Legal/Compliance Resource Library
There are many potential legal and compliance roadblocks that housing providers deal with daily. Below are resources that shed light on legal and compliance issues that affect multifamily housing.
If you are interested in a topic and do not see it listed, please review public policy issues or industry operational resources. If what you are looking for is not listed and is related to a legal or compliance issue, please contact us.
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Accessibility | Communication, Data Security and Privacy | Evictions | Fair Housing | Marijuana | Music Licensing | Labor and Employment | Landlord-Tenant Laws | Litigation Trends | Rent Control
Accessibility
Website Accessibility
As technology rapidly advances, housing providers need to ensure that their websites are ADA compliant. Users with accessibility needs are seeking legal redress to have their needs acknowledged and met. Many of the new cases surrounding website accessibility have targeted housing providers. The resources below provide guidance that housing providers should consider when developing websites that residents and applicants utilize.
ADA Website Accessibility Litigation Memo (November 2018)
An Explosion in ADA Website Accessibility Lawsuits (May 2018)
Pool Accessibility
Pool accessibility is a hot topic! Below is a guidance resource that covers topics of interest in making a community's swimming pool and/or spa meet the Americans with Disabilities Act (ADA) compliance standards. Do not wait until you have been sued to bring your properties swimming pools and spas into compliance!
NAA/NMHC Guidance: The Revised ADA Regulations and Pool Accessibility (May 2012)
Communication, Data Security and Privacy
As technology changes the way we communicate, new and existing laws regarding the content of the message (and the medium itself) can present a patchwork of confusion that housing providers must navigate through in their business operations. There are also emerging regulations regarding the security and use of sensitive data collected by housing providers. Failure to comply with applicable regulations can often come with hefty damage awards at the local, state, and/or federal levels. Below are resources covering the Telephone Consumer Protection Act (TCPA), Fair Debt Collection Practices Act (FDCPA), and the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM) federal regulations, as well as information covering the European General Data Protection Regulation (GDPR), and the California Consumer Privacy Act (CCPA).
GDPR/CCPA Privacy Primer (January 2019)
TCPA, FDCPA, & CAN-SPAM: Overview of the Law, Compliance Challenges, and Legal Risks (April 2019)
California Consumer Privacy Act Overview (July 2019)
Evictions
When seeking to evict a resident, the ability of the housing provider to do so may depend on the reasons for the eviction, and the jurisdiction of the rental unit in question. States where local municipalities can enact landlord-tenant regulations, may impose additional regulations governing evictions. The chart provided highlights jurisdictions that have “just cause” eviction standards – meaning residents can only be evicted based on enumerated reasons. As always, the web of eviction law can be complex, so please contact a licensed attorney in your jurisdiction for more information and advice.
Just Cause Eviction Statutory Chart
Fair Housing
The Fair Housing Act (FHA) prohibits discrimination in the sale, rental, and financing of housing based on protected class status. Under the FHA, protected classes are: race, color, religion, sex, national origin, handicap, and familial status. You can learn more about the following fair housing topics by clicking on the links below: protected classes, criminal screening, deaf/hard of hearing, disparate impact, emotional support animals, familial status, marijuana, and occupancy standards.
Protected Classes
Under the FHA, protected classes are race, color, religion, sex, national origin, handicap, and familial status. In some states, protected classes also may include additional classifications such as: source of income, criminal history, gender identity, age, sexual orientation, primary language, or political affiliation. Below are resources to help highlight jurisdictions that have expanded protected classes beyond the FHA, along with other resources to assist you in maintaining compliance.
Protected Classes Statutory Chart
Criminal Screening
Housing providers have criteria that are used to screen potential residents, which may include criminal screening. While looking into the criminal background of a prospective resident is not illegal, per se, under the FHA, the US Department of Housing and Urban Development (HUD) has provided guidance noting that a criminal conviction screening policy can violate the FHA under the theory of disparate impact. Disparate impact occurs when policies, practices, rules or other systems that appear to be neutral create an adverse effect on a protected group. This can occur when a policy that is unintentionally discriminatory becomes discriminatory when implemented. Lack of clear guidance regarding disparate impact creates potential legal liability for housing providers. Below are resources to consider when developing and implementing criminal screening policies. The information provided is for informative purposes only - it is not to be used as legal or operational advice.
Deaf and/or hard of hearing
Under the FHA, housing providers are prohibited from refusing to accommodate handicapped individuals. Housing providers cannot refuse to make reasonable accommodations in rules, policies, practices, or services if doing so is necessary for the individual to have an equal opportunity to use and enjoy the housing and/or service being offered. Below are resources that provide more information regarding those who are deaf and/or hard of hearing.
Fair Housing Webinar Focusing on the Deaf and Hard of Hearing
Deaf and Hard of Hearing Best Practices Fair Housing Webinar
Disparate Impact
Disparate impact occurs when policies, practices, rules or other systems that appear to be neutral create an adverse effect on a protected group. This can occur when a policy that is unintentionally discriminatory becomes discriminatory when implemented. Below are resources to help navigate disparate impact claims that may be lurking when housing providers are conducting business operations.
Disparate Impact & Fair Housing Developments: New Administration Remedies & Guidance
Guidance: Recent HUD Actions Regarding Disparate Impact (April 2017)
Emotional Support Animals
Housing providers need to follow a plethora of laws regarding reasonable accommodation requests for emotional support animals. Below are resources to help shed light on the current state of the law as they relate to emotional support animals. Please remember this does not constitute legal or operational advice, and to contact a licensed attorney for advice.
NAA Toolkit: Emotional Support Animals 2017 Edition
NAA Misrepresentation Statutory Chart (last updated December 2018)
Familial Status
Families with children are protected under the FHA. The FHA carved out two exemptions for refusing families with children or allowing different treatment of families with children – the two exemptions are senior housing and health and safety concerns (e.g. requiring the supervision of a child at the community pool). When considering policies and best practices, housing providers should ensure that they are not creating rules and policies in such a way that they violate this protected class under the FHA. The white paper below highlights topics to consider when dealing with rules and regulations that cover issues related to familial status.
White Paper - Fair Housing: Familial Status and Occupancy (March 2016)
Occupancy Standards
Reasonable occupancy standards can promote the health and safety of your communities. While being able to establish an occupancy policy that is tied to health and safety needs is valid, arbitrarily enforcing the policy can yield legal liability against the housing provider. Below are resources to provide guidance on things to consider when developing and enforcing an occupancy standard.
Fair Housing Enforcement Policy: Occupancy Cases (Keating Memo, March 1991)
Labor and Employment
Classification of individuals as employees or independent contractors, and the ramifications of such classifications, carry legal weight. Additionally, an individual’s status as an exempt or non-exempt employee determines if overtime rules apply. Below is a guidance that sheds more light on the Department of Labor's "Overtime Rule" promulgated in 2016.
Backgrounder – New Federal Overtime Rules and the Apartment Industry (July 2016)
Landlord and Tenant Laws
Housing providers are required to follow landlord-tenant laws at the state and local levels. In some instances, a multilayer jurisdictional patchwork exists and can create a plethora of confusion. Below is a map with links to landlord-tenant laws for all 50 states, and Washington, D.C. This information may not reflect a complete picture of all applicable laws in each jurisdiction, so please contact a licensed attorney for more information.
Landlord Tenant Laws Statutory Chart (March 2019)
Eviction Statutory Report (July 2019)
Late Fee Statutory Report (September 2019)
Security Deposit Statutory Report (September 2019)
Litigation Trends
Housing providers have faced a variety of litigation issues in recent years. From defending complaints for not complying with website accessibility to defending unfair and deceptive trade claims when filing eviction proceedings, housing providers should be aware of litigation trends that affect the industry. The resources provided in this section are intended to provide you with the latest in litigation trends. This is not legal advice and you should contact a licensed attorney in your jurisdiction.
North Carolina Class Action
The types of fees a housing provider can charge and collect upon a resident's default is an increasing source of litigation for class action lawsuits. The attorneys for the residents in such lawsuits have begun to use their state's consumer protection statute (among others) to attempt to get such fees removed. Please note the information provided below relates to federal and North Carolina state law, so caution should be used when drafting and implementing your debt collection notification and/or collection practices. As always, please contact a licensed attorney in your jurisdiction for more information and advice.
Marijuana
While marijuana remains a controlled substance under federal law, the legalization of marijuana for medical and/or recreational purposes at the state level has become a hot button issue as many housing providers seek to balance the safety and health of residents who wish to use marijuana in their apartments with those who do not. Additionally, housing providers whose properties are classified as public housing may have additional requirements to consider, particularly if the property operates in a state where marijuana use and/or cultivation is allowed under state law. Below are resources that provide additional information to help housing providers navigate the applicable law(s).
Marijuana Laws Statutory Chart
Music Licensing
Do you play music in your community's gym? In the leasing office? Many apartment communities play music in common areas such as lounge spaces or elevators. Depending on where the music is played and who can hear it, housing providers may need to obtain a license from a performing rights organization (PRO) to be in legal compliance while playing the music on their properties. Below are resources to help you learn more information.
Latest Trends in Music Licensing at Apartment Communities (June 2019)
Rent Control
California Tenant Protection Act of 2019 (Assembly Bill 1482)
The California state legislature recently passed a statewide rent control and tenant protection bill, Assembly Bill 1482. The new law, known as the Tenant Protection Act of 2019, caps annual rent increases at 5 percent plus inflation for all buildings 15 years or older in addition to establishing other new regulations. The resource below provides additional information regarding the Tenant Protection Act and was prepared by NAA’s local California counsel, Todd Brisco.
California Tenant Protection Act of 2019
Webinar – California Tenant Protection Act of 2019
DISCLAIMER: The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information on this website is for general informational purposes only. Information on this site may not constitute the most up-to-date legal or other information. Readers of this website should contact their attorney to obtain advice with respect to any particular legal matter. No reader of this website should act or refrain from acting based on information in this report without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation. Use of, and access to, this website and the resources provided does not create an attorney-client relationship between the reader and NAA or any contributing law firms. All liability with respect to actions taken or not taken based on the contents of information on this website are hereby expressly disclaimed.