Fair Housing Advertising

Fair Housing Month is a calendar reminder to landlords to review their rental policies and practices to ensure current compliances with federal, state, and local fair housing laws.

Fair housing laws prohibit discrimination in all aspects of the landlord’s rental housing policies and practices including the landlord’s advertising policy and practices. Many landlords are unaware that their current advertising practices and/or marketing materials could inadvertently violate fair housing advertising requirements.

Fair Housing advertising issues and violations are more common than most landlords realize. Whether a landlord may realize it or not, a landlord is in some way advertising his rental business every day through direct or implied speech and actions during property operations. As a practical matter in doing business, a landlord should be aware that any word or statement that could be perceived by a tenant or potential tenant to limit housing choice or as an indication of a preference based upon a protected class could be construed by the tenant or potential tenant as discriminatory, whether the statement or word was used in media advertising or communicated orally to another individual in person or over the phone in a matter related to rental housing.

Understanding what the Fair Housing Act considers advertising and what is required for compliance for responsible non-discriminatory advertising requires the landlord’s due diligence to avoid violating fair housing laws. The Department of Housing and Urban Development (HUD) has published guidelines on acceptable words and phrases that can be used for non-discriminatory advertising which should be of help to landlords in developing advertising practices.

Advertising a rental vacancy is a standard landlord practice to attract the interest of potential tenants to fill that vacancy. Housing discrimination occurs when a landlord places an advertisement regarding the rental of any housing accommodation that indicates any preference or limitation based upon protected classes or characteristics.

Section 804(c) of the Fair Housing Act specifically makes it unlawful to make, print, or publish, (or cause to be made, printed, or published), any notice, statement, or advertisement, with respect to the sale or rental of a dwelling, that indicates any preference, limitation, or discrimination based on race, color, national origin, religion, sex, familial status, or handicap. This prohibition against discriminatory advertising applies to single-family and owner-occupied housing that is otherwise exempt from the Fair Housing Act.

Advertising rental property is no longer just a classified ad in newspapers. Technology has changed advertising practices to allow greater access to larger markets using a variety of media and platforms. Today’s advertising can be posted online, instantly accessible and responsive to interested prospects or general inquiries. Landlords must be attentive to how all forms of advertising, written or oral, are created and delivered to the rental market audience. Recent investigations of targeted online advertising on social platforms that could potentially limit, exclude, or prefer certain demographic areas or audiences regarding housing transactions should alert landlords to closely examining their own advertising policies and practices.

Discriminatory advertising laws apply to the landlord’s use of brochures, flyers, leaflets, signs, posters, banners, TV and radio commercials, billboards, Internet-based advertising, or other conventional print ads in newspapers or magazines. What might be overlooked by a landlord in assessing his operations for potential fair housing violations are various other forms of advertising that make or print notices, statement, or advertisements used for communications by email or text, printed application forms and other rental documents, photographs of the property with tenants or potential tenants in the photos, illustrations in marketing materials or even signage and pictures in the rental office that could be construed as discriminatory against a protected class or characteristic.

Non-discriminatory advertising should advertise in an inclusive way that will attract the broadest possible audience, and avoid expressing any preference for or limitation against certain classes or characteristics.

A landlord should consider the following advertising guidelines:

  • Make sure the advertising is compliant with fair housing laws by focusing on the property details – features and amenities – in a rental listing description. Advertising should not focus on characteristics that the landlord considers to be an ideal tenant.
  • Do not make statements that exclude persons in protected classes or that express a preference for one personal characteristic over others.
  • Always include the fair housing logo and/or the “Equal Housing Opportunity” slogan in all rental advertising.
  • Do not exclude from marketing campaigns persons in protected classes, such as families with children, people of certain racial or ethnic backgrounds, persons with disabilities, etc.
  • If advertisements feature human models, make sure the images are inclusive and representative of individuals in the community who need access to housing.
  • Always provide truthful information about the availability, price, amenities, and features of a housing unit.

The important questions to ask when reviewing your advertising are:

  • What message is being sent?
  • Does the advertisement communicate preferences for or against particular people?
  • Does the advertisement describe the housing and not the people?

In determining whether advertising constitutes a discriminatory housing practice, courts have generally applied a “reasonable person” standard. This means that liability is incurred by a person or entity if they make an advertisement that indicates a preference and that preference is readily apparent to an ordinary reader.

Although advertising violations are common in rental practices it is not difficult to create a responsible ad that complies with fair housing laws if a landlord keeps the key point in mind –advertising should describe the property, not a potential tenant.

There is another fair housing advertising issue that can sometimes be overlooked. Telephone fair housing training is critically important to provide accurate, timely information to callers inquiring about rental housing.  Rental properties, particularly multi-family properties, can receive numerous calls every day regarding the availability of units, rental qualifications, rents, pet policies, or other questions that must be answered in compliance with fair housing laws. The employee answering calls is the agent of the landlord. How the call is answered and the manner in which the response is given must be non-discriminatory, professional and not create a false impression or perception of the rental community and its policies. As example if a caller inquired about the availability of a two-bedroom unit and was told there was unit availability, the caller upon visiting the property would expect to be shown a two-bedroom unit. However if the unit in question was rented immediately after the first inquiry of availability, the visitor may perceive she/he was given false information, perhaps as a pretext for not wanting to rent to her/him. Any time there is a contradiction in information from a landlord or an employee, the individual could perceive that there may be housing discrimination issues.

A best practice to avoid claims of fair housing violations is make sure all employees (and the landlord himself) receive proper training on fair housing issues.  A written prepared script with property address, features, and amenities, and answers to commonly asked rental policies can help the employee answer questions accurately, consistently in a manner that avoids inadvertent discrimination.

Fair housing violations can be quite costly for landlords that have been found in violation of different housing-related laws, including the federal Fair Housing Act. For 2018, a maximum civil penalty of $20,521 can be assessed for a first violation of the Act. A landlord who had violated the Fair Housing Act in the previous 5 years could be fined a maximum of $51,302, and for those landlords who had violated the Act two or more times in the previous 7 years could be fined a maximum of $102,606.

These civil penalty amounts are in addition to actual damages and attorney’s fees and costs that may be awarded to individuals who experienced housing discrimination.

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