CAA opposes potential fair housing rules on occupancy standards, medical marijuana

California property owners would have to allow tenants to smoke marijuana in rental units under possible changes to fair housing laws.

They also would face unreasonable occupancy standards — ones similar to the Uniform Housing Code’s maximum occupancy. And any request for an assistive animal or companion animal would be presumed reasonable.

These are among several ideas being floated by the California Fair Housing Council and of great concern to the California Apartment Association.

The council has issued an initial working draft of its proposed regulations based on its interpretation of the state’s Fair Employment and Housing Act.

On Jan. 7, the council met to review the document. Click here to review the draft and here to watch video from the meeting. The discussion was part of a pre-regulatory process in which the council is seeking comments from stakeholders, including the California Apartment Association.

CAA believes that many of the draft’s provisions exceed the council’s regulatory authority and are inconsistent with existing law and guidance from the Department of Housing and Urban Development.

Summaries of the most alarming draft regulations:

Occupancy standards

The only occupancy standards now in California law are in the Uniform Housing Code and are designed for safety and to ensure there is no overcrowding, i.e., so that all people in a unit or building can exit safely during a fire. Rental property owners have historically set occupancy limits for economic reasons. Owners must plan for the number of individuals in their units and budget for utilities, garbage pickup, and routine maintenance. Overly restrictive standards can cause a fair housing issue, because they can have a discriminatory impact on families with children. For example, if a property owner sets the limit for a two-bedroom apartment at two people, it could be seen as discriminating against families with children. HUD has issued a memorandum describing how to review occupancy standards for the purpose of evaluating claims of discrimination. Generally, a standard of two per bedroom, adjusted up or down based on conditions at the specific property, is viewed as a non-discriminatory standard. Similarly, in the past, the California Department of Fair Employment and Housing has used a standard of two per bedroom, plus one more, to evaluate claims. As a result, the rental housing industry here has viewed 2+1 as a rule of thumb which is likely to protect against claims of disparate-impact discrimination.

By contrast, the occupancy standards in the proposal would more than double the number of occupants that must be allowed and create an absolute prohibition of more restrictive standards – irrespective of disparate impact on families with children. This would remove the ability of owners to set reasonable occupancy standards based on actual conditions at the property. The proposal also does not count children as “occupants,” resulting in an even higher occupancy that can exceed safety limits. In addition, the proposal is based on square footage, meaning mistakes in measuring can result in significant liability. The legal and practical problems with this approach, including excessive water usage, a lack of parking, and impacts on the rental community and surrounding neighborhood are described in CAA’s comments. Click here for more information.

Medical marijuana 

The proposal exempts medical marijuana from the definition of a “controlled substance.” However, the general consensus within and outside the rental housing industry is that landlords are not required to allow tenants to smoke and grow medical marijuana in rental housing. While the Compassionate Use Act decriminalizes marijuana, it does not create a right to use or grow it anywhere. Also, allowing a tenant to grow or smoke marijuana would not constitute a reasonable accommodation because of the risks, both legal and otherwise, that the landlord would face for allowing controlled substances on the property. This creates an undue burden, making the accommodation unreasonable. Click here for more information.

Assistive animals 

The draft provides that requests for assistive animals “shall be deemed presumptively reasonable and shall be granted” unless the housing provider can demonstrate “undue hardship.” This presumption jumps ahead of the first steps in the reasonable-accommodation process, which includes establishing the disability of the requestor and the need for the animal, if they are not obvious, and the regulations disregard the correct “undue burden” standard. “Assistive animals” already are perceived by other residents and the public as the most abused accommodation. Creating a presumption that all requests are reasonable will simply aggravate the situation. Tenants’ requests for assistive animals should be subject to the same process and reasons for denial as any other request for a reasonable accommodation.

Reasonable accommodation

The working draft also muddies the process for requesting and evaluating an accommodation/modification. For example, the working draft confuses the process of verifying a tenant’s request with the interactive process required once the owner believes the request is unreasonable. There is a general understanding of how this process is to work based on the HUD/Department of Justice Statements on Reasonable Accommodation and Modifications that is inconsistent with the proposal. In addition, the proposal contains provisions that appear helpful to landlords but are narrower than federal law and could result in liability, despite compliance with the California regulations.

The California Fair Housing Council is also working on provisions relating to disparate impact discrimination and criminal background checks that were not part of this initial proposal.