New Lesbian, Gay, Bisexual and Transgender Rules

On February 3, 2012, the U.S. Department of Housing and Urban Development (HUD) issued the new Equal Access to Housing Rules that says clearly and unequivocally that Lesbian, Gay, Bisexual and Transgender (LGBT) individuals and couples have the right to live where they choose.  The LGBT Rules can be found at Federal Register, Volume 77, No. 23.  As published, the rule went into effect on March 5, 2012.

We know that this article is long. However, we feel it is critical that you become familiar with the LGBT Rule. We suggest you print off the article and share it with your owners and staff.  You should note that the LGBT Rule is not a new fair housing law but is a way for HUD to protect a class of people without Congress enacting new laws.  The consequences for violation of the LGBT Rule is not a fair housing claim but a potential loss of HUD benefits.  If you have any questions, please contact my office at desimmonsar@netscape.net or 501-374-5417.

The goal of the LGBT Rule is to open access to housing for LGBT individuals and families in four ways.  First, an equal access provision makes it clear that housing that is financed or insured by HUD must be made available without regard to actual or perceived sexual orientation, gender identity, or marital status.  Second, owners and operators of HUD-funded housing, or housing whose financing HUD insures, are prohibited from inquiring about an applicant’s sexual orientation or gender identity or denying housing on that basis.  Third, the term “family” includes LGBT individuals and couples as eligible beneficiaries of HUD’s public housing and voucher programs.  Finally, the rule prohibits sexual orientation and gender identity from being part of any lending decision when it comes to getting an FHA-insured mortgage.

The LGBT Rule applies to properties receiving Section 8 funds, both property based and tenant based, as well as public housing programs, FHA insured mortgages, and Community Development Block Grants.  The major provisions of the LGBT Rule include: 

    1.    Requires entities assisted by HUD or insured by FHA to make housing available without regard to actual or perceived sexual orientation, gender identity, or marital status;

    2.    Clarifies the definition of “family” and “household,” which identifies who is eligible for HUD’s core programs and includes persons regardless of actual or perceived sexual orientation, gender identity, or marital status;

    3.    Prohibits HUD-assisted and HUD-insured entities from inquiring about an applicant’s or occupant’s sexual orientation or gender identity for the purpose of determining eligibility or otherwise making housing available; and

    4.    Prohibits FHA-approved lenders from basing eligibility determinations for FHA-insured loans on actual or perceived sexual orientation or gender identity.

    The LGBT Rule provides that a determination of eligibility for housing that is assisted by HUD or subject to a mortgage insured by the Federal Housing Administration shall be made in accordance with the eligibility requirements provided for such program by HUD, and such housing shall be made available without regard to actual or perceived sexual orientation, gender identity, or marital status.  No owner or administrator of HUD-assisted or HUD-insured housing, approved lender in an FHA mortgage insurance program, nor any (or any other) recipient or subrecipient of HUD funds may inquire about the sexual orientation or gender identity of an applicant for, or occupant of, HUD-assisted housing or housing whose financing is insured by HUD, whether renter- or owner-occupied, for the purpose of determining eligibility for the housing or otherwise making such housing available. This prohibition on inquiries regarding sexual orientation or gender identity does not prohibit any individual from voluntarily self-identifying sexual orientation or gender identity. This prohibition on inquiries does not prohibit lawful inquiries of an applicant or occupant’s sex where the housing provided or to be provided to the individual is temporary, emergency shelter that involves the sharing of sleeping areas or bathrooms, or inquiries made for the purpose of determining the number of bedrooms to which a household may be entitled.

The LGBT Rule also requires the grantees of public funds to comply with state and local laws that prohibit LGBT discrimination. The definitions in the LGBT Rule represent the most significant changes for multi-family housing and apply to all HUD programs including Section 8 and public housing assistance programs and properties with mortgages insured by FHA.  Below, we have listed the new definitions for the LGBT Rule.

The term, “disabled family,” means a family whose head (including co-head), spouse, or sole member is a person with a disability. It may include two or more persons with disabilities living together, or one or more persons with disabilities living with one or more live-in aides.  “Elderly family,” means a family whose head (including co-head), spouse, or sole member is a person who is at least 62 years of age. It may include two or more persons who are at least 62 years of age living together, or one or more persons who are at least 62 years of age living with one or more live-in aides.  “Family,” includes, but is not limited to, the following, regardless of actual or perceived sexual orientation, gender identity, or marital status:  (1) A single person, who may be an elderly person, displaced person, disabled person, near-elderly person, or any other single person; or (2) A group of persons residing together, and such group includes, but is not limited to: (i) A family with or without children (a child who is temporarily away from the home because of placement in fostercare is considered a member of the family); (ii) An elderly family; (iii) A near-elderly family; (iv) A disabled family; (v) A displaced family; and (vi) The remaining member of a tenant family.  “Gender identity,” means actual or perceived gender-related characteristics. “Household,” means all persons occupying a housing unit. The occupants may be a family, as defined above by HUD; two or more families living together; or any other group of related or unrelated persons who share living arrangements, regardless of actual or perceived, sexual orientation, gender identity, or marital status.  “Near-elderly family,” means a family whose head (including co-head), spouse, or sole member is a person who is at least 50 years of age but below the age of 62; or two or more persons, who are at least 50 years of age but below the age of 62, living together; or one or more persons who are at least 50 years of age but below the age of 62, living with one or more live-in aides.  “Sexual orientation,” means homosexuality, heterosexuality, or bisexuality.

With the enactment of the LGBT Rule, HUD is now proposing to create a new protected class in civil rights laws.  HUD is merely attempting to address equal access to housing issues through housing program requirements, which it has legal authority to do.  The affect of the LGBT Rule is that local housing authorities, homeless shelters or other housing providers that receive federal financial assistance of any kind will not be able to exclude same sex partners or otherwise eligible LGBT family members from their HUD funded programs.  HUD intends to conduct a study and testing in rental markets to measure discrimination faced by same sex couples.  HUD intends to conduct 5,000 housing tests nationwide.  A key question to ask a tenant by a housing provider if your unsure as to what sex to classify them as, “Where do you feel most comfortable or safest because of your sexual orientation, gender identity or marital direction?”  Because of the broad changes under the LGBT Rules, there will be conflicts with other laws.  For example the Violence Against Women Act (VAWA) is a program to provide housing to women subjected to violence.  Under VAWA, the housing provider is required to use a birth certificate for third party verification to determine if a potential participant to be considered a woman.  The LGBT Rule does not provide for a minimum number of housing units in order for a landlord to qualify.  Therefore, the LGBT Rule applies to all landlords, no matter how many units they own, that accept any kind of federal assistance.  A landlord may still inquire as to the gender of an applicant but the federal assistance may no longer discriminate under the LGBT Rules.  If a property receives federal assistance, it can no longer prohibit unmarried people from living together or consider marital status as a consideration for housing.

Normally, a property that was built under the Section 42 Tax Credit Program is not considered in receipt of federal funding, however, HUD rules require that a tax credit property accept Section 8 tenant based funds. If a landlord accepts Section 8 funds, it must comply with the LGBT Rule.  Therefore, if you are a tax credit property you will have to follow the LGBT Rule.

Electronic Filing Is Here

On March 19, 2012, the Pulaski County Circuit Court became the first circuit court in Arkansas to allow electronic filing. For our Pulaski County clients, this now allows our firm to file civil, domestic relations, and probate cases online. Before the end of 2012, the following additional circuit courts in Arkansas should be filing electronically:

• Clark County Circuit Court
• Crawford County Circuit Court
• Faulkner County Circuit Court
• Garland County Circuit Court
• Hot Spring County Circuit Court
• Saline County Circuit Court
• Searcy County Circuit Court
• Van Buren County Circuit Court

What does this means for all our clients?
Now it will be simpler and faster to file new lawsuits, motions and other pleadings. This should mean quicker results.

What does this means for our landlord clients conducting evictions?
You will no longer be required to mail an original Affidavit In Unlawful Detainer to us. Once an Affidavit In Unlawful Detainer has been sent to you to be signed and notarized, you can now email or fax us a copy of the signed/notarized Affidavit for filing instead of mailing us the original.

We appreciate your business and want to provide you with the fastest service possible. If you have any questions, please call me at 501-374-5417 or email me at desimmonsar@netscape.net.

New EPA Renovation, Repair, and Painting Rule

The New EPA Renovation, Repair, and Painting Rule

On April 22, 2010, a new federal Environmental Protection Agency (EPA) lead-based paint rule called "The Renovation, Repair, and Painting Rule" took effect. The new rule becomes effective July 6, 2010 and requires managers and owners to follow lead safe work practices when disturbing a painted surface in pre-1978 housing and child-occupied facilities. Under the regulations, if renovation or repair work undertaken on a covered property disturbs more than six square feet of surface area for interior work or 20 square feet for exterior work, the work must be carried out by a trained and certified renovator. Disturbances can occur when painted surfaces are sanded, demolished, renovated, or repaired.

The rule changes the way owners, managers, renovation and remodeling contractors, maintenance workers, painters, and other specialty trades do business in housing built before 1978 and child-occupied facilities. Under the new rules, residents must be notified and provided with a copy of an EPA pamphlet, Renovate Right: Important Lead Hazard Information for Families, Child Care Providers, and Schools. (This is a different pamphlet than the EPA's Protect Your Family pamphlet that owners are required to provide to residents at the time of lease signing.) There are also recordkeeping requirements imposed on owners or the third party contractors they hire to undertake work covered by the regulations. Importantly, the new rule expand existing Lead Safe Housing rules that have imposed comparable, but not identical compliance obligations on pre-1978 properties that receive federal assistance, including Section 8 vouchers. Under the new rules, federally assisted properties must comply with the more stringent elements of both the Lead Safe Housing and Renovation Repair and Painting regulations. It includes new training requirements, additional notifications and disclosures, new work practices, new clearance requirements, and expanded records requirements.

The new rule requires individual renovators and contractors to complete a state-or EPA-accredited course and obtain certification. This includes employees who do work that disturbs lead-based paint. Owners, managers, and contractors can get a list of accredited trainers at www.epa.gov/lead/pubs/trainingproviders.htm.

The rule also requires owners and management companies that employ workers that may disturb lead paint to have a company license issued by the EPA. In the past, the EPA rules for lead-based paint only governed activities for abatement. Workers who have already been trained under a state or city lead paint program and who already have a Lead Safe Work Practices Certificate can be grandfathered in by taking a four-hour refresher course given by a certified training firm. We recommend that owners who use outside contractors make sure they are properly trained in lead safe work practices under the new rule and ask to see their certificates and reference.

The new rule requires contractors to notify residents before disturbing any painted common areas by giving them a handout called the "Renovate Right" pamphlet. This pamphlet replaces the "Protect Your Family from Lead" pamphlet previously required. You can get a copy of the pamphlet by going to the EPA Web site at www. epa.gov/lead/pubs/rrp.htm.

Contractors must also give residents a disclosure form informing them of the nature and timing of renovation activity and the potential of lead hazards. The EPA has a sample form that contractors and owners can use. In addition, workers (including your maintenance staff) are required to post warning signs around the affected areas.

If your employee is acting as the contractor for the work, the manager must give the pamphlet and disclosure form to the residents. Owners who are using an outside contractor should be certain that the contractors have a copy of the "Renovate Right" pamphlet and a proper disclosure form.

The new rule requires strict safe work practices. Workers are required to cover all HVAC ducts, remove or cover loose objects, and cover floor surfaces and doors. Upon completion, the work area is required to be properly cleaned using a HEPA vacuum or wet mopping.

Upon completion of the work, the certified renovator must perform the post-renovation cleaning verification by using the EPA-provided post-verification "check card" to determine whether clearance is met. This will be done by using disposable cleaning cloths to wipe various surfaces in the work area. The color of the cloth is then compared to the color of the verification check card. If the cloth matches or is lighter than the card, the surface will pass the cleaning verification. Surfaces that do not pass the first attempt must be re-cleaned. It is important to note that the post-verification check card does not supersede any additional safety check requirements that may be required by your state or city.

Owners, managers, and contractors must maintain documents demonstrating compliance with the new rule for three years. These include the signed disclosure form, any opt-out forms, and documentation that safe work practices and clearance requirements, as described above, were used.

The rule allows for exemptions from these requirements. The new rule doesn't cover lead abatement as defined under the previous rules. It also doesn't cover minor repair, which is defined as work disturbing less than six square feet inside the building or 20 square feet outside the building. Maintenance activities are also exempt. For example, the rule would not cover the painting of an apartment or common area if the owner did not do any surface preparation that would cause dust to be released.

The rule also does not apply to areas found free of lead-based paint by a certified inspector or risk assessor and work performed by an owner in an owner-occupied residence. Buildings that may have obtained an exemption under local or state guidelines where no lead-based paint was found to be present will be exempt from the new EPA rule.

The Renovation, Repair, and Painting Rule is extensive and technical and cannot be adequately covered in this article. For more information and for copies of notices and forms, go to http://www.epa.gov/lead/pubs/rrp.htm. This website also includes information promulgated by the National Association of Realtors. Contractors who perform renovation, repairs, and painting jobs in pre-1978 housing and child-occupied facilities must, before beginning work, provide owners, tenants, and child-care facilities with a copy of EPA's lead hazard information pamphlet Renovate Right: Important Lead Hazard Information for Families, Child Care Providers, and Schools http://www.epa.gov/lead/pubs/renovaterightbrochure.pdf. Before starting a renovation in residential buildings built before 1978, the contractor or property owner is required to have tenants sign a pre-renovation disclosure form, which indicates that the tenant received the Renovate Right information pamphlet. Contractors must document compliance with this requirement; EPA's pre-renovation disclosure form may be used for this purpose and found at http://www.epa.gov/lead/pubs/pre-renovationform.pdf. You may also find information at http://www.epa.gov/lead/getleadsafe.

Are you PCI compliant with your credit card processing security?

Are you PCI compliant?

Businesses or organizations that accept credit or debit cards are required to be compliant with the Payment Card Industry Data Security Standards (PCI DSS) by July 2010.

What are these standards?

Under the PCI DSS set of requirements, all organizations that accept, store, or transmit credit card information must maintain a secure environment to protect consumers and their cardholder data from fraud or theft. The PCI DSS outlines best security practices to protect businesses against credit card breaches. Any organization, regardless of size, that accepts credit or debit cards as a form of payment in person, by phone, or online must be PCI compliant.

How does this impact my organization?

Organizations that are not compliant are at a greater risk of security breaches, may incur fines from the card associations (Visa and MasterCard), and may lose the ability to process card payments. Don't let that happen to you!

Where can you go for help?

There is a website that has been established by the PCI Security Standards Council to help your organization comply with PCI DDD. Below is the link:

https://www.pcisecuritystandards.org/index.shtml

Please call us if we can help you in any way.

David E. Simmons
Attorney At Law
300 Spring Street
Suite 220
Little Rock, AR 72201
Voice 501-374-5417
Fax 501-374-8837
Web site: www.davidesimmonslaw.com

2009 Changes to Real Estate Laws

October 1, 2009

As promised in my July 27th Blog, I am writing to provide you with more information on changes to the real estate laws enacted by the 2009 Arkansas General Assembly. The laws went into effect on August 1, 2009. Below, I will give you a short summary of the law and provide you with a link to the Arkansas legislature website so that you can download a full version of the Act.

1. Act 274 - provides that the sales tax applies to the proceeds from from renting, leasing,
or otherwise furnishing hotel, motel, house, cabin, bed and breakfast, campground, or short-term condominium, or other similar rental accommodations for sleeping, meeting, or party room facilities for profit in such city or town, but such accommodations shall not include the rental or lease of such accommodations for periods of thirty (30) days or more. We interpret this to mean that the sales tax would be assessed on receipts for the rental of apartments, condos or corporate housing for less than 30 days.

http://www.arkleg.state.ar.us/assembly/2009/R/Acts/Act274.pdf


2. Act 454 - amends numerous sections of the Mechanics and Materialmen's statutes. The changes are too numerous for me to adequately write about in this blog. Needless to say, you need to consult with your attorney if you are faced with an issue regarding the mechanics and materialmen's lien laws.

http://www.arkleg.state.ar.us/assembly/2009/R/Acts/Act454.pdf

3. Act 464 - provides a method to conduct a civil eviction for tenants that engage in gambling, alcohol and prostitution activities. These statutes were revoked by the 2007 Arkansas Residential Landlord Tenant Act and were re-enacted by the 2009 General Assembly. The eviction procedures tract the unlawful detainer procedures however you do not have to give any advanced notice before filing a lawsuit.

http://www.arkleg.state.ar.us/assembly/2009/R/Acts/Act464.pdf

4. Act 707 - provides for reasonable restrictions on youthful consumers who utilize tanning facilities and requires recordkeeping at tanning facilities. The Act specifically applies to apartments and condominiums as well as health clubs. A tanning facility must obtain the signature of a parent/guardian of a person under the age of 18 on a warning statement. The warning statement must contain language specified in the statute.


http://www.arkleg.state.ar.us/assembly/2009/R/Acts/Act707.pdf

5. Act 976 - provides for criminal liability for a social host who knowingly serves alcohol to persons under the age of twenty-one on his or her property. It would appear that this law does not apply to landlords or their agents unless the consumption of alcohol occurs in the individual unit in which the owner or agent resides. You should consult with your attorney if there is any question about the application of this law to your property or situation.

http://www.arkleg.state.ar.us/assembly/2009/R/Acts/Act976.pdf


6. Act 1455 - provides for the Arkansas Fair Debt Collection Practices Act. This Act has broad application 17-24-501 (5) (A) defines person considered to be a debt collector and subject to this Act. Section 17-24-501 (5)(D) names persons who are not considered debt collectors. These person include officers or employees of a creditor that collect in the name of the creditor or a person that is collecting a debt that is incidental to a fiduciary obligation or escrow arrangement. The question may arise as to who is the creditor and who is an employee of the creditor. You should consult with your attorney regarding any questions that you may have about the application of these laws to your situation.

http://www.arkleg.state.ar.us/assembly/2009/R/Acts/Act1455.pdf

7. Act 1467 - provides for a system to license and qualify mold investigators and inspectors.

http://www.arkleg.state.ar.us/assembly/2009/R/Acts/Act1467.pdf

8. Act 311 - provides for changes and clarifications to the Arkansas Residential Landlord Tenant Act. The Act was designed to fix certain procedural and technical problems with the Act that related primarily to the new eviction procedures provided for in the Act. Act 311 provides that jurisdiction for the new civil eviction procedure we call an affidavit of eviction is solely in district court and not circuit court. You can still conduct an unlawful detainer in circuit court.

http://www.arkleg.state.ar.us/assembly/2009/R/Acts/Act311.pdf

9. Act 482 - makes other technice changes and clarifications to the Arkansas Residential Landlord Tenant Act but does not make any substantive changes to the Act.

http://www.arkleg.state.ar.us/assembly/2009/R/Acts/Act482.pdf

10. Act 559 - amends the security deposit laws. Give the landlord 60 days from the date the tenant vacates the premises before the security deposit must be returned or a written disposition statement is provided.

http://www.arkleg.state.ar.us/assembly/2009/R/Acts/Act559.pdf

If you have any question concerning these changes, please feel free to email me.

David E. Simmons

Changes To Eviction Procedures

July 27, 2009

Changes To Civil Evictions For Residential Rental Property Clients

Beginning August 1, 2009, we will start using the unlawful detainer procedure again to conduct evictions in Pulaski County. For all clients that have residential rental property outside Pulaski County, your eviction procedures will stay the same for now and we will continue to conduct unlawful detainer civil eviction.

For our clients in Pulaski County, instead of giving the tenants 5 days notice for non-payment of rent, you can now give them 3 days notice again. Also, for non-rent violations of the lease, you can give the tenant a 3 day notice to vacate rather than a 14 day notice.

In the past two years, we have been using the "Affidavit of Eviction" proceedings in Pulaski County that were authorized by the 2007 Arkansas Residential Landlord Tenant Act (Act 1004). Outside of Pulaski County we have always used the unlawful detainer procedure. Act 1004 originally was intended to allow the district courts to hear these cases which would reduce costs. However, Act 1004 had several procedural problems so the Arkansas Supreme Court never granted the district court jurisdiction to hear these eviction cases.

The 2009 Arkansas General Assembly passed laws that go into effect August 1st that changed the eviction laws again. Act 311 of the 2009 Arkansas General Assembly was written to provide changes that would finally allow district courts to hear affidavit of eviction cases. Act 311 was supposed to have fixed the procedural problems of Act 1004 but actually new created problems.

As of now, the district courts do not have the legal authority (jurisdiction) to hear affidavit of eviction cases and the circuit courts no longer have authority to hear the affidavit of eviction cases. Until the Arkansas Supreme Court makes changes in the way the district courts in Arkansas operate and grants them jurisdiction, we will have to go back to filing unlawful detainer evictions. Once the Arkansas Supreme Court grants the district courts jurisdiction, then we can start filing affidavit of eviction cases again. According to my sources, the Arkansas Supreme Court will not meet again until late September, so this is the earliest that the district courts could be granted jurisdiction to hear the affidavit of eviction cases.

The filing fees for unlawful detainers will go from $140 to $165. All other charges will remain the same.

In early August, I will post another blog that gives an overview of all of the new laws that affect the real estate industry. If you have any questions, please call my office at 501-374-5417 or email me at desimmonsar@netscape.net.

Finally, I will be out the office on vacation from July 31, 2009 to August 7, 2009. If you need anything, please call my office number and leave a message. Either Thelma Gunn or I will return your call within 24 hours and do our best to take care of your legal needs. We should still be able to file any evictions sent to us even while I am out of the office. Thank you for your patience and as always thank you for your business.