Volume 14 • Issue 6 June 2013 Landlord News 3600 South Yosemite Street Suite 828, Denver, Colorado 80237 firstname.lastname@example.org www.thslawfirm.com Denver Phone 303.766.8004 FAX Completed Eviction Forms To: 303.766.1181 or 303.766.1819 Colorado Springs Phone 719.550.8004 FAX Completed Eviction Forms To: 719.227.1181 DISABLED RESIDENT PARKING REVISITED – TOO MANY STILL DON’T GET IT We have taught hundreds of fair housing classes over the last twenty years. Overall, the rental industry has become much better educated regarding disability related fair housing issues. However, based on questions asked and fair housing discrimination complaints filed with the Colorado Civil Rights Division, many in the industry still struggle with disability related parking issues. Disability related parking is a common fair housing issue faced by communities. Many reasonable accommodation requests are extremely complicated. Because every disability related reasonable accommodation request turns on the facts of the specific case, there are often no black and white answers. Fortunately, disability related parking requests are usually straightforward. A disabled resident who needs a parking space is entitled to one if it is possible to provide one. Period. Again, the knowledge of the industry has improved as a whole over the years. However, based on ongoing discussions with managers, regional and district managers, executives, and fair housing class participants, too many in the multi-family industry still lack critical knowledge and training regarding parking issues. Specifically, too many people still do not understand the critical distinction between handicapped parking spots, and close-up reserved spots. Failure to understand the difference may result in bad decisions and corresponding fair housing discrimination complaints. Fair housing discrimination complaints result when disabled parking requests are improperly handled, denied, or delayed. continued on page 2 WHY YOUR WHOLE TEAM SHOULD READ THE NEWSLETTER I can’t tell you the number of times a client asks me a question, and I respond by saying, “I just wrote a newsletter about that”. This is no mere coincidence. The newsletter is almost always based on real life situations from onsite teams constantly pouring into the Firm. A tremendous advantage of being a Tschetter Hamrick Sulzer client is that the collective knowledge of the industry is made available to you through lunches, classes, and our newsletter. We are constantly compiling that knowledge, and pass on much of that knowledge in our newsletter. When people ask me a question that was featured in a newsletter, it tells me that they don’t remember it, are not getting the newsletter, or didn’t read it. Regularly reading Landlord News is the equivalent of going to Property Management University. If you’re not taking advantage of it, you should consider the opportunity. Some management teams take advantage of our newsletter by using it as both a learning tool and accountability check. They review or discuss the newsletter at their management meetings and ask questions about it. It tells them who has read the newsletter and who hasn’t, as well as who is up to speed on critical issues, and more importantly who isn’t, thus providing a quick assessment of who may need more information or training. We recognize that there is turnover in the multifamily housing industry and newer employees may need answers to questions on topics that had previously been addressed. For this reason, we encourage all of our clients and their management teams to take advantage of our continued on page 2 DISABLED RESIDENT PARKING REVISITED – TOO MANY STILL DON’T GET IT continued from page 1 From a legal perspective, many reasonable accommodation requests are difficult to analyze because there is no legal precedent. For example, no case law addresses the issue of whether you have to overlook an applicant’s criminal history based upon a disability. Fortunately, many courts have established legal precedent regarding disability parking. Although there are countless court cases on disability parking, we need look no further than the Code of Federal Regulations. The example set forth in the Code of Federal Regulations (C.F.R.) clearly illustrates the legal obligation to provide the parking space. 24 C.F.R. 100.204(2) states “Progress Gardens is a 300 unit apartment complex with 450 parking spaces which are available to tenants and guests of Progress Gardens on a first come first served basis. John applies for housing in Progress Gardens. John is mobility impaired and is unable to walk more than a short distance and therefore requests that a parking space near his unit be reserved for him so he will not have to walk very far to get to his apartment. It is a violation of § 100.204 for the owner or manager of Progress Gardens to refuse to make this accommodation. Without a reserved space, John might be unable to live in Progress Gardens at all or, when he has to park in a space far from his unit, might have great difficulty getting from his car to his apartment unit. The accommodation therefore is necessary to afford John an equal opportunity to use and enjoy a dwelling. The accommodation is reasonable because it is feasible and practical under the circumstances.” Generally, the rental industry understands the obligation to make parking accommodations for disabled residents. What the industry doesn’t understand is the practical differences among types of parking spots, and the disastrous consequences that can result when you fail to carefully document the handling of simple parking requests. The three types of parking spots or spaces that can be made available to disabled residents are: handicapped, handicapped reserved, and close-up reserved. Everyone is familiar with a handicapped parking space. A handicapped parking spot is a parking space designated by the universal handicapped sign. Anyone with proper handicap parking credentials (plates, placard, or mirror hanger) can park in a handicapped designated parking spot. A handicapped reserved parking spot is still continued on page 3 WHY YOUR WHOLE TEAM SHOULD READ THE NEWSLETTER continued from page 1 website resource library which provides copies of articles on all key topics that have previously been published in the Landlord News. Browsing through these articles can provide a wealth of information and education on important topics for your newer staff members. No matter how many times I am asked a question, I would rather have your teams ask and be informed, then to proceed without the benefit of clear answers. We believe that educating clients is one of our most important valueadded services, because better-educated clients are far less likely to get into legal trouble. JJJJJJJJJJJ ..ATTENTION BOULDER CLIENTS Boulder County Sheriff’s office announced that, due to a manpower shortage within the department, they will only conduct physical moves on Tuesdays and Thursdays. There will be delays with your Sheriff move outs. Therefore, it is important to schedule your physical evictions as quickly as possible. A delay of only a day in scheduling your eviction could result in delaying your physical eviction by weeks, not days. It is imperative to stay on top of the scheduling of your physical evictions with the Sheriff to assure that you have your property available for rental on the earliest possible date. JJJJJJJJJJJ Landlord News June 2013 Page 2 DISABLED RESIDENT PARKING REVISITED – TOO MANY STILL DON’T GET IT continued from page 2 marked or designated by the universal handicap sign. However, the handicap parking sign marking the space conveys that the space is reserved for a particular handicapped individual. The handicapped sign might state, “reserved” or “reserved for permit holder”. The problem with handicapped reserved signs is that they do not always deter other handicapped credentialed vehicles from either unintentionally or intentionally parking in the space. Too often a person with handicapped parking privileges just sees the handicapped insignia, and overlooks the reserved portion of the sign, or thinks that reserved means reserved for handicapped individuals. For these reasons, we don’t recommend use of the universal handicapped parking sign when you grant parking accommodations. If a disabled resident requests a parking space and you give them a space that anyone with handicapped credentials can park in, you haven’t accommodated their disability related need. Worse, when other handicapped individuals park in the space, and they will, the disabled resident will only become more frustrated. If a disabled resident asks for a parking accommodation (a parking space), we always recommend giving the resident a “close-up reserved space”. Reserved meaning reserved exclusively for the resident making the request. We recommend this even if the resident asked for a “handicapped parking space” because residents also don’t understand the differences between handicapped spots and reserved spots until they become frustrated by other vehicles parking in the spot. A reserved spot is marked by a reserved sign, and not a handicapped sign. By reserving a spot exclusively for the disabled resident, you will deter to the maximum extent other vehicles from parking in the spot. To avoid problems with other residents, the space should not set forth the resident’s unit number. The resident who is entitled to park in the space knows that it is their space. The sign should state “reserved, violators towed immediately without notice, at violator’s expense”. Because clients regularly raise the same issues regarding disabled resident parking let’s take a moment to address the most common ones. “If a disabled resident asks for a handicapped spot, and you give it to them, how can this possibly result in future legal problems?” If the disabled resident’s request for a parking accommodation has been adequately documented in writing, you may successfully defend against a discrimination charge. However, you may still expend considerable time, effort, and money in responding to a potential fair housing discrimination charge. If the disabled resident’s request for a parking accommodation has not been properly documented in writing, you have a major problem. Because nothing is in writing, the resident can now easily say “I didn’t ask for a handicapped space, I asked for a close-up reserved space”. Even if the resident originally asked for a handicapped space, the changed story (I wanted a reserved space) inherently rings true. If somebody needs a parking accommodation, would they ask for a space that anyone could park in or a space exclusively reserved for them? One of the most costly and contentious fair housing cases ever defended by the firm in federal court was over this very issue. You can and should avoid this nightmare scenario by just giving residents reserved spaces rather than handicapped spaces, even if the resident asked for a “handicapped” space. What are their disclosure obligations? If the resident asks for a handicapped space, do you have to tell the resident that they are entitled to a close-up exclusively reserved space? It’s not your responsibility to tell a resident what accommodation they should seek, or that legally they may be entitled to additional rights. Since giving the resident a reserved space avoids countless problems, we recommend at a minimum clarifying the request. “Are you asking for a handicapped parking, a reserved spot, or something else? Let’s have a dialog about it so that we fully understand what you’re seeking.” As with any reasonable accommodation request, you should always document in writing to avoid problems later. Because a reserved spot meets disability needs to the maximum extent, you are also always free (and we highly recommend for you) to give the resident a close-up reserved spot when they only request a handicapped spot. If a resident asks for a handicapped space, can we condition providing the handicapped space on the resident providing handicapped parking credentials? No. If the resident is disabled, needs the parking accommodation, and it is reasonable under the circumstances to provide, this is all that the law requires. You may not place additional conditions on granting the accommodation. The properly credentialed issue can be avoided by providing a reserved space in the first place. We can’t provide the resident a reserved space continued on page 4 Landlord News June 2013 Page 3 DISABLED RESIDENT PARKING REVISITED – TOO MANY STILL DON’T GET IT continued from page 3 because we have a non-reserved parking policy. A request for reasonable accommodation is asking for an exception to that policy. Failure to make an exception to a policy for a disabled resident, if warranted, is a clear violation of fair housing laws. You have committed housing discrimination if you don’t make the exception in this case and instead provide the resident with a handicapped space when the resident really wanted a close-up reserved space. We already have enough handicapped parking. If the resident thought your handicapped parking was sufficient, he probably would not be asking for a space. Even if you do have sufficient handicapped parking, the resident’s request is a clear indication that he is having parking problems. The resident’s request is also a clear indication that you would be much better off just assigning him a close-up reserved spot. If we give this resident a space, everyone will want a space. An alternative theme is that providing a reserved space will lead to a flood of requests for reserved spaces. Just because you give one resident a reserved space doesn’t mean that you have to give all residents a reserved space. Granting a request for a reasonable parking accommodation does not set a precedent. Under the law, requests are examined, and then granted or denied on a case-bycase basis. If the resident is not disabled, does not need the accommodation, or both, you do not have to grant it. Some clients have gone back to reserved parking for everyone, and given disabled residents the best reserved spots or requested reserved spots, to avoid these issues entirely. We don’t have any parking spaces to give. If this is truly the case, you can’t give what you don’t have. If you do not have any close-up reserved spaces or spaces to designate as handicapped, you don’t have to create one to grant a parking request. Remember, the law only requires you to provide an accommodation if it is reasonable. A request is reasonable if it is feasible and practical. This rationale also applies to a disabled resident’s request for a space already designated for another disabled resident. Overall the industry needs to handle disabled parking requests quicker. It should not take months or even weeks to respond to a disabled resident’s parking request. Legally, a request delayed is a request denied. How long should it take? As long as it would take a knowledgeable and diligent manager. Well-trained and experienced managers can handle most parking requests within days. If it is taking two weeks, either it is a very unusual situation or the request is not being handled correctly. The most important point to remember about fair housing is knowing when to call us. We are always here to help you quickly resolve parking requests, or any other reasonable accommodation requests made by your residents. Front and center this month is an oldie but goodie Reminder Tip for our ADAMS County clients only. Please remember that you must include the date of birth of the resident when sending over your demands or sending back your reports. Adams County requires this information to complete your eviction, and you will experience delays in your eviction scheduling if we do not have this information. 1. Always make a copy of your demand BEFORE you post to your tenant. We need an exact copy, not a reconstructed copy, of what the resident received to file with court. After posting, you can fill out the return of service section on your copy. 2. You cannot tell your resident that you will not accept payment within the timeframe of a demand for rent. And, you cannot refuse to accept payment. Legally, the residents have a right to attempt to cure the demand, and by law you are obligated to accept full payment within the timeframe of a demand if it is tendered. JJJJJJJJJ Landlord News June 2013 Page 4 IMPORTANT THS JUNE DATES June 4th Evictions Workshop HTS Lower ConferenceCenter 3600 S. Yosemite Street Denver, Colorado 8:30 a.m. – Noon June 21st South Client Lunch Dave & Busters 2000 South Colorado Blvd Denver, Colorado 11:15 a.m. – 1:00 p.m.