It is not uncommon for an individual residing within a common-interest community to file a complaint alleging discrimination under the Fair Housing Act (“FHAct”), with the United States Department of Housing and Urban Development (“HUD”). Complaints can be filed by owners and tenants alike should they believe discriminatory conduct has occurred. Complaints are submitted to and handled by the Office of Fair Housing and Equal Opportunity (“FHEO”). Such a complaint will often allege that an individual, manager and/or the Board have engaged in discriminatory housing practices under the FHAct (42 U.S.C. Section 3601-3619). Complaints can be directed at any individual who may have dealt with person in an alleged discriminatory manner. In fact, our office has even seen complaints directed at management company receptionists and administrative assistants.
Background on the FHAct
The stated mission of the FHEO is to eliminate housing discrimination, promote economic opportunity, and achieve diverse, inclusive communities by leading the nation in the enforcement, administration, development, and a public understanding of federal fair housing policies and laws. FHEO enforces laws that protect people from discrimination on the basis of race, color, religion, sex, national origin, disability, and familial status. In addition, FHEO ensures fair housing compliance by housing providers that receive HUD funding.
In 2017, the most-recent report currently available, along with its partner Fair Housing Assistance Program (“FHAP”), HUD received 8,186 complaints, and of those investigated 7,985 matters and obtained $8,907,003 in monetary relief in housing discrimination cases. Of those, sixty-four complaints were filed in Nevada. The majority of cases filed with HUD (59.4%), allege discrimination based upon a disability, followed by race (26%), and familial status (10.6%).
Of those complaints filed in 2017, 528 (33.8%) were resolved by conciliation. Another 574 (36.7%), resulting in findings of “no cause,” and 284 (18.2%), were administratively closed. However, 19 (1.2%) were charged with a finding of discrimination. Though the vast majority of complaints do not result in formal charges, they often cost communities thousands of dollars in expenses as complaints can often take several months and significant time to resolve.
Fair Housing Complaint Procedures
HUD Complaint Procedure
Anyone can file a complaint on their own behalf. HUD then has 10 days to serve the complaint by U.S. mail. HUD complaints often name individual community-association managers, board members, property managers, landlords or other individuals personally, as well as any corporate entity involved in the housing relationship. The respondents then have ten days to submit an answer. However, HUD is flexible in working with parties and their counsel to allow more time to gather information and respond if a request is timely made. The HUD Investigator will typically request documents and will usually conduct telephone interviews with the parties and anyone they believe may have information on the matter. In the majority of cases the HUD investigator will attempt to conciliate (resolve), the matter.
If a case is not settled or dismissed, and a charge is issued, it proceeds to an administrative law judge, unless either side requests that it be heard in a U.S. District Court. Most respondents opt for District Court and in 2017, 17 cases were sent to District Court.
Tips for Responding
Our office has dealt with recent complaints involving companion animals and requests for accessible parking spots and wheelchair ramps, to name a few. HUD aggressively investigates matters and will review nearly every complaint to ensure no housing laws are being broken. Our recommendation is to be open and honest with the HUD investigator. If information is hidden or not otherwise revealed in response to a request, it can lead to a charge of discrimination. We further recommend remaining in contact with the HUD Investigator throughout the process, so they know you are actively involved and not seeking to only delay the matter.
When presented with a claim, we encourage associations and managers to tender it to your community’s insurance providers as coverage may be available. Though communities are often concerned about an increase in premiums, if the insurance company retains counsel to represent you and/or your community, that alone could save your community or office tens of thousands of dollars.
Throughout the process, the HUD Investigator will typically look for opportunities to resolve the matter through conciliation. And, generally speaking, HUD will not dismiss a complaint before making an attempt to conciliate. You can never be certain what recommendation the investigator might make to their management, so it is not uncommon for respondents to enter in to a conciliation agreement to avoid a potential finding that a reasonable basis exists to believe discriminatory conduct occurred. Ultimately, of course, if the facts are clear, you and/or your community can take your chances and insist on a finding.
Two things to note about most conciliation agreements. First, you and/or your community will typically remain under HUD’s oversight for at least a year following signing of the conciliation agreement. If there is reasonable cause to believe that a respondent has engaged in further discriminatory conduct, the matter may be referred to the United States Attorney General to seek compliant and any appropriate sanctions in a Federal District Court. This can also result in a higher monetary penalty. Second, HUD often requires that respondents engage in at least three hours of live training on fair housing and reasonable accommodations provided by an approved fair housing agency.
When faced with a claim of discrimination, you should understand that navigating HUD complaints takes time and patience. It is unproductive to be emotional about being accused of fair housing discrimination when sometimes it is simply part of doing business in a common-interest community. Having an experienced attorney can make a big difference in the outcome of a complaint. Isaacson Law works closely with its clients who need assistance, learning everything about the situation and working diligently to protect their rights.