Landlords have a great deal of agency when it comes to selecting tenants based on credit scores, criminal history, financial ability to pay and renting history. However, they also must play by rules mandated by the federal government to ensure they aren’t discriminating or risk facing potential consequences.
What is the Fair Housing Act?
Enter the 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.
Examples of prohibited actions based on renting to protected classes are:
- Refuse to rent housing
- Refuse to negotiate for housing
- Make housing unavailable
- Advertising for a specific group of people
- Set different terms, conditions or privileges for rental
- Deny a visually impaired tenant to keep a guide dog in a dwelling with a “no pets” policy
The Department of Housing and Urban Development (HUD) is responsible for enforcing the Fair Housing Act.
Who enforces the Fair Housing Act?
The Department of Housing and Urban Development (HUD) enforces the Act in two ways:
HUD hires people to pose as renters or home buyers to see if discriminatory practices are being used. To that end, as a landlord, you need to be cautious about what you say on the phone, in person and in ads. Too, individuals who feel their fair housing rights have been violated under the Fair Housing Act may file a discrimination claim with HUD. The agency will investigate the claim and, based on its findings, will decide if further legal action is necessary.
Just how common are fair housing related complaints? According to the National Fair Housing Alliance 2018 Fair Housing Trends Report, there were 28,843 complaints of housing discrimination in 2017. The three most common types of complaints in 2017 were based on disability (57 percent), race (19 percent), and family status (9 percent).
How does it affected people with disabilities?
What about people with disabilities? In short, a landlord may not:
- Refuse to let a disabled person make reasonable modifications to the dwelling or common use areas, at their expense, if necessary for the disabled person to use the housing.
- Refuse to make reasonable accommodations in rules, policies, practices or services if necessary for the disabled person to use the housing
For example, a complex with unassigned parking must honor a request from a mobility-impaired tenant for a reserved space in close proximity to the apartment for ease of access.
How do you stay compliant?
When it comes to protected classes and the FHA, the key to compliance is whether a landlord treats prospects and tenants differently because of characteristics mentioned above. It’s imperative that landlords establish and apply standard tenant screening and selection processes. However, landlords can legally reject applicants, evict tenants, and take legal action against people who may be protected under the FHA if the reasons are legitimate and unrelated to any protected class.
Should you deny an applicant at your property, it’s recommended that you keep detailed files on record as a safeguard against a lawsuit from someone you or your property management team rejected at your property. If you’re able to document why you rejected the prospective tenant, you can use that file in court, if needed, to prove you complied with the FHA.
What might discrimination look like in a renting situation? Say a landlord rejects an applicant because she’s female and Muslim. This violates the FHA’s ban on discrimination based on sex and religion. But a landlord who rejects the woman because she has poor credit or can’t afford the rent isn’t violating the FHA—assuming the landlord applies the same screening requirements to all applicants.
At the same time, landlords should be mindful of cases of reverse discrimination. For example, say a landlord accepts a female Muslim applicant despite the fact she does not meet the qualifications, out of fear that she’ll take legal action. Such a move means the landlord is discriminating in favor of the applicant (and against other applicants) based on two protected classes (sex and religion), which is illegal under the FHA.
As with any legislation, it’s important to understand the nuances so that you can ensure you’re following both the letter and the spirit of the law. Whether you are advertising your property, screening new tenants or setting apartment rules, make sure that you are operating in accordance with Fair Housing laws. Ensure that any actions or policies apply to everyone (with supporting documentation), and cannot be construed as bias, intended or otherwise.
For more information about the Fair Housing Act, consult the HUD.gov Fair Housing Act Overview webpage, the Fair Housing Act on the Department of Justice website, or the HUD Fair Housing booklet.
