Does the Federal Fair Housing Act Apply to Your Rental Property?

Learn federal fair housing law exemptions for different types of rental properties.

The Fair Housing Act (FHA) (42 U.S. Code § § 3601-3619 and 3631) is the primary law that offers tenants across the United States protection against housing discrimination. As a federal law, the FHA applies across the country, including all 50 states as well as the District of Columbia, Puerto Rico, and all U.S. territories and possessions.

Within this broad geographic jurisdiction, the FHA applies to most housing situations. As a landlord, you need to pay close attention to the FHA, because chances are it applies to your rental properties.

When the Fair Housing Act Applies

Here's a summary of the FHA's applicability, so that you can determine if it applies to one or more of your properties:

Small owner-occupied buildings. The FHA generally isn't applicable when a building has fewer than five apartments and one of them is occupied by the owner.

Single-family homes rented without a broker. The FHA doesn't apply to most situations where a single-family house is sold or rented without a broker.

Religious organizations. If you're a religious organization leasing apartments at a property that you're not operating for a commercial purpose, you may legally limit occupancy or give preferences to people of your organization's religion. However, the FHA points out that this exception is strictly limited to religion and cautions that a religious organization still can't discriminate based on race, color, or national origin (42 U.S. Code § 3607(a)).

Private clubs. If you're leasing apartments on behalf of a private club and not for a commercial purpose, the FHA lets you limit occupancy or give preferences to your club's members.

Senior housing. The FHA includes "familial status" as one of its seven protected classes, which refers to the presence of at least one child under 18 living in a household. (See the Nolo article, "Who's Protected Against Familial Status Discrimination?" for more detailed information about what familial status encompasses.) However, although the FHA bans discrimination against families with children, you may be exempt from this ban if your property qualifies as senior housing. Exempt properties include those that fit the rules of 55 and older or 62 and older communities, or those that participate in a federal, state or local senior housing program. For help in determining if your property qualifies for an exemption, see the Nolo article, "Senior Housing Basics."

Advertising. Note that even if your property is exempt from the FHA because of one of the reasons listed above, you must still comply with the law's ban on issuing discriminatory statements, notices, or advertising (42 U.S. Code § 3603(b)).

Additional Important Considerations

If you determine that the FHA doesn't apply to a property that you own (or even if you determine that it does), be aware that many states, cities, counties, and towns have their own fair housing laws, which may apply to more types of situations or cover a greater number of properties than the FHA does.

For example, while the FHA generally doesn't apply to owner-occupied buildings with fewer than five apartments, Massachusetts' fair housing law generally applies to all but owner-occupied building with fewer than three apartments (Mass. Gen. Laws ch. 151B, § 11). (For more information about protected classes and discrimination complaint procedures in your area, check out Nolo's resource on "State Fair Housing Agencies.")

Also, if you determine that the FHA doesn't apply to a property you own, you may decide not to discriminate for reasons other than legal compliance concerns. Aside from fairness to tenants, many fair housing advocates stress an economic benefit to landlords from fair housing, that by being more inclusive you stand a better chance of growing your business. Finally, when adopting tenant screening and other policies for your property, always consider how the policies you create and the manner in which you enforce them could affect your reputation.

Learn More About Housing Discrimination

See Housing Discrimination Prohibited by Federal Laws for more information. Also, 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. Finally, 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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