Habitat - September/October 2016 - 10

LEGAL TALK J. Mike Williams Fowler, Hein, Cheatwood & Williams, P.A. Are You Ready for the Fair Housing Tester? F air Housing testing is on the rise nationwide. Our industry has seen an increase in the number of new housing advocacy organizations or groups over the last few years. These organizations are spending most of their resources performing fair housing testing. This trend also applies in the State of Georgia, as we are also experiencing an increase in fair housing testing. In 1991, the Fair Housing Testing Program within the Housing and Civil Enforcement Section of the Department of Justice was formed. Testing commenced in 1992. Testers are in essence paid by both private and public funds to check for compliance with the Fair Housing Act (FHA) by pretending to be prospective tenants. See 42 U.S. Code §§ 3601-3619 and 3631. HUD (Department of Housing and Urban Development), fair housing agencies and housing advocacy organizations often employ the use of testers as a means of uncovering unlawful housing practices. The use of testers is most commonly done by pairing two people who are similar but are of a different protected class. This is referred to as paired testing. For example, one tester may be Caucasian while the other is African-American. Another example may involve one tester who is disabled and in a wheelchair while the other person has no noticeable impairment or disability. Most recently, testers are employed to contact the leasing office and inquire about reasonable accommodations since it only requires the use of one tester. The standing of advocacy groups or their ability to bring an action in court is questionable. They are not ready, willing and able to lease an apartment when they allegedly experience the discrimination. The most common argument is that the tester suffers no apparent harm. Unfortunately, the Supreme Court in Havens Realty Corporation v. Coleman, 455 U.S. 363 (1982) held that testers have standing under the FHA. The language of the FHA creates standing for the housing advocacy organizations based upon the interpretation that the injury or damage is in fact the resources or funds used in investigating or performing the testing. Testing is usually performed in order to check for fair housing noncompliance or to gather evidence for an 10 | H A BITAT | w w w.atl-apt.org existing case. HUD will sometimes employ testing to obtain evidence against a landlord in an existing fair housing case. HUD also employs testers to contact the leasing office by phone to inquire about reasonable accommodations and modifications. An understanding of how the business of testing works will provide the industry with more insight as to why we are seeing an increase in housing advocacy groups. Although the advocacy group may receive some governmental funding, a large portion of their resources derive from settlements in fair housing cases. For example, when an advocacy group files a fair housing complaint with HUD based upon some alleged fair housing violation, they may demand $5,000 to settle the claim. They will typically make their demand early on in the investigation. If the case settles, the advocacy group retains 100 percent of all funds paid by the owner or management company. In essence, the apartment industry funds these organizations so they can maintain operations. The best practice to avoid problems with testing is to treat all prospects like testers. In order to accomplish this, we need to provide additional training to our front-line employees, such as leasing consultants, so they are prepared to handle difficult phone calls and visits from prospects and testers. A comprehensive training program of the fair housing laws and how to address residents in given situations is essential to reducing risk. In many instances, leasing consultants are asked difficult questions regarding reasonable accommodations and modifications. These issues should always be addressed by the community manager and in many instances should involve the regional manager or higher. Most of the phone conversations between the tester and an associate in the leasing office are recorded by the tester. A policy of recording all phone conversations made to the leasing office should be considered after consulting with your legal counsel. The recordings could be used for quality control purposes and to ensure the staff is complying with the FHA. The recordings could http://www.atl-apt.org

Table of Contents for the Digital Edition of Habitat - September/October 2016

Chair’s Message
Legal Talk
Government Affairs
Up Close
Safeguarding Property Assets and Residents
Foundation Update
Volunteer’s Corner
AAA Platinum Patron Member Profile: For Rent
AAA Gold Patron Member Profile: Affinity Pools
New Members
Advertisers’ Index
Habitat - September/October 2016 - cover1
Habitat - September/October 2016 - cover2
Habitat - September/October 2016 - 3
Habitat - September/October 2016 - 4
Habitat - September/October 2016 - 5
Habitat - September/October 2016 - 6
Habitat - September/October 2016 - 7
Habitat - September/October 2016 - 8
Habitat - September/October 2016 - Chair’s Message
Habitat - September/October 2016 - Legal Talk
Habitat - September/October 2016 - 11
Habitat - September/October 2016 - Government Affairs
Habitat - September/October 2016 - 13
Habitat - September/October 2016 - 14
Habitat - September/October 2016 - 15
Habitat - September/October 2016 - 16
Habitat - September/October 2016 - Up Close
Habitat - September/October 2016 - Safeguarding Property Assets and Residents
Habitat - September/October 2016 - 19
Habitat - September/October 2016 - 20
Habitat - September/October 2016 - Foundation Update
Habitat - September/October 2016 - Volunteer’s Corner
Habitat - September/October 2016 - 23
Habitat - September/October 2016 - 24
Habitat - September/October 2016 - 25
Habitat - September/October 2016 - 26
Habitat - September/October 2016 - AAA Platinum Patron Member Profile: For Rent
Habitat - September/October 2016 - 28
Habitat - September/October 2016 - AAA Gold Patron Member Profile: Affinity Pools
Habitat - September/October 2016 - 30
Habitat - September/October 2016 - New Members
Habitat - September/October 2016 - 32
Habitat - September/October 2016 - Advertisers’ Index
Habitat - September/October 2016 - 34
Habitat - September/October 2016 - cover3
Habitat - September/October 2016 - cover4