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Fair Housing in the Rental Market

Real estate agents are held to a higher standard in fair housing matters.  It may be legal to discriminate but it is not ethical or acceptable.

Covid 19

People who currently have COVID19, those who have a history of having the virus, and those who are perceived as having the virus may be protected against housing discrimination under long-standing interpretations of the Fair Housing Act and other civil rights laws.

Handicap

A mental or physical impairment that substantially limits activity such as hearing, seeing, walking, learning, etc.

What Types of Housing Are Covered?

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.

What Is Prohibited?

In the Sale and Rental of Housing:

  • It is illegal discrimination to take any of the following actions because of race, color, religion, sex, disability, familial status, or national origin:
  • Refuse to rent or sell housing
  • Refuse to negotiate for housing
  • Otherwise make housing unavailable
  • Set different terms, conditions or privileges for sale or rental of a dwelling
  • Provide a person different housing services or facilities
  • Falsely deny that housing is available for inspection, sale or rental
  • Make, print or publish any notice, statement or advertisement with respect to the sale or rental of a dwelling that indicates any preference, limitation or discrimination
  • Impose different sales prices or rental charges for the sale or rental of a dwelling
  • Use different qualification criteria or applications, or sale or rental standards or procedures, such as income standards, application requirements, application fees, credit analyses, sale or rental approval procedures or other requirements
  • Evict a tenant or a tenant’s guest
  • Harass a person
  • Fail or delay performance of maintenance or repairs
  • Limit privileges, services or facilities of a dwelling
  • Discourage the purchase or rental of a dwelling
  • Assign a person to a particular building or neighborhood or section of a building or neighborhood
  • For profit, persuade, or try to persuade, homeowners to sell their homes by suggesting that people of a particular protected characteristic are about to move into the neighborhood (blockbusting)
  • Refuse to provide or discriminate in the terms or conditions of homeowner’s insurance because of the race, color, religion, sex, disability, familial status, or national origin of the owner and/or occupants of a dwelling
  • Deny access to or membership in any multiple listing service or real estate brokers’ organization
 

ADA and Fair Housing Compliance in Property Management

Types of Dwellings Covered by the Act 

The Fair Housing Act requires all “covered multifamily dwellings” designed and constructed for first occupancy after March 13, 1991, to be readily accessible and usable by persons with disabilities. 

In buildings with four or more dwelling units and at least one elevator, all dwelling units and all public and common use areas are subject to the Act’s design and construction requirements.

In buildings with four or more dwelling units and no elevator, all ground floor units and public and common use areas are subject to the Act’s design and construction requirements.

Dwellings subject to the Act’s design and construction requirements include condominiums, cooperatives, apartment buildings, vacation, and timeshare units, assisted living facilities, continuing care facilities, nursing homes, public housing developments, HOPE VI projects, projects funded with HOME or other federal funds, transitional housing, single-room occupancy units (SROs), shelters designed as a residence for homeless persons, dormitories, hospices, extended stay or residential hotels, and more.

Housing or some portion of housing covered by the Act’s design and construction requirements may be subject to additional accessibility requirements under other laws.

The Fair Housing Act’s design and construction requirements do not cover multi-story townhouses–units that have two, three, or even four stories–unless the building has an elevator.

 

The Fair Housing Act’s design and construction requirements apply only to covered multifamily dwellings — that is, buildings having four or more dwelling units built for first occupancy after March 13, 1991.

 

Disabilities

In essence, 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. (Where reasonable, the landlord may permit changes only if the disabled person agrees to restore the property to its original condition when they move)

Refuse to make reasonable accommodations in rules, policies, practices, or services if necessary for the disabled person to use the housing. An example would be an accessible Parking Spot.

 

What is the difference between a service animal and an emotional support animal?

Service animals

are defined as dogs that are individually trained to do work or perform tasks for people with disabilities. These tasks can include pulling a wheelchair, guiding a visually impaired person, alerting a person who is having a seizure, or even calming a person who has Post-Traumatic Stress Disorder. The tasks a service dog can perform are not limited to this list. However, the work or task a service dog does must be directly related to the person’s disability.

Service dogs may accompany persons with disabilities into places that the public typically goes. This includes state and local government buildings, businesses open to the public, public transportation, and non-profit organizations open to the public. The law that allows a trained service dog to accompany a person with a disability is the Americans with Disabilities Act (ADA).

Emotional support animals 

is an animal (typically a dog or cat though this can include other species) that provides a therapeutic benefit to its owner through companionship. The animal provides emotional support and comfort to individuals with psychiatric disabilities and other mental impairments. 

The animal is not specifically trained to perform tasks for a person who suffers from emotional disabilities. Unlike a service animal, an emotional support animal is not granted access to places of public accommodation.  

Under the federal Fair Housing Act (FHA), an emotional support animal is viewed as a “reasonable accommodation” in a housing unit that has a “no pets” rule for its residents. 

HUD defines an emotional support animal as an animal that “provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability.

These animals do not need specialized training. 

Some dog breeds are considered “dangerous” and many insurance companies change policies because of the supposed higher risk involved. The dogs believed to have a propensity for violence are Pit Bulls, Rottweilers, Doberman Pinschers, Chows, Akitas, Alaskan Malamutes, German Shepherds, Siberian Huskies, St. Bernards, and Wolf Hybrids. 

Here are some other reasons where you may have the right to deny a service dog or evict a tenant because of the dog:

  • The tenant is not legally disabled or cannot prove it in writing via a health care professional.
  • The assistance animal is not prescribed for the treatment of the tenant’s specific disability or no nexus is demonstrated or backed up in writing by a health care professional.
  • The assistance animal would create an undue burden.
  • The assistance animal is illegal or otherwise not allowed according to state or municipal law.
  • The animal is a direct threat to the health and safety of other tenants which cannot be reduced or eliminated.
  • The presence of the animal “fundamentally alters the nature of the housing provider’s operations.”
  • The tenant won’t take responsibility for the animal, such as cleaning up waste, letting it run free, or resolving noise problems.

Dogs are allowed to live in non-pet apartments for handicap purposes, including “comfort pets.” 

A landlord cannot charge an extra pet fee for a comfort dog.

 
 

Does the Fair Housing Act (FHA) apply to all housing?

The exceptions are as follows.

Age: 

An exemption is provided to housing protections afforded to age and familial classes intended for older people. Housing may be restricted to people 62 or older or 55 or older in cases where at least one occupant per unit is 55 and at least 80 percent of the units are occupied by people ages 55 or older. In these cases, children may be excluded.

Owner-occupied housing: 

Multifamily housing of two to four units, where one of the units is owner-occupied, is exempt from fair housing laws.

Private clubs: 

An organization that restricts its membership may provide restricted housing to its members, as long as it doesn’t offer housing to the general public.

Public-law occupancy standards: 

Local maximum occupancy standards aren’t superseded in their application by the Fair Housing Act. For example, if a local law provides a maximum occupancy of two people per bedroom and you rent out a studio apartment in a building you own, you can’t be forced to rent the apartment to a couple with a child.

Religious organizations: 

Housing sponsored by a religious organization may be restricted to members of that particular religious organization, provided the religion doesn’t discriminate in its membership policies.

Single-family housing

The sale or rental of a single-family house is exempted from the rules of the Fair Housing Act if the owner doesn’t own more than three units at one time, and neither a broker nor discriminatory advertising is used. If such a property is sold, no more than one house can be sold during every two-year period.

 
 

Activities Prohibited Under the Fair Housing Act

The Fair Housing Act prohibits discriminatory practices in housing. Under the Act, landlords may not discriminate against tenants or potential tenants on the basis of

race, gender, religion, familial status, disability, or ethnicity

The actions covered under the Act include:

  • Deciding whether to rent an apartment to a potential tenant,
  • Setting particular rules for individual tenants, and
  • Advertising that the apartment is only available to certain people. 

Landlords are also required to make reasonable accommodations for tenants with disabilities. That can include giving lower level units to tenants in wheelchairs and installing ramps on doorways. 

However, if the landlord owns an older building and accommodating a tenant with a disability would require a major remodel, the landlord is usually not required to add the accommodations.

Under federal law, disabled tenants and prospective tenants with a disability have the right to apply for and live in a rental unit regardless of their impairment. 

When a landlord rejects disabled tenants based on the use of a discriminatory housing practice, they have violated the law.

 

A Landlord May Not Ask Discriminatory Questions

If there is not an accommodation request, the Fair Housing Acts prohibit the landlord from asking whether the applicant has a disability or about the severity of the impairment. 

Landlords must treat disabled applicants and tenants in the same way as those without a disability:  

They cannot request medical records, nor guide a tenant to a specific unit.

However, a landlord may ask all prospective tenants, including disabled applicants, about whether:

  • The applicant can meet tenancy requirements;
  • The applicant abuses or is addicted to an illegal controlled substance;
  • The applicant qualifies for a rental unit available only to people with a disability or a certain type of disability; or
  • The applicant qualifies for a rental unit that is offered on a priority basis to people with a disability or with a certain type of disability.
 

Mental Illness and the Possibility of Direct Threats

The landlord may not exclude an applicant because of fear or speculation that the mentally ill person poses a danger.  

The landlord can assess, however, whether the individual is a direct threat by relying on trustworthy and objective information regarding current conduct or specific acts, such as threats or an assault on another tenant. 

The landlord must consider several factors, including:

  • The nature and severity of the risk of injury
  • The likelihood of injury
  • Whether a reasonable accommodation can eliminate the direct threat
  • The landlord must also consider whether the Tenant’s medication or treatment has eliminated the direct threat. 

If after evaluating reliable and objective evidence the landlord can ascertain that the individual poses a direct threat, then the landlord may reject the individual.

Includes

 

The Right to an Accommodation

Disabled tenants may request the landlord make reasonable accommodations to rules, policies, practices, or services when it will afford the person equal opportunity to use/enjoy the rental unit and the common areas.

There must be a relationship between the modification and the disability.

Reasonable requests include the permission to use a service animal, permission to mail a rent payment, or a request to have a parking space large enough for wheelchair access.

A landlord does not have to make accommodations for a reasonable request that is unrelated to a tenant’s disability or for a request that is not reasonable because it will cause an undue financial and administrative burden on the landlord. However, when a request is unreasonable, HUD requires the landlord and the Tenant to proceed in an “interactive process” to reach a reasonable compromise.

 

The Right to Make a Modification

If reasonable, disabled tenants may modify a rental unit to make it safe and comfortable to live in. If the modification will create an inappropriate living condition for the next Tenant, the landlord may agree to the modification upon the condition that the Tenant restore the unit to its original condition prior to leaving. In this circumstance, the landlord may require the Tenant to put money in an interest-bearing escrow account.

All modifications are subject to approval with the landlord. The landlord may ask for a description of the proposed modification and any necessary building permits. 

Common modifications include wheelchair ramps, lowered countertops, and special door handles.

What’s the least likely thing a handicapped person would bring back to the original condition before they move out?

Answer: handrails screwed into the shower tile.

 

Offering Proof of a Disability and the Need for Accommodation or Modification

In some cases, a disabled tenant will need to provide proof of their disability or proof of the relationship between the disability and the requested accommodation or modification.

If the disability is obvious and the need for the requested accommodation or modification is apparent, then the landlord may not ask for further verification.

If the disability is obvious but the need for the accommodation or modification is not, the landlord may only ask for necessary disability-related information.

When a disability is less apparent, a landlord may request information that verifies the disability, describes the requested accommodation, and establishes the connection between the disability and the accommodation or modification.

 

Disabled tenants may offer verification of their impairment by:

  • Giving a credible statement;
  • Offering proof of receiving Supplemental Security Income or Social Security Disability Insurance when the individual is under age 65;
  • Requesting a doctor, a medical provider, a peer support group, a nonmedical service agency, or a reliable third party provide information about their disability.

Under federal law, disabled tenants and prospective tenants with a disability have the right to apply for and live in a rental unit regardless of their impairment. 

When a landlord rejects disabled tenants based on the use of a discriminatory housing practice, they have violated the law.

 

What to Do if You See a Fair Housing Violation

If you believe you or a loved one has been the victim of a Fair Housing Act violation, you can file a complaint with the Department of Housing and Urban Development (HUD) online or by phone. 

Someone within HUD will investigate your complaint and determine whether the facts listed are indeed a violation of the Fair Housing Act. If so, the case will be scheduled for a hearing in front of a HUD administrative judge. 

A housing specialist will argue against the landlord on your behalf, so you do not need to hire an attorney for this procedure, unless you want one.

HUD will assess fines against landlords who violate the Fair Housing Act in the following amounts:

  • $16,000 for first time violators,
  • $37,500 if the landlord has violated the Fair Housing Act before the current complaint, and
  • $65,000 if the landlord has violated the Fair Housing Act two or more time before the current complaint.
 

Types of Complaints Investigated by FHEO FHEO investigates complaints, which may be one or both of the following types:

  • Discrimination under the Fair Housing Act (including housing that is privately owned and operated)
  • Discrimination and other civil rights violations in housing and community development programs, including those funded by HUD
 

Retaliation Is Illegal

It is illegal to retaliate against any person for making a complaint, testifying, assisting, or participating in any manner in a proceeding under HUD’s complaint process at any time, even after the investigation has been completed.

The Fair Housing Act also makes it illegal to retaliate against any person because that person reported a discriminatory practice to a housing provider or other authority. If you believe you have experienced retaliation, you can file a complaint.

 

Familial status 

means the makeup of your family.

The FHA prohibits discrimination on this basis including: children under the age of 18 living with parents/guardians, pregnant women, and people seeking custody of children under 18.

Age: An exemption is provided to housing protections afforded to age and familial classes intended for older people. Housing may be restricted to people 62 or older or 55 or older in cases where at least one occupant per unit is 55 and at least 80 percent of the units are occupied by people ages 55 or older. In these cases, children may be excluded.

 

Discussion

Familial Status

A woman has been living in her small studio apartment for nine years.  She loves the apartment because it overlooks a golf course and has a peek a boo view of the ocean.  Two months ago the woman was in a car accident and was hurt.  At the hospital, the doctor informed her that the health insurance company is going to supply a 24 hour “live in aide” to help her get around.  The doctor believes in time the woman will fully recover and the nurse most likely will be temporary.

Can the landlord refuse to let the “live-in” aide move in based on square foot occupancy.  WHAT SAY YOU?

Approving a live-in aide, if needed by a disabled household, is an example of a reasonable accommodation.