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San Francisco Apartment Magazine
Housing discrimination relating to people with disabilities continues to be a growing category of concern, but fair housing advocates are also seeing increased attention in the area of sexual orientation, income discrimination and disability discrimination relating to hoarders.
“Notions of equality have evolved over time,” according to John D. Trasviña, Assistant Secretary for Fair Housing and Equal Opportunity with the U.S. Department of Housing and Urban Development. Trasviña, the keynote speaker at a sold-out crowd of the fifth annual Fair Housing Symposium held recently in Santa Clara, explained that the Fair Housing Act of 1968, which was enacted as a response to the racial inequalities marking that era, is receiving unprecedented support under the Obama administration’s commitment to advance fair housing.
In March, the department launched a new drive to solicit information about housing discrimination based on sexual orientation and gender identity. People are invited to comment about a new study on this subject at the HUD website. There are also several new bills pending in Congress to expand the reach of the Fair Housing Act, including three bills that seek to add sexual orientation and sexual identity as protected classes at the federal level. Another bill, known as the Housing Fairness Act of 2009, would increase nationwide funding for testing, enforcement, education and additional studies into the causes and effects of discrimination.
“We do not want to make this just the Fair Housing Act of ’68,” Trasviña indicated in his address. “We have to make it relevant to the twenty-first century. We are moving forward.” California, with its more broadly defined discrimination law, is being closely watched, he noted, in particular those cases that involve income discrimination and sexual orientation.
Protected categories under the federal Fair Housing Act include: race, color, religion, sex, national origin, familial status and disability. California law adds: marital status, ancestry, sexual orientation, source of income and arbitrary characteristics.
“California is our number one state for discrimination complaints,” confirmed Trasviña. “California is number one in a lot of things. It also shows that people know where to go to complain.”
Recent developments in California law include Title VII, which protects tenants in foreclosure situations, effective May 2009, and state Senate Bill 120, signed into law last October, which strengthens tenants’ rights against utility shutoffs.
Increase in Disability Complaints
At the state level, a steady increase of disability cases are being reported, observes Beth Rosen-Prinz, deputy director of housing for the California Department of Fair Employment and Housing. About one-third of the cases filed in California this year relate to disability issues, compared to about 20% in fiscal year 2000-2001.
“We’re seeing more complaints particularly with reasonable accommodation,” Rosen-Prinz maintained. “Persons with disabilities are probably more informed about what their rights are and property owners are lagging behind understanding what they are.”
Unlike other protected classes, disability provisions have certain affirmative obligations for housing providers such as reasonable accommodation, reasonable modification and, for housing built after March 13, 1991, accessibility. Reasonable accommodations may relate to assistive pets, parking access and rental payment dates.
“All the law is asking is that you treat people equally so that everyone has equal opportunity to use a dwelling,” Rosen-Prinz affirmed. “It is shifting the perspective, not providing more favorable treatment. The case law is very strongly in support of rights for people with disabilities.”
In addition to discrimination complaints around disabilities, families with children continue to be a common source of complaint, commented Martin S. Snitow, a San José attorney who represents landlords and property managers in the San Francisco Bay Area. “These are the major areas in which landlords run into trouble.” Snitow points out that he is seeing fewer cases overall—perhaps due to the rental slump, which is inspiring landlords to turn down fewer applicants. The shift of advocacy resources to problems in the mortgage and lending industries may also contribute to fewer traditional complaints, he added.
“Things are still serious enough to warrant training in all fair housing considerations and to institute policies to limit fair housing liability,” Snitow found.
One positive development in the legal realm is a federal court decision last December involving Fort Washington II, a multiunit complex in Fresno. While not setting any legal precedent for the state, it helps clarify certain areas of housing law that other courts may consider. “This is very carefully considered and thought out logically,” Snitow noted. “It covers some new ground that we haven’t seen in other decisions. It takes it a little bit further.”
Investigation and Enforcement
Investigations into complaints filed with the DFEH may include interviews as well as requests for document and records. The department could check to see if a companion dog is actually necessary, or whether other single, female tenants experienced harassment as a complainant charged. Testers—fake, prospective renters—may go out to the property and see if they experience discrimination that is similar to a complaint. In 2008, Sunnyvale-based Project Sentinel sent out testers to a multiunit Campbell complex after fielding complaints from Hispanic families. An ensuing mediation agreement involved a payment of $45,000 to five families, a letter of apology and spurred corrective action at the complex. The proposed Housing Fairness Act of 2009 would provide $20 million for a nationwide testing program, more than double the amount currently spent on testing.
Unlike in a criminal case, which requires “reasonable doubt,” only “a preponderance of evidence” is needed to support a complaint. However, the state department is not a tenant advocate, added Susan Sheftel, district administrator of the California Department of Fair Employment and Housing.
“We’ll just try to get a sense of who’s telling the truth of whether or not she was there and it actually happened,” Sheftel reasoned. “My agency investigates cases from a neutral standpoint. We’re going to get information from all sides to see what seems to be true and what seems not to be true. Many times we close cases because we don’t find there’s enough information to support allegations. We take all the information and put all of the information on a scale and see which way the scale tips.”
That makes good records paramount, according to Liza Cristol-Demon, an attorney with Brancart & Brancart. “If you’re a housing provider, be careful. All I have to prove is that discrimination more than likely occurred. Good record keeping can really end up saving your skin.” Cristol-Demon also urged housing providers to participate in training annually and to make sure everyone who has contact with the public—from a receptionist to a groundskeeper—receives training as well.
Hoarding as a Disability
Many of us have things stacked up too high on shelves or desks, or we collect things of value only to us and they gather dust on the sill. But for more than 3 million people, collecting is out of control and is actually a symptom of an underlying disability. Not currently a separate mental health diagnosis, hoarding has received increasing media attention in recent years and is associated with depression, anxiety, obsessive-compulsive disorder and attention deficit disorder. As such, hoarding meets the criteria of a disability under the broadly defined California law.
“This is far and beyond collecting; it’s really when these symptoms affect a person’s daily life,” stressed Deborah Thrope, an attorney with the Mental Health Advocacy Project, a project of the Law Foundation of Silicon Valley.
While a tenant is accumulating cats and old bicycle parts, piling up materials in hallways and becoming increasingly isolated, issues of safety and health as well as concerns about violations of policies around upkeep and aesthetics increase for any housing provider. The most common problems include safety code violations, requiring the clearing of entry and exit ways and pathways throughout the apartment. Objects can’t crowd ceilings.
“While tenants are often given 30 days to clear a breach but only 24 hours for an immediate health and safety hazard, the reality of the situation is that it’s just not possible to meet that deadline in most situations,” Thrope asserted.
Hoarding: Reasonable Accommodation
A housing provider is required to make a reasonable accommodation if it is necessary for tenants to use and enjoy their dwellings. In the situation of hoarders, this may mean providing more time to clean up or arranging to have inspections on a more frequent basis, spelled out Navneet Grewal, an attorney with the National Housing Law Project.
Is the threat objective? Grewal asked.
Property owners need to ask themselves if the problem is an actual threat to safety or a violation of aesthetics that can be waived as a reasonable accommodation. These kinds of cases are extremely case-specific and require different solutions, Grewel contended.
Occasionally code enforcement personnel will contact an organization like MHAP about a potential hoarding problem but, more often, tenants are forced to react after receiving an urgent notice. “To give a client a three-day notice just isn’t reasonable,” Thrope complained. “You can’t just go to a hoarder’s apartment and throw everything away. It doesn’t work like that. It takes time.”
In many situations, MHAP will reply to a tenant clean-up order with a letter to the housing provider about reasonable accommodation and ideas to resolve the problem, described Thrope. It states the existence of a mental health disability and verifies that the case has been referred to a social service agency. Often a letter will offer mitigating solutions such as ongoing periodic unit inspections, a tenant agreement to work with a professional on the issue and the availability of a third-party communicator. The cleanup may take six to eight weeks to comply with the code, and she emphasized that any resolution should include ongoing assistance to the tenant.
“With hoarders it’s not enough to say that they’re going to clean up and walk away,” Thrope said. “This is an ongoing situation. Make sure they’re hooked up with services. Disabilities don’t just disappear.”
The real goal is to take care of things before they get out of hand, advocates repeated time and again.
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