Just a Landlord

Back in April HUD provided Fair Housing guidance on emotional support animals. These rights supercede any no pet policy and apply to untrained pets in addition to highly trained service animals such as seeing eye dogs. You also cannot refuse the companion animal based on a blanket policy against certain breeds such as pit bulls.

Reading the HUD docs and comments on the emotional support animals I erroneously believed that the companion animal has to comply with local codes that prohibit certain animals, but recently there have been a rash of cases across the county where people are winning the “right” to have farm animals such as pigs and chickens living in their urban homes, condos and apartments. After reading of these cases I jokingly say I’m getting a python because I need a big hug after work.

Kidding aside, tread carefully when making decisions. Basically if the tenant or prospective tenant has a doctor’s prescription for the pet you must allow it.

There is however a whole industry that has sprung up selling vests proclaiming an animal to be a support dog or worse a service dog.  Remember service animals have many thousands of dollars in specialized training. A vest alone is not proof of anything other than the pet owner had the $40 to buy one.

There are even doctors who prescribe emotional support animals over the phone to people who live even thousands of miles away.  Just give them  $99 and away you go.  I believe that you must accept the prescription from an out of state internet doc. Perhaps these docs could improve their bottom line by also writing excuses the next time there are protests at our state capitol building.

Note: I fully support the laws that require acceptance of true service animals, such as seeing eye dogs. If you knowingly reject a service animal you probably deserve whatever legal consequences  you receive.  I also believe in some circumstances that companion animals are legitimate.  The kid with the chicken in the link above is probably one example.  I do however object to circumventing no pet policies in housing and air travel with fake documentation proclaiming a pet to be a service animal and the industry that has sprung up to sell those documents.

In Milwaukee the city enforces a prohibition against occupancies with more than three unrelated people.  The answer on where in the code this resides is a bit  convoluted, but this is how the city arrives at that answer:

200-08-74. ROOMING HOUSE means any  building or part of any building or dwelling unit  occupied by more than 3 persons who are not a family or by a family and more than 2 other  persons for periods of occupancy usually longer  than one night and where a bathroom or toilet  room is shared.

If you meet this requirement you must have a rooming house license.  Now if each person has a bathroom and they promise not to pee in the other person’s bathroom can you have as many occupants as bathrooms?  I would think so.

200-8-33. FAMILY means, unless otherwise specified, a person occupying a dwelling unit, or dwelling unit with one or more persons who are legally related to such occupant by virtue of being husband or wife, son or daughter, mother or father, sister or brother, uncle or aunt, grandparent, grandchild, niece or nephew, first-cousin, mother-in-law or father-in-law, all of whom comprise no more than one nuclear family unit per household. Included in the term family are 4 or fewer legally assigned foster children, except that more than 4 may be legally assigned if all are related to one another as brothers or sisters. Family also means a domestic partnership of 2 individuals who meet all conditions of s. 350-245-3-a to e and at least 3 of the conditions of s. 350-245-5

As mentioned in the last post, WI Fair Housing recognizes housing code occupancy restrictions based on quantity of people.  It does not appear to recognize  ordinances based on relationship of the occupants:

106.50(5m)(e) It is not discrimination based on family status to comply with any reasonable federal, state or local government restrictions relating to the maximum number of occupants permitted to occupy a dwelling unit.

Are you breaking state law in complying with the city code?  Who knows, but it seems like the city ordinance conflicts with the Fair Housing law.

Occupancy standards, yours or municipalities’ should be based on the number of occupants and not their relationships. There are a couple of good, interesting U.S. Supreme Court cases on the issue. Justice Marshall wrote a very interesting dissent in Belle Terre v. Boraas, 416 U.S. 1 (1974) which was prior to the inclusion of familiar status protections

The most relevant part of Belle Terre dissent:

  MR. JUSTICE MARSHALL, dissenting. 

The instant ordinance discriminates on the basis of just such a personal lifestyle choice as to household companions. It permits any number of persons related by blood or marriage, be it two or twenty, to live in a single household, but it limits to two the number of unrelated persons bound by profession, love, friendship, religious or political affiliation, or mere economics who can occupy a single home. Belle Terre imposes upon those who deviate from the community norm in their choice of living companions significantly greater restrictions than are applied to residential groups who are related by blood or marriage, and compose the established order within the community.  The village has, in [416 U.S. 1, 17] effect, acted to fence out those individuals whose choice of lifestyle differs from that of its current residents. 

A more recent case is Edmonds v. Oxford House, 517 U.S. 725 (1995) also is a good read

A reader asks:  I have a one bedroom unit that a family of four has applied for.  Do I have to accept them?

It depends on the local housing code.  If the housing code does not permit the number of occupants, then Wisconsin Fair Housing does not require you to accept them.  The law is:

106.50(5m)(e) It is not discrimination based on family status to comply with any reasonable federal, state or local government restrictions relating to the maximum number of occupants permitted to occupy a dwelling unit.

In the city of Milwaukee occupancy standards are in Chapter 275-44  A one room unit is limited to two people.  For units with two or more habitable rooms, rooms of 70-100 square feet are limited to one person and rooms of 100 or more feet are limited to two each. Remember that the age of the person is not a factor so kids count the same as grown ups.  Remember too that the code is for  “habitable rooms” not specifically  bedrooms.

A landlord may also have their own standards, but that is a lot more dicey.

Our world is full of traps for rental owners… Fail to document the deposit return letter when was sent and a $300 deposit turns into $5,000 with attorney fees. Try to be helpful and not rent the third floor walk up to a person with a bad leg and pay $10,000 in a Fair Housing claim. Likewise tell the person with the companion dog that there is no way you are renting to a person with a Pit Bull and pay another ten grand. Give the tenant with a year lease a 14 day for disturbing the neighbors and breaking your windows or the tenant with a month to month a 5 day for the same reason and you will have to start your court case all over again. The list of pitfalls is endless and growing.

So how do you collect your rent, fill your vacancies and evict tenants without getting in trouble or having expensive do-overs?

You could throw your arms in the air and give up, but that probably is not the most effective approach. You can go through life figuring these are things that only happen to the other guy or to”bad” landlords. That works for a while until you become the other guy. You could hire an attorney to be along side you for every decision, but that probably is not financially effective.

The only viable answer is to know the laws that affect us well enough to either know the answer or know when you need help. You can venture out and learn as you go through your own mistakes, usually a very expensive education – there is a reason they call it the school of hard knocks, or you can get as much education as practical before you find yourself on the losing end of a legal battle.

I started with the learn as you go method. It cost me three grand in 1982 dollars when a tenant that snuck out in the middle of the night sued for their deposit. I lost because I did not know the law well enough to make the proper argument that the 21 days did not start on the day they skipped out, but rather on the day I found they moved. So my letter sent seven days after I found a vacant apartment was proper, but laws only work for those that know them.

My next education was a Bob Smith Landlord Tenant Law course at Marquette. Much more informative and less expensive. A couple of years later Bob condensed this into a full day landlord tenant law for the Association. It cost somewhere around two hundred dollars and included his book “Landlord Defense: Eviction and Collection manual” that had most of the forms needed. For those who want to stroll down memory lane, here is a Sentinel article with a really young picture of Bob:

The Association continues to offer the best landlord tenant law course out there. The Landlord Boot Camp gives you the fundamentals in a full day Saturday class. It is updated to include the latest law changes and includes a 100 page plus manual. It is presented by Attorney Tristan Pettit who writes the standard landlord tenant forms for Wisconsin Legal Blank. Tristan also worked on SB179 that may become law later this month. If it does pass he will have an insiders view on how this law can be best utilized by owners.

The next Boot Camp is Saturday October 26th 8:30 AM to 5;30 PM. Costs is $159 for AASEW members and $249 for non-members.

Learn more or sign up at:
http://landlordbootcamp2013.com/

The LA Times has an interesting discussion on an issue that concerned landlords get wrong.

Let’s say you have an applicant with a noticeable walking disability.  Being a caring person you try to steer  the prospective tenant to a first floor unit without steps as you feel that would be more convenient for them than the second floor walk up they are interested in. They insist they want the upper, you feeling they will not be comfortable with the upper insist they take the lower instead.

Pointing out you also have lowers available is good business and a service to the applicant, refusing or actively discouraging renting an upper is a fair housing violation.

This seems counter intuitive when all you were trying to do was what you felt was best for the applicant, but, maybe they like many others feel safer from crime on a higher floor and are willing to make the trade off of the inconvenience of steps for the added feeling of security.  As a landlord this is not your decision to make and what may be your personal preference in a similar situation may not be your tenant’s.

Same thing with the family with kids that wants to apply for an upper.  You offer them a lower because you fear the kids running around will create problems for lower tenants and may result in you having to evict them.; or you have a complex with kid buildings and no kid buildings; or prohibiting families with children from living in units nearer to the pools.  These too are fair housing violations.

In these cases it is up to the parent to insure their kids are safe and follow the rules. You have the ability to check their rental history and reject them if they or their family were disruptive at prior residences.  But it is the disruption and not the kids that must be your deciding factor. Really what does it matter to you if it is kids running around making noise or the old man coming home drunk and loud every night – disruptive behavior is disruptive behavior.

There has been a lot of concern among property owners and manager that the use of criminal background checks during screening will soon become problematic with the renewed emphasis on disparate impact claims.

Barron’s has an article that discusses a case involving the use of background checks in employment.

A federal judge cast doubt on government efforts to restrict employers’ use of criminal-background checks in hiring as he dismissed a lawsuit by regulators against a Dallas event-marketing company.

This is such a difficult area.  You don’t want to rent to those who will harm others in the building, the neighbors or cause damage, but you also do not want to run afoul of Fair Housing in the process or deny housing to those who would be good tenants.

We have seen public access to court records, such as Wisconsin’s CCAP, come under seemingly constant attack.  Perhaps this case will in part answer that question.

HUD Press Release 

WASHINGTON – The U.S. Department of Housing and Urban Development (HUD) announced today that a national property management company will pay $15,000 under an agreement resolving allegations it discriminated against a Connecticut family with children.  A Middletown, Connecticut husband and wife alleged that employees at Hamilton Point Property Management, LLC refused to renew their lease after concluding the family of five was too large for the two-bedroom apartment they occupied for nearly a decade.

This is an important decision.  What was a well understood rule has been overturned.  The real question is what happens when this and housing codes collide.

Last Milwaukee Channel 12 did a piece on landlords renting to sex offenders and receiving state checks for the rent.

Our company screening criteria rejects sex offenders, but there is a larger question out there that will someday impact all of us.

So these guys, well usually guys, I think there are a few female teachers on the list as well,  are arrested, sentenced to a specific term, do the time and ….  drum roll please … are released.

Now what?

They have served the sentence.  They have to live somewhere after prison, but where?  The near universal answer is ‘Not, next to me!’

If we (society) do not get out in front of this question I anticipate legislation one of these days that will force rental owners and condo associations to accept sex offenders as well as other dangerous criminals.   Madison/Dane County already have laws that restrict screening for criminal activity, making criminals a protected housing class.  Currently sex offenders are exempt from the Madison ordinance.

In Miami  sex offenders lived in a tent city under the Julia Tuttle Causeway (bridge) between the mainland and South Beach as it was the only place that was far enough away from schools, parks, day cares etc that they could legally live in Miami-Dade County.

The ACLU sued Miami over their ordinance.  The Councilman who created the ordinance banning sex offenders from the county ultimately applied for and received federal stimulus fund money  to house the sex offenders in a trailer park filled with kids at a cost of a $1,000 per month per offender. If you read this and it made no sense then you read it correctly.

The answer?

I’m not smart enough to know the answer, just smart enough to see the question and know that any answer arrived at will put rental owners in a tough spot.

HUD has released a final rule on service animals and companion animals as they relate to ADA and fair housing.  Read the full HUD Final rule on service animals.  Below is an excerpt of the most pertinent part.

Housing providers are to evaluate a request for a reasonable accommodation to possess an assistance animal in a dwelling using the general principles applicable to all reasonable accommodation requests. After  eceiving such a request, the housing provider must consider the following:

(1) Does the person seeking to use and live with the animal have a disability — i.e., a physical or mental impairment that substantially limits one or more major life activities?
(2) Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or  provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability?

If the answer to question (1) or (2) is “no,” then the FHAct and Section 504 do not require a modification to a provider’s “no pets” policy, and the reasonable accommodation request may be denied.  Where the answers to questions (1) and (2) are “yes,” the FHAct and Section 504 require the housing provider to modify or provide an exception to a “no pets” rule or policy to permit a person with a disability to live with and use an assistance animal(s) in all areas of the premises where persons are normally allowed to go, unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of the housing provider’s services. The request may also be denied if:

(1) the specific assistance animal in question poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation, or

(2) the specific assistance animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.

Breed, size, and weight limitations may not be applied to an assistance animal. A determination that an assistance animal poses a direct threat of harm to others or would cause substantial physical damage to the property of others must be based on an individualized assessment that relies on objective evidence about the specific animal’s actual conduct — not on mere speculation or fear about the types of harm or damage an animal may cause and not on evidence about harm or damage that other animals have caused. Conditions and restrictions that housing providers apply to pets may not be applied to assistance animals. For example, while housing providers may require applicants or residents to pay a pet deposit, they may not require applicants and residents to pay a deposit for an assistance animal

On one of the list I subscribe to a question was asked:

My city is considering an alteration in the ordinance that limits to 3 the number of unrelated occupants in a single family residence .

Throughout the discussion of the change around town and in our newspaper, I have been particularly concerned about the lack of any objective, concrete information that supports the ordinance…

Milwaukee has such an ordinance.  In my view such ordinances violate familiar status protections under Fair Housing laws.  THe upside to you as a property owner is such schemes cause vacancy rates to fall as what is today is one household, will now become two or three.  This may or may not cause rents to fall, dependent on the amount of available housing within a reasonable distance to the school.

There are a couple of good interesting U.S. Supreme Court cases on the issue.  Justice Marshall wrote a very interesting dissent in Belle Terre v. Boraas, 416 U.S. 1 (1974) which was prior to the inclusion of familiar status protections available on line at:A more recent case is Edmonds v. Oxford House, 517 U.S. 725 (1995)