Many landlords don't know that tenants across the United States are protected against housing discrimination based on the fact that they have an addiction. This means that landlords who turn away prospects or treat tenants differently simply for being an alcoholic or addicted to drugs risk liability under fair housing law.
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.