This article explains how to avoid housing discrimination in the first place and the basics of discrimination complaints and lawsuits, including the value of hiring a discrimination lawyer.
Before you place an ad on Craigslist or another site, or otherwise advertise a vacancy, it is crucial that you understand fair housing laws and what you can say and do when selecting tenants. This includes the language in your ads and the questions you ask on a rental application or when interviewing potential tenants.
The federal fair housing law (the Fair Housing Act of 1968, as amended (42 U.S. Code §§ 3601-3619 and 3631)) specifically prohibits housing discrimination on the following grounds (called “protected categories”): race, religion, ethnic background or national origin, sex (including gender identity and sexual orientation), familial status (such as having children under age 18), or physical or mental disability.
The federal Acts make it illegal for landlords to discriminate against people who fall into one of these protected categories—for example, by falsely denying that a rental unit is available to an African-American person or setting more restrictive standards for a family with small children.
In addition, many states and cities prohibit more types of discrimination. For example, California fair housing laws prohibit discrimination on the basis of sexual orientation and marital status. California laws also cover landlords who might otherwise be exempt from federal law, such as landlords of owner-occupied properties with four or fewer units.
An act of discrimination may expose you to challenges from more than one level of government, so knowing antidiscrimination law—federal, state, and local—is key to avoiding problems.
For details on antidiscrimination laws, visit the U.S. Department of Housing and Urban Development's (HUD) website, which includes a list of fair housing resources by state (including local agencies).
Tenants in all states have several ways to fight housing discrimination. These include filing an administrative complaint with HUD or a state fair housing agency or a local agency charged with overseeing discrimination complaints. Tens of thousands of tenants file fair housing complaints with HUD every year (approximately half of which involve claims concerning disability discrimination).
A federal HUD complaint must be filed within one year of the alleged violation, but state statutes or local ordinances may set shorter time periods.
Fair housing agencies typically take many months to investigate a complaint. Unless an agency dismisses the complaint outright, it will usually attempt to reach a conciliation agreement or compromise between landlord and tenant. Outcomes vary—for example, a tenant might agree to drop the complaint in exchange for a sum of money or your promise to rent him or her an apartment.
If conciliation is unsuccessful, the fair housing agency will hold an administrative hearing (a trial before a judge but without a jury) to determine whether discrimination has occurred.
A tenant (or prospective tenant) may also sue you in state or federal court, even after filing a complaint, as long as an administrative hearing has not yet begun or the tenant has not already signed a conciliation agreement. A tenant who plans to go to federal court must do so within two years of the alleged violation.
In a typical federal lawsuit, the tenant has consulted an attorney immediately after the landlord’s alleged discriminatory conduct. The attorney prepares a complaint and asks the court for an expedited hearing, hoping to get an order from the court directing the landlord to cease the discriminatory practice without a formal hearing.
A court or housing agency that finds that discrimination has taken place may order you, the landlord, to do one or more of the following:
For especially outrageous discrimination, you may have to pay punitive damages of thousands of dollars, plus the tenant’s attorney fees.
Even if you are ultimately vindicated, the costs of defending a housing discrimination lawsuit or administrative complaint can be devastating. Cases can be quite complicated and typically require an attorney’s help.
It’s crucial that you hire someone experienced with defending landlords in discrimination complaints and lawsuits. For advice on finding a good lawyer, see How to Find an Excellent Attorney.
For detailed information on discrimination and fair housing, see the Nolo books Every Landlord’s Legal Guide and The California Landlord’s Law Book: Rights and Responsibilities.
]]>To avoid fair housing violations and costly liability, landlords need to know what a protected class is, as well what characteristics constitute a protected class under the FHA. For example, rejecting an applicant because he's from South America is illegal because the FHA bans discrimination based on national origin. But refusing to rent to applicants who have Section 8 vouchers won't violate the FHA because source of income isn't a protected class under federal law.
The FHA prohibits discrimination on the basis of seven protected classes:
"Sex" refers to not only a person's biological sex, but also to a person's gender identity and sexual orientation.
“Familial status” refers to the presence of at least one child under 18 years old, and also protects prospects and tenants who are pregnant or in the process of adopting a child. You may legally turn away families with children, however, if your rental property qualifies as senior housing.
Be aware that “disability” has a specific definition under the FHA that includes physical impairments, mental impairments, and chronic alcoholism (being addressed through a recovery program), among other things. Prospects and tenants who fit the definition are entitled to reasonable accommodations to policies (such as letting a tenant keep a guide dog despite a no-pets rule) as well as reasonable modifications to physical structures at your property for increased accessibility (such as installing grab bars in a bathroom).
When it comes to protected classes and the FHA, the key to compliance is whether a landlord treats prospects and tenants differently because of the underlying characteristic that the prospects and tenants have. Landlords should establish standard tenant screening and selection processes, and apply them equally and consistently. Landlords can legally reject applicants, evict tenants, and take other adverse action against people who may be protected under the FHA if the reasons are legitimate and unrelated to any protected class.
For example, a landlord who rejects an applicant because she's female and Hindu is violating the FHA's ban on discrimination based on sex and religion. But a landlord who rejects a female Hindu applicant because she has poor credit or can't afford the rent isn't violating the FHA—assuming the landlord applies the same screening requirements to all applicants.
Not only can a landlord legally take such adverse action, but a landlord should do so to avoid claims of reverse discrimination. For example, say a landlord accepts a female Hindu applicant despite her not meeting the property's tenant screening requirements, out of fear that she'll bring a discrimination claim. Taking such action actually means the landlord is discriminating in favor of the applicant (and against other applicants) based on two protected classes (sex and religion), which is illegal under the FHA.
Many states, counties, and cities have fair housing laws that prohibit forms of discrimination not barred by the FHA—such as source of income discrimination, marital status, or sexual orientation. So, for example, if a tenant claimed you discriminated against them based on marital status, the tenant could not bring a complaint under the FHA, since marital status is not a protected class under the FHA. However, if your state’s law prohibited marital status discrimination, the tenant could file a state law claim against you. As a landlord, you should consider researching your state’s antidiscrimination laws to learn more about protected classes where you live.
If you have any questions about fair housing laws and how they relate to your tenant screening procedures or other business practices, speak with a local landlord-tenant attorney. A knowledgeable attorney will be able to give you advice tailored to the laws in your area and help ensure that you are doing everything you can to treat rental applicants and tenants fairly.
The Rental Applications section of Nolo.com includes several useful articles on how to legally choose tenants and avoid fair housing complaints and lawsuits. Also, check out Every Landlord’s Legal Guide (Nolo) for detailed advice on housing discrimination and how to avoid fair housing lawsuits.
]]>Before you follow a policy of turning away prospects with Section 8 vouchers, you should first take a moment to find out whether what you’re doing is legal.
When prospective tenants ask if you take Section 8, they want to know if you would accept part of their rent through the Housing Choice Voucher Program (still commonly known as the tenant-based Section 8 program). But just because a prospect asks such a question doesn’t mean the answer is up to you. Before you respond, you should be sure of whether your state or local fair housing law bars you from turning away prospects for this reason.
The Fair Housing Act (FHA) (42 U.S. Code § § 3601-3619 and 3631), a federal law, doesn’t bar landlords from discriminating based on Section 8. But some states and municipalities do, often as part of a broader ban on “source of income” or “public assistance status” under the state or local fair housing law. For example, Chicago’s municipal code includes a housing discrimination ban based on source of income that includes applicants who have Section 8 vouchers.
Search online (start by checking the "State Information" section of the HUD website) and contact your local fair housing agency to see if the law protects prospects and tenants based on the fact they have Section 8 vouchers. (If you own multiple properties in different states, counties, or towns, be sure to check the law for each location.) If you learn that state and local laws don’t ban this type of discrimination, then it’s up to you to decide whether to accept applicants with Section 8 vouchers.
As a landlord, you could face liability whether or not you must comply with a discrimination ban. So, after you learn whether your state or local fair housing law bars discrimination against applicants with Section 8 vouchers, follow some tips to avoid accusations.
If you’re required to take Section 8, keep these pointers in mind:
If you discover that you’re not required to take Section 8 and can follow your own policy, these tips can help you avoid fair housing trouble:
The Rental Applications section of Nolo.com includes several useful articles on how to stay on the right side of fair housing laws when choosing tenants. Also, check out Every Landlord’s Legal Guide, by Marcia Stewart, Janet Portman, and Ann O'Connell (Nolo) for detailed advice on housing discrimination and how to avoid fair housing lawsuits.
]]>The Fair Housing Act (FHA) (42 U.S. Code § § 3601-3619 and 3631) bans discrimination based on disability, which it defines as a “physical or mental impairment which substantially limits one or more of such person’s major life activities." Federal regulations clarify that protection extends to addiction to drugs and alcohol (24 CFR § 100.201(a)(2)). (For more information about disability under the FHA, check out the Nolo article, “Who’s Protected Against Disability Discrimination?”)
While addiction itself is protected as a disability, illegal drug activity isn't. The FHA doesn't bar discrimination against tenants who are current illegal drug abusers and tenants who have been convicted of the illegal manufacture or distribution of drugs. The FHA specifically excepts “current, illegal use of or addiction to a controlled substance” from its protection (42 U.S. Code § 3602(h)). Also, federal regulations clarify that while the ban on disability-based discrimination includes “[a]ny mental or psychological disorder,” it doesn't include "addiction caused by current, illegal use of a controlled substance.” (24 CFR § 100.201(a)(2)).
Here are four "dont's" to follow at your rental property when it comes to addiction:
1. Don't ask only certain applicants about drugs. Federal regulations make clear that you may ask all applicants whether they’re current illegal abusers or addicts of a controlled substance and whether they’ve been convicted of the illegal manufacture or distribution of a controlled substance (24 CFR § 100.202(c)(4) and (5)). Landlords who ask this question only when meeting applicants who they suspect have an addiction are violating the FHA's ban on disability-based discrimination. Similarly, asking this question only of minority applicants could lead to fair housing liability based on other protected classes, such as race or national origin. (For more information about staying out of fair housing trouble when asking questions, check out the Nolo article, “Avoid Inappropriate Conversations With Prospects and Tenants.”)
2. Don't be afraid to take action against dangerous tenants. Even if a tenant has an addiction and is protected against discrimination, you can always take action against such a tenant if he or she is causing harm or making threats. Federal regulations make clear that there’s no protection for “an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others” (24 CFR § 100.202(d)). Say a tenant frequently returns to your property at night drunk, waking up and cursing at neighbors and causing damage such as breaking windows. You’re concerned that if you take any action against this tenant, you’ll be violating the FHA because you believe this tenant is an alcoholic. The FHA makes it clear that if a tenant is causing or threatening harm at your property, the fact that the tenant has a disability can’t be used as a defense; so you shouldn’t fear violating the FHA when you’re legitimately trying to keep people safe from danger and your property intact.
3. Don't let a personal bias interfere with fair housing compliance. When it comes to dealing with tenants who have an addiction, you must follow the FHA and not your own rules. For example, say you don't like the idea of an alcoholic living at your property. A friend spots one of your tenants at a recent Alcoholics Anonymous meeting, prompting you to consider not renewing the tenant's lease. Taking such action for this reason would violate the FHA because the tenant is protected for having an addiction.
4. Don't feel pressured to make accommodations. The FHA requires landlords to consider all requests for accommodations in connection with a disability and grant them if they’re reasonable. If a tenant needs an accommodation to a policy or practice because of a drug addiction and the requested accommodation is reasonable—that is, it won’t impose an undue financial and administrative burden—then you must grant it. But you may deny requests that aren't reasonable, even if they relate to a tenant's addiction. For example, say a tenant informs you he has a drug addiction and asks for some leeway when it comes to making rent payments on time. You shouldn’t have to grant this particular accommodation request because late rental payment forgiveness isn’t something that a tenant needs because of a disability. Letting tenants pay rent late because they have a disability is unreasonable because it interferes with the fundamentals of your rental business and would require repeated, material violations of the tenant's lease.
The Rental Applications and Tenant Screening section of Nolo.com includes several useful articles on how to legally choose tenants and avoid fair housing complaints and lawsuits. Also, check out Every Landlord’s Legal Guide, by Marcia Stewart, Ralph Warner and Janet Portman (Nolo) for detailed advice on housing discrimination and how to avoid fair housing lawsuits.
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