On July 26, a federal judge in the U.S. District Court for the District of Massachusettsruledthat a tenant screening algorithm is subject to the Fair Housing Act, including the FHA's ban on racial discrimination in housing. The court held that even though the company is not itself is not a landlord, as property owners allegedly relied solely on the company's decisions to deny prospective renters' applications, the company was effectively granting it authority to make housing decisions.Plaintiffs alleged in an amended complaint that a tenant-screening service operated by the defendants violated the Fair Housing Act, 42 U.S.C. § 3604 and Massachusetts anti-discrimination and consumer protection laws. The Plaintiffs claimed that the services discriminate against holders of rental vouchers and applicants of certain races and income classes, in violation of the FHA, resulting in less housing availability, less favorable terms and conditions in rental agreements, and discriminatory provision of services in connection with housing, in each case based on race and national origin.Defendants, in their respective motions to dismiss, argued that the FHA does not apply to a tenant-screening service, such as the defendant, because the service does not “make housing decisions.” In denying the motion to dismiss on this count, the court reasoned that the FHA provisions do not limit liability to people or entities that “make housing decisions” but rather “focuses on prohibited acts,” and reiterated that the Supreme Court has already held that “language of the Act is broad and inclusive.” The court observed that while housing prov

using providers,” homeowners associations and condominium associations (community associations or associations) are subject to the restrictions contained in both the FHA and the FFHA and are required to make reasonable accommodations in their rules, policies, practices, or services when doing so is necessary to afford a person with a disability an equal opportunity to the use of a dwelling and common areas. For instance, a disabled unit owner’s request to keep an assistance animal in his or her condominium unit, notwithstanding an association’s “no animals” policy, is a request for reasonable accommodation and should be carefully considered and approved if appropriate.Less often implicated, however, are the obligations similarly imposed on housing providers by the FHA and the FFHA to allow reasonable modificationsof the premises, to the extent the modification is necessary to afford a person with a disability an equal opportunity to use and enjoy a dwelling. More specifically, Chapter 42 U.S.C.A. § 3604 (f)(3)(A) of the FHA provides that an association discriminates when it refuses to make certain reasonable modifications to afford a person with a disability the full access and enjoyment of the premises, including, but not limited to, the common areas:(3)For purposes of this subsection, discrimination includes:(A)a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises except that, in the case of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.Reviewing Requests for Reasonable Modifications Unlike requests for an accommodation, requests for modification involve a physical or structural change to the existing pre

Numerous condominiums and homeowner associations have Governing Documents, or rules and regulations that regulate leasing, including restriction to whom owners may rent. Many associations base their decisions on the results of a criminal background check or on a potential renter’s disclosure of criminal history on a rental application. If an association considers criminal backgrounds in determining whether to approve a lease, then the association needs to ensure it complies with the Fair Housing Act (FHA).Pursuant to 42 U.S.C. § 3604, the FHA prohibits the refusal to lease a residence to any person because of race, color, religion, sex, handicap, familial status, or national origin. In 2016, the U.S. Department of Housing and Urban Development (HUD) published guidance on the use of criminal records, noting that:African Americans and Hispanics are arrested, convicted, and incarcerated at rates disproportionate to their share of the general population. Consequently, criminal records-based barriers to housing are likely to have a disproportionate impact on minority home seekers.As such, HUD discourages against blanket policies that would prohibit leasing to any individual with any criminal record. Should an association’s policy come under challenge, a court will test whether the policy is necessary to serve a substantial, legitimate, nondiscriminatory interest. To meet this standard, associations should take a holistic and individualistic approach and craft an objective policy that considers, among other things, the

gaged in a “pattern or practice” to prevent or delay approval for residents who qualify for an emotional support animal (“ESA”) to live with them in their apartment.Facts The Department of Justice (“DOJ”) sued the association alleging that its policies and practices relative to emotional support animals (“ESAs”) violated federal law.The jury found some claims in favor of the DOJ and some claims in favor of the association. The most important part of the case is that it laid out the rules applicable to associations when considering ESA requests.Those are the following:The Law (As laid out by the court in the case)The Fair Housing Act (“FHA”) makes it unlawful:“to discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of (A) that buyer or renter, (B) a person residing in or intending to reside in that dwelling after it is sold, renter, or made available; or (C) any person associated with that buyer or renter.”42 U.S.C. § 3604(f)(1). Discrimination includes:“a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling[.]”42 U.S.C. § 3604(f)(3)(B). “Handicap” means“(1) a physical or mental impairment which substantially limits one or more of such persons major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment[.]”42 U.S.C. § 3602(h).The United States may bring an action against “any person or group of persons” that has “engaged in a pattern or practice of resistance to the full enjoyment of any of the rights” or denied “any group of persons” “any of the rights granted by” the Fair Housing Act. 42 U.S.C. § 3614(a). Neither the Supreme Court nor the Third Circuit has addressed the meaning of the term “pattern or practice” as found in the FHA. Nonetheless, it is clear that Congress passed the FHA in order to deter discrimin

Additionally, the Fair Housing Amendments Act of 1988 (FHAA) makes it unlawful to discriminate against “any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services of facilities in connection with such dwelling” on the basis of that person’s handicap. 42 U.S.C.A §3604(f)(2).Discrimination is defined to include refusing to make reasonable accommodations in “rules, policies, practices or services” when necessary to afford a person with a handicap “equal opportunity to use and enjoy a dwelling.” 42 U.S.C.A. §3604(f)(3)(B). See, See, Trovato v. City of Manchester, 992 F. Supp 493 [D. N.H. 1997].Under the FHAA, an accommodation is “necessary” to afford “equal opportunity” when plaintiffs have shown that but for the accommodation, they “will be denied an equal opportunity to enjoy the housing of their choice, and the “reasonable accommodations” requirement of the FHAA applies to zoning ordinances. Id.For example, in the case of Austin v. Town of Farmington 826 F.3d 622 [2d Cir. 2016], the Austins obtained zoning variances to build a pool, fence and deck on their property to accommodate their disabled son. Located in Ontario County, New York, the Town Board of Farmington granted a “temporary accommodation” to allow for the proposed improvements. However, the re

See Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations Under the Fair Housing Act, Q 3 (May 17, 2004).See 24 C.F.R. § 100.201; Va. Code § 36-96.1:1.See 42 U.S.C. §3604(f)(2); Va. Code §36-96.3(A)(9); 18 VAC 135-50-200 (C) and (D).See generally Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations Under the Fair Housing Act, (May 17, 2004).

HMK didn’t respond to that request or a subsequent one, instead filing a state action to recover possession of the property.The Howards filed suit, alleging that HMK violated 42 U.S.C. § 3604(f)(3)(B), which prohibits discrimination in the form of “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a] person equal opportunity to use and enjoy a dwelling.” The district court granted summary judgment for HMK, concluding that the Howards failed to show that extending their tenancy was necessary because of Glenn’s medical condition, and that the FHAA does not impose independent liability for a landlord’s failure to interact with a tenant.

The Fair Housing Amendments Act (“FHAA”) prohibits discrimination “against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap….” 42 U.S.C. § 3604(f)(2).Discrimination is defined as “[a] refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be made necessary to afford such person equal opportunity to use and enjoy a dwelling[.]” § 3604(f)(3)(B).

Table: Comparison of Statutory LanguageTitle VIIECOAFair Housing Act“It shall be … unlawful . . . for an” employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex … .”42 U.S.C. §2000e–2(a)(1)“It shall be unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction … on the basis of … sex … .”15 U.S.C. §1691(a)(1).“[I]t shall be unlawful … To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of … sex … .”42 U.S.C. § 3604(b)Note: The table above provides only the most relevant language, for comparison purposes. The fair lending laws contain certain additional prohibitions on credit- and housing-related discrimination.

Any exceptions should be commensurate with the circumstances presented, and documented in a way that enables the regulators to understand that the response was fair, reasonable, and in the best interest of consumers in the larger context of business requirements. 42 U.S.C. §§ 3604(b), 3605 12 C.F.R. §§ 1002.5, 1002.6 15 U.S.C. § 1681b(g); 12 C.F.R. tit. 12, ch. X, pt. 1022. 12 C.F.R. § 1022.30.