, so if you do not qualify under the housing for older persons exemption you could not, lets say, advertise ‘adults only’ or ‘one person only’.  If you do qualify you can advertise 55 and older.

I could not advise you on the housing for older persons question as it is not a issue that I deal with.  

My assumption is if one unit is vacant you do not meet the standard, but I may be wrong.  I would ask the Division of Equal Rights directly:

https://dwd.wisconsin.gov/dwdsendmail/mailtodwd.aspx

Sub (5m)(g) may offer some relief:

(g) A person may not be held personally liable for monetary damages for a violation of sub. (2)(2m) or (2r) if the person reasonably relied, in good faith, on the application of the exemption under this subsection relating to housing for older persons. For purposes of this paragraph, a person may show reasonable reliance, in good faith, on the application of the exemption under this subsection relating to housing for older persons only if the person shows all of the following:

1. That he or she has no actual knowledge that the housing is not or will not be eligible for the exemption.

2. That the owner of the housing has stated formally, in writing, that the housing complies with the requirements for the exemption.

Apr 24

 

Over on the ApartmentAssoc Yahoo Group an owner asks:

The person who would occupy the second floor apartment is older, and I have no real accommodation for mobility issues… is there a polite / legal way to ask before hand since I wouldnt be able to put them in once the person is there (( is there a list / guide to requirements in this regard ? )). 

You should make sure the applicant understands what they are renting ‘This is a second floor apartment’ , but not is a tone to discourage them from renting.    Obviously you cannot say ‘I think you are too old to climb our steps.’  

As far as accessibility modifications, in general you are required to permit the reasonable modifications but are not required to pay for the modifications in pre 1991 housing.  You can require the tenant at the time of move out to restore it to how it was prior to adding the accessibility modifications.  However in most cases doing so would be foolish as you the mod could be a high demand attribute that would make your unit more desirable to other tenants with similar needs. 

Apartments built or substantially modified after 3/1/1991 are required to meet the ADA standards. If that standard was not met during construction, the owner must update it to the ADA requirements. Of course you may be able to sue the builder to pay for it. 😉 

Here is a real good guide to the reasonable modifications requirements

You are required though to make reasonable accommodations, which is different than reasonable modifications.  An example is assigning a parking spot closer to the door for a person with mobility issues if they request this.  

One reasonable accommodation request  that many owners get wrong – if a person is on SSI due to a disability and therefore receives their check on a day other than on the first, you must modify their rent due date and not charge late fees. [Case]

When you decide it is up to you to determine what may or may not work out for a prospective tenant is when you get in trouble. 

There is a Fair Housing case from La Crosse where a landlord refused to rent to a single mom because the property had a long drive that was the tenant’s responsibility to shovel, which the landlord felt would be difficult for her to do.  The landlady’s attempt to take it upon herself to determine what would or would not work for the tenant cost the landlady $15,000 plus I’m sure some costs.  The right thing for the landlady to do would have been to point out to every prospective tenant that shoveling the driveway was their responsibility and failing to do so was a lease violation.

There are countless cases of owners who got in trouble for restricting families with children from living on the second floor, or living next to the pool.  The former being for the convenience of the other tenants and the latter being out of fear of children drowning.  Neither are legitimate reasons within the confines of Fair Housing.

Apr 21

The Diagnostic and Statistical Manual of Mental Disorders describes hoarding as a mental disability and therefore most likely covered by the Americans with Disabilities Act and the Federal Fair Housing Act.  As such property owners are required to make reasonable accommodations. I would concur with this.

However there is also the health and safety exception to the reasonable accommodation requirement. This is where it gets difficult for the property owner, those doing social intervention and of course the person with the hoarding behavior. Hoarding can contribute to issues like insect and rodent infestations. Hoarding also can create fire hazards. Often hoarding is a violation of the local housing codes.

In response to a reasonable accommodation request an owner would have to balance the actual risk to health and safety to determine if the request was reasonable or not. Note actual risk and not potential risk that are not directly related to this tenant or applicant.

The ability for an owner to address the situation in a manner that does not involve eviction is often hampered by DNS’ response of placarding or threatening to placard buildings due to clutter and housekeeping. A few years ago I had a long term (~15 years) tenant who always kept her house immaculate until her son was murdered. After that she would not get rid of anything. We had to evict her due to the threat of placarding.

In my view, especially after that case, is hoarding is a disability. Having some sort of intervention available other than homelessness is the right thing.

There is the newly formed Milwaukee County Hoarding Task Force. I think this is a great potential resource not only for those with the disability but to help people in our industry make proper decisions in response to finding hoarding and or clutter at the properties.

I invited the Task Force to submit an article for the Apartment Association newsletter as well as speak at a future meeting if they wish and/or distribute informational materials at our meetings.


preload preload preload