Robert (Robin) Hein, Attorney at Law, is an Atlanta attorney whose practice focuses on representing owners and managers of multifamily housing. He obtained both his undergraduate and law degrees at the University of Georgia. The scope of the firm's practice extends to a diverse number of matters, which include fair housing defense, landlord and tenant law, bankruptcy stay litigation, employment law, lease review and revision, property and casualty insurance issues, and defense of premises liability claims. Mr. Hein provides corporate training and seminars for the apartment industry. He also serves on the Board of Directors for the Atlanta and Georgia Apartment Associations. Fowler, Hein, Cheatwood, Passino & Williams, P.A., 2970 Clairmont Road, Suite 220, Atlanta, GA 30329. (404) 633-5114


By Robert (Robin) Hein, Attorney at law

If you work in multifamily housing, your company or someone you know is likely to encounter a fair housing claim. HUD's 1999 budget provides $11.5 million in grants to private fair housing advocacy groups in 42 cities. These funds will be used in a variety of ways, including testing and litigation designed to prevent discrimination in rental housing and real estate lending. HUD's goal is to double the number of fair housing enforcement actions by the year 2001. This article assumes that your best efforts to prevent a claim have failed. Despite education and training, good operational procedures, and attempts to design and construct disability-accessible housing, you may still have to deal with either an administrative claim (investigation) or a lawsuit. A harsh reality of apartment management is that fair housing claims are the number one retaliatory-tool of unhappy visitors, applicants, and residents who feel they were treated unfairly by management. Filing of an Administrative Complaint. In most instances, the investigative process starts with filing of a complaint with HUD or a state enforcement agency (such as the Georgia Commission on Equal Opportunity) not later than one year after the alleged "discriminatory housing practice." This kind of filing is referred to as an "administrative complaint" to distinguish it from a private civil lawsuit (which is also called a "complaint"). Alternatively, the prospect or resident claiming discrimination (a "complainant") can bypass filing an administrative complaint with HUD or the state agency. The complainant may hire his own attorney and file a in either a state or federal court. Such private lawsuits must be filed within two years after the alleged discrimination; however, the two-year period will be extended during the time an administrative complaint was pending. Note: Fair housing complaints are different from Title VII employment discrimination claims which must first be filed with the Equal Employment Opportunity Commission before obtaining the right to file a private civil action. In a fair housing case, the "aggrieved person" (the resident or prospect) may file a private lawsuit regardless of whether he or she ever filed an administrative complaint. The administrative complaint is a one or two-page form which lists the names of the persons and apartments or owners alleged to have violated the law; the type of discrimination claimed (race, color, religion, etc.); and a short summary statement of the facts, dates involved, and description of the supposedly discriminatory practice. For example, the claim may state, "Complainant, who is disabled, requested reasonable modifications to the interior of her apartment such that her wheelchair could maneuver about the space. Complainant requested the modifications at the time of applying for occupancy on June 20, 1998, and agreed to pay the reasonable costs of making such changes. The Respondent (owner or management company) refused to permit the changes in violation of the "Fair Housing Amendments Act of 1988." Processing of the Complaint. Next, within 10 days after filing, the HUD administrative complaint is mailed to the apartment community, corporate office or management employee by certified mail. The owner, manager, or employee may file an answer with HUD or the state agency within 10 days after receiving the complaint. Our firm recommends that you immediately forward a copy of the complaint to your company's insurance or risk manager for evaluation and submission to any insurance carriers. We also recommend that you retain legal counsel experienced with fair housing claims for filing a response. HUD and state enforcement agencies are supposed to complete their investigations within 100 days of the date the complaint was filed. The time can be (and usually is) extended as needed. Both HUD and the state agencies will try to minimize disruption of management business while conducting the investigation; however, it is inevitable that you will need to spend time assembling and reviewing documents, making time to meet with legal counsel, and providing witness interviews. The Investigation. Federal and state fair housing laws encourage voluntary cooperation by the owner and management in producing documents and records, providing interviews with management employees, and allowing on-site property inspections. Although owners and managers have Fourth Amendment and Due Process protection against unreasonable searches and seizures, HUD, state enforcement agencies, and the Department of Justice can subpoena records and management employees if the investigators are unable to obtain the information necessary to carry out their investigation. The kinds of documents and information requested will vary depending on the nature of the alleged violation. Informal requests for information and documents usually accompany a copy of the administrative complaint or may be sent soon thereafter. In addition to interviewing the on-site staff, the investigators or compliance officers might interview prospects, applicants, and other residents in the community to take written or recorded statements and verify whether discrimination may have occurred. The investigator may request documents or records which you as an owner or manager think are "irrelevant." However, HUD and state agencies have very broad investigative powers to obtain information and documents "which are reasonably calculated to lead to the discovery of admissible evidence." This means that the documents requested might point to other information which is admissible in evidence at trial. Sometimes the requests from enforcement agencies are overly broad. If so, a decision to withhold or produce those documents should be carefully considered with the assistance of legal counsel familiar with fair housing cases and investigations. Completion of the Investigation. Once the investigation is complete, the Assistant Secretary of HUD or the state enforcement agency will issue a final investigative report. The report will contain a summary of the dates of correspondence, records, witness statements, and answers to interrogatories. General Counsel for HUD will decide from all the circumstances whether "reasonable cause exists to believe that a discriminatory housing practice has occurred." HUD's General Counsel will also determine whether the facts are sufficient to begin a civil action in federal court. A similar decision is made in state agency investigations. The filing of a fair housing complaint with HUD or a state enforcement agency only starts an investigation process. The end result of the investigation is to determine whether there is sufficient evidence to believe that housing discrimination may have occurred. HUD or the state agency will issue a "final investigative report" which summarizes the facts and makes a recommendation to issue a "charge" or to dismiss the case. Issuance of a Charge or Dismissal. If there is reason to believe that a discriminatory housing practice occurred, a "charge" is issued. This is sometimes referred to as a "cause finding." If there is no reasonable cause to believe there was a violation, then the complaint will be dismissed. The dismissal does not completely end the matter. The complaining party can still file a private civil action. Remember: Issuance of a charge is not a conclusive finding of discrimination. The owner or manager is not "guilty" simply because a charge was issued. You will still have an opportunity to present your side of the case to a judge, jury, panel, or hearing officer at an administrative hearing or trial. If a charge is issued, the apartment owner and manager or the complaining party may elect to have the claims decided in a civil action. The U.S. Attorney General will represent the complaining party at a civil trial in federal district court. A similar procedure is available in state claims. The election must be made within 30 days for federal claims and a similar time for state cases. If neither party elects to have a civil action, an "administrative hearing" will be scheduled before an Administrative Law Judge for federal cases or before a judge, panel or hearing officer for state cases. The charge will be served on the apartment owner and manager who must then file an answer within the time required (30 days for federal cases and a similar time for state claims). Conclusion. Fair housing training is necessary and effective in reducing claims of housing discrimination. Implementation of good operational procedures is also important. However, even the best training and procedures will not eliminate all claims. But they can certainly increase the odds that you and your company will survive and defeat a fair housing complaint. Understanding what happens once a claim is filed will help to insure a successful resolution and defense of the complaint.

Law Offices of Heist, Weisse & Wolk, P.A.
Phone: 1-800-253-8428 Fax: 1-800-367-9038

Serving Florida's Property Managers with main office in Fort Myers Beach. Available by appointment in Orlando and Clearwater

|     Home Page     |     Firm Profile     |     Attorney Profiles     |     General Services     |     Apartment Communities     |     Residential Managers     |     Apartment Communities     |     Residential Managers     |     Homeowners/Investors     |     Eviction Q & A     |     Legal Articles     |     Training/Events     |     Contact Us     |