News

A COVID-19 Best Practice Reminder for Multifamily Housing

COVID-19 IS A SERIOUS RESPIRATORY ILLNESS THAT CAN SPREAD FROM PERSON TO PERSON. It is unfortunate that months into this crisis, people still have to be reminded about how serious an illness COVID-19 is. The current resurgent outbreaks in multiple states should be a reminder to all that we are nowhere close to the end of this health crisis. The following guidance from the CDC should be implemented by all multifamily housing properties - regardless of where the property is located. SAFE DISTRIBUTION Create and implement a strategy for distributing goods and services - delivery of parcels, goods, and services should be conducted using secure drop-off locations, personal protective equipment (PPE), and trained staff or volunteers. Keep a record of all deliveries for future reference and to assist in possible contact tracing.Provide or require PPE - Latex gloves and masks should be required and provided to all staff, residents, and partners delivering food, goods, and other resources.Limit contact - Reduce potential exposure by using contactless, no knock, no signature delivery protocols. Maintain a six-foot distance when face-to-fact contact is necessary.Clean & Disinfect - Wash hands before and after handling packages. Do so thoroughly for 20 seconds. Disinfect delivered items when possible along with the counter and ground after opening. VISITING & SAFE DISTANCING Post safe distancing requirements - Inform all staff, residents, and visitors of CDC and state-specific safe distancing requirements, e.g., 6-feet or more. Update as needed.Be aware of high risk persons - Inform staff and residents of the serious health risks of COVID-19 and signs of possible infection. Protect the elderly and those with chronic health conditions.Restrict hours - Limit entrance to facilities when possible. Employ teleworking and communicate remotely.Limit contact - Physically limit large group gatherings by:Removing furniture or blocking common areas;Closing common spaces, e.g., meeting and computer rooms, kitchens, or playgrounds; andInforming large groups about the health risks when social distancing is not being practiced.Limit visitors - CDC recommends limiting visitors in high rises and senior housing to emergency and other medical or personal care providers and in accordance with local requirements. Establish a list of other essential services, e.g., childcare, food delivery, medication, other urgent goods and record all visitors in compliance with CDC recommended practices. Obtain contact information for all persons who enter the building. For other facilities, if possible, limit visitors to one at a time and practice safe distancing at all times.Use PPE - Encourage the use of masks and gloves and take additional protective steps if there is an active case of COVID-19.Clean & Disinfect - Perform thorough cleanings of public spaces regularly. Provide supplies to residents when possible.Establish new safe distancing procedures -Use a drop box or electronic payment for rental payments;Stagger office staff in-office and/or teleworking;Limit maintenance to emergency repairs;Establish a response team trained in safe practices; andDistribute goods while maintaining a six-foot distance. Despite the "re-opening" of the economy, COVID-19 is still here. Maintaining diligent and aggressive procedures in multifamily properties will reduce the risk of contracting the disease and demonstrate to your residents that you care about their well-being.

Smoking in Apartments - Two Recent Court Cases Illustrate Landlord Right to Permit or Prohibit Smoking

Two recent court cases have strengthened the rights of landlords to either permit smoking or to prohibit smoking in apartment communities. In Davis v. Echo Valley Condominium Association, Michigan (6th. Cir.), December 2019, a federal appeals court ruled that a resident was not entitled to a building-wide smoking ban as a reasonable accommodation. Facts of the Case The resident was disabled, with a history of asthma multiple chemical sensitivity disorder.She lived in a condo unit on the second floor of a four-unit building where units shared a common entryway, basement, and attic.For a number of years, the community had received complaints from residents that they could detect odors, including cigarette smoke, from neighboring units.Michigan state law permits smoking in one s home.The bylaws of the property did not prohibit smoking in units.In the first written complaint, the resident emailed a property management employee to report that the couple renting the unit below her was home all day and night chain smoking, which affected her "breathing, causing constant coughing, and near asthma attacks."The Homeowners Association (HOA) board instructed a management employee to send a letter to the owners of the downstairs unit, asking for their assistance in keeping the smell contained in the unit.A few months later, the board paid a HVAC contractor to install a $275 fresh-air system on the resident s ductwork that allowed her furnace to draw in fresh air from outside rather than stale air from the basement.The resident stated that while the unit helped, it did not eliminate the odor.The owners of the downstairs unit were contacted by the attorney for the complaining resident but would not ask the downstairs tenants to stop smoking since the bylaws permitted the practice.The downstairs tenants agreed to purchase an air purifier to eliminate residual cigarette smoke, but this did not satisfy the resident.The resident sued the HOA, property management company, owners of the unit, and their tenants, alleging that by refusing to ban smoking in the building, the HOA violated fair housing law.Shortly after, the downstairs owners did not renew the lease of their tenants and sold their unit.The resident continued the litigation, maintaining that she still smelled cigarette and marijuana smoke from another downstairs neighbor (not the original unit that was the subject of the complaint).The resident again requested that smoking in the building be banned.The HOA circulated a proposal to ban smoking at the property, but the proposal failed to pass. Decision The court ruled that the resident s requested smoking ban was not reasonable because it would fundamentally change the project s smoking policy by barring residents from engaging in a legal activity in their own property. The resident appealed. The appellate court affirmed the lower court decision. Reasoning The community did not violate fair housing law by refusing the resident s request to ban smoking in her building.The request did not qualify as a reasonable accommodation since the phrase "reasonable accommodation" means a moderate adjustment to a challenged policy, not a fundamental change to a policy.An adjustment goes too far if the costs of implementing it would exceed any expected benefits it would provide to the person requesting it.The resident s proposed smoking ban amounted to a fundamental alteration of the community s smoking policy; no one would describe a change from a smoking-permitted policy to a non-smoking policy as an "accommodation."The proposal would intrude on the rights of her neighbors who smoke, who may well have bought their units because of the policy permitting smoking. The resident has asked the U.S. Supreme Court to consider her appeal. In a second case, NYC C.L.A.S.H. v Carson, District of Columbia, March 2020, a DC court granted HUD judgment without a trial in a case filed by a smoker s rights organization, challenging HUD s regulation banning smoking in public housing, including individual residential units. The court rejected the organization s claim that the rule interfered with residents fundamental right to engage in legal activity in the privacy of their homes, because smoking in one s home is not protected by the right to privacy. The rule satisfied constitutional requirements because it is rationally related to legitimate governmental interests - to create safe housing conditions and easing the shortage of safe homes for low-income families. In May 2020, the organization filed an appeal of the court s decision. Pending any final appeals, these two cases strengthen the rights of property owners with regard to whether or not they wish to allow smoking in their communities, and the Davis case in particular makes clear that smoking in a building does not have to be banned as a reasonable accommodation to a disabled person.

How to Notify Residents of Confirmed COVID-19 Case

I have received a lot of questions lately regarding the rights of landlords and residents when a resident at an apartment community tests positive for the coronavirus. While a landlord is required to notify residents and the public regarding a positive COVID-19 case at his or her property, they may not in any way reveal the identity of the person who tested positive. Following is an example of a Notice that can be provided to residents when there is a positive COVID-19 case at your property: COVID -19 CASE NOTIFICATION TO RESIDENTS We have recently learned that a resident of [property name] has tested positive for the COVID-19 coronavirus. We cannot reveal the person s name, unit number, floor, or any other information that could be reasonably used to determine his or her identity. We therefore kindly request that you not ask us to provide such details. What we can tell you, though, is that the person has been advised and agreed to follow Centers for Disease Control [CDC] guidelines and remain in self-isolation for at least 14 days. We are urging all residents to remain calm and follow CDC and state and local public health guidelines with regard to social distancing, hygiene and hand washing, the use of personal protective equipment, and quarantine and self-isolation. We also wish to assure you that we have and will continue to take extensive COVID-19 infection control measures, including regular and frequent cleaning and disinfection of common areas, including floors, surfaces, and door handles, handrails, elevator buttons, trash and recycling chutes, and other commonly touched objects. Thank you for your understanding and for keeping in mind that COVID-19 is not a stigma or mark of shame and that those who contract it deserve our empathy, understanding, and kindness. Please be assured that we will share new information as it becomes available. Stay strong, stay safe, and stay in communication with us, and we will all get through this pandemic together. Thank you. [Property name] Management [Date] This notice (or one like it) should be used to put residents on notice of a confirmed COVID-19 case at your site without violating the ill person s privacy or causing a panic.

State Eviction Moratoriums for COVID-19 Due to Expire As Unemployment Benefits Dry Up

When the coronavirus pandemic hit the United States, most states put a hold on evictions from rental properties. In many states, those moratoriums are expiring at about the same time that more generous unemployment benefits are set to dry up. This one-two punch could easily worsen the housing crisis for Americans already bearing the worst of COVID-19s effects. According to a weekly Census Bureau survey measuring COVID-19s impact on Americans, 20% of adults polled in May said they had slight or no confidence they would be able to pay the rent or mortgage due in June. An Urban Institute analysis of Census data found nearly 25% of black renters deferred or did not pay their rent in May, compared with 14% of white renters. In Michigan alone, courts are bracing for as many as 75,000 landlord/tenant filings (that state s moratorium expired in mid-June). The result of all this is that the pandemic - which forced an economic collapse - is adding new burdens on top of the country s serious housing problems. Even before the current crisis, the United States had a supply and affordability problem. Unless significant support is forthcoming at the federal, state, and local level, it is going to get a lot worse. The result may be higher rates of homelessness - leaving more people on the streets in the middle of a global pandemic. Even before the pandemic, our homeless shelter system was stretched thin and not set up for social distancing. In the best of times an eviction can have a devastating effect on a family; in a pandemic with an economic crisis, the situation is amplified. Since the nation was not prepared for the pandemic (despite warnings from various sources for years), reactive measures were developed in haste and the result was a patchwork of eviction halts with varying lengths and caveats. Moratoria in places like Texas have lapsed;Others will expire very soon - including Louisiana and Pennsylvania - while some states such as New York have announced extensions.San Francisco essentially made its moratorium permanent, prohibiting landlords from ever using missed rent for pandemic-related reasons as grounds for eviction. This essentially means any rent lost during the pandemic due to a loss of a resident s income is lost forever. This is an awful piece of legislation that is likely to have a domino effect that will harm both tenants and property owners. Landlords need rental income to pay bills, provide tenant services, pay mortgages and taxes; the city needs tax income to pay workers and fund essential services.Federal help was limited to housing with federal assistance and that moratorium will expire on July 25. Both landlords and tenants need to understand that an eviction moratorium is not a rent freeze - which means that overdue rent is still accumulating for tenants who have been unable to pay it. Once a moratorium expires and landlords can get court approval to take or resume eviction action, residents could be months in the hole - with little to no chance of catching up. Even more concerning, some of the expirations coincide with the stoppage of more generous unemployment benefits (the $600 per week) that have helped keep unemployed individuals above water. Congress is still debating whether to extend enhanced unemployment benefits beyond July 31, but Senate Republicans are not in favor of such an extension. While it may be possible (and advisable) for landlords to negotiate with tenants before evicting them, landlords are feeling the pinch. However, the cost of evicting an existing tenant may not be worth it, particularly if there is little demand from new renters. Each property owner will have to assess how to move forward based on individual circumstances, but if a reasonable payment plan with residents appears feasible, it may be a better option than eviction.

Paycheck Protection Program - Largest Banks Have Served the Smallest Businesses

The Bank Policy Institute (BPI) has released data from a survey of the nine largest retail banks regarding loan originations from the first two rounds of the Paycheck Protection Program (PPP). It appears that the mega-banks have primarily served the businesses that PPP was intended for - small businesses. The nine banks are Bank of America, Capital One, Citibank, JP Morgan Chase, PNC, TD Bank, Truist, US Bank, and Wells Fargo, and these banks disbursed nearly 1 million PPP loans to small businesses. The average loan was $115,000 (smaller than the program average of $130,000);64% of loans were for amounts under $50,000;51% of all loans went to businesses with fewer than five employees;75% of all loans went to businesses with fewer than ten employees; and98% of loans went to businesses with less than 100 employees. This data demonstrates that the nation s largest banks lent to America s smallest businesses in extraordinary numbers. This is very good news and indicates that the PPP essentially served its stated purpose - to allow the smallest companies the best chance to survive this crisis.

HUD and Prince George's County Housing Authority Enter into Voluntary Compliance Agreement Related to Discrimination Against the Disabled

On June 10, 2020, the U.S. Department of Housing & Urban Development (HUD) reached a Voluntary Compliance Agreement with the Housing Authority of Prince George s County (HAPGC), Maryland after a HUD compliance review determined that HAPGC denied the reasonable accommodation requests of tenants with disabilities, failed to ensure program accessibility in existing facilities, and failed to make an adequate number of accessible units available. Section 504 of the Rehabilitation Act of 1973 (Section 504) prohibits discrimination  on the basis of disability by recipients of federal financial assistance and requires that recipients of federal financial assistance bring their programs and activities into compliance with federal accessibility requirements. In addition, Title II of the Americans with Disabilities Act (ADA) prohibits state and local governmental entities from discriminating on the basis of disability in all services, activities, and programs. The case began when HUD conducted a review to determine if HAPGC was compliant with Section 504 and the ADA. The HUD compliance review identified a lack of accessibility throughout HAPGC s Housing Choice Voucher (HCV), Project-Based Voucher (PBV), Moderate Rehabilitation (Mod Rehab), and Public Housing (PH) programs. The review also revealed that HAPGC staff routinely failed to respond to the reasonable accommodation requests of tenants. Under the terms of the agreement, HAPGC will: Ensure that at least 5% of its PH, PBV, and Mod Rehab units are fully accessible, and at least 2% are designated sensory (i.e., hearing and vision) accessible;Hire an independent licensed architect to evaluate and design the accessible retrofitting of existing units and common areas;Work with disability-rights organizations to recruit landlords with accessible units into the HCV program;Set up a $200,000 compensation fund for HCV, PBV, Mod Rehab, and PH participants who were denied reasonable accommodations;Create a $200,000 modification fund for its HCV program to pay the costs for tenants who need reasonable accommodations and modifications;Appoint a VCA coordinator and a Fair Housing Compliance Coordinator during the seven-year term of the agreement;Develop policies pertaining to non-discrimination and accessibility, reasonable accommodations, effective communication, transfers, and assistance animals and post the policies on its website; andEnsure that all HAPGC staff attend annual fair housing training.

Boston and New York Landlords Sue Over COVID-19 Eviction Moratoriums

Landlords in New York and Massachusetts have filed legal challenges to eviction moratoriums put into place as a result of the COVID-19 pandemic, arguing that the bans on eviction are unconstitutional. On May 27, 2020, a group of landlords in Westchester County, NY filed a lawsuit against New York Governor Andrew Cuomo challenging his extension of a previously enacted eviction moratorium. The owners say that the moratorium violates their contract and due process rights and constitutes and illegal taking   of the landlords properties. Filed in federal court in White Plains, NY, the suit aims to reverse two provisions of the May 7 extension order: (1) the prevention of landlords from seeking eviction proceedings through August 19; and (2) the option for renters to use their security deposit towards their rent payment. The plaintiffs are taking the position that "the order has given carte blanche to tenants to withhold rent without immediate repercussion." The complaint further states, "Plaintiffs and all similarly situated landlords are precluded from asserting their rights and obtaining relief to protect their property, all the while remaining obligated to pay all of their own carrying costs and other expenses, including taxes to the various governmental divisions of New York State." In Massachusetts, a similar complaint has been filed to challenge the state s eviction moratorium that was enacted in April. Attorneys representing two Boston-area landlords filed an emergency petition in Massachusetts Supreme Judicial Court on May 29 seeking to nullify the ban on the grounds that the moratorium is unconstitutional and oversteps its legal bounds. The MA moratorium prohibits nearly all residential evictions, with the exception of those involving criminal activity or lease violations that could negatively impact the health and safety of other residents. The ban is set to expire on August 18 or 45 days after Governor Charlie Baker lifts the Coronavirus state of emergency, whichever comes first. Additionally, the law permits the governor to extend the moratorium in 90-day increments. Owners and landlords in Orange County, CA and Union City, NJ have also pushed back against eviction moratoriums enacted at the local level in recent weeks. These legal challenges come during a turbulent time in the United States, which has seen unemployment numbers increase dramatically, leaving many industries - including real estate - in desperate straits. While there is also an eviction moratorium at the national level for federally-assisted properties, many of these properties also are receiving mortgage relief (with the exception of LIHTC properties, which are also subject to the federal moratorium). There generally is no such relief for properties subject to state moratoriums.

Want news delivered to your inbox?

Subscribe to our news articles to stay up to date.

We care about the protection of your data. Read our Privacy Policy.