Many fair housing complaints arise because prospects and tenants claim that a landlord said something to them that amounts to illegal housing discrimination. Whether it’s during a formal conversation about a rental property or just small talk, what a landlord says can lead to fair housing liability or be used as further evidence to support a tenant’s claim that the landlord has acted in a discriminatory manner.
The thought that a casual statement you make one day while showing an apartment or passing a tenant in the lobby can get you into fair housing trouble can be unnerving. But if you know what sort of things to avoid when talking with prospects and tenants, you should be able to engage in productive and friendly conversations while remaining confident that your words won’t lead to fair housing lawsuits or complaints.
As a landlord, you should avoid conversations that touch on protected classes under fair housing laws. Such conversations are risky because you may say something that favors—or even appears to favor—certain types of people over others when it comes to housing. The Fair Housing Act (FHA) (42 U.S. Code § § 3601-3619 and 3631), a federal law, bars discrimination against prospects and tenants based on seven protected classes: race, color, religion, national origin, sex, disability, and familial status. Many states and municipalities include additional protected classes, such as marital status, sexual orientation, and source of income.
Talking about other tenants. When showing prospects your rental property, it’s smart to focus on the rental's features, location, and advantages. There’s normally no need to talk about the people who currently rent your apartments, and doing so can lead to fair housing trouble. General statements such as boasting that you have a great group of tenants or that nice people live at your property aren’t problematic. However, conversations about other tenants too often focus on their characteristics. If you find yourself talking about other tenants at your property, be sure to avoid describing your tenant makeup in protected-class terms. For example, don’t say to prospects, “Only white people live here” or “I’ve never rented to someone who uses a wheelchair.” Such statements, even if they’re true, may lead prospects to question your motive and even claim that you’re showing a preference based on a protected class, which the FHA explicitly bans (see 42 U.S. Code § 3604(c)).
Be particularly on alert for questions that prospects or tenants ask to satisfy their curiosity about a specific tenant. For example, “Why is that new tenant limping?” and “Are there other Jewish tenants who live here?” are questions you should decline to answer, as they would require you to respond in protected-class terms and could lead to liability for discrimination based on disability and religion, respectively.
Talking to prospects and tenants about themselves. Another risky area is when the focus of a conversation between a landlord and a prospect or tenant turns to that prospect or tenant. Very often, such conversations are initiated by landlords who are trying to make conversation, are curious about something, or are trying to show they are being accommodating. But, just as is the case with talking about other tenants, talking to prospects and tenants about themselves can lead to fair housing trouble if questions or conversations concern a protected class.
For example, if someone who uses a cane wishes to see apartments at your property, don’t ask about the prospect’s disability or anticipate her needs by, for example, asking if she wants to see only apartments that are close to the lobby. Similarly, asking a tenant to explain aspects of his religion to you or asking women about their dating preferences could lead to fair housing accusations.
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.