Screening Tenants with Criminal Backgrounds The New Low Hanging Fruit

A picture is worth a thousand words And tens of thousands of $$$

Can I deny a tenant with a criminal history? Maybe…It depends April 4, 2016 HUD’s Office of General Counsel issued guidance on the application of Fair Housing Act Standards to the use of criminal records by providers of housing. 10 page memo 1/3 of Americans have a criminal record Criminal is not a protected class. Disparate impact on protected classes is the issue. The Fair Housing Act prohibits both: intentional housing discrimination and housing practices that have an unjustified discriminatory effect because of race, national origin or other protected characteristics.

NAR list of best practices - DO Create tailored criminal history-based policies/practices Exclude individuals based on criminal convictions that present a risk to resident safety or property Consider the nature and severity of an individual’s crimes Consider the amount of time that has passed Treat all applicants equally- the process Conduct individualized assessments that take into account age at the time of the conduct evidence of good tenancy before/after the conduct, and rehabilitative efforts

NAR list of worst practices – DO NOT Use criminal history as a pretext for unequal treatment Provide inconsistent explanations for denial of a tenant Create an exclusion based on arrest records alone Create a overly broad or blanket exclusion of any person with any conviction Use comparable criminal history differently for individuals of a protected class (vs. non-protected class) Make exceptions for some individuals, but not others based on the individual’s inclusion in a protected class

Service Animals Emotional Support Animals Assistance Animals Service Animals Emotional Support Animals

June 18, 2019 A 26-year-old coffee shop barista in the suburbs of Tampa has suffered from anxiety ever since he was a child.

What happened? The landlord objected, and demanded proof that Primadonna was a medical necessity and not simply a pet. The tenant provided a letter from a therapist in California who spoke to him over a video chat, and then another note from a counselor who met in person with him (and the duck). But neither document satisfied the landlord, who threatened eviction. Mr. Myers hired a lawyer and filed a complaint of housing discrimination with HUD. His filing was one of more than a thousand similar complaints the agency has received nationwide so far this year.

The Law The Americans with Disabilities Act defines service animals as dogs or small horses that are trained to perform specialized tasks, like leading a blind person or detecting seizures. Emotional support animals, which provide comfort with their presence but generally have no special training, do not have the same status BUT federal law has been interpreted to give tenants a right to live with an animal if it helps treat depression or anxiety or other emotional health conditions. With the help of HUD, the attorney successfully negotiated with the landlord for Primadonna to stay.

Assistance Animals under Fair Housing Act If a tenant: has a physical or mental disability that substantially limits one or more major life activities (or has a record of such a disability or is regarded as having such a disability), Then landlord (and association, if applicable): must grant a reasonable accommodation, which would include exempting the tenant from: no pet policy, pet deposits, and extra rent for having a pet.

CRITERIA FOR CONSIDERING A REQUEST FOR ACCOMMODATION UNDER THE FHA If disability is not apparent, housing provider can request further documentation such as: • Letter from physician • Letter from social worker • Letter from psychologist But cannot request medical records.

HUD Guidance HUD ISSUES NOTICE ON ASSISTANCE ANIMALS AND REASONABLE ACCOMMODATIONS FOR PERSONS WITH DISABILITIES The Fair Housing Act prohibits landlords from discriminating based on disability, race, color, national origin, religion, sex, and familial status. The ADA prohibits discrimination against people with disabilities in employment, transportation, public accommodations, communications, and state and local government activities. Pet restrictions cannot be used to deny or limit housing to people with disabilities who require the use of an assistance animal because of their disability. Housing providers must grant reasonable accommodations in such instances, in accordance with the law.

Abuse of the system?!?! In 2011, estimated 2,400 service and emotional support animals. Now nearly 200,000 . Wally the alligator was approved by his owner’s doctor in York, Pa., as an alternative to taking medication for depression.

The Dangers of Texting

This is happening NOW “Lawsuit Filed Over ‘Thousands’ of Text Messages Promoting Listings” REALTOR Magazine April 2019 “Fla. sees uptick in TCPA-violation lawsuits” Florida Realtors April 2019

From a lawyer’s website The Time to File Your Spam Text Messages Claim is Now Did you know that there is an ongoing mass action lawsuit against spam text messages and the miscreants that send them? This suit is happening all across the country. You can hire a spam text messages lawyer to help you get in on this lawsuit. Each and every bit of spam that is sent to your phone is a violation of the TCPA (Telephone Consumer Protection Act)…

The Smoking Gun June 18, 2019

Telephone Consumer Protection Act (TCPA) Led to creation of the National Do Not Call Registry Prohibits sending text messages using auto dialers without consumer consent and ability to opt out Regulations also cover robocalls and faxes Can be enforced by private lawsuit, FTC, FCC, or the state of Florida Penalties of up to $1,500 per violation

Telephone Consumer Protection Act (TCPA) Consent to receive texts sent using an auto dialer is required Telemarketing texts require signed consent; non-telemarketing texts require prior express consent Best practices when obtaining consent Use clearly stated consent forms and keep a record If verbal consent is used for non-telemarketing texts, follow up with written confirmation Include consent language on forms

One more thing… FREC #s

More Questions? Call us at: 407.438.1400 Juana Watkins X2311 Juanaw@floridarealtors.org