Fair Housing Newsletter Fall 2012
IDAHO LEGAL AID SERVICES
FAIR HOUSING NEWSLETTER
This newsletter provides the most current information available on fair housing topics of interest to you and your clients. I hope you find the articles informative and useful!
~ Sunrise Ayers, Housing Specialty Group Chair, Idaho Legal Aid Services, Inc.
Printable PDF version of the Newsletter available HERE.
Fair Housing Portal Now Available
Idaho Legal Aid Services, Inc. (ILAS) launched a free fair housing portal for consumers, housing providers, advocates and the general public on June 29, 2012. The portal was created thanks to an education and outreach grant from the U.S. Department of Housing and Urban Development. (HUD).
The fair housing portal is organized into five sections: “I Want to Know the Law;” “I Want Help Creating a Fair Housing Document;” “I Need to File a Fair Housing Complaint;” “I am a Housing Provider;” and “I Have Questions About Fair Housing.” The portal will serve as a one stop shop; someplace where consumers and housing providers can learn about fair housing, access resources (such as forms), or get tips on best practices.
The first section, “I Want to Know the Law,” covers the basics of fair housing laws. There are articles on topics such as Disability and Reasonable Accommodation requests, Healthy Housing, Fair Lending, and Limited English Proficiency. There are also links to the applicable federal statutes, regulations, and recent fair housing items in the news.
The next section, “I Want Help Creating a Fair Housing Document,” includes sample forms, letters, and other documents useful to those interested in exercising their Fair Housing Act rights. These pertain to topics such as: reasonable accommodation requests, reasonable modification requests, proof of need letters, demand for repairs, and communicating with a landlord. This section also provides links to interactive forms which enable a user to answer online interview questions and then have the program use those answers to complete the forms. Once the interview is complete, the form is ready to be reviewed and printed.
Information on where to file a fair housing complaint and what to expect during thecomplaint process is available in the section, “I Need to File a Fair Housing Complaint. “ This section also provides a direct link to HUD’s online complaint form.
The “I am a Housing Provider” section provides general fair housing information as well as guidance and tips for housing providers to comply with the Fair Housing Act. The section provides articles to help housing providers navigate their responsibilities under the Act, including: Best Practices to Avoid Fair Housing Act Violations; How to Handle a Fair Housing Complaint; and Limited English Proficiency Tips.
The final section, “I Have Questions About Fair Housing” includes Frequently Asked Questions, definitions, and a list of fair housing resources available in Idaho.
To access the Fair Housing Portal, visit www.idaholegalaid.org/FairHousingPortal. The portal is equipped with Google Translate to make it language accessible and a link to request alternative formats for persons who have trouble accessing the portal due to a disability. Additionally, a survey is made available for users to provide feedback and suggestions. This survey information will be used to ensure the portal is responsive to the needs of users.
Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity
The U.S. Department of Housing and Urban Development (HUD) issued a Final Rule on sexual orientation and gender identity, effective March 5, 2012. The new rule requires that HUD’s core programs “are open to all eligible individuals and families regardless of sexual orientation, gender identity, or marital status.” In explaining the rule, HUD Secretary Shaun Donovan stated: “HUD is working to ensure that our housing programs are open to all” and the rule states “clearly and unequivocally that LGBT [Lesbian, Gay, Bisexual, Transgender] individuals and couples have a right to live where they choose.” The new regulations were proposed in response to evidence suggesting that LGBT individuals and families do not have equal access to housing.
Twenty states, D.C., and 200 localities have enacted laws prohibiting discrimination in housing on the basis of sexual orientation or gender identity, but Idaho has not acted. The final rule makes the following changes:
- Requires owners and operators of HUD-assisted housing, or housing whose financing is insured by HUD, to make housing available without regard to the sexual orientation or gender identity of an applicant for, or occupant of, the dwelling. This policy is being instituted in HUD’s rental assistance and homeownership programs, including the Federal Housing Administration (FHA) mortgage insurance programs, community development programs, and public and assisted housing programs.
- Prohibits lenders from using sexual orientation or gender identity as a basis to determine a borrower’s eligibility for FHA-insured mortgage financing.
- Clarifies that all otherwise eligible families, regardless of marital status, sexual orientation, or gender identity, have the opportunity to participate in HUD programs.
- Prohibits owners and operators of HUD-assisted housing or housing insured by HUD from asking about an applicant or occupant’s sexual orientation or gender identity for the purpose of determining eligibility or otherwise making housing available. The rule does not prohibit voluntary and anonymous reporting of sexual orientation or gender identity pursuant to state, local, or federal data collection requirements.
The final rule is available to review at www.hud.gov. The main provisions of the rule can also be found at 24 CFR § 5.105 and 24 CFR § 203.33.
Healthy Housing and Fair Housing: Mold and Bed Bugs
A landlord has a duty to maintain a habitable premises. A rental unit with mold growth or a bed bug infestation may be uninhabitable, triggering the landlord’s duty to make repairs under Idaho Code § 6-320. Mold, bed bugs, and other issues that impact a tenant’s health may also implicate the Fair Housing Act. First, a fair housing issue will be implicated anytime less healthy homes are routinely rented to persons in protected classes more often than to persons not in protected classes. For example, if minorities, families with children, or persons with disabilities are more likely to be placed in the units in an apartment complex that have the most repair needs, that could result in a fair housing complaint. The second issue is that repairs needed due to health and safety concerns often exacerbate the conditions of persons with disabilities and could warrant filing of a Reasonable Accommodation request in order to get necessary repairs. This article examines two common health and safety issues encountered by Idaho tenants and provides tips for tenants who face these issues.
The presence of mold can make a unit uninhabitable and can pose a health and safety risk to anyone residing in the unit. A tenant’s first step should be to notify the landlord of the mold, in writing, and request that the condition be repaired. Under I.C. § 6-320(a)(5), a landlord must take steps to remove mold within three (3) days. If the landlord fails to make the repair within three days, the tenant could bring a suit against the landlord for damages and specific performance (a court order to fix the problem). If mold is exacerbating or causing a health condition that would fall within the definition of “handicap” under the Fair Housing Act, then a tenant could also file a Reasonable Accommodation request with the housing provider requesting to have the mold condition abated. In the alternative, the tenant could file a Reasonable Modification request with the landlord, for installation of a fan or exhaust system, if an area has a recurring mold problem.
A common question regarding mold repairs is: “Who is responsible for the cost of the mold removal?” Generally, a landlord is financially responsible for those repairs resulting from normal wear and tear or resulting from the landlord’s failure to maintain the premises. A tenant, on the other hand, is responsible for costs of repairs resulting from damage caused by the tenant. In the case of mold, an example of a situation where the landlord would be required to pay for mold removal would be where the mold was caused by a landlord’s failure to repair leaking pipes, windows, or roofs. Whereas a tenant would be responsible for mold removal that was caused by creating high humidity in the unit without ventilation or mold that resulted from lack of cleanliness in the unit. In reporting mold to a landlord, a tenant should take photographs, speak to other tenants, and take other steps to help a judge determine what caused the mold.
Tips for Tenants:
- Do a thorough inspection of the unit prior to signing the lease, keeping an eye out for any mold problems.
- Keep the unit ventilated.
- Clean vulnerable areas such as bathrooms, windowsills, etc., with a solution that will discourage the growth of mold.
- Immediately report signs of mold, or conditions that cause mold (such as a leak), to your landlord and, in writing, request that the condition be repaired within 3 days. (See I.C. § 6-320(d)).
A bed bug infestation can make a unit uninhabitable and pose a hazard to tenant health and safety. A landlord is required to promptly treat a unit infested with bed bugs, at least within three days of receiving notice from a tenant, pursuant to I.C. § 6-320(a)(5). If a landlord fails to remedy the bed bug infestation within three days, a tenant may bring a suit against the landlord for damages and specific performance.
Landlords and tenants often dispute who is responsible for the costs of bed bug removal. Generally, landlords are responsible for costs due to normal wear and tear or lack of maintenance of the property; whereas tenants are responsible for damages resulting from their actions or negligence. In the case of bed bugs, a tenant is only liable for removal costs where a landlord can prove that the tenant in question was the source of the infestation.
Tips for Tenants:
- Know the signs of bed bugs: dark brown spots on mattresses, box springs, bed frames, headboards, or couches; rust-colored smears on bed sheets or mattresses; itchy red welts.
- If you suspect bed bugs, talk to your neighbors to find out if they have bed bugs as well. If so, notify your landlord of the infestation, in writing, and preferably as a group.
- If no one else has bed bugs, notify the landlord of the problem in writing immediately. Document where you noted signs of infestation to help determine where it originated.
- If bed bugs are in a unit when you move in and the landlord refuses to treat for the bed bugs, you may have the right to break your lease.
- Bed bug removal requires tenants to prepare the unit prior to professional treatment. If a tenant has a disability that would make it difficult to make these preparations, the tenant as the right to submit a Reasonable Accommodation request to get assistance or more time in order to do prepare the unit.
Reasonable Accommodation Requests and the Interactive Process
A reasonable accommodation is an exception or change that a housing provider makes to rules, policies, services, or regulations that will assist a resident or applicant with a disability so they have equal use and enjoyment of a housing program or dwelling. The requested accommodation must be necessary for the individual with the disability to enjoy their dwelling unit or to use services offered to other residents.
A resident or applicant is entitled to a reasonable accommodation under the Fair Housing Act when needed because of a disability of the resident, applicant, or a person associated with a resident or applicant, such as a guest. Housing providers must grant all requests for reasonable accommodations that are needed as a result of a disability and that are not unduly burdensome or a fundamental alteration of the housing program. If a request is denied, a tenant has the right to know the reasons in writing and the right to meet with the landlord as part of the “interactive process.”
The interactive process involves the applicant and housing provider engaging in a dialogue in order to come up with a solution that meets both the needs of the applicant and the needs of the housing provider. The “Joint Statement of the Department of Housing and Urban Development and the Department of Justice: Reasonable Accommodations Under the Fair Housing Act” states:
“When a housing provider refuses a requested accommodation because it is not reasonable, the provider should discuss with the requester whether there is an alternative accommodation that would effectively address the requester’s disability-related needs without a fundamental alteration to the provider’s operations and without imposing an undue financial and administrative burden. If an alternative accommodation would effectively meet the requester’s disability-related needs and is reasonable, the provider must grant it. An interactive process in which the housing provider and the requester discuss the requester’s disability-related need for the requested accommodation and possible alternative accommodations is helpful to all concerned because it often results in an effective accommodation for the requester that does not pose an undue financial and administrative burden for the provider.”
The purpose of the interactive process is to find creative solutions that allow persons with disabilities equal use and enjoyment of their home, even where the accommodation originally requested is not workable. As a housing provider, if you receive a request that would result in an undue hardship, rather than denying the request, you should schedule a meeting with the requester to discuss alternative accommodations.
It is also important to remember, however, that the person with the disability has the most accurate and complete knowledge of their disability, functional limitations, and what accommodation will best meet their needs. If the requester feels a proposed alternative will not meet her needs, continued negotiation may be necessary in order to find a solution that is less costly or administratively burdensome but equally effective in removing the barriers to the requester’s tenancy.
Limited English Proficiency Tips for Housing Providers
Title VI of the Civil Rights Act of 1964 requires that persons with limited English proficiency (LEP) must be able to effectively participate in or benefit from federally assisted programs and activities. All recipients of federal financial assistance must comply with Title VI’s LEP requirements. Financial assistance includes grants, training, equipment, and other assistance. The following are some examples of who must provide LEP access: state and local governments, public housing agencies, assisted housing providers, as well as Community Development Block Grant and HOME Investment Partnership Program recipients.
It is important to have a plan to identify LEP persons. LEP persons are defined as: Persons who do not speak English as their primary language and who have a limited ability to read, write, speak, or understand English. One option for identifying LEP persons is through using “I Speak” cards, which allow a person to point to the language they speak. These cards are available through the Department of Justice at www.justice.gov/crt/about/cor/Pubs/ISpeakCards.pdf.
In determining how best to meet Title VI’s LEP requirements, a four factor analysis should be used, looking specifically at:
- The number or proportion of LEP persons eligible for your services;
- Frequency with which LEP persons come in contact with your program/office;
- The nature and importance of the program, activity, or service you provide (services such as housing, food, education, health care and other basic needs will have high importance and therefore greater need for LEP access); and
- Your available resources and costs.
Housing providers and housing programs seeking to comply with Title VI will need to have access to competent interpreters. A competent interpreter is able to communicate effectively in both English and the other language, knows specialized terms in both languages, will follow confidentiality rules to the same extent as employees, and will understand their role as interpreter. Options to consider for meeting your interpreter needs: Hire bilingual staff, hire interpreters on a contract basis, use a language line telephone service, or use volunteer interpreters, if competent. LEP persons should be allowed to use a friend or family member if they so choose, but this option may not be appropriate in some situations such as where sensitive, confidential, or embarrassing information would be revealed.
Title VI compliance, for those programs receiving federal funding, also requires translation of vital documents. If a language group is frequently encountered (e.g., Spanish in the Boise area), then vital and widely used documents must be translated. Some examples of vital documents: written notices of rights, hearing notices, eviction, leases and tenant rules, applications for services, and consent forms. Ensure that the translator you use is competent, and ideally, have a second translator check the translation.
It is recommended that you provide written translations of vital documents for each language group that constitutes 5% or 1,000 persons (whichever is less) of the population eligible for your services. Where persons in a language group constitute 5% of the population of persons eligible for your services but fewer than 50 people, oral interpretation provided free of cost will suffice. For example, if a landlord provides HUD-subsidized housing and 5,000 people in the area are eligible for such housing, then written translations should be made available to any language group that constitutes 250 (5%) or more people out of the 5,000 eligible. If only 300 people are eligible for the provider’s services, then 5% of that population would be less than 50 eligible LEP persons, and only oral interpretation would be required. Taking these steps, called the “Safe Harbor” will constitute “strong evidence of compliance” with Title VI.
Title VI compliance can be greatly advanced by developing a Language Access Plan, which is an implementation plan to address the needs of LEP populations identified in your four-factor analysis. Your Language Access plan can be either a written plan, or some other way to document your strategy for providing LEP access. Housing programs and providers should monitor and update their LEP Plans to assess changes in population, new vital documents, whether you are meeting LEP persons’ needs, and whether new staff have been adequately trained.
Staff should receive regular training on LEP policies and on how to work with interpreters. Finally, steps should be taken to provide notice to LEP persons that LEP access is available by posting signs, engaging in outreach to LEP persons, and using bilingual or multi-lingual phone messages. Providing interpreters and translated materials not only complies with Title VI, but also is responsive to the needs of our customers and clients.
The U.S. Department of Housing and Urban Development issued the following press release regarding a disability discrimination case; excerpts of the release follow.
HUD Orders West Virginia Landlord To Pay $34,000 For Discriminating Against Man With Autism And His Sister
HUD Secretary found that landlord discriminated based on disability
A West Virginia woman caring for her brother who has autism knew something was wrong when she tried to rent an apartment in Charleston from landlord Michael Corey in 2009. The landlord demanded that before he would sign a lease agreement, the woman must purchase a $1 million insurance policy to cover any damages or injuries caused by her brother and sign an agreement assuming all legal liability for her brother’s actions. In addition, the landlord required the woman to obtain a doctor’s note regarding her brother’s condition. The woman, believing she was being discriminated against, filed a fair housing complaint with HUD.
The landlord admitted at trial that he does not require non-disabled applicants to meet the same requirements and acknowledged that it was his belief that “persons diagnosed with autism and mental retardation pose a greater risk in terms of liability.” HUD determined that although the landlord had never met the woman’s brother, he worried that the brother, because he has autism, would start a fire or attack neighbors.
The woman, who is the legal guardian and primary caretaker of her brother, stated, “My brother’s one of the most loving persons you’ll ever meet. He’s a human being and the idea he would harm anyone else brings me to tears.”
HUD Secretary Shaun Donovan found that the landlord violated the Fair Housing Act and ordered him to pay $34,000, which includes $18,000 in damages to the woman and $16,000 in civil penalties to the government.
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Your Home, Your Choice
Fair Housing laws give you
the power of choice!
To learn more about fair housing:
Idaho Legal Aid Services Inc.
Fair Housing Hotline
Fair Housing Portal
To file a fair housing complaint:
Intermountain Fair Housing Council
(208) 383-0695 in Boise or
1-800-717-0695 (toll free)
U.S. Department of Housing and Urban Development(HUD)
1-800-669-9777 or 1-800-927-9275 (TDD)
“The work that provided the basis for this publication was supported by funding under a grant with the U.S. Department of Housing and Urban Development. The substance and findings of the work are dedicated to the public. The author and publisher are solely responsible for the accuracy of the statements and interpretations do not necessarily reflect the views of the federal government.”