When it comes to independent living, senior housing providers must ask all resident applicants the same questions to avoid litigation.
A leading fair housing authority at the Kentucky Law School once commented to a room full of fair housing advocates and litigators, “The seniors [housing] industry is not aware that it is subject to the Fair Housing Act.”
Robert G. Schwemm’s comment is one that the apartment industry can only hope is correct, because otherwise the recurring violations of this civil rights law are not just a mistake, they are intentional. Either way, both the senior housing industry and the multifamily housing industry as a whole are liable for non-compliance with fair housing law as it relates to seniors. While non-compliance can occur in a variety of areas, this article focuses on the issues surrounding “independent living.”
The Fair Housing Act
Prior to 1988, the Fair Housing Act (FHA), which governs almost all housing in the United States, did not prohibit private sector housing discrimination on the basis of disability. As a consequence, many owners explicitly required that residents be “capable of independent living” in order to rent a unit. In practice, such policies generally excluded applicants who needed assistance with the activities of daily living while also imposing subjective landlord judgments about who could or could not fulfill the basic obligations of tenancy. Although appearing neutral on their face, such policies had a harsh effect on people with disabilities.
Taking this and other factors into account, the FHA was amended in 1988 to prohibit discrimination based on disability. In using the outdated term “handicap,” the amendments employ a broad definition of disability. Specifically, the FHA bars discrimination based on a person possessing “a physical or mental impairment which substantially limits one or more . . . major life activities . . .” With this, Congress, and subsequently HUD, have sought to make disability irrelevant in housing applications. This effort includes both senior-specific housing communities (age 55-plus, over-62, and retirement communities in both the public housing sector and the conventional, market-rate sector) and conventional apartment communities where seniors seek housing.
Beginning in 1990 with Cason v. Rochester Housing Authority, a series of federal court cases has clearly interpreted the FHA’s ban on handicap discrimination to prohibit housing providers from imposing a requirement that their tenants be capable of “independent living.” In Cason, the defendant’s “ability to live independently” policy called for screening out any applicant who was not able “to perform those functions of adult living for and by him/her self.” These activities included “the ability to perform basic housekeeping and personal care.”
Three disabled individuals (two of them seniors) brought a claim against the housing authority after it had rejected them for failing to meet this eligibility requirement. The court ruled for the plaintiffs, concluding that this requirement and the inquiries conducted by the defendant’s staff to implement it “are in clear violation of federal law.”
In rejecting the defendant’s argument that its “ability to live independently” requirement should be upheld because the Authority had only relied on it to turn down a small fraction of handicapped applicants (17 of 276), the Cason opinion pointed out that this requirement still had a substantial discriminatory effect on people with disabilities because “no non-handicapped persons” were denied housing on this basis. Additionally, the Authority unsuccessfully argued that it lacked the staff and resources to provide support services to tenants; according to the court, plaintiffs require nothing of the sort from the Authority. Rather, many handicapped applicants receive support from Medicaid or other assistance programs. A resident who is able to meet the objective requirements of tenancy should not be denied housing simply because she receives medical assistance or other aid.
Despite these clear indications of federal law there continues to be ongoing confusion amongst some housing providers as to “independent living” policies.
Practices Owners Must Avoid
As discrimination lawsuits can be very expensive, including compensatory and punitive damages, civil penalties and plaintiffs’ attorneys fees, what should property owners and managers know to avoid litigation?
First, the Fair Housing Amendments Act’s (FHAA) legislative history points out that “The FHAA is not intended to give landlords…the right to ask prospective tenants…blanket questions about the individuals’ disabilities…only an inquiry into a prospective tenant’s ability to meet tenancy requirements would be justified. Thus, in assessing an application for tenancy, a landlord or owner may ask an individual the questions that he or she asks of all other applicants that relate directly to the tenancy but may not ask blanket questions with regard to whether the individual has a disability. Nor may the landlord or owner ask the applicant or tenant to waive his right to confidentiality concerning his medical condition or history.”
Therefore, senior housing providers need to understand that they can only ask a person with a disability (PWD) the same questions as are asked of all applicants/residents that relate directly to their being a resident:
- Can you pay the rent?
- Can you get along with your neighbors?
- Can you fulfill housekeeping obligations?
- Can you obey the lease and the law?
Note that these are “yes/no” questions, not “how” questions, which are impermissible.
Often when housing providers are told their obligations, they raise the “yes, but” issue that they are concerned about their liability. However, landlords have tort liability only as to negligent behavior as it relates to all of their residents; there is no higher duty of care (unless the landlord is participating in certain government programs) as to PWDs or seniors. The abstract concern of a senior housing provider is not a justification for the denial of an application, the termination or non-renewal of a lease, or an eviction.
Quite simply, a senior does not have to be able to live independently to be able to rent. As the courts have held that tenants are free to meet the obligations of tenancy with or without assistance, a senior need only to meet the criteria related to the four questions in order to obtain housing.
While a senior may have crippling arthritis, perhaps their adult child will write and send the rent checks (but this detail is of no concern for the owner). While the mobility impaired senior may not be able to take the trash to the community trash bin, perhaps their caregiver will do so (again, how the trash is taken to the bin is not the owners’s concern). In theory, a senior could lapse into a vegetative state the day after signing a year’s lease, and as long as that senior meets the basic requirements of residency, it is none of the housing provider’s concern how that is being made to happen.
Additionally, as independent living is not a lawful requirement for housing, advertising for those capable of independent living is unlawful as well. Not too long ago the Intermountain Fair Housing Council (Idaho) filed a lawsuit alleging a violation of the Fair Housing Act due in part to the marketing of a community as an “active adult community.” “There’s no such thing as an ‘active adult community’ to be advertised,” said Richard Mabbutt, the Council’s Executive Director. The suit is seeking $56,000 in actual and punitive damages and $34,500 in other expenses. It also asks for the establishment of a $273,500 victims’ compensation fund to repay unidentified victims.
To further illustrate this issue, here is an excerpt from an Office of Equal Opportunity e-mail to a senior housing provider: We have taken note of several communities that have used the terms “active adult” and “adult community” to describe their community. In fact, the Director has initiated several fair housing complaints against…housing communities for using phrasing that is inconsistent with the intent that the housing community intends to operate as housing for persons 55 years of age or older.
Quite simply, the use of the terms “independent living” and “active adult” are not only likely unlawful, their use will encourage fair housing testers to visit those communities that self-describe themselves with these terms. While in theory such tester visits should not be a problem for those communities conducting themselves in accordance with fair housing laws, the scrutiny of testing can lead to charges of discrimination and lawsuits. The affected senior housing provider may prevail in the legal arena, but the cost (in both time and money) to defend against those charges or lawsuits will nonetheless be high.
While old age is not a disability, the likelihood of a disability rises as one gets older; in fact, being blessed with years almost guarantees that a person will have at least one disability if not more. Baby boomers are now beginning to enter their senior years, and they are the generation that came of age during the era of civil rights and consumer empowerment. They are already making their voices heard in the market place; our industry does not need to be hearing those same voices in the courts.
Nadeen Green is Senior Counsel for For Rent Media Solutions in Atlanta. She can be reached at 770/434-6347 or nadeen.green@forrrent.com. Scot Haislip is NAA’s State & Local Policy Manager. He can be reached at scot@naahq.org or 703/797-0623.