Can Enforcing Nuisance Ordinances Lead To Fair Housing Violation?
Submitted by The Editors on Mon, 02/26/2018 - 2:37pm
The Grace Hill training tip of the week focuses on the issue of nuisance ordinances and whether they could lead to Fair Housing Act violations.
By Ellen Clark
Nuisance ordinances aim to keep communities crime free, increase property values, and encourage economic development but many nuisance ordinances include domestic violence incidents in the definition of a “nuisance.”
This can have an adverse impact on victims of domestic violence.
Assess your nuisance policies and procedures to ensure they do not unfairly discriminate against women, who are more likely to be victims of domestic abuse and are a protected class.
Victims of domestic violence calling law enforcement is a nuisance?
For example, according to some nuisance ordinances, victims of domestic violence who call law enforcement a certain number of times may be subject to eviction.
As a result, victims are less likely to report crimes and may continue to suffer abuse. Because domestic violence victims are overwhelmingly female, such laws could cause a disparate impact based on gender, which is a protected class under the Fair Housing Act (FHA).
In September 2016, the U.S. Department of Housing and Urban Development (HUD) issued guidance addressing the impact of nuisance ordinances on victims of domestic violence. HUD’s guidance primarily focuses on the sources of nuisance ordinances – local governments. However, HUD has taken the position that a multifamily housing provider may violate the FHA by selectively or generally applying nuisance ordinances in ways that discriminate against residents of a protected class.
Nuisance ordinances can cause housing discrimination
HUD writes in the guidance that, “A growing number of local governments are enacting a variety of nuisance ordinances that can affect housing in potentially discriminatory ways.
“Nuisance includes what is characterized by the ordinance as an “excessive” number of calls for emergency police or ambulance services, typically defined as just a few calls within a specified period of time by a tenant, neighbor, or other third party, whether or not directly associated with the property.
“The ordinances generally require housing providers either to abate the alleged nuisance or risk penalties, such as fines, loss of their rental permits, condemnation of their properties and, in some extreme instances, incarceration. Some ordinances may require the housing provider to evict the resident and his or her household after a specified number of alleged nuisance violations—often quite low—within a specific timeframe.
“For example, in at least one jurisdiction, three calls for emergency police or medical help within a 30-day period is considered to be a nuisance, and in another jurisdiction, two calls for such services within one year qualify as a nuisance. Even when nuisance ordinances do not explicitly require evictions, a number of landlords resort to evicting the household to avoid penalties,” HUD writes.
What does this mean for multifamily housing providers?
Although the law in this area is actively developing from state to state, the key takeaway point is that multifamily housing providers often may be caught in a “Catch-22,” balancing their compliance with local nuisance ordinances against compliance with the FHA.
- Multifamily housing providers should assess their policies and procedures for dealing with nuisances and evaluate whether they are compliant with the FHA.
- Second, they should take care to consistently, and not selectively, apply nuisance ordinances to all residents.
It is important to note that even if multifamily housing providers consistently apply local nuisance ordinances to their residents, it is not an absolute defense to an FHA violation claim.
HUD still could hold the provider liable for an FHA violation if the local nuisance ordinance itself violates the FHA. In practice, however, HUD typically pursues action against the local government that enacted the ordinance, demanding that the local government amend, repeal or otherwise correct the ordinance to comply with the FHA.
While it is not your job to create or repeal nuisance ordinances, it is your job to know the rules and know how they relate to the FHA.
If you find yourself unsure about how to behave in a certain situation, make sure you are not in violation of the FHA and consult your legal counsel for advice.
Read Ellen’s full blog here.
In related news, Oregon Governor Kate Brown is expected to sign HB 4145 which passed the Oregon Senate and House of Representatives in February which closes the “Intimate Partner Loophole” by preventing convicted stalkers and domestic violence offenders from buying guns and keeping guns.