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) protects tenants (and home buyers) against housing discrimination. As a federal law, the FHA applies across the country, including all 50 states and Washington, D.C., as well as 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

The FHA applies to most—but not all—types of housing. Types of housing excluded from the FHA include:

  • Owner-occupied buildings with four or fewer units. The FHA generally isn't applicable when a building has two to four units, and the owner lives in one of them.
  • Single-family homes rented without a broker. The FHA doesn't apply when a single-family house is sold or rented without a broker, so long as the owner doesn’t own more than three houses.
  • 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 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. 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.

It’s important to 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 your property (or even if you determine that it does), be aware that there may be a local or state fair housing law that does, and it might prohibit additional forms of discrimination 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 four or fewer units, Massachusetts' fair housing law generally applies to all but owner-occupied, two-family houses. (Mass. Gen. Laws ch. 151B, § 4).

Even if the FHA doen’t apply to your property, there are many other reasons to not discriminate. Aside from fairness considerations and concerns about penalties for violating fair housing laws, many fair housing advocates stress that by being more inclusive you stand a better chance of growing your business and attracting quality tenants. Finally, the policies you create and the manner in which you enforce them could affect your reputation as both a landlord and a human being.

Learn More About Housing Discrimination

See What Kind of Housing Discrimination Is Illegal? 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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