Fox Rothschild LLP

Catching up with some Fair Housing Defense reader email this week. With the caveat that this blog entry does not constitute legal advice, here we go:

  1. Am I part of the problem? Sure hope not. A reader indicated that because I defend those accused of housing discrimination (and specifically that I have previously written I will defend a case until I obtain a No Probable Cause Dismissal in certain circumstances), I am part of the problem because he has a legitimate discrimination action and nowhere to turn for representation. Let me be clear about a couple of points: (a) I have broad shoulders and have no issue with criticism; (b) my line about defending cases until the end was in reference to a plaintiff who seeks lottery-sized winnings on a meritless claim; (c) my experience teaches that fair housing cases are both under filed and over filed – by that I mean many cases which have merit never get brought but a corresponding number of cases without merit are filed. I have not done a study to determine which side of that scale weighs more; (d) yes, I only defend cases – I have taken this positional conflict because I don’t want my clients to feel that arguments and positons I take in one case I oppose in another case. It is not a true legal conflict, just a positional determination that I have chosen to make. There are many local legal aid and fair housing advocacy groups available across the country to assist residents with enforcing their fair housing rights. Indeed, tenants can also go directly to HUD as well as state, city, or county agencies to file a complaint without need of counsel.  I’m here for the other side.
  2. Can a private apartment owner/landlord be considered a “state actor” for purposes of a federal civil rights claim? The statute, 42 U.S.C. § 1983, allows people to sue when someone acting “under color of” state or local law has deprived him or her of rights created by the U.S. Constitution or federal statutes. In our housing discrimination world, a private multi-family apartment owner/landlord is typically not considered a state actor (including even a landlord who participates in government-assisted housing programs) and cannot be sued under § 1983. There are a number of cases on this point.
  3. Can management require a resident to recertify an assistance animal at lease renewal time? This is a hot button issue. If a disability is obvious, the answer is a clear no. For example, if a resident with a sight disability uses a guide dog, we would not seek to recertify the disability and/or need for the animal. If the disability is not obvious, the answer is murkier. I have a federal court decision noting that for certain emotional support animals addressing disabilities which may not be permanent, recertification at, for example, lease renewal time, is in and of itself is not improper. However, many HUD officials take a contrary view – in that once management has approved an assistance animal, there is no need to ever take a second look. HUD has issued various assistance animal guidance over the past few years, but none has specifically addressed this point. I’ve defended a handful of these cases – but none have gotten to the point of a formal determination/opinion. At least not yet.

Just A Thought.

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