Grace Hill Training Tip of the Week
Fair Housing and Local Nuisance Ordinances
Nuisance ordinances aim to keep communities crimefree, increase property values, and encourage economic development. However, many nuisance ordinances include domestic violence incidents in the definition of a “nuisance.” This can have an adverse impact on victims of domestic violence.
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 cause a disparate impact based on gender, which is a protected class under the Fair Housing Act (FHA).
In September 2016, 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.
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.