Apr 19
Over on  the ApartmentAssoc at YahooGroups list Bill Lauer wrote:
Since we use conviction records as a screening criteria, it is important to consider this in the larger societal context. The disparate impact issue starts way before someone applying for an apartment. This is a simplified version of a much longer story. The sex offender issue is different so lets make that a different discussion.
 
For example, Landlords use felony drug records to screen.  We now know that drug laws were written to unfairly punish one group over another.  For example, the sentencing differences between powder cocaine and crack cocaine.  First offenders with powder cocaine, used largely by white people, often times got off with probation.  Offenders with the same weight of crack, used largely by Black offenders, went to jail or prison. This is where the disparate impact begins.
 
Another example is the criminal  differences between alcohol use, used largely by whites,  and marijuana, used largely by young liberals and Blacks.  http://www.cnn.com/2016/03/23/politics/john-ehrlichman-richard-nixon-drug-war-blacks-hippie/
 
We know that cops overcharge so that “deals” can be made later in the process.  Deals usually come with reduced charges with higher fines in exchange for little or no jail time.  If you don’t have the money, you sit in jail. We know that if you had  the money for a lawyer  you could beat the charges and stay out of jail.  If you didn’t have the money, well, you went to jail, because there was nobody that could make the deal.  And of course, what groups don’t have the money for good lawyers?
 
So now enter the  Heroin epidemic. The current form has been going on for about 10 years, about 6 in Wisconsin.  It is largely affecting white middle class kids.  They go to treatment a few times, they go to prison for possession, maybe theft, prostitution, and burglary.  They come out as felons who can’t go home to their parents, they can’t get a decent job, nor decent housing. This is the push behind a lot of these changes, now, at this time. You can’t give the white kids a special deal for their medical condition of addiction without applying that equally across all protected classes.
 
 Also, the industry’s response to being made more responsible for tenants behavior, [starting 20 years ago] coupled with easy access to  records through the Internet have had a long term, unintended consequence that we as an industry, really need to look at.  As Tim says below, this is nothing that was not predictable.  But we weren’t proactive, so now we get to be reactive.
 
The wave of change in the criminal justice system that this HUD letter represents has got a lot of momentum. Its 25 years in the making.  Coupled with the pressure of governments to reduce the cost of prisons, we’ll see a lot more change in the upcoming 5 years as America empties its prisons.  And they all need a place to live.
 
Bill Lauer
 
I mean….If you follow Ron Johnson’s career, who in a million years would have guessed that he would be calling for more drug treatment, more action, spending more money on junkie, on national TV in WAUKESHA???????  Sitting  next to Tammy Baldwin!

Bill is right.  But this is wrong.

Yes, the HUD screening directive is in response to a criminal justice system that appears skewed against racial and social minorities.

The method chosen to correct the underlying problem completely ignores the cause.  Rather, the Federal Government and the Administration made screening more complex and litigious instead of addressing unequal enforcement of criminal and municipal laws. Sure in the most egregious situations like Ferguson you see the government step in.

In general, this is another issue forced upon owners who were not the cause. This is a lot like the lead paint situation where the government permitted the use of a known dangerous product for decades, even requiring its use for some federally funded housing, before leaving most of the cost and legal challenges in the lap of the property owners.

So now owners will have to walk even more of a tightrope – rejecting far less applicants for criminal records may keep HUD happy, but then you have to deal with nuisance property concerns and worries that someone you put in may harm other tenants, employees or neighbors.

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

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.

Mar 31

Over on the ApartmentAssoc Yahoo Group an owner asks

“I had a person call me today that said his criminal record was being expunged by the governor of Illinois and that it is discrimination to reject applications due to criminal convictions. “

Fair Housing concerns are a two step process.  First, is the applicant a member of a protected class?  Be sure to check local, state and federal fair housing rules.  In most of Wisconsin criminal arrest records are NOT a protected class. Dane County may or may not be different.  Make sure you read the full list including the fairly recent  protections for victims of domestic violence. Also note the law is different for hiring.

The second part of the test is did the landlord or their agent take adverse action due to the applicant being a member of a protected class.  However just because a person is a member of a protected class does not mean you must accept them if they fail other reasonable screening criteria equally applied to all applicants.  

You get into trouble by applying different criteria to different applicants.  So for example if you have an income criteria and you allow people that look, talk and worship like you to slide in with income that is a bit less, but do not make the same accommodations for those who do not look, talk or worship like you, you will get into trouble.  

Therefore you should have  written criteria and apply it to all applicants equally.  This does not mean you can’t change it if you find it isn’t working, but make that change apply to all applicants from that day forward. 

Your criteria must be yours, for your type of properties.  I feel a reasonable criteria has time limits for consideration of things like criminal convictions and evictions.  We have four classes of crimes that different lengths of rejection periods.  With that said we personally do not accept registered sex offenders regardless of how old their crime is.

Remember too that you must make reasonable accommodations for people with disabilities.  So for example if someone needs to pay on the third because they are on SSI for a disability you MUST change your late policy for that person. 

Finally, if you have an income based criteria you must include all sources; retirement, W-2. Child Support, Social Security, Food Stamps, Unemployment Compensation, etc.

In WI the protected classes are:

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

erd_9523_p


preload preload preload