Landlords who act consistently when it comes to adopting and enforcing rules have the lowest risk of fair housing violations. When a person acts differently under the same set of circumstances, it's natural for others to wonder why. So when a landlord applies a different rule to prospects or tenants in the same situation for seemingly no valid reason, it raises the question of whether discrimination is a motivating factor.
The Fair Housing Act (FHA) (42 U.S. Code § § 3601-3619 and 3631) protects prospects and tenants against discrimination based on race, color, national origin, religion, sex, disability, and familial status. Many state and local anti-discrimination laws extend this protection to include additional classes, such as sexual orientation, age, or source of income.
If, for example, a female tenant learns that her landlord treated a male tenant more favorably, she may suspect that the landlord is engaging in sex discrimination. If an allegedly discriminatory act is minor or the tenant isn't sure of the landlord's motive, she might not rush to bring a fair housing complaint against the landlord. But even minor, questionable incidents can come back to haunt a landlord if another more serious offense prompts a tenant to file a fair housing complaint. The tenant may then try to use smaller incidents to help support her claim that the landlord discriminates based on sex. This could persuade a judge to hold the landlord liable or order the landlord to pay more damages.
How to Avoid Inconsistency
Here are common situations that often lead to inconsistency, and what you can do to avoid getting into these situations in the first place at your rental property:
- You don't have a rule in place. When you don't have a rule, it may be tempting to make one up just to cover a particular situation--be it regarding pets, lost keys, parking, use of the garden, or storage of bicycles. But if you make up different rules each time a certain situation arises, the inconsistency could lead to fair housing accusations. To avoid problems, take a moment to create rules that you can commit to following when similar situations arise in the future.
Also, note that you can't anticipate every situation, and sometimes new developments arise in the business of your rental property that calls for a new set of rules. For example, if you add a swimming pool to your property, you should devise rules aimed at keeping tenants safe (and your liability low) while using the pool. Or, if you decide to become a pet-friendly property, consider adopting a pet addendum spelling out tenants' responsibilities as pet owners at your property. Your addendum may require tenants to clean up after pets, keep their dogs leashed in common areas, and show proof of their pets' vaccinations. (Check out the Nolo article, "Smart Landlord Policies for Pet-Friendly Rentals" for more tips on what to include in your pet rules.)
- Your rule isn't in writing. As long as you have a rule that you believe is sensible and should be applied across the board, you should put it in writing, such as posted on a sign in a common area or in your staff manual. If it's the type of rule that requires an ongoing commitment from a tenant (for example, a rule barring rowdy behavior in hallways), then you should be sure to include it in your written lease. Keep in mind that you can add a rule without waiting until the end of the rental (for leases), but only if the change is minor, and not apt to affect the tenant's use and enjoyment of property.
- Your staff doesn't know about your rule. It's important that employees who interact with tenants avoid spreading misinformation. Rather than try to remember every rule accurately, be sure to tell anyone working for you to look up a rule as situations arise--for example, if a tenant asks to install a security system in his or her apartment. It's better for an employee to tell a tenant she'll get back to him with the answer to his question, and tenants will appreciate that you strive to follow rules consistently at your property.
- You don't always remember to enforce the rule. When a landlord doesn't enforce a rule, laziness or forgetfulness is sometimes to blame. Always take a moment to remember if you have a rule in place before pressing forward with any action against a tenant or casually inventing a new rule. Also, if you decide that a rule or policy needs updating, formally change it. If it's part of your tenants' lease, modify the lease accordingly for your new tenants and all lease renewals.
- You make exceptions haphazardly. In this situation, you knowingly make exceptions to a rule but you do it inconsistently. There's nothing wrong with creating a rule that has exceptions. But the exceptions should be limited and spelled out, and they shouldn't amount to discrimination against any protected class. (Note, however, that although the FHA protects families with children against discrimination, you may create rules that single out children if those rules are aimed at protecting their health and safety. Check out the Nolo article, "When Your Lease Can Single Out Children" for more information.)
Learn More About Housing Discrimination
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.