- This class is Reasonable Accommodations Rights, Notice for Tenants. what an exciting course to be taking with the changing laws throughout the United States, and particularly in New York, when it comes to disability and handicapped discrimination. You often think about disability and handicapped discrimination and employment law. That's where it's really, really big. But did you know that the Fair Housing Act, the federal Fair Housing Act makes handicap a protected class. When it comes to disability and handicap they're interchangeable terms, state laws usually use the word disability, like the New York state Human Rights Law. It is the most interesting part of all discrimination law. And this course is going to show you that in the state of New York in housing tenants are now gonna be getting a notice from their broker, from the property manager, in their lease to tell them not only what their rights are. Yes, for getting a change to the practices, policies, procedures. To get a modification of the structure, not only their rights to these things, but also how to bring a complaint with the state division of human rights, which takes the place of HUD on the state level and how to bring this complaint when they don't get their rights in a failure to accommodate claim. My name is Andrew Lieb. I'm the Managing Attorney of a law firm located in the New York Metro area called Lieb at Law, P.C.. Lieb at Law has been working in discrimination law for years and years and years. We work in New York, New Jersey, Connecticut, and during snowboard season Colorado. But I'm sure you know that federally, you can wave into all different federal courts and we can help you anywhere. Nebraska we've even willing to go to Iowa, California, Texas. These laws are usually federal claims we see. And so when it comes to discrimination, I've done a lot of it. You could look me up, I've been on a lot of TV channels. ABC, Fox, Picks, Newsy, News Nation, Newsmax. I don't know a lot. I'm in a lot of publications, whether it's the New York times, Newsweek, local ones, like I don't know, the New York Sun Newsday. I've been in Bloomberg. Check me out. Anyway, I'm gonna be your instructor for today. And I wanna share with you two main points from today's, what's our goals. Number one, if you're a transactional attorney, you're representing landlords property managers, real estate brokers, how do you make sure that they do compliance? How do you know what the rules are? What are the rules with these regulations and statutes in the state of New York? And by the way, when the Empire state Excelsior does something, you find that other states follow suit in near term. It's one of the leaders if you remember back at law school, you would learn California and New York, New York when they do something, a lot of states follow. So if you're not in one of these states, maybe you wanna learn of what's coming down the four front. So one way is to do compliance. That's one of the things I want you to learn, but the second and more important thing I want you to learn is how this is going to affect discrimination cases moving forward, it's unknown, but I have a crystal ball and I'm gonna share with you what I'm saying. Anyway, today's focus is on reasonable modifications and accommodations. If you're a New York city practitioner you'll know that under the New York City Human Rights Law, they combine those terms and just use the word accommodation is umbrella term for both. I hope you realized already that there's a multitude of laws when it comes to disability discrimination in housing. In fact, the common areas of common property may be under the ADA as well as the Fair Housing Act just on the federal level. But for all of them, remember that the federal laws, a floor under which states and locals may not fall. So when you start off at the federal level, that's the basic most minimum rights and people that fall within the rubric of being disabled or handicapped, the definition gets bigger as you go to the state level, as well as the rights, the same with the city, county, town village level, as it gets smaller, more rights come about. A reasonable modification though, generally refers to a change to a structure. Think about steps going up into a unit where someone needs a ramp, a reasonable accommodation, generally deals with a change to a policy. Think about a no pet property where someone has an emotional support or service animal. Now, sometimes it's ambiguous, which one you're really talking about because some are policies and some are structures, but that matters only when you're in the federal or state level. You see on the federal or state level, we have rules that say a modification. The landlord has to permit the tenant to make so long as it's reasonable and that's defined by cases and necessary, meaning costly related to the subject, disability or handicap. They have to allow the tenant to make it, but the tenant has to pay for it and pay to restore it. Now, when it comes to accommodation on the federal or state level, we find that the law is that the landlord, property manager, maybe condo co-op board has to pay for it. Now in New York city, they combine them all under accommodations. And then the landlord property manager always has to pay for it. Either way here's our topics for today because at groundbreaking new regulation was just announced in the year 2022 in the state of New York. It's based on a slightly older law, Senate bill 867, which is executive law, 170-D, for all New York practitioners out there you'll know that executive law is, where the New York state Human Rights Law is, which is the New York state anti-discrimination law. Anyway, nine New York code of rules and regulations. Section 466.15 was recently adopted. And this new regulation adopted in the state register adopted by the division of human rights. This new regulation sent shockwaves to discrimination law throughout the state. We're gonna get you prepared of what that means, what the obligations are under this law, the effects of this law, get ready. Number two, though, we're gonna go into reasonable accommodation laws, generally like a discrimination 101. So you can understand exactly what the law is. And you can be prepared to be that great counselor that teaches your clients the right way to move forward and has the ammunition to motivate them to listen to you. You're not just the lawyer, you're the guy or girl who knows what they're talking about. Number three, the interactive process. This is part of discrimination, whether it's in housing, employment, or education. When someone asks for an accommodation, the process under which we do like a informal mediation to resolve the dispute, to find alternative accommodations. This is the process that when you step on a landmine and explode, you're gonna wish you hired your attorney to do this. Oh, yeah, you are that attorney. If you take one and two and you put 'em together, your way to make money as a attorney and counselor law is number three. You want to be the person who gets requests for reasonable accommodations on behalf of your clients, unless say of general counsels that know what they're doing, because asking the wrong question when faced with a reasonable accommodation is enough to make you have exposure. Speaking of which the fourth topic exposure, we're gonna be going over for you. Why this matters? Unfortunately, the idiots in the legislature and the division of human rights, I wanna say idiots. I want you to know maybe they intended to make it idiotic, but this new law S867, doesn't have any specific penalty provision or provide for penalties for violating it. We're gonna show you that. In fact, it was in a prior bill that was enacted originally. And when it was enacted, the prior bill did have penalties, but they changed it. And now it's executive law, 170-D, no penalties. Well, no penalties that are overt. We're gonna go into the exposure on that, but let's start off with the bill itself. Senate bill 867, again, that's executive law 170-D, the New York state Human Rights Law, executive law, 296. So it's in a different section than the Human Rights Law. Originally, it was gonna be in the Human Rights Law is therefore violating it. Would've been a violation of the New York tate Human Rights Law. Now its own section. It was an enabling statute and it said, hey, division, division of human rights. You guys over there, can you write up a regulation? I guess the enabling statute, didn't give the division of human rights power to give a penalty expressly the regulation. So I'm gonna backtrack on my word idiot and take the executive branch out of the problem. But I really do hate as a practitioner laws that don't have effect. It's very hard to tell people to comply with them. When it's a abstract effect, there's always an effect for violating a law. Any litigator will tell you that it's part of their opening statement will get to that more as we go forward. S867, executive law, 170-D. This is a chapter amendment because previously as I told you, it was in a different part. It's making changes to provisions of legislative 2020 C311. Here's what this legislation does. This legislation is amended by switching the section of the Human Rights Law. Again, executive law that the text would appear under and removing the requirement to conspicuously post notice of disabled tenant's rights on all vacant listings. The original law said it was gonna have to be on vacant listings. You're gonna learn though that it still needs to be in offices. It still needs to be on websites. We're gonna get into it, but they took it off of vacant listings. Anyway, this law repealed what was in section 296. Originally the law was in section 296 at 2B and 18A. And you say, why was it two different sections? One of those sections are for property that's government subsidized. One of them was for privately owned. Now they're all in section 170-D and it still applies to both. Interestingly enough, when one of the genius legislators it's in the bill jacket, one of the genius legislators voted for the original bill, the one in 296, he put out a statement. They put in the bill jacket that his understanding was it didn't apply to privately owned property, which was kind of ironic since the bill reading the face of it did, but we don't need to go there for today. Let's just go to where we are. Here's the text, the text of 170-D. Let me read it to you. "Disclosure of disabled tenants rights." And I wanna remind you that disabled, disability and handicap are synonymous when it comes to discrimination, law and housing. Now, I like the word differently abled better than disabled. That's more of a victim's rights type of perspective. And I bring plaintiff's actions. Although I do defense all the time on this stuff too, I'm actually consulting with someone right now on this complaint. I saw that's like 100 pages long. We'll see if we get that because conflicts, conflicts, conflicts gotta get waved. But back to you all, I'm a ethical guy. We always start off with checking a conflict checker. That's how these games are played. Here's what this law says. Disclosure of disabled tenants rights, the division of human rights shall promulgate regulations. That's what makes an enabling legislation. We're requiring every housing provider under subdivision 2A and five of section 296 of this chapter. Again, that's both. And we'll show you again, government subsidized and non-government subsidized housing. To provide notice to all tenants and perspective tenants in writing within 30 days of the effective data of their tendency or 30 days from the effective date of this section for current tenants. And the irony of this whole thing is that they didn't give you the notice on the enabling statute under the regulations within 30 days. So every landlord in the state was technically in violation of this provision. That said you had to give it within 30 days of the effective date of the section, because it was effective prior to the regulatory body issuing the notice. These are the types of things that make attorneys pull their hair out of their head, because at the end of the day, we're telling our clients do this, but we don't know what you should do. I had my clients writing up their own notices at the beginning, just in case there was a lawsuit because I do represent some major landlords and property managers in my local area of practice. Of their rights to request reasonable modifications. Remember that structural and accommodations that's about policies, pursuant to sub paragraphs one, two and three of paragraph D of subdivision 2A of section 296 of this chapter, and subdivision 18 of section 296 of this chapter You don't really need to know all of that. What you need to know is that we're dealing with reasonable accommodations policy, reasonable modification structure for both publicly assisted housing and privately owned. Back to what I told you a second ago, this became effective on March 2nd, 2021, to remind you the prior law was effective even before them, we don't need to go there. And they had never given us the sample notice from division of human rights on the prior substantially, similar law. Anyway, this one became effective March 2nd, 2021. And then we sat, and we sat, and we sat, and we didn't know what to do. What notice you give when the regulatory body was supposed to prepare a regulation and they didn't do it. If you do federal work, you'll know that every day the federal register comes out or propose rights and you should read them. Different states have different laws but in New York state the New York state register comes out every Wednesday. And every Wednesday I would check. And I'd say, where is the proposed regulation? In New York state what they do is they give you a proposed regulation. During the proposed regulation. After it's promulgated, it's put out it's in the register. There's a comment period. I always like to comment because I believe in that speak now or forever holds your peace moment. And you comment to the regulatory agency that's proposing it. And then usually about 60 days later, they either amend it or you get a notice of adoption. Eventually we got a notice of adoption after some comments on what is called nine New York code of rules and regulations part 466.15. I wanna read you the hyperlink. I'm gonna read you the hyperlink. If you wanna go find the original, the register stuff. If you just do
https://dosny.gov/system/ files/documents/2022/05/051822.PDF You'll find the register. Eventually after it was adopted, eventually number one, I say, eventually, the people who adopted it, the people at the division of human rights who adopted it, adopted it, but then they didn't give us the form that they were supposed to do even after they adopted it. Now you could have cut and paste from the New York state register which Moore did, because I wanted to be ahead of the game. But if you read the regs, which will gonna show you here, there are parts of the regs that you had to take. You had to take these regs and you had to use the form that was on the division of human rights website, which was not there. Eventually they did put the form on their website. I'm gonna give you the hyperlink for that as well now, I will point out that if you just do a simple Google search, you should be able to find this stuff, but, or what you could do is you could go to blog.liebatlaw.com, blog.liebatlaw.com. And we have all this stuff on our side too. But let me give you the DHR form link, just in case you're one of these original source guys or girls. I don't like a secondary source myself. So I'll tell you,
https://dhr.ny.gov/system/files/documents/ 2022/06/466.15-notice-tenants-reasonable-accommodation.PDF. Now you can find it yourself. This was proposed originally on April 14th, 2021, to bring you back. The actual law was effective March 2nd, 2021. So back to that gap period, we had over two months, not two months, I can't even count, over one month where we didn't know what to do, but even then that was when it was proposed. And even though they gave yes, sample reg, it wasn't adopted. That's where the two months came in, till May 18th, 2022. It was a year and two months later that we adopted the reg on the law that you had to give a notice within 30 days, just a problematic start out of the gates. Anyway, let's talk about the law and get to the substance because we can't dwell on the past. We can only enhance the future as practitioners. They're not gonna do what I want them to do in the legislation, but at least we can make our clients comply today. Here's what it tells us. Housing provider definition, the owner lessee, sublessees assignee, or managing agent of, or other person having the right to sell rent, or lease a housing accommodation constructed, or to be constructed, or an agent or employee thereof as set forth in New York, executive law, article 15, here and after Human Rights Law, section 296.5. I love the two parts of that. There's two parts I love in that. The first one is, or to be constructed, like when is it gonna be constructed? Like what does I even mean? And then I also love the sentence that says, or any agent thereof, how attenuated is this agency relationship. Anyway, that's who has to give the form. The housing provider definition goes on. It says the owner lessee, sublessee assigning or managing agent of publicly assisted housing accommodations, or other person having the right of ownership or possession of, or the right to rent or lease such accommodations. Is that set forth in human rights law section 296.2-A. Well you'll notice in both the housing provider definitions is there virtually the same. The difference is one is for privately assisted funding and other one's privately owned funding. Anyway, here's the definition of the property manager, individual housing provider, or such person as the housing provider designates for the purpose of receiving requests for reasonable accommodations. This is an important thing. An important note, the one you should star, because you should be the property manager. Now, am I saying you should be the property manager generally like, should you do the toilets? No, should you collect the rent? No, actually in the state of New York, if you are a property manager and you either collect rent or solicit tenants, you technically need to have a real estate brokerage license by the department of states. So don't even go there. Oh, you might be telling me who will attorneys are exempt. You are, but your paralegals aren't and they can't be supervised even with a real estate sales person's license, unless you also have the brokerage license. Oh, now you're gonna tell me, well, you can just wave in. You can wave in, but that's a whole operation for no purpose. Here's what I'm suggesting you to do. Read, be the property manager to receive requests for reasonable accommodations. You see what it says, or the person as the housing provider designates, you wanna be designated, why? Well, Andrew, why should we wanna be designated? Because you're going to bill to do the interactive process for your clients is when they do it themselves they get sued. There's another definition, this one is for the brokers out there because the real estate brokers have to give the forms as well. If you're from a state other than New York, there's three categories under real estate licensees in real estate brokerage in the state of New York, we have real estate broker brokerage firm. We have real estate salesperson and associate real estate broker. Just so you understand the categories. First substantive context. The definition though, term the place where we typically give what's called an agency disclosure form or discrimination disclosure form, actually both. Here's the definition though under this reg, term used by real estate brokers, licensed real estate sales persons, and licensed associate brokers. In New York state for purpose of this regulation, the term shall have the same meaning as applied under New York, real property law, 443 and 19 NY, CRR 175.28. Just so you know, 443 is the agency disclosure term. We know that New York state defines first substantive contact by a way of Merriam-Webster.com dictionary. I don't know why they picked that one, but that's an opinion letter from the department of state office of general counsel. And it says having substance involving matters of major or practical importance to all concerned. In lawyer, to all everything's having major or practical importance to all concerns. So whenever a broker is discussing the property and trying to sell it, give the form. Here's the three actions that are under this regulation. There's three separate and distinct actions. The first action is what housing providers must provide when they gotta give the notice to all new and current tenants, both new and current tenants need to get this form. I told you before the problem with current tenants, what's the problem, Andrew? The problem was that they had to get it within 30 days of the effective date of the regulation, but the form wasn't available for a year and two months after, I mean the effective date of the statute, but the form wasn't available by a notice of adoption of a regulation until a year and two months after. Not only does a housing provider need to give the form and reminding you that the term housing provider in that definition that we gave you said, any agent or employee thereof, meaning anyone who works there, not only must the housing provider give the form, but New York state license real estate brokers, their associate real estate brokers and their real estate sales person must also provide the disclosure form. And I did tell you before when they changed the statute, remember they changed the statute from being a 296 to 170-D. I told you, when they changed the statute, they took out, they don't have to give the notice on vacant property. You still have to give the notice. It doesn't have to be affixed to vacant property, but there's still rules about where the notice must be affixed. And so that's the third action, looping the three action one more time. Housing providers need to give the notice number one, brokers and their associated licensees need to give the notice number two and the notice needs to be posted in all sorts of places. Number three, let's talk about what a housing provider has to do to start this little operation. What does a housing provider have to do? Remember, and any agents or employees thereof, the notice needs to be given within 30 days of the effective date of the tenancy, smart lawyers, smart lawyers, what do you think you should do right there? Put it in the lease. If you put it in the lease, you're all done. Notice needs to be within 30 days of the effective date of this tendency, put it in the lease. And I know in the state of New York, a lot of brokers like to write leases, just so you we're all clear. There's something called the Duncan and Hill Standard, which is from a famous case called Duncan and Hill, that says a broker can only fill out a form lease. If that form lease is approved by the county, in which they're located, bar and realtors association jointly, very few counties have such a form lease. Brokers should not be drafting leases. This is another reason why brokers shouldn't be drafting leases because they need to have this form. Let's put 'em in there. If there's a current tendency, remember has to be within 30 days of the effective date. If you're taking this CLE right now, and you're saying to yourself, I represent a landlord. Maybe as soon as you get off of this, you should be finding the form on the HTTP that I gave you before on the hyperlink. And you should be emailing your client and saying, hey, here's a form you gotta give your tenants. Would you like to discuss with me how to do it in compliance with the law and how I can be designated as the property manager for purpose of the interactive process, chi ching, you gotta give the thing in writing and greater than an equal to a 12 point font. On the form, housing providers have to include the telephone number, email of the property manager. Again, you, the person responsible for accepting reasonable accommodation requests. I wanna have a pet lying. Well, it would be stupid to just say no, because there's this thing called the interactive process. And I highly recommend you engage in it before you say no. When the housing provider is giving this form, what else do we wanna know? They can give it by email. That's good. They could give it by text. Interestingly enough, we just had a very interesting case in the state of New York, about evidence with text, that screenshot, then miss ability of screenshots, a digital picture, the same as a normal picture, which we always had some confusion in the state of New York. So now I'm a little more apt to say, you could use text. Previously it was a big problem. There still are issues because the court didn't address it with best evidence rule, et cetera. But I'd prefer email. You could use electronic messaging system, which I think is a text. Maybe I'm missing something, Fax similarly, I think if you're still using Fax similarly, maybe the main takeaway from this CLE that you're taking with a computer is that it's time to use email and Fax similarly. You could use it in hard copy as well. That's a good one. If you're going to use it on an electronic thing, like email or text or electronic messaging system, you can use a link, but in the link, the link is the link I gave you before to the actual form. But in the link, you know how you display text, it has to say information regarding tenants rights, to reasonable accommodations for persons with disabilities. I mentioned it before. I'm gonna reiterate it because the actual regulation says you could put it in a lease or other written materials, put it in the lease if you represent housing providers, if the housing provider has existing leases, that's the ones we're gonna notice them. As soon as the CLE is over and use that as a call to action. So they can hire you to do more work for them. Just remember no oral disclosures. It has to be in writing, even with the hyperlink there's text you need. Not only is the housing provider, again, going to have to give this form and reminding you again, the form, says, here's the rights for people with disabilities and handicaps to get changes to the structure or policy of the property, where the landlord often has to pay for these changes. And it also says, here's how you sue the landlord and everyone working with the landlord when they don't give you what they want. So first they're getting one from the housing provider to disabled and handicap tenants, maybe the lesson isn't to be afraid of the lawsuit. Maybe the lesson is to know how to do an accommodation and to hire a transactional attorney that knows how to field a accommodation request and engage in the interactive process. Anyway, beyond the housing provider, the broker also has to give it and all associate licensee is meaning associate real estate brokers, and real estate salespersons. They have to give it at the notice on the first substantive contact already real estate brokers and associated licensees in New York state have to give an agency disclosure form and a discrimination disclosure form. So this shouldn't be too tricky for them to add yet, one more form. In fact of the three forms, this one needs the least amount of fill out. I'm gonna tell you, we're gonna have to fill out on this in a second, but this also in writing greater than or equal to 12.5. Same rule applies. It could be by email, text, electronic messaging system, which I'm still not sure what it means. Fax similarly, or I guess if you're gonna use that carrier pigeon that doesn't say carrier pigeon don't do that bad idea Andrew or a hard copy has the same rule with the link for the brokers and the associated licensees it's permissible if the text display says information regarding tenants that's plural tenants with apostrophe, rights to reasonable accommodations for persons with disabilities. No, no, no, no, no, no oral disclosures. So there was two requirements already on this form that says, here's our rights to make the landlord pay, the property manager pay for all accommodations and potentially modifications if we're in New York city and get 'em, even if they don't pay. And here's our rights to come after you with a division of human rights or a private lawsuit, if you don't do it. We're gonna first have it in the lease or 30 days from the effective date would already happen for existing tenants. The brokers are give it the first point of substantive contact, but guess what? It also needs to be posted here's action number three, posting requirements, where does it have to be posted? Physical posting, conspicuously and easily accessible and well lighted places at the housing accommodations. Now not vacant necessarily, but the housing accommodations conspicuously at the real estate office is an easily accessible and well lighted places. Okay, that sounds okay. You could put, 'em like put a sticker, like where we put our notice to employees about all their rights to get minimum wage, all that jazz, but you know where the real difficult one is, it has to be on websites too. And anyone who's not a coder that likes to pay a coder was cringing right now. because it says you have to put it on all websites and has to be prominently conspicuously displayed on the homepage and a link to the division's notice which I gave you before. Real estate brokerage licensees, they had got a problem. What's their problem? I told you we were gonna go into this. I want you to be designated as the property manager. Don't I? because that's how you get the job, doing the interactive process, avoiding your clients from getting sued and making some shackles along the way. But generally when a real estate broker is working with a landlord, they don't know who the property manager is. And there was a blank line where you have to fill it out. I told you it was the least filled out of the three forms of agency disclosure, discrimination disclosure form. And this form, that the broker has to give at the first point of substantive contact. But there's a line, a blank line where you have to put in the property manager who's designated. So what does a broker do if it's unknown? If they know, they obviously should put down who that person is, but if it's unknown a real estate broker has an option to write in that blank. And by the way, they can't assume it's unknown. They should have a paper trail asking that would be much smarter, but if it's unknown, they write to request a reasonable accommodation. You should contact your property manager, end quote. I tell you what the new laws in the state of New York is a form that has to be on websites, posted, offices at the locations, given by brokers and licensees, hopefully put in the lease or just mailed to all tenants. This form is going to send shockwaves about reasonable accommodation and modification laws in housing in the state. And like I said, other states are gonna catch wind soon. New York state was one of the first states to have required sexual harassment trainings. Now, other states are doing it. That's how it works. So if your anywhere, what you wanna know, even if you state doesn't have this law, what you wanna know is what is the law about reasonable accommodations and modifications? What is that law, which is a national law under the Fair Housing Act under the American with Disabilities Act. It's also state and local, but what is that law reasonable accommodations. That's called a failure to accommodate lawsuit when people don't get what they want. The first element what do we gotta know that there's five elements. That's what we need to know that there's five elements to a Fair Housing Act case on a failure to accommodate. Let me go through those five elements for you. The first element is that the plaintiff suffers from a handicap as defined by applicable law. Now to remind you in the state and local, they call it disability. The first question is, do they qualify to get an accommodation or a modification in the first place? The first element is, do they suffer a handicap for disability? You're gonna learn. If you do this type of field, you can't actually know the specific nature. If you're the housing provider of the handicap or disability, all you can know is two things. Number one, is it physical or mental? And number two, is it causally related? That's what reasonable comes in. We're gonna show you that in a second, is it causally related to the request of accommodation? So the first thing that they need to say is, they suffer from a handicap or disability as defined by law. The second element, the defendant knew or reasonably should have known of plaintiff's handicap. I have a mega class action going on right now in New York city. Who plaintiff's attorney were suing. And in that case, how would you not know is a question. So yes, you can have a situation where people ask for it. I would like to have an emotional support animal, but let's assume my case because I have attorney client privilege. Although I have authority to disclose it, I'd rather not. Well, the CLE, let's assume this is not my case. Let's assume that you're dealing with someone who's blind and let's assume the blind person has a seeing eye dog. And let's assume that they're wearing the dark sunglasses. They have a stick in the dog, has a little vest on it that says service animal. Do you think that a housing provider can say, "I didn't reasonably know that they had a handicap?" See, the second element is to defend no or reasonably should have known of the plaintiff's handicap. And so the point is that if you reasonably should have known of the handicap, you're still responsible even if they didn't request the accommodation. Number three, accommodation of the handicap may be necessary to afford plaintiff, equal opportunity use and enjoy the dwelling. You can substitute the word accommodation with modification of structure may be necessary to forward plaintiff, equal opportunity use and enjoy the dwelling. Reasonable and necessary, are two of the key elements to a failure to accommodate claim. The next element is the request of accommodation was reasonable. They're different, they're different, they're different. You could have unreasonable but necessary. You could have unnecessary, but reasonable, they're different, they're different. Reasonable is about the specific accommodation, necessary is about the causal link. The fifth element is the defendant refused to make such accommodation. So I'm gonna go through the five elements one more time for you. Plaintiff suffers from a handicap as defined by applicable law whether that's the Fair Housing Act, the Americans with Disabilities Act, the New York state Human Rights Law, the New York city, Human Rights Law, maybe the Westchester, the Nassau, the Suffolk whichever county you're in, some towns villages too, to remind you the federal laws are floor under which states and locals may not fall. So the definition becomes broader and broader as you get to the more local level. Number two defendant knew or reasonably should have known of plaintiff's handicap. If it's intuitively obvious, they don't need to tell you. Number three, accommodation of the handicap modification of the structure may be necessary to afford plaintiff an equal opportunity used and enjoy the dwelling that causal link. Number four, requested accommodation was reasonable. Requested modification was reasonable. And number five, defendant refused to make such accommodation. That refusal can be express overt or can be implied based on action. Again, definitions, definitions, definitions, just because you don't fit into a national definition of handicap or disability. Look to the state and local level if they apply. I just wanna show you the law a little on this. So you can get an idea of the different definitions of handicap or disability. We're gonna plow through this part, but if you wanna look up the Fair Housing Acts, handicap definition, all you have to do is go to 24 code of federal regulations, 100.201, it defines a person with physical or mental impairment. Remember I told you, you were allowed to know if it was physical or mental, physical or mental impairment, which substantially limits one or more major life activities, or a record of such an impairment or being regarded having such an impairment. So maybe you don't even have it, but as long as you're regarded or there's a record, let me go through what this impairment could be. So what is an impairment of a major life activity, a mental or a physical impairment? What is something that they would consider an impairment as a list? Any psychological disorder or condition, cosmetic disfigurement, or an anatomical loss affecting one or more of the following body systems, neurological muscle skeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genital, urinary humic, lymphatic systems, skin an endocrine, or, and then they keep going, any mental or psychological disorder such as mental. I hate saying this mental retardation, they gotta change that, organ brain syndrome, emotional and mental illness and specific learning disabilities. The term physical or mental impairment includes, but is not limited to. Such diseases and conditions is orthopedic visual, speech and hearing impairments, cerebral palsy, autism epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, HIV infection, mental. I don't like the word again retardation, emotional illness, drug addiction, other than addiction caused by current illegal use of a controlled substance or alcoholism. Alcoholism is not in the other, by the way. In the Fair Housing Act, I just went through what is the impairments, but here's what major life activities are. And you might be going, wow, you plowed through that fast. I have a headache, you said so many words, just go to 24 code of federal regulations, 100.201 and read for yourself. I just wanted you to get the idea of how detail it is. And when we say major life activities, it's not just what leap says. They tell you things function such as caring for oneself, performing manual tests, walking, seeing, hearing, speaking, breathing, learning, or working. I will say to you, I don't know about the rest of you, but I prefer either snowboarding or being at the beach to working so we can get rid of that major life activity for me. But apparently it qualifies. Remember it was not just that you had a physical or mental impairment which substantially limits one or more major life activities. It also includes if there's a record, what does a record mean? A history of, or has been misclassified as having, so maybe you don't even have it, a mental or physical impairment that substantially limits one or major life activity. What, how about regarded as, because it could have been you have it, a record of, or regarded as, see how detailed the definition is. Again, if too many words for you, too many words, 24 CFR, 100.201. What does regarded as mean? It means has a physical or mental impairment that does not substantially limit one or more major life activities that is treated by another person. Not more than one, but by another person as constituting, such a limitation, that's pretty broad. Has a physical or mental impairment that substantially limits one or more major life activities. Only a result of the attitudes of other towards such impairment, or has none of the impairments, but is treated by another person is having such an impairment. So when people take the position that you don't qualify as having a handicap, well, someone has to say is here's another person that treats me like that. My mother would say, I do that all the time, oh, what are you gonna do? In New York state they have their own definition. Unlike handicap it's disability and New York state remember has to be broader than the Fair Housing Act. If you wanna find this one, just go to executive law 292 here's New York state physical mentor, and medical impairment resulting from anatomical, psychological, genetic, neurological, conditions which prevents the exercise of normal bodily functions, or is demonstrateable by medically accepted clinical or laboratory diagnostic techniques, or a record of such an impairment or conditioned regarded by others as such an impairment,. New York state generally, doesn't go beyond that, except in the regulations. They also include in disability, gender dysphoria, which is the distress where gender identity doesn't match sex assigned at birth. There's a lot of debates right now on the federal level. If whether federal case law in employment context also includes this under the definition of sex, but in New York state, we're saying, hey this meets the definition of a disability. Anyway, federal I told you about in New York state just to give you a glimpse about New York city at 8-102, sub section of 16 of the New York city administrative code Here's their definition. I like this one, any physical medical, mental, or psychological impairment or history of such impairment that's it. They do tell you impairments include, but are not limited to neurological system, muscular skeletal systems, special sense organs and respiratory organs, including, but not limited to speech organs, cardiovascular systems, reproductive systems, digestive and genital urinary systems, humic lymphatic systems, immunological systems, skin, endocrine systems, mental, psychological impairments, but just to go back the New York city definition, any physical medical or mental or psychological impairment or history or record of such impairment, as you can see the first element, particularly in a place like New York city, that's it, but it's different depending on where you are. Maybe if you're doing a case of failure to accommodate a case, maybe if you're doing a case in Texas, it's gonna be harder for as many people to qualify. And we would do a more strenuous vetting than if you were doing it in New York city. Because again, the federal law is the narrowest, it's the floor. Anyway, there's a few different differentiations between the federal state and local that I wanna highlight. The first differentiation is the definition of disability or handicap. The second is about reasonableness. If you remember, that's the third element, the first element was, do you have a qualifying handicap? The plaintiff did the defendant know, or should have they reasonably known about your handicap? The third one was that causally related. Was it necessary? The fourth one was reasonableness. The fifth one was, were you denied? Let's go to that reasonableness. So because that one right there, that reasonableness is different on different places. Under the Fair Housing Act reasonableness, the reasonableness under the Fair Housing Act is determining whether requested accommodation is reasonable. That requires a complex balancing of factors and is highly fact specific. So reasonableness is a litigated thing. We learned this in a second circuit case from 2016 called Austin V. Town of Farmington. It's highly fact specific. Now I will tell you, I end up with dealing with these cases and my clients when I'm defending, 'em say, I want you to do a motion to dismiss. And I say, I don't wanna do it on reasonableness. That's not, maybe they don't qualify with a handicap. Maybe we didn't know about their handicapped, but unreasonableness, you don't wanna do that. Why? Because it's highly fact specific, fact specific really is something that you're not gonna win a summary judgment or motion to dismiss on, unless it wasn't pled properly that is. Under the Fair Housing Act. The second circuit teaches us a little more, into 2012 in a case called McElwee V. City of Orange. Once the plaintiff has demonstrated that there's a plausible accommodation. So what's the plaintiff's burden, a plausible accommodation. The defendant bears the burden of proving that the requested accommodation is not reasonable. So while it's fact dependent, which we learned from Austin V. Town of Farmington in McElwee V. City of Orange, we learned there's burden shifting. The first burden, is that the plaintiff shows a plausible accommodation. But if they do that, the defendant can still rebut the burden by proving that the requested accommodation is not reasonable. That's the Fair Housing Act, but to jump to New York city, if you read the New York city administrative code at 8-107.15A, it's interesting. Here's what the code is. There are no accommodations that may be unreasonable if they do not cause undue hardship full stop. You see how different it is based on where you are. So the first, one of the differences between the federal state and local level that was saying the definitions are different of handicapped disability. The second one is what is reasonable? What is the burdens? How does that work? And the last one is the interactive process. The interactive process is that thing that I told you, you wanna be designated as a property manager for, you wanna be the person dealing with the interactive process for your clients. The interactive process is what you should immediately respond. When you get a request for an accommodation. Whenever I do a litigation defense, my first thing is, can you show me your response, their accommodation request? Did you have a set policy from a handbook? Shouldn't you be making handbook too? Here is our interactive process. Do you have a policy? And did you send the person requesting accommodation, dear person requesting accommodation. You wouldn't write that their name. Thank you for request for accommodation. Please see our policies and procedures for the interactive process to properly evaluate how we can accommodate you or modify our structure. So you can have equal use and enjoyment of this property. Thank you, sincerely. That's what it should be. You should have a set policy and procedures. Another thing you should be selling to your clients because they don't wanna show that they treated one person in the same class or a different class differently than another person. Anyway, the interactive process. What happens if you don't do the interactive process, leave, this is required. We learned by the ninth circuit on February 23rd, 2021 in a case called Howard V. HMK Holdings. Here's what we learned. The Fair Housing Act amendments do not provide for independent liability based on the landlord's failure to engage in the interactive process. Whoa, so why are we doing it? Why are we doing it? Why are we engaging in the interactive process if there's no separate cause of action? Here's the answer. If you don't do it, it's a constructive denial and denial is the fifth element, but you're still in the same lawsuit, the same cause of action and the same failure to accommodate cause of action. I told you there's differences from the federal state and local level. So what gives Lieb? Well, I'll tell you, New York city commission on human rights, legal enforcement guidance on the base of disability says, pursuant to local law number 59 of 2018. I covered entities failure to engage in cooperative dialogue. By the way, the cooperative dialogue is the interactive process under the New York city Human Rights Law, they just changed the word. A covered jury's failure to engage in the cooperative dialogue. AK, interactive process with an individual requesting accommodation is an independent violation of the New York city, Human Rights Law, and therefore an independent cause of action. You now know the differences between the federal state and local level that really pop out that we can do in an hour CLE. You now know that five elements of a failure to accommodate failure, to modify cause of action. You know about the form, the form that's by the New York code of rules and regulations. The form that you need to give, the housing provider needs to give with the lease or 30 days of when the law became effective or real estate broker or their associated licensees need to give. You know about it being posted at offices in the building on websites. But let's talk about the interactive process because I told you the interactive process is something where you need to be ready. It's a mediation that's the way you look at it. A mediation, no one can force anyone to do anything in the interactive process. Look it as a condition precedent to suit, look at it like a predicate notice. But instead of the predicate notice being on the plaintiff's side, the defendant needs to do it. And the defendant who fails to engage in an interactive process, they got problems. Tip, tip, tip, tip tip. If you represent a landlord or property manager, I strenuously recommend that you give a temporary accommodation, an interim accommodation during the interactive process, because otherwise they're going to allege that you discriminated. Anyway, it's this mediation thing to determine whether the individual's medical condition meets the definition of handicapped for disability based on your city, town, village, county, state, et cetera, or just the Fair Housing Act. We're gonna go over the merits of the accommodation request and suggest possible alternatives. So everyone can be happy. Maybe you don't want that pet lion after em, maybe what we wanna do is get you a nice dog. There's questions, not to ask at the interactive process. This is something I would really study up on. It's a good vessel for you all to learn more. On the diagnosis, you just wanna know if it's physical or mental. You just wanna know if it's causally related to the request of accommodation, but you do not want to know the specifics of the diagnosis. I don't wanna know. I just wanna know, by the way, the diagnosis, it can be made by a social worker. We don't need to have an MD or DO doing it. It could be lots of different people. According to case law, a social worker could say someone needs an emotional support animal. The other thing you don't wanna know is the demographics of the applicant, because you know what? It's kind of like a fight. I punched you in the face. No one saw it, but you punched me back. Ha ha, you just got caught. The retaliation is actionable. Retaliation is actionable under discrimination law. And if you don't do the interactive process properly, there's going to be a retaliation claim and you wanna document it. You wanna document it. You wanna document it. Technically the cooperative dialogue in New York city has to be in writing. And technically the interactive process says nothing that has to be in writing, but how do you prove it happened? Unless you time and date stamp, even email says summaries of every dialogue you had and have people know that we're recording conversations depending on you, where you are. If you need two party consent, blah, blah, blah, blah, blah. This should all be in the handbook or policies and procedures manual, which you're gonna be sending to the tenant or housing occupants. If it's a condo or co-op when they request the accommodation again, though, grant the preliminary accommodation, the interim accommodation during the process, otherwise there's gonna be a problem. Today's CLE we've talked about a lot of topics and it got spurred because in 2022, the New York state division of human rights released their regulations about executive law, 170-D, which requires providing a notice that says, here's the types of accommodations and modifications that a disabled or handicapped tenant should be able to get. Here's the phone number, the division of human rights and the email to bring a claim. Here's the types of damages you can get. I wanted you to know the law about it. I thought it would be good if you gotta brush up a fresher upper on accommodation law, failure to accommodate claims are everywhere, in employment it happens., don't you remember with like, I don't know the whole COVID thing and religious accommodations everyone was seeking. It's not just about disability. It was about changing rules based on someone's protected class status, changing structure based on someone's protected class status. I want you to know all that, but I want you to know it because the exposure is coming next. I have a crystal ball and I'm telling you that's gonna happen. So what happens to a housing provider who violates 170-D of the executive law? You know, that's in article seven, chapter 18 of the executive law. When you'll checking the stuff out, you gotta start off and you go, does the actual section have a penalties private right of action enforcement by the attorney general is any either in there? Oh, no, so I'll checked the article. Oh, no so I'll check the chapter when it comes to 170-D not a, nothing, no direct exposure to a housing provider. Now I will point out to you, that on April 6th, 2021, my real estate school, I own a school, a on-demand interactive school, kind of like you guys taking CLEs for real estate licensees in New York state. That's brokers, salespersons associate real estate brokers. I own Lieb School. It's a company we do online classes and an attorney that used to work for my school, wrote a letter to the department of state they asked what the story was. And I'm gonna just read you one sentence from the response from the department of state about brokerage licensees from the division of licensing services, once published, the regulations would be subject to a 60 day comment period and would not become effective until formally adopted. The department of state intends to commence enforcement of the requirement to provide notice of reasonable modification and accommodations pursuant to a New York real property law, 441C, following the final adoption of such regulations. 441C is when the department of state can revoke a license of a real estate licensees, suspend a license issue a reprimand, issue up to a $2,000 fine. And what they're telling us right here and there is that they are gonna go after the brokers who don't give the form. Now you may not represent brokers so you don't care, or maybe you going bring a license complaint I defend those. I don't really, I have brought license complaints on behalf of other brokerage companies when they're fighting each other. I do a lot of real estate brokerage litigation, which is incident to this whole discrimination work I do, but you don't get anything from bringing a license law complaint unless you're a general counsel demand to do it so I don't know why people do it. I defend this stuff though for brokers, because I don't wanna lose their license just like you and I don't. It's like doing a grievance defense. We do that in my law firm. But beyond that, why do we care about this law? We care about it because it's gonna go like this, ladies and gentlemen of the jury, my client is disabled under the New York state Human Rights Law. My client is a handicapped individual under the Fair Housing Act. My client lives in that defendant, housing provider's unit. Did you know that there's a law called executive law 170-D and accompanying regulations that required the defendant here to provide us a notice and tell us our rights to have a service animal. My clients clearly blind. It was something everyone knew or they reasonably should have known. Did you know that the defendant here, this defendant, this defendant sent a notice to quit, a notice to cure, tried to evict my client for having their saying eye dog. Did you know, they did this in the face of a notice that says my client has a right to have it. And they didn't give us the notice. They tried to stop us from getting the notice. They didn't want us to have the knowledge, my client didn't have equal use in enjoyment of the property. Not only because they failed to accommodate, but because they didn't give us a simple form, have the compliance to give the infrastructure, to give us a chance to live here too. And then we're gonna ask for compensatory damages, how much it costs to live somewhere else, how much our lost ability or earn living was while we were doing this, how much different brokerage fees were? Well, the pecuniary loss. Oh, that's not all we could get emotional distress damages because we've lost our dignity. And I don't know how you're gonna figure out how much number that is. Oh, that's not all, there's punitive damages available too. Oh, that's not all. Did you know that if my client didn't hire me and they just want to division of human rights or commission of human rights in the city, or they went to HUD, there's statutory penalties available that whoa, big numbers. Maybe they're not available if they hire me, but guess what they get if they hire me, there's fee shifting. So when we're a plaintiff on these cases and we do about 50/50 plaintiff defendant, but when we're a plaintiff on these cases, we like to send the defendant our legal bills every once in a while and say, would you like to keep defending because our bills are going up. Anyway, you just learned about the new regulations and statutes in New York state more. So you learned about failure to accommodate cases. I'm here to help you. I really am. If you guys have any questions, if you need some support with your interactive process or cooperative dialogue, my name's Andrew Lieb, I can be reached at 646-216-8009. My email is Andrew, liebatlaw.com. You just Google Andrew Lieb, Lieb at Law. I'm happy to help you. Thank you for listening, you've been great.