Fair Housing Laws for Tenants and Landlords
Fair Housing Laws
Fair Housing Laws and fair housing-related Presidential Executive Orders promote equal opportunity for individuals to seek, obtain, and hold housing without discrimination. The most familiar of the fair housing laws is the federal Fair Housing Act.
The month of April celebrates Fair Housing Month, honoring the anniversary of the passage of the Fair Housing Act. To further public awareness of the Fair Housing Act and focus on compliance with fair housing laws, educational workshops and traveling exhibits are customarily scheduled throughout the month by federal, state, and local agencies in various locations. The media attention helps to remind landlords that they should review their rental policies for fair housing compliance on a regularly scheduled basis. Keeping current with all applicable landlord-tenant laws will help the landlord remain compliant.
Fair Housing Act
Title VIII of the Civil Rights Act of 1968 (Fair Housing Act), as amended, prohibits discrimination in the sale, rental, and financing of dwellings, and in other housing-related transactions, based on race, color, national origin, religion, sex, familial status (including children under the age of 18 living with parents or legal custodians, pregnant women, and people securing custody of children under the age of 18), and disability.
Any person involved in the sale, rental, or financing of dwellings is responsible under law to conduct housing related transactions in a non-discriminatory manner. Understanding fair housing laws and setting rental policies for fair housing compliance is the landlord’s best protection against claims of rental housing discrimination.
The Fair Housing Act covers most housing-related transactions for public, assisted, and private dwellings. Dwelling refers to any building, structure, or part of a building or structure that is occupied or intended to be lived in by one or more families. The dwellings covered under the Fair Housing Act include rental apartments, houses for sale or rent, boarding and rooming house rentals, mobile home parks, and condominiums.
Housing Exemptions
The following types of property are exempted under the Federal Fair Housing Act:
- Owner-occupied buildings with four or fewer units.
- Single-family housing sold or rented without the use of a real estate broker and without the use of discriminatory advertising.
- Certain types of housing operated by religious organizations and private clubs that limit occupancy to their own members.
- Housing that is intended for and solely occupied by persons 62 years or older or a household with at least one person 55 years or older. To qualify at least 80% of the units must be occupied by at least one person 55 years or older.
Advertising Guidance
Section 804(c) of the Fair Housing Act makes it illegal “to make, print, or publish, or cause to be made, printed, or published, any notice or statement with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, national origin, sex, disability, or familial status.” This prohibition applies to all advertising media, including newspapers, magazines, television, radio, and the Internet. It also includes a landlord’s printed materials such as brochures, signs, banners, flyers, or business forms (applications, leases, agreements, etc.).
A key point in fair housing advertising compliance is to focus on the property features using words that are facially neutral.
It is important to note that housing that may be otherwise exempt from federal fair housing laws is still subject to prohibition against discriminatory advertising.
Protected Class
A protected class is a characteristic of a person which cannot be targeted for discrimination. Federal fair housing laws prohibit discrimination on the basis of these protected classes:
- Race
- Religion – personal beliefs, faiths, practices.
- National origin – association of ancestry, culture, accent, spoken language or surname.
- Sex
- Color – characteristics associated with certain races and ethnic groups.
- Familial status – having a child under age 18 in the household, whether living with a parent, a legal custodian, or their designee. It also covers a woman who is pregnant, and people in the process of adopting or gaining custody of a child or children.
- Disability – a physical or mental disability (including hearing, mobility and visual impairments, chronic alcoholism, chronic mental illness, AIDS, AIDS Related Complex and mental retardation) that substantially limits one or more major life activities, having a record of such a disability or are regarded as having such a disability.
State & Local Fair Housing Laws
Many states and some local jurisdictions have substantially equivalent fair housing laws that protect the same rights as granted by federal laws. Some states grant greater protection to protected classes and/or have added categories of protected class. Fair housing compliance will be in accordance with the most stringent requirements. It is unlawful to coerce, threaten, intimidate, or interfere with anyone for exercising or enjoying their fair housing rights or encouraging or aiding others in the exercise or enjoyment of their fair housing rights.
State and local fair housing laws can be more restrictive than federal laws. For example, the New York City Human Rights Law prohibits housing discrimination based on a person’s real or perceived race, color, national origin, gender (including gender identity and sexual harassment), creed, disability, sexual orientation, marital status, partnership status, alienage or citizenship status, age, lawful occupation or because children may be or will be residing with the tenant.
California protects against housing discrimination through the Fair Employment and Housing Act (FEHA) and the Unruh Civil Rights Act. The Unruh Civil Rights Act, prohibits discrimination in “all business establishments of every kind whatsoever “and has been interpreted to include businesses and persons engaged in the sale or rental of housing accommodations. Not only does the California Civil Code prohibit landlords from inquiring as to tenants’ and rental applicants’ immigration and citizenship status, as previously mentioned, the Code also forbids any municipality from passing laws that direct landlords to make such inquiries. The FEHA and the Unruh Civil Rights Act can be enforced against any owner, lessor, sub-lessor, assignor, managing agent, real estate broker, salesperson, or any person having any legal or equitable right of ownership or possession or the right to rent a housing accommodation.
Age is a characteristic that while not specifically protected under federal law can be a protected class in many states. Landlords cannot reject an applicant solely on account of age although, again, some exceptions apply. There are regulatory guidelines for renting seniors-only multi-family housing. Landlords can refuse to rent to minors who are not emancipated or otherwise of legal age to authorize a contract.
Many states have added source of income protections in their fair housing laws. Some states have passed legislation to protect against housing discrimination based on sexual orientation, gender identity, or gender expression.
Some state courts have also interpreted fair housing laws to mean that protected class categories serve as examples of illegal discrimination or harassment practices and that any arbitrary discrimination based on an individual’s characteristics or traits is also a violation of fair housing laws.
Since an applicant/tenant is potentially a member of any of the federally protected classes, or state and local protected classes, the landlord’s rental screening and selection policies should be based on sound business policies rather than exclusion of certain group characteristics.
What Is Prohibited?
In the sale and rental of housing, no one may take any of the following actions based on the protected classes:
- Refuse to rent or sell housing,
- Refuse to negotiate for housing,
- Make housing unavailable,
- Deny a dwelling,
- Set different terms, conditions or privileges for sale or rental of a dwelling,
- Provide different housing services or facilities,
- Falsely deny that housing is available for inspection, sale, or rental,
- For profit, persuade owners to sell or rent (blockbusting), or
- Deny anyone access to or membership in a facility or service (such as a multiple listing service) related to the sale or rental of housing.
Disparate Impact
The landlord must also guard against another form of discrimination. Disparate impact occurs when a policy that is fair and applied fairly ends up discriminating against one or more protected classes of individuals. For example, if a landlord criterion was non-acceptance of any government assistance, this would be disparate impact on individuals receiving housing vouchers or disability payments, etc.
Claims
Complaints must specify the discriminatory actions that allegedly violated fair housing laws. The most common complaints are discriminatory terms, conditions, privileges, services, and facilities in the rental or sale of property. Failure to make reasonable accommodation, refusal to rent, coercion, intimidation, threat, or interference with exercising fair housing rights, and housing advertising that indicated discrimination, limitation, or preference are also common actions of alleged discrimination.
Violating Fair Housing laws can be quite costly in actual penalties awarded, legal expenses, and the time involved in the investigation and hearing of complaints. If an administrative hearing determines discrimination did occur, legal awards for actual compensatory damages, injunctive or equitable relief damages, punitive damages, attorney fees and costs, and civil penalties can be awarded.