Each April the U.S. Department of Housing and Urban Development (HUD), together with local communities and fair housing organizations, commemorate Fair Housing Month by hosting community events to highlight HUD’s fair housing enforcement efforts, enhance public awareness of their fair housing rights, and emphasize the importance of ending housing discrimination.

In remarks by the HUD Secretary, “Fair Housing Month is a time to recommit to our nation’s obligation to ensure that everyone has equal access to safe, affordable housing,” This year’s theme, “Fair Housing: More Than Just Words” emphasizes the Biden Administration’s commitment to advancing equity in housing and the importance of fair housing rights to secure equal access to housing opportunity.

Fair Housing Annual Report

The Fair Housing Act prohibits discrimination based on race, color, national origin, religion, sex, disability, and familial status in the sale or rental of a dwelling and in other housing-related transactions. HUD’s Office of Fair Housing and Equal Opportunity (FHEO) published the latest Fiscal Year (FY) 2018/2019 Annual Report on Fair Housing. The Annual Report shows HUD and its Fair Housing Assistance Program partner agencies received more than 7,700 complaints alleging discrimination based on one or more of the protected classes. Disability continues to be the top allegation of discrimination followed by race as the next most common complaint.

Executive Order 13988 on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation

On January 20, 2021, President Biden issued an executive order directing all federal agencies to interpret protections against discrimination based on sex to include discrimination based on sexual orientation, gender identity, and gender expression. Further, the Executive Order directs all federal agencies to review and revise all existing orders, regulations, guidance documents, policies, programs, or other agency actions administered under any statute or regulation that prohibits sex discrimination for inconsistency with the Executive Order by April 30, 2021.

The Executive Order 13988 cites the Supreme Court’s 2020 decision in Bostock v. Clayton County, which found that the prohibition on discrimination “because of sex” in Title VII of the Civil Rights Act of 1964 includes sexual orientation and gender identity.

Section 1. Policy of the Executive Order states: “All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.” Discrimination on the basis of gender identity or sexual orientation manifests differently for different individuals, and it often overlaps with other forms of prohibited discrimination, including discrimination on the basis of race or disability. It is the policy…to prevent and combat discrimination on the basis of gender identity or sexual orientation, and to fully enforce Title VII and other laws that prohibit discrimination on the basis of gender identity or sexual orientation. It is also the policy…to address overlapping forms of discrimination.”

State and Municipality Anti-discrimination Laws

Many states, cities, and counties have enacted anti-discrimination laws banning housing discrimination on the basis of sexual orientation and gender identity. Landlord fair housing compliance should always be to those fair housing laws that provide the greatest protections against discrimination.

HUD Implementation of Executive Order 13988 on the Enforcement of the Fair Housing Act

On February 11, 2021 HUD announced that it will administer and enforce the Fair Housing Act to prohibit discrimination on the basis of sexual orientation and gender identity. The following information is taken directly from HUD No. 21-021 memo “HUD to /enforce Fair Housing Act to Prohibit /discrimination on the Basis of Sexual Orientation and Gender Identity.”

HUD’s Office of Fair Housing and Equal Opportunity (FHEO) issued the memorandum stating that HUD interprets the Fair Housing Act to bar discrimination on the basis of sexual orientation and gender identity and directing HUD offices and recipients of HUD funds to enforce the Act accordingly.

The memorandum relies on the Department’s legal conclusion that the Fair Housing Act’s sex discrimination provisions are comparable in text and purpose to those of Title VII of the Civil Rights Act, which bars sex discrimination in the workplace.

In Bostock v Clayton County, the Supreme Court held that workplace prohibitions on sex discrimination include discrimination because of sexual orientation and gender identity. HUD has now determined that the Fair Housing Act’s prohibition on sex discrimination in housing likewise includes discrimination on the basis of sexual orientation and gender identity.

The memorandum directs actions by the FHEO and HUD-funded fair housing partners to enforce the Fair Housing Act to prohibit discrimination on the basis of gender identity or sexual orientation. Specifically, the memorandum directs the following:

• HUD will accept and investigate all jurisdictional complaints of sex discrimination, including discrimination because of gender identity or sexual orientation, and enforce the Fair Housing Act where it finds such discrimination occurred.
• HUD will conduct all activities involving the application, interpretation, and enforcement of the Fair Housing Act’s prohibition on sex discrimination consistent with its conclusion that such discrimination includes discrimination because of sexual orientation and gender identity.
• State and local jurisdictions funded by HUD’s Fair Housing Assistance Program (FHAP) that enforce the Fair Housing Act through their HUD-certified substantially equivalent laws will be required to administer those laws to prohibit discrimination because of gender identity and sexual orientation.
• Organizations and agencies that receive grants through the Department’s Fair Housing Initiative Program (FHIP) must carry out their funded activities to also prevent and combat discrimination because of sexual orientation and gender identity.
• FHEO Regional Offices, FHAP agencies, and FHIP grantees are instructed to review, within 30 days, all records of allegations (inquiries, complaints, phone logs, etc.) received since January 20, 2020, and notify persons who alleged discrimination because of gender identity or sexual orientation that their claims may be timely and jurisdictional for filing under this memorandum.

Housing Discrimination Claims

Under the new guidance, HUD said it will be able to investigate complaints made under the Fair Housing Act of 1968 which prohibits discrimination because of race, color, national origin, religion, sex, familial status, and disability that are made by persons who alleged discrimination because of gender identity or sexual orientation.

Persons who believe they have experienced housing discrimination may be able to pursue a claim under all or some of the following:

• The Fair Housing Act, if they have experienced discrimination under one of the Act’s seven protected classes;
• HUD’s Equal Access Rule, providing protection against sexual orientation and gender identity discrimination in HUD-funded programs; or
• State and local anti-discrimination laws that specifically include sexual orientation and/or gender identity as protected classes.

Housing discrimination may include discrimination by a real estate professional, mortgage professional, rental property owner, property manager, or other persons involved in the housing process.

Claims can be made by contacting HUD’s Office of Fair Housing and Equal Opportunity or submitted online at hud.gov./fairhousing.

HUD Publishes 2021 Civil Penalty Amounts for Fair Housing Violations

In March 2021, HUD published new inflation-adjusted civil penalty amounts for individuals or entities that have been found to have violated housing-related laws, including the federal Fair Housing Act. The new civil penalty amounts will apply to violations of the Fair Housing Act that occur on or after April 15, 2021.

Under these revised amounts, an individual or entity found to have violated the Fair Housing Act can be assessed a maximum civil penalty of $21,663 for his or her first violation of the Act. Respondents who had violated the Fair Housing Act in the previous 5 years could be fined a maximum of $54,157, and respondents who had violated the Act two or more times in the previous 7 years could be fined a maximum of $108,315.

These civil penalty amounts are in addition to actual damages and attorney’s fees and costs that may be awarded to someone who has experienced housing discrimination

The best business practice is to be truthful, and provide information that can be supported by actual experiences, written documents, and tenant records. Contacting landlords for tenant references is an important tenant screening for verifying applicant information. Due diligence is always a requirement for business protections for persons and property. Factual information provided during a reference call helps the prospective landlord make a more informed decision for tenancy. As a landlord yourself, you would appreciate the same courtesy when you conduct your reference checks.

You should not make comments about former tenants that have no factual basis, such as personal opinions, or bias. Giving false information or misleading information about a former tenant could result in legal action against you by either or both prospective landlord and former tenant. However if the former tenant damaged the rental unit, and subsequently forfeited his security deposit, that information as supported by your documentation, could be important to the prospective landlord. Conversely if the former tenant was a quality tenant with a history of timely rent who maintained the unit in good condition, that information can also be important to the prospective landlord for decision making.

Keeping good records is important to protecting your business from potential lawsuits. When you document events during the tenancy you should include factual details that, when records are accessed at a later time, can provide information to commonly asked reference questions such as:

What was the date of the tenancy?

Did the tenant pay rent on time?

Did the tenant keep the rental unit in good condition?

Were there any problems with other tenants or neighbors?

Was the full security deposit returned?

Did the tenant give proper notice to vacate?

Providing reference information for a former tenant does not have to be complicated. You should be fair to the former tenant by giving factual information to the prospective landlord for his decision making.

When a tenant doesn’t pay the rent on time (beyond any statutory grace period allowed by the lease agreement or required by state law) the landlord should serve the tenant with a “pay or quit” notice. If rent is not paid by the end of the period required by state law, the landlord can take legal action to begin the eviction process.

However it appears you have more than one problem. While a landlord has the right to enter a unit with proper notification to the tenant, if the tenant denies landlord entry, a landlord’s first step should be to meet with the tenant to see if the matter can be resolved. Since the tenant rejected your offer to discuss the matter, you could take steps to terminate the tenancy. You would need to research state statutes and review your lease agreement for appropriate language regarding remedies for a tenant’s breach of material terms and conditions of the lease. Remedies may include filing for eviction. Landlords must always avoid physical confrontations and quarrels with tenants who may be seeking to cause or escalate a problem.

It may be best to have an attorney deal with the matter rather than trying to work with the tenant directly. While most landlords want to handle the situation themselves it is sometimes the safest and best way to engage with an attorney when dealing with a problem tenant. Tenants usually respond to notifications from an attorney and the attorney can take appropriate legal action to remedy the matter. At the time of this writing an eviction moratorium may still be in effect and legal consultation may be necessary to determine the correct action and the timeframe.

Whether it is a good idea to install a new heating/cooling system rather than continuing to have an old one repaired depends on (1) your future plans for the property; (2) for a rental where you pay the electricity, the reduction of operating expense expected; (3) for a rental where the tenant pays the electricity, the expectation of what higher rent might be obtained with a new system; (4) the current annual expense for maintaining the old system; (5) what tax benefits might be available from federal and state governments that are of value, taking into account your particular marginal tax bracket; and (6) what cash or credit rebates might be available from utility companies at the time.

However, a new high-efficiency heating/cooling system can result in substantial savings in energy costs over the medium-to-long-term., this particular improvement, usually a bad investment just before a sale, can be very profitable over a longer term. If you are experiencing high maintenance costs because of the age and condition of the system, the reduced expense resulting from installing a new system will increase the return on investment. If tenants are responsible for electricity costs, a highly efficient HVAC system can be an attractive feature to prospective applicants.

Major renovation projects are seldom a good idea if you’re getting ready to sell the property. While many improvements provide a significant return on investment over a number of years, the return on investment due to immediate increased value is usually low for many renovation projects. For example, installing a new heating/cooling system typically increases the sale value of the property by 40 to 70 percent of the cost of the system. According, it is probably not a good idea to upgrade if you might sell the property within the next year or two.

Finally, even if planning to soon sell, it can be better to replace it before a sale simply because the buyer may discount the price he’s willing to pay by more than the cost of replacement when the system is very old or is found to have serious problems when inspected by a potential buyer or his contractor.

Co-employment is a business model used by professional employment organizations (PEOs) to partner with small to mid-size businesses to cost effectively outsource the management of human resources, including employee benefits administration, safety and risk management, regulatory compliances, tax filings, payroll processing, workers compensation and other employee-related benefits and services.

The business organization (client) and PEO co-employment relationship is a contractual allocation and sharing of certain employer responsibilities as defined in a client service agreement. The PEO assumes specific employer rights, responsibilities, and risks by the establishment and maintenance of a relationship with the employees of the business organization (worksite employees).

The roles of the business organization and the PEO depend upon the circumstances as employment responsibilities are assigned in the client service agreement. Each party is responsible for certain employment obligations while both parties share responsibility for other obligations and be an employer but neither party is the employer for all purposes.

Once a business organization contracts with a PEO, the PEO will then co-employ the business worksite employees. The co-employment relationship is established among the PEO, the worksite employees and the business organization. The PEO and the business organization have separate relationships with worksite employees. The PEO engages with worksite employees with respect to specific matters involving human resource management and compliance with employment requirements, while the business organization directs and controls worksite employees in the day-to-day business operations as well as the manufacturing, production, marketing, sales, service, and delivery of its products and services.

The business organization has responsibility to provide the worksite employees with the tools and instruments to perform work in a worksite that is safe, conducive to productivity, and operated under best practices with employment rules and regulations.

Co-employment responsibilities

As co-employer, the business organization retains the management of business operations including employee hiring and termination and the management of the duties and core functions of the worksite employees. As co-employer, the PEO supplies the business organization with benefits and services for worksite employees. In brief, the business organization controls business decisions while the PEO manages employee-related HR responsibilities.

A professional employment organization can assist the business organization in managing employer obligations for wage and salary reporting, payroll processing, employee benefits, HR compliances, risk management, employment taxes, unemployment processing, and workers compensation insurance and claims management. Employee benefits can include medical, dental, and vision coverage, flexible healthcare spending accounts, 401(k) retirement accounts, life insurance, short-term and long-term disability insurance, COBRA, and other employee-related benefits/services. The PEO is the benefits plan sponsor and as such, responsible for management and administration of benefit plans.

Examples

The PEO provides compliance support for government tax and reporting forms including employer payroll tax filings, W-2s and 1099s, COBRA forms, EEO-1, and regulatory filings.

The PEO can assume the business organization’s workers compensation risk by providing coverage under a policy sponsored by the PEO. The co-employment agreement allows the PEO to investigate claims, communicate with injured worksite employees and their health care providers, and help with the return to work requirements for the worksite employee. The PEO can assist the business organization with proactive measures such as onsite inspections, safety recommendations, and safety training to minimize workers compensation claims and in defense of liability claims brought against the business organization. Measures such as these can help in reducing costs as well as help to prevent injuries in the workplace.

The PEO provides HR support and planning to help the business organization grow and expand. Growth of the business may require corresponding need for additional worksite employees and HR services. A business organization benefits from co-employment agreement for PEO services to manage new hire paperwork, employee onboarding, develop a baseline compensation/wage framework, develop and implement employee training courses for worksite coaching, development, and online learning; develop organizational charts, assist with performance management, write job descriptions and job duties, and develop recognition and reward employee programs.

The administration of employee benefits and perhaps more importantly, the offering of high quality benefits packages at affordable rates, is attractive to potential job candidates and beneficial to current worksite employees.

Considerations

The business organization must take several factors into consideration when researching PEO providers. While the cost of a PEO co-employment agreement is usually a decisioning factor for many small businesses, the pricing of a co-employment agreement can vary depending on the number of employees to be covered (minimum required), the plan structure for employee benefits and services (standard or customized), and contract terms and conditions (contract period, cancellation). Generally the pricing structure is one of two options – a charge per employee or a charge based on a percentage of the business’s total monthly payroll. Pricing may also be dependent upon whether the services are bundled in a standard package or customized to the requirements of the business organization.

Considerations also include the time to conduct due diligence to research PEO candidates qualifications including certifications and client recommendations in order to make an informed business decision. A business organization should first review its own business structure, resources, capabilities, and goals to determine the feasibility of a co-employment agreement. The organization will need to analyze current operations and evaluate the potential gain or trade-offs associated with co-employment.

Benefits and limitations of co-employment

In general, businesses that have outsourced HR management to PEOs cite the following benefits of a co-employment partnership:

When HR management and administration tasks are transferred to the PEO, the business organization has time to focus on its business development;

There is less organizational stress due to regulatory compliances being managed by the PEO – federal, state, and local agencies reporting, filing, and payments are scheduled for timely compliance.

The National Association of Professional Employment Organizations (NAPEO) cites study data that:

Businesses in a PEO arrangement grow seven to nine per cent faster than those that do not use a co-employment agreement;

Businesses with co-employment arrangements have a ten to fourteen percent lower turnover ratio of employees;

Businesses that partner with PEOs are fifty percent less likely to go out of business;

Small to mid-size businesses that partner with a PEO are more competitive with larger companies;

More affordable benefits and insurance offerings are attractive to employees and job candidates; and

Improved compliance for regulatory issues help reduce risks.

However, there can be limitations as well in a PEO co-employment arrangement. The flexibility and choice of insurance packages that can be offered to worksite employees may be limited due to fixed, existing contract arrangements between the PEO and insurance providers.

Business organizations may need to adjust to new policies regarding employee relations;, transitioning worksite employees from an in-house HR staff to the PEO’s more formal staffing department for questions regarding benefits and services may take some getting used by the worksite employees.

Contracting with a PEO for co-employment does not eliminate liabilities. The business organization and the PEO have shared responsibility for employment liability and must be aware of potential risks.

A key point to keep in mind is that business organizations retain ownership and control over their business. The scope of employment responsibilities and liabilities for co-employers is defined in the client services contract between the organization and the PEO.

However, utilizing a co-employment agreement with a PEO allows business organizations to focus on growing market share and increasing revenues while providing employee benefits and services in a cost efficient manner, some benefits and services of which may have not been possible using in-house resources.

Rental property inspections are conducted for a variety of reasons to assess the condition of the property in order to protect (1) the owner’s financial investment, (2) the physical property, and (3) tenants’ health and safety. The owner/landlord inspects his property to make sure the tenants are compliant with lease terms and conditions; there is no illegal activity at the rental property; to eliminate safety hazards; to assess maintenance and repair tasks; to maintain the property to habitable conditions; and to protect property value. A regular schedule of property inspections can improve tenant overall satisfaction with the property management which in turn can reduce tenant turnover.

Most property inspections require physical access to the rental property to assess exterior conditions and in some instances access to interior units. Most states grant tenants the right of quiet enjoyment of the rental premises – the right to exclude others from the premises (including the landlord); the right to peace and quiet; the right to a clean and habitable environment; and the right to basic services. A landlord cannot enter the rental unit except as provided by statute or terms of the lease agreement.

Statutes specify the circumstances by which a landlord can enter the tenant’s unit, most commonly to deal with an emergency, to inspect the premises, to make repairs, alterations or improvements, to show property to prospective tenants or buyers and during a tenant’s extended absence. In most states 24 hours’ notice is presumed reasonable notice. In some cases the landlord’s lease agreement may specify different conditions from statutory law for landlord entry to the premises.

Type of Rental Property Inspections

Landlords customarily schedule property inspections for the start of the lease term (move-in), the termination of the lease (move-out), and at least one routine/seasonal physical inspection of the property during the tenancy. However there are additional inspections that may be conducted for property management or required for legal compliances.

Move-in Inspection

Many state laws require a move-in checklist to be completed when possession of the rental property is given to the new tenant. The checklist is a written statement to document the condition of the rental property at the time of the move-in inspection as signed by the landlord and the tenant. The check-list provides a dated reference for damage to the property, beyond normal wear and tear.

Move-out Inspection

Most lease terms and conditions require the departing tenant to return the rental property to the same good condition as documented on the move-in inspection checklist.

The move-in inspection report is the reference document to evaluate the overall condition of the property at termination of tenancy. The move-out inspection cannot be more restrictive than was the move-in inspection. Some states have special rules and requirement for move-out inspections and use of checklists. In a few states the tenant must be provided a pre-move-out inspection where the landlord notes property defects that need to be corrected if the tenant wants to maximize his deposit refund.

Generally a landlord can charge for cleaning and repairs necessary to restore the rental unit to the move-in condition. A landlord cannot deduct for costs of ordinary wear and tear. The costs must be a reasonable and fair price for the type and amount of work performed. A landlord cannot charge the tenant for damage that was present at move-in, replacing an item when a repair would be sufficient, or cleaning when tenant paid a non-refundable cleaning fee.

Routine Inspection

A routine maintenance inspection helps to prevent the property from losing value due to maintenance and repair issues that, if left unaddressed, could cause serious property damage.

During a routine inspection, the landlord checks to make sure the property is safe and clean, whether there are housekeeping issues that could affect the safety and security of residents, and inspects for issues related to plumbing such as leaking faucets or moisture problems in kitchens and bathrooms, HVAC systems, and electrical wiring. These scheduled visits also alert the landlord to potential problems such as trash and garbage accumulating on the property, cracks in window panes, unauthorized pets, additional occupants, or illegal activities on the property.

Some landlords conduct a drive-by property inspection of their single-family rentals to visually inspect the rental property at a distance for issues that could be signs of lease violations, such as exterior damage to the property structure, landscaping issues, or other signs that the tenant is not maintaining the property to good condition. However a landlord should keep in mind that although a drive-by inspection would not require notice to the tenant since there is no landlord entry, the tenant retains the right to quiet enjoyment and privacy of the rental property. Excessive use of drive-by inspections could lead to tenant claims of landlord interference with tenant rights and landlord harassment.

Emergency Inspection

In most states, a landlord may enter the rental property in the case of true emergency. A true emergency is an imminent and serious threat to health, safety, or property. In some states a landlord may enter the rental unit during an extended absence by a tenant for purposes of inspection and/or securing the property from damage such as a severe weather emergency or a situational emergency such as gas leaks, water main breakage, etc. There could also be a situation where landlord entry to the rental property is requested by law enforcement or emergency personnel for health and safety reasons.

Seasonal Inspections

Seasonal inspections are preventive maintenance inspections for exterior and interior conditions at the rental property. Single family rentals and multi-family units will have different issues to address for seasonal maintenance and winterizing, but a seasonal checklist should be prepared to ensure the interior spaces and exterior structure are properly maintained for the appropriate season and all systems and appliances are in good condition. While conducting a seasonal inspection, a brief routine inspection could also be done to check on lease compliances and identify items needing repair.

Section 8 Inspection

For those landlords participating in the Housing Choice Voucher program (Section 8), a property inspection can be required during the initial approval process for landlord participation in the program, required annual inspections, program audits, or inspection as a result of specific complaints by the tenant to the housing authority.

Insurance Inspections

The owner/landlord’s insurance may require periodic inspection of the rental property to determine the liability risks and whether the type of property is insurable for the type of policy being purchased. Inspections may reveal deficiencies in coverages or adjustments as required for compliance with statutory requirements or landlord requirements.

State and Municipalities Inspections

State statutes and many cities and counties have requirements for compliance with building codes, fire safety, health and safety standards, or other regulatory issues. Property inspections could be required for structural and mechanical systems; health and safety requirements for prevention of pest infestations, vermin control, garbage removal; and fire safety including fire extinguishers, smoke alarms, carbon monoxide detectors, and sprinkler systems.

A property inspection may be required for new construction certificate of occupancy or required for a certificate of habitability to ensure the property is fit to be lived in and meets health and safety codes.

There could be inspections required to comply with construction for new build or remodeling work to ensure safety including a building inspection, inspection of systems such as HVAC, plumbing, electrical, or fire safety requirements such as fireproofing building materials.

Change in Property Management

If there is a change in the property management company, there is good reason to conduct a property inspection with the new property manager. Exterior and interior inspection should be conducted to provide adequate documentation of the condition of the property and any needed repairs. The scope of the property management contract may depend upon the assessment of the property during property inspection.

Other Types of Inspections

If the owner/landlord is seeking lender financing for building purchase or refinance, the lender might require a property inspection. For some properties the lender might require an environmental site assessment such as a Phase 1 inspection for environmental hazards.

Lender requirements could also require a property inspection for a new buyer of an existing rental property to determine property condition and assessment of property value. A prospective buyer may have contingencies in the purchase contract for property inspections such as a general property inspection to evaluate foundation, roof, electrical work, HVAC, plumbing issues; radon testing; termite inspection; pest infestation; or subsequent inspections of a specialized nature if problems are found during the initial inspection.

There could be other types of inspections such as survey work, property appraisals, tax record corrections, or property easements that require a premise visit.

Documentation

A landlord should keep detailed written records of all property inspections, including notes with dates and supporting video and photographs. Documentation of property inspections and findings can help protect against claims of liability or negligence. Property inspection documents can also prove existing conditions of the property for insurance coverages and claims, and future property improvements.

There can be many reasons why allowing tenants to do repairs is not a good idea. Depending upon the scope of work and the tenant’s skills and abilities, there could be issues related to legal responsibilities, quality of work, liability, possible worker’s compensation insurances, unemployment insurance, income tax liabilities, potential mechanic’s liens, and an unhappy landlord-tenant relationship.

As a practical matter though, many landlords delegate custodial maintenance to the tenants. Custodial maintenance is routine upkeep of the property or rental unit. Maintenance duties allowed by state law may vary. For example, a landlord may be allowed to transfer more duties for a single-family home than for units in a multi-family building. Transfer of maintenance responsibility to the tenant does not relieve the landlord of a duty to monitor the tenant’s work performance and quality standards and, as necessary, take control to ensure compliance with habitability standards.

Sometimes the landlord isn’t aware that the tenant is making repairs for which he hasn’t the skills and experience to do them correctly and safely. Regular property inspections can help discover repair and maintenance issues that should be done or need to be redone.

A tenant may repair items on his own even though the lease doesn’t require him to do so, either because he caused damage and doesn’t want the landlord to know about it or because the landlord didn’t respond to a maintenance complaint in a timely manner. Many times, tenant repairs are not properly done, costing more to correct than it would have cost to have been done by a qualified vendor.

Assigning maintenance and minor repair to the tenant in the lease can lead to problems if you do not monitor agreed upon work or do not conduct property inspections. The tenant often doesn’t do repairs that are his responsibility because he doesn’t have time or doesn’t know how. This can result in additional problems. Accordingly, landlords should carefully consider which maintenance tasks should be done by the tenant and which should not.

While the Fair Housing Act covers most housing, in very limited circumstances, the Act exempts owner-occupied buildings with no more than four units, single-family houses sold or rented by the owner without the use of an agent, and housing operated by religious organizations and private clubs that limit occupancy to members.

The Act provides an exemption for “Housing for Older Persons” (HOPE) which specifically exempts some senior housing facilities and communities from liability for familial status discrimination. The HOPE exemption does not protect senior housing facilities or communities from liability for housing discrimination based on race, color, religion, sex, disability, or national origin.

None of this housing is exempt from section 804(c) of the Act, which states that you cannot make, print or publish a discriminatory statement. Any exempt housing that violates 804(c) has lost that exemption and can be held liable under the Act.

Note that state and local fair housing laws may provide additional fair housing protections or provide other exemptions. While a property may be exempt under the federal Fair Housing Act, that property may not be exempt under state and local fair housing laws. To be sure of your property’s status, you may need to seek legal advice.

Tenant onboarding welcomes the new tenant to the rental unit by providing detailed information on rental policies, procedures, rules and regulations. The onboarding practice helps the tenant understand his/her legal obligations and duties by landlord-tenant statutes and by the lease terms and conditions. The goal of the onboarding session is to familiarize the tenant with key rental policies as well as housekeeping items that can help the tenant quickly settle into his new home.

Since the amount of information provided during onboarding can be overwhelming to the new tenant who is anxious to move in, it is a good business practice to provide the tenant with a Welcome packet containing copies of all signed documents – lease agreement and addendum, move-in inspection checklist with notations of unit condition and schedule of corrective actions, and key control policy with attached receipt of key transfer – along with helpful tips and reminders of information that was covered during the onboarding session, particularly contact numbers, rent payment procedures, and procedures for maintenance requests.

Key items discussed during tenant onboarding can include:

Landlord Identification and Contact information – The name of the business entity and/or the rental community name, the landlord’s name, address, phone number, and email address.

Emergency Contact Information – The name and contact information of a person authorized as a 24/7 emergency contact if different from the landlord or an alternate contact if the landlord is not available.

Business Hours and After-Hours Information – Office hours and after-hours contact information, e.g. the landlord’s message service, landlord website, or tenant portal web address.

Renters Insurance Requirement – Reminder that the lease requires proof of tenant’s renters insurance. The landlord’s property insurance does not cover the tenant’s personal property or tenant’s negligence in the event of theft, accident, fire, injury, or other harmful event.

Rent policies – (1) due date, (2) rent amount, (3) manner of payment, (4) grace period, (5) late charges, (6) insufficient funds policy, and (7) other rent issues.

Security Deposit – State landlord-tenant statutes regulate the collection, handling, and return of security deposit funds. At tenant move-out the security deposit will be applied to costs of cleaning, damages, and unpaid rent. The security deposit cannot be applied to the last month’s rent.

Security and Safety – Provide instructions for operation of door locks, deadbolt, window locks and other security measures.

Inspections – Annual property inspection of unit and grounds. Other inspections may be conducted for health and safety issues as specified by local building codes or ordinances.

Smoke Detectors/Carbon Monoxide Alarms/Fire Extinguishers – Provided in each rental unit.

Maintenance and Repair –Tenant is responsible to keep the rental unit in good condition throughout the tenancy and to promptly report maintenance/repair issues to landlord.

Keys – The tenant is responsible for the return of all keys issued at time of move-in. Requests for additional keys or rekeying of locks must be made in writing to landlord.

Parking – Only registered vehicles allowed in assigned parking spaces. Parking of over-sized or utility type vehicles prohibited. Guest parking allowed only in designated area.

Mailboxes – Location of tenant mailbox and mailbox keys provided at move-in.

Guests – Landlord written approval is required for long-term guest stays. Lease terms and conditions should be referenced for specific details.

Pets – Refer to the Pet Addendum for specific pet restrictions and requirements.

No Smoking – Smoke-free property. No smoking allowed in rental unit or in common areas.

Laundry and Storage – Laundry facilities and storage areas are furnished as a convenience for tenants. Landlord will not be responsible for loss or damage incurred as a result of tenant’s use of facilities or storage.

Trash Removal – General rules for trash, garbage, and recycling.

Landlord Notifications for Entry – Landlord entry to rental unit according to permissible reasons defined by statute and lease terms and conditions and appropriate notification to tenant.

During the physical move-in inspection of the rental unit, the landlord can provide the tenant with the location and instructions for the care and use of system components such as the location of the breaker panel, the main water shut-off valve, water shut-off valves inside the unit, operation of heating and air conditioning unit(s), water heater temperature controls and shut-off, smoke detectors, carbon monoxide alarms, or other supplied equipment. Additionally the tenant should be provided with instructions for the care and cleaning of appliances.

Tenant hoarding can affect the health and safety of the resident tenant, his neighboring tenants, and the landlord and his rental staff. Hoarding can create health and safety issues such as unsanitary living conditions, fire hazards, pest infestations, mold, plumbing failures, blocked entry/exit passages, trip and fall hazards, and potentially, structural damage to the rental unit.

Tenants with hoarding issues have fair housing protections afforded by applicable federal, state, and local fair housing laws. Hoarding is a recognized disability under the Fair Housing Act as Amended. The Fair Housing Amendments Act (FHAA) defines a person with a disability to include (1) individuals with a physical or mental impairment that substantially limits one or more major life activities; (2) individuals who are regarded as having such an impairment; and (3) individuals with a record of such impairment. The diagnostic criteria of hoarding include:

• Persistent difficulty discarding or parting with possessions regardless of actual value;
• A perceived need to save items and distress associated with discarding them;
• The accumulation of possessions that congest and clutter living areas and substantially compromises their intended use; and
• Clinically significant distress or impairment in social, occupational or other important areas of functioning (including maintaining an environment safe for oneself and others).

Most often a hoarding situation is discovered by a landlord during a maintenance visit, scheduled property inspection or in response to resident complaints about a neighboring unit’s odors, pests, pets, or clutter outside the unit.

The tenant with a hoarding issue may not realize there is a problem, recognize the severity of the problem, or what is needed to remediate the problem. The items that the tenant is holding onto may be valuable, trash, or something in between. A hoarder has moved beyond being a collector; there is real difficulty in discarding any possession, whether of value or not. A hoarder is reluctant, usually fearful, of making a wrong decision in keeping or discarding items.

Hoarding is a serious concern for landlords regarding how best to approach the situation and to determine the appropriate and compliant solution to the problem. Each situation requires analysis based on the facts of the matter. Before taking action to terminate the tenancy of a hoarder tenant it is advisable that a landlord seek legal advice to determine how to proceed to avoid claims of fair housing discrimination.

Reasonable Accommodations under Fair Housing Law

Under the Fair Housing Act, a reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary to afford persons with disabilities an equal opportunity to use and enjoy a dwelling, including public and common use areas. Each accommodation request should be evaluated on a case-by-case basis. There must be an identifiable relationship, or nexus, between the request and the individual’s disability. A request may be denied if providing the accommodation is not reasonable – i.e., if it would impose an undue financial and administrative burden on the landlord or it would fundamentally alter the nature of the landlord’s operations.

A hoarder tenant has the right to request a reasonable accommodation from the landlord to modify the landlord’s rental policies to minimize or eliminate the threat of hoarding in order to cure his default and bring his lease into compliance.

Hoarders are often private persons and reluctant to engage with others. Rarely will a hoarder request a reasonable accommodation from the landlord. While, in general, housing providers are advised that a tenant should be the one to initiate a request for reasonable accommodation, in the case of hoarding, it may fall to the landlord to initiate a discussion with the tenant regarding a reasonable accommodation to remediate the problem. This is particularly important when the housing situation is unsanitary, dangerous, or the tenant lacks capacity or awareness that there is a problem.

A landlord is obligated to make good faith efforts to accommodate the tenant’s disability when the landlord knows or should have known that the tenant has a hoarding disability. Reasonable accommodation must be made prior to a landlord taking other measures such as termination of tenancy. The tenant must be allowed opportunity to cure the breach and remain in residence. Most often the reasonable accommodation is an extension of time for the tenant to restore the rental unit to habitability standards, building codes, and lease terms and conditions. The extension of time may also allow the tenant to work with appropriate agency and mental health services for counseling and support of a hoarding disability.

A reasonable accommodation plan to address the issue of hoarding behaviors is a plan of cooperation and collaboration between the landlord, tenant, family members, friends, mental health professionals, social workers, and other advocates to assist and support the tenant in efforts to achieve lease compliance and retain tenancy. The accommodation plan is a tool to hold the tenant accountable for compliance and serves to document the landlord’s good faith effort to accommodate the disability of the tenant.

The accommodation plan could include action steps such as:

• Meeting with the tenant to identify health and safety issues in the unit;
• Establishing goals and timelines with the tenant that will address the health and safety issues;
• Setting specific dates or intervals for the re-inspection of the unit to monitor compliance;
• Documenting the goals, timelines and re-inspections in a written agreement jointly signed by tenant and landlord;
• Providing the tenant with information of community resources that provide assistance for hoarding issues;
• Partnering with fair housing and mental health advocacy groups or other professional services who could assist the tenant in developing a workable remediation plan; and
• Extending the timeframe for compliance to provide the tenant with opportunity to address the health and safety issues and retain the tenancy.

Hoarding disorders have a high rate of recidivism and landlords should be prepared that a tenant may re-hoard in the future. A reasonable accommodation could again be requested but may be denied if the circumstances present an unreasonable burden on the landlord. An accommodation plan of action agreed to by landlord and tenant should provide for periodic property inspections once the tenant has corrected the health and safety issues documented in the plan of action. The plan should include the contingency for specific timeframes for correction of any future health and safety issues identified during re-inspection.

It is possible a reasonable accommodation request could be denied on the grounds that an accommodation would not eliminate or adequately mitigate health and safety issues and that termination of tenancy should be done. The denial could be for situations wherein the tenant’s behavior poses a clear, direct, immediate threat to the health and safety of other residents, the landlord and rental staff, or service providers; the tenant’s behavior causes substantial property damage; or the tenant will not cooperate in the reasonable accommodation process to bring the unit into compliance.

Depending upon applicable laws, the facts of the matter, such as the material violations of the lease, the tenant’s degree of cooperation in remediation, or the failure of multiple efforts to cure the breach, it may be necessary to consult with legal counsel regarding termination of the lease and eviction of the tenant hoarder through court order.

Landlords should be prepared with a policy and practices regarding compliance procedures for handling a situation of tenant hoarding. Hoarding is a disability, protected by fair housing law, and when discovered, landlords are required to offer reasonable accommodations to residents with hoarding issues to remediate the problem. However, landlords are not required to tolerate dangerous conditions for residents, staff, or rental property. If the situation cannot be remedied by a reasonable accommodation, termination of tenancy may be the appropriate measure to be taken.