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Roadmap to FHA Eviction Cases

Roadmap to FHA Eviction Cases. By Meghan Carter, Equal Justice Works Fellow and Charles Petrof, Legal Assistance Foundation (LAF) October 2011. Background. The Fair Housing Act (FHA), 42 U.S.C. § 3601, et seq ., is a civil rights statute. (Title VIII of the Civil Rights Act of 1968.)

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Roadmap to FHA Eviction Cases

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  1. Roadmap to FHA Eviction Cases By Meghan Carter, Equal Justice Works Fellow and Charles Petrof, Legal Assistance Foundation (LAF) October 2011

  2. Background • The Fair Housing Act (FHA), 42 U.S.C. § 3601, et seq., is a civil rights statute. (Title VIII of the Civil Rights Act of 1968.) • Congress extended the FHA’s protection to include persons with disabilities in the Fair Housing Act Amendments of 1988 (FHAA). • Similar statutes not covered in this training include: • Section 504 of the Rehabilitation Act (29 U.S.C. § 794) • Americans with Disabilities Act (42. U.S.C. § 12101, et seq.) • Illinois Human Rights Act (775 ILCS 5/3-102.1(C))

  3. Reasonable Accommodation Mandate of the FHA • Under the FHA, discrimination includes refusal to makereasonable accommodations to rules, practices, or services when the accommodation is “necessary to afford such person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B). • Even in the context of eviction, if it is possible for a landlord to alter its rules so that a tenant with a disability can remain in the housing, and it is not unduly burdensome, the landlord must make the accommodation thereby preserving the tenancy.

  4. Reasonable Accommodations in Practice • Inability to comply with some neutral rule; or need more time. • Missed Recertifications • Clutter (mixed) • Past incidents • Unpleasant habits. But see Groner v. Golden Gate Gardens Apts., 250 F.3d 1039 (6th Cir. 2001). • Fires • Drugs (past use) • Additional services • Physical modifications • Parking Spaces • Live-in Aide • Transfers • Seeing eye and companion animals

  5. Tenant must prove: • the tenant(or her associate) has a disability; • the LL knew or should reasonably be expected to know of the disability; • the accommodation of the disability may be necessary to afford the person an equal opportunity to use and enjoy the dwelling; • the accommodation is reasonable; and • the LL refused to make the requested accommodation. • See DuBois v. Assoc. of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir. 2006); Oconomowoc Res. Programs, Inc. v. City of Milwaukee, 300 F.3d 775 (7th Cir. 2002).

  6. Housing Provider Defense: “Direct Threat” • FHA does not require “a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.” 42 U.S.C. § 3604(f)(9). • Prior incidents offered for showing that a tenant constitutes a threat must be relevant, recent, and must form the basis of the decision to evict. SeeWirtz Realty Corp. v. Freund, 308 Ill. App. 3d 866 (1st Dist. 1999). • Housing provider must attempt accommodation before evicting because tenant is a direct threat. Douglas v. Kriegsfeld Corp., 884 A.2d 1109, 1125 (D.C. 2005).

  7. How to use the FHA to defend against an Eviction • Put the Reasonable Accommodation (“RA”) request together. • Make a RA request under the FHA in writing to opposing counselwith a deadline. • After the deadline has passed, if the accommodation has not been granted, file your affirmative defense and counterclaim based on the violation of the FHA. • Supplement your discovery with questions regarding the landlord’s treatment of the RA letter. 

  8. Brainstorming the RA Request • Think about the root of the problem that your client currently faces that is threatening eviction, and see who can come together to help client overcome the problem. • With your client’s approval, you should reach out to family members, social workers, and doctors for your client. • Make sure you have a medical release on hand from your client that authorizes you to speak with medical professionals.

  9. The Importance of Having a Knowledgeable Professional • Not a legal requirement • Important for many reasons, including: • gain buy-in from judiciary, • demonstrate “nexus,” and • help you and others understand nature and limitations of a disability. • To date, no LL has countered us with their own medical expert. • If feasible, include a letter from a medical professional with your RA request.

  10. Making the RA Request • Make it in writing to opposing counsel. • Give a deadline (at least 10 days) for response. • Make clear that failure to respond will be deemed a rejection of the accommodation request. • If LL has questions, it is LL’s burden to “request documentation or open a dialogue.” Jankowski Lee & Assocs. v. Cisneros, 91 F.3d 891 (7th Cir. 1996). • Request can be made up to loss of possession. Douglas v. Kriegsfeld Corp., 884 A.2d 1109 (D.C. 2005). • BEWARE: • Do not unnecessarily make admissions; • Do not phrase the request as a “settlement offer.” Be clear this is a request for an RA under the FHA.

  11. If RA is denied… • File your affirmative defense and counterclaim based on the violation of the FHA. • Affirmative defense is germane - Marine Park Assocs. v. Johnson, 1 Ill.App.3d 464, 274 N.E.2d 645 (1st Dist. 1971) • Counterclaim spurs debate because seeks damages (and attorney’s fees, where appropriate.) • If your counterclaim is struck as not germane, consider filing an affirmative case in state or federal court under the FHA. • Try a motion to consolidate new (state) case w/ eviction. • Federal court will likely abstain until state eviction action has been concluded.

  12. Supplemental Discovery • Ask LL to identify all actions to accommodate before and after receiving RA request. • Dates and names of each person who received, considered, processed the RA request. • Ask LL to identify all actions to follow-up or seek add’l info. • When did LL become aware of Tenant’s disability? • Is Tenant a threat to the health or safety of other individuals? If so, how? • Would Tenant’s tenancy result in substantial physical damage to the property of others? If so, how?

  13. Common Themes / War Stories • Tenant faces adverse housing consequences for something that stems from a disability, and • The issue has been or can be addressed without imposing an undue burden on landlord. • E.g., For-cause where issue has been addressed through tenant change in behavior, new medications, social work assistance. • War Stories • Pork chop fire • Personal cleanliness • Grease down drain

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