“Illinois Fair Housing Act and Discrimination: Legal Issues Impacting Chicagoland Landlords and Rental Property Managers” – KSN landlord/tenant attorney Jessica Ryan and Laura Boggioni discuss the Illinois Fair Housing Act and Discrimination. Topics include affects on tenants, Section 8 housing vouchers, screening, inspections, property management, and more. (55mins.)
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Episode Transcription
Intro: You’re listening to the KSN podcast and on this episode, we’re discussing fair housing, discrimination, and other legal issues impacting Chicagoland in Illinois, landlords, and property managers. Welcome to the case and podcast where you’ll hear from the case and attorneys as they share their experience and insight on legal issues surrounding community associations, collections, property tax appeals, and landlord tenant law. This episode is an amended replay of our October 25th 2023 webinar, where KSN attorneys, Jessica Ryan, and Laura Bogmiani discussed discrimination and the Fair Housing Act. Topics include section 8 housing vouchers, screening, inspections, property management, and other frequently asked questions that impact Illinois landlords and rental property managers. KSN has provided landlords with affordable comprehensive legal services since 1983 We handle residential and commercial evictions, building code violations. We review leases, disclosures, contracts. We can handle third party disputes with tenants, We can address rental property legal concerns, including fair housing, section 8 housing questions, landlord, and tenants ordinances, And we also provide property tax appeals for rental property owners. If you are a landlord or rental property manager experiencing any tenant issues or legal concerns, please call our office at 855-537-0500. You can also visit our website ksnlaw.com and complete the contact form to send us a message.
KSN Attorney Jessica Ryan: This is, a topic we have many, many things that we could talk about. We’re gonna try and cover as much as we pass leg hand that relates to discrimination and warehousing. A little bit of background. My name is Jessie Ryan. I head up our landlord tenant department here at KSN. I’ve been with KSN since 2001, which sometimes is mind blowing to me. I’m also corporate counsel to the Chicago Apartment Association and serve on their legislative committees. So we really try to stay abreast of things coming down the pipeline so that we can offer these seminars to our clients and keep our clients educated. Laura, do you wanna give a little blurb about your background and and what you’re bringing to the table? Sure.
KSN Attorney Laura Boggioni: Sure. So I am I’ve been in practice since about 2009. I do, both transactional and some litigation work KSN in the landlord’s tenant and collections departments. Prior to KSN, I was with the Chicago Housing Authority for 4 years I spent a little bit of time in legal aid, and then I was also at, some private firms doing landlord tenant work.
KSN Attorney Jessica Ryan: Thank you, Laura. So we are very, very happy when Laura joined KSN earlier this year, bringing all that experience with her she has been a phenomenal asset. So this is the first time Laura and I are doing a seminar together. I’m very excited about it. A couple of things about KSN. We offer landlords a whole variety of services, including evictions and lease reviews, making sure you’re compliant with local ordinances and state law, helping landlords in dispute resolution with tenants and even vendors, We have a full litigation department, where we can help our landlords with anything from breach of contract to discrimination claims to you know, even large mold litigation and class actions.
We do building code violations and property tax appeals, So kind of a little bit of everything, a one stop shop for landlords. We also turn all of our webinars into podcasts, So you can find our podcast at ksnlaw.com. The most recent one we put up was our landlord FAQ part 2. So in, I think it was August September. August was part 1, and September was part 2. Both of those now have been released as podcasts. So you can see the topics that were covered in part 2. And again, you can find those at ksnlaw.com. Today, we are talking, as you know, about fair housing and discrimination. It is a very, very broad topic.
So we’re going to try to cover the most litigated or the hottest topics, if you will, within that category. And we’re gonna talk about protected classes and how, a landlord might discriminate against a protected class. We’re going to hit on emotional support animals and the Illinois, assistance Animal Integrity Act. Talk a little bit about reasonable accommodations for disabled tenants, religious accommodations, And then Laura is going to take us through the discrimination claim process. If goodness gracious, you have a discrimination claim child against you as a landlord or property manager.
So that is our plan for the day. We will try to hit on relevant quest if we can during each topic. But as always, I always say if we are unable to get to your question or unable to answer it during the webinar, feel free to email Laura and I afterwards, and we will definitely get back to you as quickly as we can. Alright. Let’s jump into this.
So the first thing that we are going to talk about are protected classes and discrimination. The Federal Fair Housing Act was established in 1968 to prohibit discrimination in real estate transactions based on race color, national origin, religion, familial, or family status, sex, and disability. So those categories are what I’m talking about when I refer to a protected class. People in those categories fall within the protected class and are protected from discrimination. Illinois then went on to pass the Illinois Human Rights Act which added more protected classes, including ancestry, age, protection status, meaning just because somebody is a protected class, you cannot discriminate against them, marital status, pregnancy, or unfavorable discharge from military service.
So you can see there are many, many protected classes, many categories where people are protected, be very, very careful in your real estate transactions not to discriminate any against anyone in these categories. So obviously these laws make it illegal to discriminate against anyone in a protected class in any real estate transaction. Real estate transaction is very, very broad. So this is going to include in your screening and leasing process while your tenant is occupying your unit. Very, very broad.
Anytime in really in any relation to the landlord tenant relationship, could be included in a real estate transaction. It’s really, really important to note though, on the flip side, A person who is not a member of a protected class does not have basis to bring a discrimination claim. I know my clients, my landlord’s rental property managers get emails threatening discrimination claims all the time. Whether or not the tenant who’s making the threat is really in a protected class. And it’s important to really understand this distinction, so you know when the threat is real of a discrimination claim and when your tenant is just kind of blowing hot air.
So, you know, take, for instance, if you have a policy where you do not allow dogs, let’s say over £30 and a tenant you know, buys a great dane and now has this huge dog, and you’re saying he has to get rid of the dog. And the tenant threatens. I’m bringing a discrimination claim. You are treating me differently than other people in this building who have small dogs. Now that tenant does not have the right to actually file a discrimination claim because people with large dogs is not a protected class.
Now the caveat to that is, obviously, you always want to enforce and implement policies equally against all of your tenants. So even if someone may not be in a protected class, they could have a claim for breach of the lease or, you know, interference with their use and enjoyment of the property. If they are not in a protected class. So I just wanna say it’s not okay to treat tenants differently if they’re not in a protected class, But as far as actually being able to bring a discrimination claim, with the Human Rights Commission of Cook County or, you know, a formal claim, they have to be in a protected class. So, important to understand that distinction.
Last year, actually in 2022 and becoming effective January 1 2023, there was an amendment to the Illinois Human Rights Act that added source of income as an additional protected class. There is now another new amendment, which becomes effective January 1 2024 that adds immigration status as a protected class. So I wanna talk about those a little bit, and we’re gonna start with source of income. So the definition of source of income basically you know, landlords can’t discriminate based on a tenant’s source of income, which is defined as any lawful manner by which an individual supports himself or herself and their dependents. Outside of Cook County and Naperville actually has always had source of income as a protected class.
But otherwise, in the state of Illinois, source of income was not a protected class. And in outer collar counties, landlords were able to say, Hey, we just don’t accept section 8. We don’t accept vouchers. That is no longer the case. You cannot reject an applicant simply because the applicant has a rent subsidy or a voucher.
Again, this has been in effect since January 1st of this year, 2023. So if you don’t already have your on-site teams and leasing teams trained not to say we don’t accept section 8. It’s really, really important, that you put policies in place that are compliant because otherwise you could be looking at class action on your hands. I wanna talk about a few issues that come up with source of income since this is a new area that a lot of properties are, meeting for the first time since source of income has not been statewide until January 1st. And one of the questions that we get so often is how do we apply the voucher in our for screening.
So many of my clients use a three times calculation where their income has to be three times the amount of the monthly rent. And the question then becomes, do you in doing that calculation subtract the voucher from the rent amount on that side of the calculation, or do you add the voucher to the amount of their income? I mean, I will say it’s not entirely clear. Laura will tell me from Chicago Housing Authority’s standpoint, then from tenants rights attorney’s standpoint, you always want to subtract the voucher from the rent amount. The thought process and the The philosophy behind that is that the voucher is a rent subsidy.
It is subsidizing the amount of rent and therefore You subtract the voucher from the rent amount when doing your calculation whether the tenant qualifies. The flip side of that wouldn’t you subtract the voucher from their income because it is a source of income? The law says you have to consider the voucher as a source of income for the tenant. Now if the tenant had alimony checks coming in and said, Hey, under source of income, you have to consider my alimony checks as a source of my income, You obviously would add those alimony checks to their income amount when doing the calculation. But with the voucher, If you add the voucher to their income, instead of subtracting it from the rent, they’re going to be less and less tenants that qualify.
It’s really interesting. If you just do an example calculation and you take, you know, like, $1500 rent and the tenant has $300 income and the vouchers a thousand bucks. And you run it one way by subtracting the voucher from the rent, and then do a second calculation where you add the voucher to the income, a lot more tenants are going to qualify in the calculation where you subtract the voucher from the rent amount. And that’s why CHA and tenants rights attorneys push for that to be the proper calculation. In addition to the theory, which does make sense that the voucher is a rent subsidy and therefore should be applied to the rent.
So our recommendation is that the voucher be subtracted from the rent amount rather than added to the income Even though it is source of income, that’s what the law says. It, you know, burns me up a little bit the way that it’s been worded and, can confuse landlords and make it very, very difficult to comply. But in my opinion, and this is still, I would say a gray area. There are some lawsuits out there, but it has not been decided by an appellate court or supreme court. It is safer to subtract the voucher from the rent amount, to avoid lawsuits, which is what we all want to do.
Alright, let’s talk really quick, and source of income is new about holding a unit. So your housing authority, when you have a voucher, tenant, they’re going to do an inspection of the unit. Now the housing authorities always say you’re not required to hold the unit indefinitely, HAC Housing Authority of Cook County and CHA have even said you can just hold a unit the same length of time that you would hold a market rate unit. But you have to allow a reasonable amount of time for the housing authority to conduct the inspection. And, you know, if you’re like one of my clients that holds a market rate unit for 72 hours, you’re never gonna get a housing authority out to do an inspection in 72 hours.
Chicago was running actually around 30 days right now to get out to do an inspection. So you are going to need to modify the time you hold a unit for voucher applicants so that the housing authority can come out and do the inspection. The problem is if you have a policy where you only hold a unit for voucher tenants for 7 days and you never go over it you are going to end up with a discrimination claim on your hands because you’ll never have a voucher tenant because you’ll never have an inspection conducted in 7 days. So, Chicago right now about 30 days to do an inspection. So that is a reasonable amount of time to hold your unit, continue talking to the housing authority, try to figure out when they’re coming out.
If they can schedule on the 32nd, 30 third day, it would be reasonable to continue holding it. You just don’t want to look like any policy you have in place is there to dissuade subsidy or voucher applicants, and by having a very short window for a housing authority to conduct an inspection, you are going to, be denying and dissuading, voucher tenants. Also want everybody to know in source of income. If you are now taking voucher tenants when you never did in the past, I wanna talk real quickly about lease terminations, If you are terminating for non payment, you can only do so if the tenant’s portion is delinquent. So it happens sometimes that the housing authority will stop sending their payments because maybe you failed an inspection or, you know, whatever the case may be.
You cannot terminate a tenant and try to evict a tenant because the housing authorities stopped making their portion of the payment under the half contract. You can only go after a tenant for non payment and evict for non payment when the tenant stops paying their portion. Really, really important. And also when you serve a termination notice, provide a copy to the housing authority or the subsidy program so that they can start processing everything and getting the moving papers going, so that your tenant can move and and can find a new place, and it’ll get the tenant out quicker if they have moving papers. Alright.
Source of income. I wanna talk about immigration status, and then we will move on to to Laura. So immigration status has been added as a new protected class as of January 1 2024. Obviously, it’s not in effect yet, so it has yet to be interpreted by the court here in Illinois. So we’ve been looking at other jurisdictions throughout the United States that have immigration status or something similar as they protect a class already, to see if we can get some guidance.
What we are finding in other states and other cities that have immigration status protected is a restriction in using immigration documents in the tenant screening process. Now you need to verify an applicant’s identity. If the applicant has other forms of if they were able to get a driver’s license here, if they have an interpreted birth certificate, whatever forms of identification they may have You have to accept those. You cannot require that they submit immigration documents if they can verify their identity some other way. Now if they have nothing else to verify their identity, then feel free to request their visa and or passport or or whatever they have to verify who they are.
But it’s important to note you cannot discriminate against someone if they have an expired visa, or if you cannot verify whether they’re in the US illegally, that would be discrimination based on immigration status. So be very careful if part of your screening process, for a non US citizen is to submit immigration documents. It can only be to verify identity if they do not have any other documents to verify their identity. It cannot be to confirm that they are in the US legally. Quick question here.
How do we screen for non US citizens that don’t have a Security number. There is a national screening company. I think it’s Nova, an OVA, that you can use. So that is a possibility. There’s no problem in running their, you know, screening through Nova just like you would with any screening program you use here in the US.
It’s just that small sliver don’t use their immigration documents to verify whether they’re hill here legally or illegally. That would be discrimination based on immigration status. Alright. I am going to throw over to Laura to talk about emotional support animals. Okay.
KSN Attorney Laura Boggioni: So emotional support animals in Illinois, the most relevant law is the Illinois assistance animal integrity act, and that’s gonna work together with the, federal and the Illinois Fair Housing Act. And it speaks to when a landlord, needs to accept and emotional support animal. And I’m sure as landlords, you’ve seen an increase, in the number of emotional support animals, and the number of people who, are claiming to have a need for them. So the assistance animal integrity act addresses when a landlord, needs to accept, an animal as an emotional support animal, and make an exception to their policy of no no pets. A landlord is gonna have to provide a reasonable accommodation for a disabled individual, by a wave and motion support animal only when a tenant provides the required documentation.
So the required documentation has essentially 3 prongs that’s gonna have to meet. In order for the landlord to need to approve the animal. First, the documentations needs to state that the tenant a disability, as defined by the Fair Housing Act, or the Illinois Act. The documentation then is gonna have to state that the individual has a disability related need for the animal. And what is that need?
And then finally, the, documentation is gonna have to be provided by a medical provider who has a therapeutic relationship with the individual. So that medical provider doesn’t necessarily have to be a doctor it can be a, for example, licensed clinical social worker. It has to be a medical provider who has a therapeutic relationship. A couple things to note, situations that we see come up with multiple emotional support animals. The individual is going to need to provide documentation for each animal showing a separate need.
You can’t have 2 dogs, for example, and say and provide one piece of documentation showing a disability and then a disability related need that won’t cover both animals. You need an individual, documentation showing a disability, a disability related need. And then it would likely be a different need for the second animal. Another question that comes up often relates to fees and fines. It’s etcetera related to emotional support animals.
So an emotional support animal is not considered a pet. It is not so it’s not emotional support and it’s not gonna be subject to any of the fett, excuse me, pet, fees, or fines that are in your lease. So you can’t charge pet rent. You can’t charge a pet deposit. You can’t charge, you know, the additional monthly fees you might with, a pet.
You can if an emotional sport animal damages the unit, you could charge for that that’s there’s not an exception for that, but that is, probably the only circumstance that you’d be able to charge an additional, fee for an emotional support animal. So relative to, you know, when you need to govern, an emotional sport animal say there’s, an issue, with a dog that’s barking excessively, and it’s an emotional support animal. Emotional support animal, you can institute reasonable rules, to make sure that other tenants or residents are not impacted, the lease isn’t violated relative to them because of this emotional support animal. Because the emotional support animal can’t place an unreasonable burden on you as the landlord or, impacts other residents. Yeah.
KSN Attorney Jessica Ryan: I love the unemotional support category here. It’s it’s so true I’ve had emotional support alligators. That was a fun one. Before the Illinois Assistance Animal Integrity Act that were acquired the documentation be from a medical provider with a therapeutic relationship with the tenant.
We once got a letter from a radiologist in Hawaii. Like, how does this radiologist in Hawaii have any idea that this person needs an emotional support animal? So there are really a lot of interesting issues that come up around emotional support animals, and a lot of them are on a case by case basis. So feel free to reach out to us if you guys get, questions about emotional support animals, requests for emotional support animals, because there’s a lot of nuances that hopefully we can help you with. But it’s always a fun topic because there’s always, I feel like, a little something wacky going on there.
I loved the alligator. That was my favorite. I’m like, yes, that that alligator would be so snuggly to calm my anxiety. You gotta love it. Alright.
So we’re providing reasonable accommodations for emotional support animals. Let’s talk a little bit more about reasonable accommodations, and what your requirements are, to to comply with the different laws. So, applicable laws might be Americans with Disabilities Act federal for your housing act and the Illinois Human Rights Act. Now the Americans with Disabilities Act or the ADA is typically not applicable to privately owned department buildings and communities, since the ADA is only applicable to public accommodations, like office buildings, restaurants, hotels, stores, but residential portions of your buildings are exempt from the ADA. But even though your apartments aren’t subject to the ADA, The Federal Fair Housing Act and the Illinois Human Rights Act do require that a landlord provide reasonable accommodations in your rules, policies, practices, and services when those accommodations are necessary to help a disabled person give them equal opportunity to use and enjoy your property.
So a reasonable accommodation for disability within the meaning of the Fair Housing Act is an accommodation that does not impose an undue hardship or financial burden on the property owner. So an accommodation for a disabled person could be unreasonable and therefore not required under the FHA or the Illinois Human Rights Act. If it imposes an undue financial administrative burden on the property owner, or if it requires, you know, a fundamental alteration or change in the nature of a policy or the services, that you can offer all of the residents in the building. The FHA also requires a landlord to permit at the expense modifications of the existing premises that are occupied by the person are going to be occupied by the person. If that modification is necessary to allow the disabled person to fully enjoy the property.
When I say in most cases, that age that it’s at the tenants expense, I simply mean there are some building code requirements, and other codes that you may have to comply with if you have a very old property, that has not been brought up to code for disabled residents. And if that’s the case, it may be your expense to modify the property. But in most cases, a reasonable modification of the property will be at the tenant’s expense. Keep in mind that whether a landlord is going to permit, a disabled resident to install a reasonable modification is typically on a case by case basis, for determination. So we look at a lot of different factors.
Our fair housing attorneys have a lot of experience. 1 of our attorneys, has been handling discrimination cases going back 25, 26 years, I wanna say. So she has really, really great experience in knowing what type of modifications, have been required when our clients have gotten sued and what have not been necessary or have been found unreal reasonable. So we really look at those on a case by case basis. There’s no bright line rule as to this is a reasonable modification, and this is not.
Last but not least, failure to respond quickly and promptly to an elderly or disabled tenant’s request for, accessibility issues can entangle you in long expensive litigation. So it’s really in the best interest of ownership and management to timely respond to all requests for an accommodation. And if you have any question whether you should be allowing the modification to refer that request to your attorney’s office so that we can look at federal state, local laws, that kind of govern accessibility standards to let you know what modification is reasonable and who is going to incur the expense. So, you also need to make some reasonable accommodations when it comes to religion. So with regard to religious accommodations, a landlord obviously cannot discriminate on the basis of religion and to avoid liability under the Fair Housing Act and the Illinois Human Rights Act.
A landlord really needs to be careful in enforcing its rules in a manner that’s not discriminatory against any particular religion. So for instance, barring certain decor that’s associated with one religion while allowing other decor, which may be associated with a different religion could be grounds for a claim of discrimination. A good example always comes up around the holidays, So if a landlord dis decides to display symbols, which can be associated with one religion, like holiday symbols that are associated with Christianity, the landlord has to really be sensitive to its diverse resident population and either consider displaying symbols of other religions or only sticking to non religious holiday symbols, which would be your safest bet. So between emotional support animals, disabled residents, religious, icons that are being to your doors. There are a lot of different accommodation requests that could come your way.
And there’s a lot of different ways it can go based on the facts of each case. So we strongly recommend that you reach out to your legal counsel whenever you have a recommendation, accommodation request that you’re not sure of. So that we can look at it on a case by case basis and help you avoid any liability. Alright, Laura. Let’s move on to what happens if somebody gets sued for a discrimination claim, which is worst case scenario.
So we hope this never happens to anyone, but in the reality, it does. And these types of complaints can come through kind of confusing because they can come from a number of, agencies. So for example, if you have a property in Chicago. Your and your tenant or your app perspective applicant, alleges, some type of housing discrimination. You could receive a complaint, from the city of Chicago, from Cook County come from the state of Illinois.
It could actually come at a federal level from HUD Department of Housing Urban Development. If a tenant experiences, you know, alleged discrimination, they could choose to file the complaint with, any of those organizations and it would be at their discretion. I decided to use Cook County as an example, hopefully that comes as, the broadest, you know, group in the audience. But the process is going to be similar whichever, agency it goes through. Maybe with the exception of HUD, but in Illinois, the process, is gonna be similar.
So this should, kind of be applicable, depending, regardless of what kind of complaint you’ve received. So The first step, well, I guess before we get to that in terms of what and this could happen, it’s it’s broadly, categorized housing discrimination. So it could a complaint could come from someone who toured your building and states that you refuse to give them an application because they had, a section 8 voucher or could come from an existing, tenant who alleged some sort of disparate treatment as a tenant. It’d come from, a tenant saying you were terminating their tenancy for some any reason. So it’s broadly defined, you know, housing, interactions.
So, it could come at different stages or from different types of, people that you interact with. So if a, applicant or tenant wants to file a complaint, with Cook County commission, on human rights, they would have to do so within 180 days of whatever behavior they’re saying, the, the landlord engaged in that violated the Cook County Human Rights ordinance. There’s a form on the, I’m gonna call it CC CHR, the Cook County Commission on Human Rights. It’s a software website. It’s a short form, and it’s nothing that they need to get notarized or anything.
They complete this form with basic information, and then it’s received. So, once that happens, within 10 days, the, the county is gonna send a copy of the complaint to the landlord, to whoever it’s, against Once you get, what’s called a perfected complaint, you’re gonna then have 30 days to respond. And the response is gonna consist. It needs to consist of, a few different things. So you’re going to either admit or deny whatever the allegations that the tenant or applicant is, putting for.
And it can just be, you know, a sentence or 2. I admit that, you know, that came into my property. I deny that I discriminated them against them, etcetera. You’re also gonna wanna include supporting document you basically need to paint a picture, for the investigator. So they know what happened the series of events and how you responded.
The the main thing that they’re gonna look at is what’s called your position statement, which is basically a narrative of, what occurred and why you did not or how you did not violate, and how you did not discriminate. So this is gonna be need to be filed within 30 days of your receipt of the complaint. So if you are, a corporate landlord, your corporate you have to have an attorney, represent you in this process. If you’re an individual, you don’t have to have an attorney, but, you know, so it would be your discretion. Once the complaint, is filed simultaneously, when it’s sent to you, they’re gonna assign an investigator.
And the investigation could, take a, you know, a few different forms if things could happen. The investigator might see the information from the on the complaint, reach out to the complainant and talk to them, and then see the landlords response, look at their position statement and their, supporting documentation and find that there’s enough information based on just those documents. Or the, investigator might, well, it actually be by way of the commission, the Human Rights Commission. They might order a fact finding conference, which is kind of more informal with the investigator the parties get together and the investigator asks questions, kinda to parse out the information that they think is missing and and that they want to be able to complete their investigation or more formally they can order an evidentiary conference, which is gonna take place with a hearing officer. And it’s going to be, I don’t know if anyone’s, participating in deposition kind of similar to that.
Where they ask questions, you can cross examine, and make projections, etcetera, in a way to more formally draw out the information that they want. So while this investigation is is occurring during this whole period of time, you either party, can ask the investigator Hey, can you help us kinda try to get into settlement discussions here and see if we can resolve this in a way that works for everybody? Or you can even ask the other party can ask the commission to order a mediation conference. So mediation is can be really helpful. It is, it’s non binding, meaning if you don’t come up with resolution, that’s okay.
But you can try. And then it also would be not admissible down the line. So if you talk about things, in a conference But if it could be possibly deemed, like, yes, this discrimination occurred, it wouldn’t be able to be used against you down the line. So sometimes mediation can be helpful to also draw out a, resolution, a settlement that everybody can agree with. So after, the investigator concludes their investigation within that 100 day 80 day period, the investigator is gonna submit a written report.
To the Human Rights Commission’s executive committee. And the committee’s gonna make a finding. So it’s gonna go 1 of 2 ways. They’re either gonna find that there is substantial evidence of discrimination, in which case the complaint is gonna be assigned to a hearing officer. So it’s gonna go on to the more formal.
Process, or if they if they make a finding of a lack of substantial evidence that discrimination occurred, the complaint’s gonna be dismissed, and it will be over at that point. So once a complaint is assigned to a hearing officer, a hearing officer is the parallel of, an administrative level they’re a judge. So they administrative hearings are a little less formal than a court hearing, but it’s the same, processes and procedures. So once it’s assigned to a hearing officer, the parties are gonna be sent notice of the administrative hearing date, and then there’s also gonna be notice of what’s called a pre hearing meeting which in, you know, in a in a trial, you would call that your pretrial, but it’s akin to that. So, you are allowed some limited discovery, in these types of cases, and discovery is, you know, when the parties exchange information, that they want to use in their case or could be relevant, to the other person’s case.
So you can ask questions, which are called interrogatories, but you’re limited 21, you also need to, show the other side what documents you plan to introduce. So at the administrative hearing, it’s gonna happen if you had ever been through an eviction trial. It’s gonna be very similar to that. The complaint is gonna go first and put on their case, then it’s gonna be, they’ll respond at you your, your turn to put on the landlord’s case. And then, you know, each side gets to make their closing argument.
And then the hearing officer’s gonna make within 60 days of that hearing, you’re hearing off, I’m just gonna make a decision based on the preponderance of evidence, which is, is it more likely than not that, the discriminatory, practice that the complainant is alleging. Is it more likely than not that that occurred? So it’s still not over at this point, because that, you know, within that 60 days of that hearing and hearing officer is gonna file their proposed decision with the full commission. And then the commission at that time, they then have, 2 months 60 days to, it’s it could be all the commissioners, but more likely a group of 3 commissioners, they’re gonna review the entire record. So everything that was submitted, and obviously the recommended decision from the hearing officer.
And then they’re gonna recommend to the full body of commissioners what they think the final decision in order should be. So in terms of what can be ordered, and if there is, finding a substantial evidence and then they find it by prongous evidence and it heard, they kind of have a wide, breadth of what can be ordered, if they do find discrimination occur. So they can order damages, what’s called make whole damages, meaning, you might have to pay the, complainants moving expenses. Or if there was a unit that they wanted to rent from you, but, you know, discrimination occurred. They had to go rent a different unit that was more expensive.
You might have to pay that rent the difference between the rent and those 2 units. They can also order emotional distress damages. The county can order you to pay fines, to them they can order what’s called injunctive relief, which isn’t, damages like money. It’s ordering, a party to do or not do something. So, for example, if you were evicting a tenant, and it was found that was that was based on a discriminatory reason, they could say they could order that the eviction case be dismissed, or they could order party to, rent a unit if it’s still available to the, complainant.
If that would, remedy the problem. And the other thing here, a lot of times these cases are taken by, pro bono attorneys. There’s like fair housing clinics, sometimes it handles these. But if it’s a private attorney, and I believe even the situation, I’d have to check on the case law of that. Jesse, maybe, you know, of when it’s in a legally, but in any event, the commission can order that the attorney’s fees for the complainant that the respondent pay those.
So that could be, a hefty, a hefty amount of money effect. Happens. So once the decision is, in the order are entered and notified of that, if the party who did not win wants to, have that reconsidered, you can do that. Essentially rehearing is called a request for reconsideration. And then if you still don’t like the outcome, you can then appeal, and chance record.
So it goes into the, the formal court system. Wow. You know, clients are like, man, this eviction process is lengthy. And now I think everybody knows. We do not want a discrimination claim.
No. I it’s is a very, very long process. I know with the 60 days for a response, sometimes, you know, 180 days clients are like, what’s the status each month and we’re, like, same statuses last month. We’re waiting for the hearing officer to come back with a, with a response. So we did have a question come in that I thought was interesting and kind of goes back to something we talked about.
And the question was, if I hold a unit for 30 days for a voucher holder, Aren’t I discriminating against the people who are market rate that I’m only holding the unit for 72 hours? And that goes back to the discussion about protected classes, and only people in protected classes can bring discrimination claims. So those market rate tenants who are holding the units for 72 hours, they’re not in a protected class. They are not protected by source of income because they don’t have a voucher. So you can hold a unit longer for a protected class without just scriminating against the market rate tenants because a market rate tenant who can afford a market rate unit is not necessarily protected.
Now if it Turns out that, you know, everyone in a racial minority is getting discriminated against by the difference that would be a different story. But, it it’s that understanding that only people within a protected class have the right to bring a discrimination claim. There was another question about income, and and how do I the question I think was how do I screen for income when the housing authority is telling me, you know, that I can get market rate. And I the question was a little bit confusing, and I wasn’t exactly sure what the person was getting at, but it did bring up a topic that that comes up and sometimes I talk about insource of income because you are going to be negotiating the rate of rent for that apartment with the housing authority in the HAP contract. So if the housing authority says this is what we believe rent should be for this unit, and they give you an offer of a HAP contract with what they believe is market rate.
And you know you could get a lot more for that based on the market rate in your area, you do have the right to deny and reject that HAP contract and even counteroffer with, hey, this is what we’re offering. Laura, we’ve got another question here, and maybe you can take this one on, can a full payment quote, full payment tenant or a market rate tenant, we might call them, change to a section 8 tenant. And I think the question might be, midterm. Do you wanna kind of talk about the possibilities of that ever happening? And I think in in in theory, it could happen, but in during the course of a lease, it could not happen because, a, the housing authority requires at least to be executed at the beginning of a have contract.
So they might get approved for a voucher and get accepted into the program, but that does mean that the landlord has to change anything. There’s a valid lease in place, and that lease is in place through the end of the lease term. And you would have to execute a new lease in order for the voucher to be accepted at that time. And you will not be as a landlord bound to do that. So if the tenant could somehow convince the housing authority to start the, you know, housing assistance payments.
But I don’t see that as a possibility. Yeah, I agree. I think it would only be at the time of renewal. You know, you could finish your market rate lease with that tenant if they come to you and say, hey, we now been approved for a voucher. At the end of their lease term, you can begin the hap contract process and maybe for their new lease term, put them on a new lease, with a voucher, but I don’t think they’re going to convert mid lease term, and you definitely don’t need to, make that concession if you have a valid lease in place.
Really quick, that person just asked, would you have to renew that lease? No. You do not have to renew any tenant. If you have a reasonable and valid reason not to renew them. If the only reason not to renew is because they have a voucher, then you would be discriminating based on source of income.
Question we have that we kind of just talked about if the, housing authorities market rates is not enough for what you believe the market rate is. Do you have to accept the voucher? You do not. You can reject the HAP contract. So another question here that I think is a good one that we can talk about, Laura.
It brings up a good point, and it’s a little bit longer, question. So hang in here with me. When people call who have the voucher, I always tell them that if the voucher does not pay the full amount of rent, they would need to prove they make three times what their portion, not the full amount. Is there anything wrong with doing it that way or stating it that way? Well, I’m gonna kinda hit the big topic and then maybe I’ll throw it over to you if you have any more comments, but my recommendation always, if someone calls your property saying, Hey, I have a voucher.
Do you think I’ll qualify? Your answer should be. I don’t know. Come on in and fill out an application, just like everybody else, we would be happy to process your application. I never, never recommend that someone over the phone say, oh, you’re probably not gonna qualify, so don’t even bother applying.
You don’t want to turn off any voucher applicants. From applying. There are legal aid and and some organizations that kind of put filler applicants out there to see if there are any landlords who are not, following the process. So always always tell those applicants that they can, come in and apply. But, Laura, I think there was some part of it going to the three times calculation.
Do you remember the rest of that question? Yeah. Yeah. So the question, the I think that the the idea behind the question is correct that, if if, you know, if a tenant comes in or an applicant comes in and they apply and they say, how are you going to calculate? How is how are you going to calculate how I qualify, then the conservative way, Jessica, like, if you discussed earlier, is that you will back out the voucher amount from the rent and then see if their income will meet the 3 times qualification on the remaining rent amount.
If the voucher’s 1500 and the rent is 2000, does the applicant have enough to support $500 a month in rent? Do they have enough income on their own without the voucher? So, yeah, I wouldn’t say that over the phone. I would just say come on in. Let’s let’s do the paperwork and see if you apply.
But if they get in and they and, you know, they apply and they wanna know how you’re gonna process it, what’s gonna be, how you make that determination, then, yes, that would be an explanation that I would recommend providing
Speaker 0: do you
Speaker 1: want to talk a little bit about holding a unit? Can we continue to market for a market rate resident? After approving a section 8 applicant and going through their lengthy process. I think this goes to holding the unit, because it is a long time that you have to hold a unit for an inspection. Do you do you wanna cover that one, Laura?
Yeah. I I wanna make sure I understand the question. So I I guess I’ll make the assumption that the an applicant is you were holding a unit for Section 8 applicant, who’s been approved, who’s been approved, I don’t think I would frankly continue to market that unit, because that is risky. If you’re I would hold that unit, consider it not rentable at that time, And if the application, does not come to fruition, you can’t come to term, say, for example, on the, rate, the rental rate with the housing authority, then you could you know, deny the application, but I would not continue to market, that unit if you have a session 8 application pending for a reasonable amount of time. If you get into you know, 2 months and I hate to put a time frame on it because reasonable is, you know, I I can’t say what’s reasonable.
Only only a judge could say that. So it’s, It’s hard to say what’s reasonable. But if you get into a really long period of time, that the unit has been held off and you’re not getting responses from the housing authority, you know, I would document that very carefully. So you have reason that is now discriminatory as to why you are denying occasion, but I would not continue to market that same unit during that time. Yeah.
Because, I mean, nine times out of 10, you’re gonna find a market tenant who can move in and sign a lease and every quicker than the housing authority is gonna come out to do their inspection, and you’re gonna end up with all market rate tenants and denying all those section 8 tenants, and you’re gonna end up with a discrimination claim on your hands. So, Definitely not. Well, I think that covers anything, everything that, we can fit in an hour on fair housing and discrimination. Thank you guys all for joining us. If you have any other questions, feel free to give us a call or shoot us an email, and we’d be happy to answer those.
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Please note the material contained on the KSN Podcast is for informational purposes only and does not constitute legal advice. No attorney-client relationship is established by your review or receipt of the information contained on the KSN Podcast. You should not act on the information discussed on the KSN Podcast without first obtaining legal advice from an attorney duly licensed to practice law in your State. While KSN has made every effort to include up-to-date information on The KSN podcast, the law can change quickly. Accordingly, please understand that information discussed on the podcast may not yet reflect the most recent legal developments. Material is not guaranteed to be correct, complete, or up to date. KSN reserves the right to revise or update the information and statements of law discussed on the podcast at any time, without notice, and disclaims any liability for your use of information or statements of law discussed on the podcast, or the performance of the podcast generally. The KSN Podcast may be considered advertising in some jurisdictions under applicable law/s and/or ethical rules/regulations. © 2023 Kovitz Shifrin Nesbit, A Professional Corporation.