April is Fair Housing month. This is a great time to review various issues involving Fair Housing and tenant selection. The Federal and State Fair Housing laws are far-reaching and it is a wise landlord who is familiar with its provisions. There are many aspects to these significant laws that a landlord needs to know.
Tenant selection is a very important part of a landlord’s activities. It is also full of possible actions that can cause problems with the law. Here are a four important items to know about Fair Housing and tenant selection.
Always remember this simple rule when writing any advertising. Only write about the property and its specific attributes. Never try to describe the type of renter who you believe will be attracted to the property. Don’t wander into simple statements such as “close to school” or “walk to worship.” These statements may seem innocent, but they infer that you may be seeking a certain type of tenant.
Steering is one of the bigger Fair Housing and tenant selection traps. A landlord may find himself easily falling into steering with no intention to do so.
For instance, a caller identifies certain items about a community that are important to her. The landlord decides to suggest a certain home based on the request. The items important to her are safe neighborhood, walk to school, and near a certain faith’s places of worship. No questions are asked about the number of bedrooms or baths needed. The response digs into these items with disregard for the kind of home needed. The response to this request could easily turn into steering if all that is given are neighborhoods that meet the caller’s limited criteria.
When in doubt, refer prospective tenants to all of the available properties and let them decide for themselves what they wish to see. Or limit discussions to specific property attributes such as number of bathrooms.
It is not uncommon for a tenant to ask if a home is located in a safe area. Answering this, and many other questions about an area will provide a subjective answer that will be a Fair Housing violation. Know where to refer these tenants to specific neighborhood facts so they can research on their own.
Fair Housing and tenant selection is potentially troublesome when considering the questions and procedures used on an application to rent. Have a published procedure that provides objective statements of what will be used to make a tenant approval. Apply the same standards to all applicants.
These standards might include, credit score, employment history, amount of income to qualify, and previous rental history. Avoid certain types of questions that might be designed to identify a tenant in a certain way. There are a number of Fair Housing protected classes and questions regarding mental health and drug use will certainly be trouble for any landlord.
The federal Fair Housing Act identifies categories of people who are protected from housing discrimination. In the world of rentals, it may come as a surprise about certain tenant types that are considered “protected classes.” You absolutely can not decline these applicants unless other criteria are not met. Only a landlord with no understanding of Fair Housing laws would decline an applicant based on one of these criteria.
- Race and Color– Some people might think these are the same but they are not. Race describes one’s heritage while Color refers to the appearance of one’s skin.
- Religion- Do not even ask questions about this.
- National Orgin- You must not base any approvals or declinations on where an applicant came from.
- Sex- Even if the duplex has one side rented to two men and the applicant for the other side is a young woman, your personal preferences do not matter. Sex of the applicant should never make any difference in the selection process. Note: court cases today also are occurring for discrimination against transgender or non-identifiers. It is a confusing world and the best policy is to remember to not consider the sex of the applicant.
- Disability- physical and mental disabilities are protected. Understanding how to handle accommodations if requested is important. If at all possible, consider assisting accommodation requests of tenants. This may include service animals which you may not treat as part of any pet policy. The service animal may be screened for vaccination history, but you may not charge extra deposits or rent.
- Familial status- While it is allowed to request to have all occupants identified for your property (including birth dates) do not decline an application because there are children. Or because there are no children. Or because the applicants are seniors.
Applicants That Are Not In A Protected Class
There is a very short list of who is not considered a protected class. It is also not an all-inclusive list but to provide some examples.
- Current users of illegal drugs. Property owners can refuse to rent based on that knowledge-such as recent arrest records.
- Persons who pose a direct threat to the health or safety of others. Or people who would cause substantial physical damage to the property of others.
- Illegal (“undocumented”) aliens.
Be sure you have substantial documented proof before declining on these issues. Knowing and understanding protected classes and how they affect Fair Housing and tenant selection is a very important part of a landlord’s daily procedures.
Difficulties In Identifying Protected Classes
There are many situations you will run into that may surprise you to learn are protected classes. Here are a few examples.
- John is a “recovering” cocaine addict. He announces (after discovery of his arrest for a controlled substance) that he is in a drug treatment program. Fair Housing laws say John is considered disabled and protected from discrimination. In other words, you have to rent to him if he meets your other uniform standards.
- A property owner cannot assume that mentally or physically disabled tenants are a threat to others or to property. Unless a real threat can be demonstrated, persons with conditions such as impulsive and obsessive-compulsive behavior, psychosis, borderline personality disorder, depression, post-traumatic stress disorder and anti-social personality are all protected. Even where there is a threat, the landlord should discuss with the tenant or applicant whether it can be overcome with a reasonable accommodation.
- Likewise, a landlord needs to be careful denying housing to a “sex offender”. The term is used loosely and caution should be considered as to how the applicant obtained the label. It is appropriate to fear for the health and safety of other residents and neighbors and to deny to a convicted child molester. A 40-year-old who when he was 20 had a sexual relationship with his 17-year-old girlfriend may have the same label. Make sure you understand completely before denying the application.
- Finally, asking for proof of citizenship is a very slippery slope unless you require this proof of all applicants. To request proof of citizenship to an applicant because of their name, or accent, and to not do the same for the Smiths, will be real food for the Fair Housing attorneys.
Fair Housing and Tenant Selection Care and Consideration
Fair housing and tenant selection really just requires the landlord to be careful and considerate. The penalties can be severed if this issue is not at the top of the mind each and every day.
An actual Fair Housing claim and lawsuit involved denying housing to an addict in “recovery” and involved in a hospital sponsored treatment program. The landlord denied the application without giving a reason. While the applicant had some credit issues, ultimately it was shown the landlord declined the application due to their knowledge of the applicants former drug use. The landlord was fined the initial base fine of $16,000 plus costs. The plaintiff did not have the funds to do more than issue his complaint through HUD. A lawsuit in a Federal District Court would have been much more expensive and possible penalties much more severe. In a court the Judge can also award punitive damages.
The best prevention for Fair Housing and tenant selection problems is to have consistent policies that you follow with every applicant. Make sure with every applicant that if they will be denied, the reasons for denial are legal and not connected to a Fair Housing protection.
Here is a reference page from the HUD website . It may assist you with those troublesome applicants where you sense there may be a fair housing issue.
Whenever in doubt, consult with a Fair Housing attorney.