But there is Hope!
The good news is that if you have been both complying with the laws AND faithfully carrying out your recordkeeping duties, you are almost home free. Why? Because even if you are doing things right, if you can't prove it, you're in trouble. Which goes for big owners and management companies and small owners alike.
Our law firm handles fair housing cases every day, and from that experience we know certain documents have greater importance than others when it comes to defending a violation claim. Every scrap of paper has value, of course, but some scraps could be considered essential.
Here is our list of six top operational documents that every owner and manager should maintain:
Written rental qualifications. This helps show that you select your residents based on objective criteria and that you apply them to all applicants. (By the way, "good credit" is subjective. Detailing what you consider to be good credit becomes objective.)
Phone log. Documenting all incoming and outgoing business calls in an old-fashioned, chronological, spiral-bound log can help prove what was said in the briefest of conversations months, even years ago. Not to mention how you handle your call-backs from voice mail. And how quickly you respond to complaints and maintenance requests. And please, please, don't substitute yellow "stickies" for proper documentation.
Availability log. This log helps prove what units were available when, at what rent, and other valuable details each day of the year. It can substantiate what you said to a caller according to your phone log. It also helps ensure that you are providing the same current information about your vacancies to all applicants every day.
Guest card. This is the best-written history of what transpired when the applicant visited your property. It helps prove when they came, what units they were interested in, what they looked at, and what their objections were, for example. Guest cards completed and signed by the applicant provide the best evidence in a lawsuit.
Screening checklist. This helps demonstrate that you go through the same screening procedure for every applicant. It also helps to ensure that you don't accidentally miss any of the steps. Consistent treatment of all applicants is critical. Don't forget to put the initials or name of the person performing the task along with the date and time.
Activity or conversation log. Document everything that goes on during the tenancy for each resident in an activity or conversation log (sheet) that is affixed to the resident's file folder. Each complaint, each phone conversation, each request for repair, each violation of the rules, for example, can be briefly noted in chronological order as a running history. (This does not take the place of filling out a maintenance request or serving a notice - rather it is the sequential, documented order of events at your fingertips that is so valuable.)
Of course, these top six documents are just the tip of the iceberg. They also need to be supported by many other vital pieces of documentation (which should all be checked annually to ensure compliance with current laws), such as:
• Written community policies that don't discriminate
• Leases or rental agreements that comply with current landlord-tenant and fair housing laws
• Applications that don't ask discriminating questions
• Copies of adverse action letters for applicants who are denied or offered conditional acceptance
• Written procedures for leasing, screening, handling complaints, maintenance requests, sexual harassment issues, transfers between apartments, making upgrades
• Written procedures for leasing, screening, handling complaints, maintenance requests, sexual harassment issues, transfers between apartments, making upgrades
• And the list goes on.
Maintaining Records
How long are you going to keep these mountains of documents? At least four years. Maybe you should be in the storage business!
Do it Right and be Able to Prove it
When it comes to providing evidence in a fair housing complaint, whether to an investigator from an enforcing agency or to a judge or jury, "he said/she said" IS NOT going to work in your favor. Having thorough documentation, however, IS going to help your case. And it doesn't matter to anyone whether you are just a small owner with a unit or two or a huge management company with 5,000 units. Same liability, same investigative process, same documentation needs. Do yourself a favor. Take a close look at your current procedures today to see how your documentation program would measure up if a complaint was filed tomorrow - then follow up by taking the necessary steps to improve it. You'll be glad you did (and you'll keep many more dollars in your pocket)!
D. J. Ryan is a fair housing specialist, she served as executive director of the San Diego County Apartment Association from 1977 to 1991 and has been a fair housing trainer and consultant for many years. The above discussion is general in nature and should not be construed as individualized legal advice. Readers are cautioned to seek individualized legal assistance based on a detailed analysis of their particular facts and circumstances.
