Legal Update

Apartment Communities Targeted in Lawsuits

Numerous apartment communities in Florida have been targets of lawsuits and demand letters claiming discrimination based on criminal history or inaccessible websites. Landlord/tenant attorneys estimate nearly 200 demand letters have been served on apartment communities throughout 2019 through mid-May of 2020, many from fair-housing activists seeking financial settlements. The Florida Apartment Association and the National Apartment Association have issued advisories to make members aware of these lawsuits and encouraging them to take steps to avoid becoming party to a lawsuit. Please note: This should be considered information only and does not constitute legal advice. FAA recommends that members consult an attorney with specific legal questions.  

Criminal history 

Numerous lawsuits have been filed in Florida alleging that an individual who is a convicted felon called an apartment community to inquire about renting. The caller disclosed his felony conviction background and, he claims, the apartment community staff stated over the phone that his criminal background would result in an automatic denial of the application.

The U.S. Department of Housing and Urban Development (HUD) has issued guidance (available on the hud.gov website) regarding how criminal screening policies could be in violation of the Fair Housing Act, under what is known as disparate impact.

A disparate impact results from policies that have a discriminatory effect, even if the discrimination is unintended. According to HUD, certain policies, such as blanket policies against any individual with a criminal background, may negatively impact certain races and therefore have a disparate impact. 

FAA recommends that members:

• Review current policies related to criminal screening to determine whether any changes should be made to avoid disparate impact liability.
• Be sure all staff members who answer the phone are properly trained.
• Contact an attorney or in-house legal counsel for guidance and advice. 

For more information: 

www.naahq.org/advocacy/policy-issues/criminal-screening-residents

www.hud.gov/sites/documents/HUD_OGCGUIDAPPFHASTANDCR.PDF

Website accessibility

Under the Americans with Disabilities Act (ADA), consumer-facing websites must provide accommodations so people with vision or hearing disabilities can access the information on the sites. In recent years, the apartment management industry — as well as many other industries — has been targeted by what are known as “drive-by” or “surf-by” lawsuits seeking seek court-ordered remediation of the websites, attorneys’ fees, and monetary compensation. These lawsuits may also claim that the lack of accessible housing websites exists as a barrier to equal housing opportunities, thus violating the Fair Housing Act.

To protect against potential liability, FAA recommends members: 

• Review their websites to ensure compliance with ADA requirements.
• Contact their website provider for assistance identifying ADA compliance issues.
• Have a digital accessibility consultant perform a website audit to ensure the content and coding complies with ADA requirements. 
• Update websites as recommended by the audit to ensure compliance.

For more information: 

www.naahq.org/operation-solutions/legal-compliance-resources