Archive for the ‘Uncategorized’ Category

I signed a lease agreement with a new tenant to begin the first of the month. However after meeting with him, I have second thoughts about whether he is really going to be an okay tenant. I really don’t want him to move in. Is there a law that says I have to let him move in? Can I change my mind and give him back his deposit check?

July, 2019

A signed lease is a legal contract binding all parties to the contract. Unless you could prove the new tenant committed fraud or did not have capacity to enter into a contract, neither you nor the tenant can just change your mind once a lease agreement has been executed by both parties.

There is no right of rescission of a contract in landlord-tenant law. Some states have consumer protection laws regarding cancelling some types of contracts such as a home improvement contract, but consumer protection laws would not apply in this case.

If you conducted tenant screening procedures and the tenant qualified to your rental standards, why would you now have a concern? Personality conflicts or bad vibes are not permissible reasons to get out of your legal contact. The tenant has made a good faith effort to meet rental terms, has signed a lease, and paid a deposit. Your tenant could make good claim for discrimination unless there is just cause. If your concern has somehow become a legitimate concern based upon discovery of new verifiable information and you have good reason to believe the tenant poses a direct threat to people or property you should take appropriate steps to protect your other tenants and safeguard your property.

Other questions to consider: Is your lease a fixed-term lease or a month-to-month rental agreement? Have you given the new tenant a key or allowed the tenant to move any personal possessions into the rental unit? If so, the tenant now has possession of the unit and you will need to follow appropriate legal measures in your state including eviction proceedings to regain possession of the unit.

The term of the lease agreement and the language in the lease may determine what action you can take and what rights the tenant has in the matter.

You may need to consider negotiating a settlement with the tenant to remedy your default. It may be appropriate to consult with an attorney specializing in landlord-tenant law to resolve the issue.

Tenant Safety

May, 2019

A landlord has a legal responsibility to take reasonable care to protect tenants from foreseeable harm. The landlord’s duty of care extends to protect tenants from third party criminal acts and correspondingly to protect the neighborhood from criminal acts of his tenants.

The best way to protect tenants, property and neighbors is to prevent criminal activities in the first place. Accordingly, good management practices, prompt response to tenant security concerns and complaints, regular property inspections, timely response to maintenance and repair issues, installation and maintenance of required safety and security devices, and tenant education on crime prevention and handling of emergency situations will help to protect tenants’ safety and reduce landlord liability for known risks.

Property assessment and evaluation of risks

As a first step in tenant protection, a landlord must assess his property’s safety and security vulnerabilities. A physical inspection of the property and grounds can point to areas or issues that require additional or upgraded safety and security measures. A landlord cannot guarantee tenant safety, but with adequate due diligence efforts can help secure a property to protect tenants from known risks. This duty of care is a critical part of business operations for risk management and risk prevention.

A landlord’s property security assessment and evaluation will determine what security measures are needed to effectively protect the property. Basic security measures for all types of properties include:

  • Exterior lighting at entrances and walkways
  • Interior lighting at stairwells, hallways, doorways, garage or parking entrances
  • Locks including dead-bolt locks for entry doors, window locks, patio door locks
  • Landscaping that does not block or obscure doorways or windows

The type of property, the location of the property, and the security measures as required by state statutes, local ordinances, or building safety codes may also determine what must be provided for adequate protections.

Management practices

A landlord’s due diligence responsibility for tenant safety underlies his rental policies and practices. Tenant screening and selection policies and practices qualify applicants to rental standards, including behavioral risks. There is no absolute standard of screening that can guarantee a quality tenant, but adequately thorough background checking of credit history, rental history, criminal conviction history, public records, and landlord references can help control business risks and protect current residents from harm. Installing a tenant without screening is a risky business practice and could potentially harm others.

Duty of care due diligence requires a landlord to proactively monitor activity on his rental property for signs of illegal or nuisance activities. Tenants want and need to depend upon the landlord to enforce rental policies and standards by taking legal action against illegal activities on the rental property. Without enforcement of the rental terms and conditions, tenant safety is compromised.

Additionally a landlord should regularly check with local law enforcement agencies regarding recent criminal activity in the surrounding area of the rental property. Reported criminal activity in the neighborhood may require the landlord to provide tenants and neighbors with adequate warnings so that individuals may take their own appropriate safety precautions. If a landlord should fail in his duty to take reasonable care to protect the safety of tenants and others, a landlord could be held liable for any injuries or losses that may occur as a result of the landlord’s actions or inactions.

A landlord cannot depend upon the fact that because a crime has not yet occurred on his property, there is no criminal activity on the property or in the neighborhood. There is good cause for a landlord to be concerned about criminal activity on the rental property. Physical injuries and property damage can be costly.

Premises liability lawsuits against landlords for injuries suffered by tenants at hands of third party criminals are costly. Monetary awards and settlements in the thousands of dollars could potentially cost a landlord his business. The rental property may become stigmatized as a bad property and as a result suffer higher vacancies, lower rents, tenant defaults, and potentially more criminal activity.

Some states have specific laws regarding the landlord’s responsibility to secure the rental premises. Most states have general safety and security requirements that hold the landlord responsible for clean and safe housing. A landlord must determine what is required by statute, ordinance, or code for his business and his landlord responsibilities. There can be specific requirements for safety and security measures under state and local regulations, building, housing, health, and fire safety codes. Basic safety devices such as smoke detectors, carbon monoxide detectors, deadbolt entry doors, locking windows, security bars, door viewers, and adequate exterior and interior lighting are commonly required under local ordinance or municipal codes.

A landlord is not required to provide security measures other than those devices or measures required by law. Alarm systems, security cameras, or security patrols may add to the security measures taken by the landlord to protect tenants and the property. However, providing such additional measures obligates the landlord to ensure that the security measures are kept in place and devices are maintained in good working order at all times.

Tenants should be encouraged to alert the landlord to suspicious activity or incidents on the property. A landlord should immediately investigate such reports to determine if there is a threat or danger of criminal activity or nuisance before greater harm could be done to tenants or neighbors.

Educating tenants on safety and security measures will allow them to better protect themselves. Many local agencies including law enforcement and emergency services offer community programs on personal safety and security protections that could be beneficial for tenants and landlords. Insurance companies may also provide information.

Landlord security measures must also include safeguarding tenant privacy and rental documents containing tenant personal information such as applications, credit reports, background reports, and correspondence. Access to tenant information should be restricted on a need to know basis for a legitimate business purpose. The same measure of security applies to safeguarding keys to the rental unit. Access to master keys should be restricted for landlord use only. Tenants should be required to return all keys at time of move-out. Because tenants may pass out keys to family members and friends, as a further precaution a landlord should always re-key the rental unit at new tenant move-in.

Tenants should be encouraged to purchase renter insurance to provide coverage for financial protection against loss or destruction of personal possessions and as protection against liability claims of injury to other persons or property damage. Renter insurance can also provide extra liability protection for the landlord.

Physical safety and security devices and property assessments do help to protect tenant safety and help to lessen landlord liability. Not to be overlooked though, are safety and security measures incorporated into rental policies and procedures that control property management operations.

There are many other safety and security measures that landlords can take to reasonably protect tenants’ safety. The key is to keep vigilant on rental property activities, enforce protective policies such as tenant screening and security of personal data, and work within the neighborhood and community to protect people and property.

What is an expedited eviction?

May, 2019

An eviction is the legal process of restoring possession of the rental premises to the landlord after properly terminating a tenancy. The legal proceedings can be quite lengthy, taking weeks or even months to formally complete the process in order to allow the tenant his right to due process. Each state has its own procedures for termination notices and eviction procedures.

Typically a landlord will terminate a tenancy for nonpayment of rents or a violation of lease terms and conditions. A tenant may violate his lease by allowing or participating in illegal activities such as drug dealing or other nuisance behaviors on or near the rental premises.

In some states, a landlord is required to take eviction action to remove the tenant from the rental property when there is known illegal activity. Landlords failing to take required action face the risk of their rental business being shut down or confiscated by authorities.

A landlord may not have to wait until a tenant is arrested or convicted of a crime to start eviction action. In some states a landlord may take action on a reasonable suspicion that criminal activity has taken place that involves the tenant or the tenant’s guests. Landlords in other states may not begin eviction action unless there has been a criminal conviction for criminal acts on the rental property.

Evictions based on criminal activity can be expedited evictions because in many court systems of many states they can be processed more quickly through the court system than a standard eviction. An Unconditional Quit Notice may be served upon the tenant that provides no opportunity to cure the lease violation. The lease is terminated effective immediately and the tenant must vacate the premises per statutory notice. The landlord must take every measure to ensure the safety of his other tenants and to protect his property. Should the tenant fail to vacate the premises the landlord files for eviction with the court and the court’s legal process is usually conducted within a short period of time.

As examples:

In Missouri, landlords are allowed to file for expedited eviction proceedings in certain circumstances, including drug-related criminal activity occurring on or within the property leased to the tenant. This includes a drug related activity by the guest of the tenant, a member of the tenant’s household, or the tenant himself.

In Florida, eviction laws allow landlords to terminate a lease agreement with 7 days’ notice under an expedited eviction process. The tenant is not given an opportunity to cure if the tenant has committed serious lease violations such as nuisance behaviors.

Under Massachusetts Nuisance Law, landlords can generally waive notice requirements if certain criminal activities such as illegally keeping, selling, or manufacturing controlled substances are taking place on rental property. Landlords may proceed to filing a summary process case with the courts.

If the tenant is late on his rent, how soon can I serve notice?

May, 2019

In most states, you can serve the tenant a Notice to Pay Rent or Quit as early as the day following the rent due date. As example, if the rent is due on the first day of the month, a notice may legally be served on the next day (day two), absent a grace period being specified in the lease or by a statutory grace period.

In some states if the tenant fails to pay his rent, a landlord can serve the tenant with an Unconditional Notice to Quit. An Unconditional Quit Notice may also be used by the landlord in some states if the tenant has been late with the rent more than once during a specified time period by statute.

Some state statutes may specify which type of Notice must be used for rent defaults while other states give the landlord a choice of which notice to use (Pay or Quit Notice or the Unconditional Quit Notice) for unpaid rent. The tenant does not have the option to choose the type of notice that would provide him more relief.

I have several questions regarding notices to tenants who are late with their rent. What happens if the tenants pay the past due rents during the notice period? I served a tenant with a Pay or Quit Notice but now he has paid the rent within the 3 day notice period. Does the Notice just expire? What would happen if I served a Notice and the tenant only paid part of the rent? Does the tenant still have to move out?

May, 2019

If you serve a tenant a Pay or Quit Notice but then accept the tenant’s payment for the full amount of the rent due for the rental period, you have cancelled the termination notice for that rental period. The tenant will no longer be in lease default. In many states the matter will be considered the same as if the tenant paid timely rent to begin with.

If the tenant defaults on rent in a future time, you will need to start over by serving a new Pay or Quit Notice for a new time period.

If you serve a tenant a Pay or Quit Notice but the tenant only makes a partial rent payment, by accepting the partial payment, you have cancelled the termination notice for that rental period. However, after accepting the partial payment, you can immediately serve the tenant with a new Pay or Quit Notice for the balance due. If the tenant does not pay the balance due within the required notice period the tenant must quit (move out) the rental premises.

If you refuse to accept the tenant’s partial rent payment, the Pay or Quit Notice is still in effect for the specified notice period. If the tenant does not pay the full amount due, he must quit (move-out) the rental premise per the notice.

Housing Discrimination

May, 2019

The annual Fair Housing Trends Report prepared by National Fair Housing Alliance collects and analyzes data on the seven federally protected classes and several of the classes protected by state and local fair housing laws, such as source of income and sexual orientation among others.

The analysis of 28,843 reported complaints of housing discrimination in 2017 returned important data points – housing discrimination is most prevalent in rental housing markets and the three most common types of discrimination complaints were based on disability, race, and familial status.

More than half of the number of complaints received alleged disability discrimination. The large number of disability complaints could be attributed in part to the additional protections afforded persons with disabilities under fair housing laws – i.e., reasonable accommodations, reasonable modification, and accessible design and construction.

Complaints must specify the discriminatory actions that allegedly violated fair housing laws. Most common actions cited in complaints were 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 were also listed as common actions of alleged discrimination.

Fair housing reports analyze the data collected from the number of discrimination complaints reported. The number of complaints received may represent only a small fraction of incidences of fair housing discrimination. Oftentimes housing discrimination is unreported, under-reported, or undetected. Discrimination in housing can be difficult to identify, prove, and document. Those individuals that experience housing discrimination are often reluctant to report discrimination fearing retaliation by the housing provider or his employee or agent. There can be the perception on the applicant’s or tenant’s part that nothing will be done or can be done to remedy the situation.

Fair Housing Act

Housing discrimination prevents individuals from exercising their rights to housing of their choice. 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 the protected classes of race, color, religion, sex, national origin, disability or familial status (including individuals or families with children under the age of 18  and pregnant women).

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.

Housing Exceptions

The Fair Housing Act covers most housing. In very limited circumstances, the Act exempts owner-occupied buildings with no more than four units, single-family houses sold or rented by the owner without the use of an agent, and housing operated by religious organizations and private clubs that limit occupancy to members. However state and local fair housing laws may be applicable to federally exempt housing.

State and Local Fair Housing Laws

Many states’ and local jurisdictions’ fair housing laws grant greater protections from discrimination. As an example, state fair housing laws may make it illegal to discriminate in housing transactions against persons 40 years of age or older. Some state and local laws prohibit discrimination on the basis of gender identity, gender expression, sexual orientation, marital status, military service, or other protected characteristic.

Housing Discrimination

Rental housing discrimination takes on many forms and appearances. Discrimination can occur during any phase of rental operations from marketing a vacancy, installation of a tenant, to the ensuing landlord-tenant relationship. Under the Fair Housing Act, a landlord may not:

  • advertise or make any statement that indicates a limitation or preference based on race, religion, or any other protected category,
  • falsely deny that a rental unit is available,
  • set more restrictive standards for selecting tenants or refuse to rent to members of certain groups,
  • before or during the tenancy, set different terms, conditions, or privileges for rental of a dwelling unit, such as requiring larger deposits of some tenants or adopting an inconsistent policy of responding to late rent payments, or
  • terminate a tenancy for a discriminatory reason.

HUD Equal Access Rule

Housing programs funded by the U. S. Department of Housing and Urban Development (HUD) must comply with the Equal Access Rule, which prohibits discrimination on the basis of gender identity, marital status, and sexual orientation.

HUD Rules and Guidance

HUD publishes rules and guidances to address various important fair housing issues. As examples:

HUD Disparate Impact Rule

The Discriminatory Effects Standard provides for consistency of enforcement of the Fair Housing Act on a nationwide basis and formalizes a burden-shifting test for determining whether a given practice has an unjustified discriminatory effect, leading to liability under the Act.

Under a three-part burden shifting test, the charging party first bears the burden of proving its prima facie case that a practice results in, or would predictably result in, a discriminatory effect on the basis of a protected characteristic. If the charging party proves a prima facie case, the burden of proof shifts to the respondent to prove that the challenged practice is necessary to achieve one or more of its substantial, legitimate, nondiscriminatory interests. If the respondent satisfies this burden, then the charging party may still establish liability by proving that the substantial, legitimate, nondiscriminatory interest could be served by a practice that has a less discriminatory effect.

HUD Harassment Rule

HUD has formalized standards for use in investigations, administrative adjudications, and cases brought in federal and state courts under the Fair Housing Act involving allegations of harassment on the basis of race, color, religion, national origin, sex, familial status or disability.

The Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices under the Fair Housing Act (the Rule) specifies how HUD  evaluates complaints of quid pro quo (“this for that”)harassment and hostile environment harassment under the Fair Housing Act.

The Rule clarifies when housing providers and other entities or individuals covered by the Fair Housing Act may be held directly or vicariously liable under the Act for illegal harassment as well as for other discriminatory housing practices that violate the Act.

HUD Guidances

Reasonable Accommodations under the Fair Housing Act

HUD and the Department of Justice (DOJ) published the Joint Statement of the Department of Housing and Urban Development and Department of Justice: Reasonable Accommodations under the Fair Housing Act. The Fair Housing Act prohibits the refusal to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling.

Service Animals and Assistance Animals

The Notice on Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs discusses how the Fair Housing Act and the Americans with Disabilities Act (ADA) intersect regarding the use of service or assistance animals by persons with disabilities.

HUD’s notice explains housing providers’ obligations under the Fair Housing Act, including the requirement to provide reasonable accommodations to people with disabilities who require assistance animals. Pet restrictions cannot be used to deny or limit housing to people with disabilities who require the use of an assistance animal because of their disability. Housing providers must grant reasonable accommodations in such instances, in accordance with the law.

Use of Criminal History in Housing Decisions

HUD has published guidance concerning how the Fair Housing Act applies to the use of criminal history by landlords in making housing decisions.

The guidance addresses how the discriminatory effects and disparate treatment methods of proof apply in Fair Housing Act cases in which a landlord justifies an adverse housing action, such as a refusal to rent to an individual based on the individual’s criminal history.

While having a criminal record is not a protected characteristic under the Fair Housing Act, criminal history-based restrictions on housing opportunities violate the Act if, without justification, their burden falls more often on renters of one race or national origin over another (i.e., discriminatory effects liability).

Intentional discrimination in violation of the Act occurs if a landlord treats individuals with comparable criminal history differently because of their race, national origin or other protected characteristic (i.e., disparate treatment liability).

The Fair Housing Act prohibits both intentional housing discrimination and housing practices that have an unjustified discriminatory effect because of race, national origin or other protected characteristics. While the Act does not prohibit a landlord from appropriately considering criminal history information when making housing decisions, arbitrary and overbroad criminal history-related restrictions or prohibitions are likely to lack a legally sufficient justification. Thus,” a discriminatory effect resulting from a policy or practice that denies housing to anyone with a prior arrest or any kind of criminal conviction cannot be justified, and therefore such a practice would violate the Fair Housing Act.”

Limited English Proficiency

HUD has issued Limited English Proficiency (LEP) guidance that addresses how the Fair Housing Act applies to claims of housing discrimination brought by people with limited English proficiency. Limited English Proficiency is the limited ability to read, write, speak or understand English.

Certain policies or practices of housing providers could be regarded as fair housing discrimination against protected classes when a person with limited English proficiency applies for tenancy. A landlord’s policy or practice that contains language-related housing restrictions or that result in a language-based adverse action decision is a violation of the Fair Housing Act.

People with limited English proficiency are not a protected class under the Fair Housing Act. However, national origin, which is a protected class, has been closely linked to the ability to communicate proficiently in English. The guidance points to statistical data supporting the nexus between limited English proficiency and national origin.

Domestic Violence

HUD’s Guidance on Application of Fair Housing Act Standards to the Enforcement of Local Nuisance and Crime-Free Housing Ordinances Against Victims of Domestic Violence, Other Crime Victims, and Others Who Require Police or Emergency Services is intended to inform state and local governments, as well as private and public housing providers, as to how HUD will assess nuisance or crime-free housing ordinances, policies, or practices alleged to be discriminatory under the Fair Housing Act.

The Nuisance Ordinance Guidance addresses ordinances that penalize residents for a small number of 911 calls to police, even when a person is in need of protection from domestic violence or another crime. Nuisance ordinances often require or allow landlords to evict residents in such circumstances, thereby discouraging victims from reporting domestic abuse or other crimes and obtaining the emergency police and medical assistance they need.

Landlord Right to Legally Choose Tenants

Fair housing laws and HUD rules and guidances do not take away the rights of the landlord to operate his business in a manner compliant with applicable law and business necessity. Denying an application because the applicant did not qualify under the standard rental criteria is permissible while a refusal to rent because of an applicant’s protected class status is illegal housing discrimination.

Landlords do not have to accept unqualified applicants, uncooperative applicants, or applicants who give false or misleading information. Landlords can reject and should reject those applicants who pose a direct threat to property and the welfare of others.

Does a landlord have liability for criminal activity?

May, 2019

A landlord has a legal responsibility to take reasonable care to protect tenants from foreseeable harm. Legal obligations for tenant safety issues may be specified under state statutes, local ordinances, building and housing codes, and case law.

The landlord’s duty of care extends to protect tenants from third party criminal acts and correspondingly to protect the neighborhood from criminal acts of his tenants. The landlord has the duty to enforce his rental policies and take appropriate action against illegal activities on the rental premises. For dangerous situations that cannot be prevented, a landlord has a duty to provide timely warning to tenants about the dangers or potential danger so that tenants may take their own appropriate safety precautions.

While it is unlikely that a landlord could completely crime-proof a property and fully guarantee tenant safety, working toward a crime-free property with best efforts to protect tenants from foreseeable harmful acts is a critical part of business operations. Such efforts can also provide a defense against liability claims even if not having prevented the particular crime.

The best way to protect people and property and to reduce liability is to prevent criminal activities in the first place. Safety and security measures are high priority tasks in property management.

Some states have specific laws regarding the landlord’s responsibility to secure the rental premises. Most states have general safety and security requirements that hold the landlord responsible for clean and safe housing.

A landlord is not required to provide security measures other than those devices or measures required by law. Alarm systems, security cameras, or security patrols may add to the security measures taken by the landlord to protect tenants and the property. However providing such additional measures obligates the landlord to ensure that the security measures are kept in place and devices maintained in good working order at all times.

A well-maintained property indicates active property management and is in itself a deterrent to criminal-minded individuals. Good tenants in good properties have a vested interest to be safe and secure and can alert the landlord to issues or suspicious activities that require investigation and resolution.

Is a landlord liable for a tenant’s injury?

May, 2019

A landlord could be held liable for a tenant’s injury that occurred on the rental property if the landlord acted in a negligent manner and the tenant’s injury was caused by the landlord’s negligence.

A landlord has the duty of reasonable care to help protect the safety of his tenants. Landlord liability for tenant claims of injury can arise from the landlord’s failure to exercise the duty of reasonable care. The tenant has the burden of proof to show that the landlord knew or should have known of a dangerous condition and failed to act in a reasonable manner as any landlord would have done.

Landlord negligence would be determined after careful analysis of the facts. If there is no landlord negligence, there is no landlord liability.

A key consideration is whether the landlord’s actions were reasonable under the circumstances. The following issues would be among many issues to be considered in determining landlord liability.

Landlord Control

Did the landlord have a legal obligation over the area where the incident occurred? Landlords are generally liable for most areas of the property such as the common areas of a building and grounds and proper supervision and maintenance of all systems and equipment used in the property management. If the landlord’s failure to properly maintain or secure these areas was determined to be the injury causing factor, the landlord could be held legally liable for tenant injuries.

Probability of risk

If a tenant can show that a reasonable person could have foreseen a high probability of risk of an accident, the landlord could be held responsible for the tenant injury. An act of nature or unusual one-time event that caused an accident would not usually result in the landlord being liable for injuries.

Difficulty of risk reduction measure

The landlord’s efforts to take reasonable steps to help prevent accidents and injuries will be a consideration in determination of liability. Were there reasonable measures such as warning signs or additional security or safety protections that could have averted an injury?

As part of risk management, a landlord should keep detailed records for maintenance and repair issues, property inspections, safety inspections, and general property management practices to aid in defense of claims of negligence. Adequate documentation is especially important to demonstrate that the landlord did take every care to protect the safety of the tenants.

What are some of the ways to help minimize landlord liabilities?

May, 2019

Landlord liability can result from negligence, violation of health and safety laws, failure to repair, failure to maintain the rental premises in a safe and habitable condition, or intentional harm to others and property.

Landlord duties and responsibilities regulate property management operations. Failure to perform according to statutes for health, safety, and habitability are breaches of contract. Failure to perform to standards of care can lead to tenant claims and/or findings of liability. Any breach puts the landlord at risk.

Repair and maintenance issues are commonly a cause of action for tenant injuries. To help avoid potential problems and loss related to property maintenance, a landlord must be vigilant in inspecting his property for unsafe conditions, for hidden defects that may not be obvious to tenants or guests, and making sure all repairs are done in a timely and workmanlike manner.

Communication and notifications to tenants about property policies and practices, including ways they can better protect themselves if they encounter a dangerous situation, can help mitigate risks of harm and injury. Communication between landlord and tenants should be encouraged to allow management to be aware of activity or incidents on the property that need attention. Managers need to be particularly aware of suspicious activities or illegal activities that must be dealt with immediately to remove the threat before causing greater harm to tenants or the neighborhood.

Physical safety and security devices and property assessments help to protect tenants and reduce landlord liability. Safety and security measures incorporated into rental policies and procedures help control property management operations. A failure to maintain or to deliver security measures as promised is a breach of contract by the landlord and probable cause of liability in tenant claims of harm or loss.

Policies and practices without enforcement of policies create potential liability for the rental property to become a site for criminal activity. Tenants must depend upon the landlord to enforce his policies fairly and in a nondiscriminatory manner. Landlords are legally responsible to take action against tenant illegal activities on their property, such as drug dealing. Without proper enforcement of the rules, tenant safety becomes compromised.

Landlords must practice safety and security measures in safeguarding tenant documents and personal information including applications, credit reports, background reports, and correspondence. Access to such tenant files should be restricted on a need to know basis with files kept securely in a locked file cabinet.

Landlords should have sufficient business insurance coverage to help protect against liability claims. Insurance coverage should be reviewed at least annually to make sure the type and amount of coverage is adequate for the current business operations.

The key is to keep vigilant on rental property activities, enforce protective policies such as tenant screening and security of personal data, and work within the neighborhood and community to protect people and property.

Does the Fair Housing Act cover alcoholism under the protected class of disability?

April, 2019

Yes, both the Fair Housing Act and the Americans with Disabilities Act include alcoholism within the definition of handicap (disability).

The Fair Housing Act prohibits discrimination on the basis of disability in all types of housing transactions. The Act defines persons with a disability as those individuals with mental or physical impairments that substantially limit one or more major life activities. The term mental or physical impairment may include conditions such as blindness, hearing impairment, mobility impairment, HIV infection, mental retardation, alcoholism, drug addiction, chronic fatigue, learning disability, head injury, and mental illness. The Fair Housing Act also protects persons who have a record of such impairment, or are regarded as having such impairment.

The Fair Housing Act does not afford protection to individuals with or without disabilities who present a direct threat to the persons or property of others. Determining whether someone poses such a direct threat must be made on an individualized basis. A landlord cannot refuse tenancy based upon general assumptions or speculation about the nature of a person’s disability.

Current users of illegal controlled substances, persons convicted for illegal manufacture or distribution of a controlled substance, sex offenders, and juvenile offenders are not considered disabled under the Fair Housing Act and therefore do not have protected status.

Landlords cannot refuse to rent to someone who is an alcoholic or in recovery from alcohol addiction simply because of the person’s status as an alcoholic. Potential tenants cannot be asked for more or different information than would be asked of any other potential tenant, including information about medical treatment or whether the potential tenant is able to live independently. Landlords are prohibited from imposing different terms or conditions on a potential tenant because of his disability.

If the potential tenant, whether in recovery or not, qualifies to the standard rental criteria, a landlord must offer tenancy in the same manner as the landlord would for any other qualified applicant. However, since alcoholism is a disability, a landlord may be required to consider the tenant’s request for reasonable accommodations related to the tenant’s disability. If the potential tenant does not qualify to rental standards, the rejection of the application is handled per the landlord’s written policies and practices.