Fair Housing isn’t just good practice, it’s the law. The Fair Housing Act (FHA) (42 U.S. Code § § 3601-3619 and 3631) is mandated in all 50 states and every US territory. The regulations exist to protect tenants, potential tenants and prospective homebuyers from predatory, discriminatory, and exclusionary housing practices.
The 10 points below are an excellent start to becoming familiar with the Fair Housing Act.
Advertising is a commonly used to find new tenants. When advertising a property, landlords should describe the property only. Do not make mention of what you want or do not want in a tenant. Advertising materials should include either the fair housing logo or a disclaimer such as “This community does not discriminate on the basis of race, color, religion, national origin, sex, disability or familial status”.
Steering occurs when an attempt is made to direct someone, for whatever reason, to a specific area or property. To help avoid claims of steering, all available properties should be shown to prospective tenants. Let them decide which ones they would like to see. Present only facts about the property and the community, not information about other residents or neighbors, or personal opinions of such. If a prospective resident expressly states they are not interested in seeing a specific area it is okay to skip that area, just let that be their decision. Even if asked, landlords should never comment on the “types” of persons who live in the community.
Fair housing claims often arise as a result of the application and screening process. Landlords should have a written rental policy detailing the criteria necessary for approval. Policies should include occupancy guidelines, availability, and other rental criteria. Questions on the application should not ask about physical or mental disabilities. Asking questions about prior evictions, prior money judgments, bankruptcy and why prospective residents are leaving their current landlord are acceptable and may provide important information. Landlords need to keep good records of each applicant or inquiry.
In 1996 Congress enacted a law based upon a 1991 HUD memo stating that a 2-person per-bedroom occupancy standard was acceptable in most situations. However, this is not a hard and fast rule with regard to the number of occupants for a particular residence. This figure can change depending on how the property is laid out. More occupants may be allowed if there are unusually large living spaces or bedrooms, and fewer occupants if the opposite holds true. Many fair housing experts believe that infants do not count when calculating occupancy standards.
It is acceptable to have certain rules for all tenants which must be followed to be in compliance with the terms of the lease. The rules should be basic and non-discriminatory. Rules should be applicable to all residents and not just specific groups of residents. Using general terms such as “tenants or guests” help keep the rules unbiased, fair, and applicable to all residents. Rules must be enforced uniformly and records regarding rule violations need to be kept.
A reasonable accommodation is at the resident’s request and when a landlord voluntarily makes exceptions to their standard rules/policies to accommodate the resident’s disability. The requested accommodation must be reasonable and should not present an undue burden on the landlord. If the accommodation is not reasonable or if it would impose an undue hardship on the landlord, the request may be denied. If the request is denied a letter should be sent to the resident explaining the denial, the facts behind the denial, how those facts were discovered. Wait for the request, offering an accommodation before it is requested may subject you to a claim of discrimination.
This should not be confused with a reasonable accommodation. Landlords may require a resident to pay for modifications to the property and require that those modifications be removed when the resident vacates the property. If the modification were for something that federal law already requires a landlord to have in place then the landlord would be responsible for the cost of the modifications. As with accommodations, the modifications must be reasonable.
Landlords need to keep records on all prospective residents, in addition to current/past residents. Landlords can create a system of guest cards or logs with relevant information (i.e. date/time of visit, properties shown, prospective move-in date, etc.) as well as a log of all calls made by prospective residents, even if the resident never comes to see the property. Records regarding available properties also need to be kept and updated every time there is a change in availability. Additionally, all applications should be retained, even if the applications were rejected or withdrawn. Being able to produce consistent records showing nondiscriminatory application of written screening criteria can usually successfully defend a Fair Housing claim.
Landlords need to ensure that there is a written policy to avoid claims for harassment, particularly sexual harassment. Every time a new employee joins the staff there should be a training meeting about fair housing laws and how to comply with them. The meeting should include copies of all memos regarding policies about how to comply with fair housing, what can happen to the landlord for a violation and what will happen to the employee who violates fair housing.
Landlords should not be afraid to evict a resident for legitimate reasons because of a fear of a fair housing violation claim. When contemplating an eviction for other than non-payment of rent landlords should ask themselves the following two questions: (1) Has there been a serious violation of the lease agreement? (2) Have they evicted other residents for the same type of problems or behavior? If the answer to these questions is yes, then an eviction would be warranted under the circumstances.
Resident files should contain records of all complaints against the resident and what has been done in response to each of the complaints. HUD has historically looked for five types of documentation when dealing with fair housing claims. Landlords should document and include in resident files the following information: (1) warning letters/eviction notices, (2) written complaints by third parties, (3) written logs kept by management, (4) police records and (5) photographs. Resident file documentation needs to be consistent for all residents. This documentation may prove there was a legitimate reason, unrelated to any fair housing claims, for evicting the resident.
Becoming familiar with the Fair Housing Act can greatly benefit landlords and protect their investments. It is not only the law, it is best practice and was created for the protection of all.