By Mark Zinman | Zona Law
April was fair housing month, and in support of fair housing, AZREIA held a panel discussion on the scope of fair housing laws along with their impact on investors and owners. Like fair housing laws themselves, the conversation covered a wide range of topics from lending to occupancy standards to reasonable modifications and assistance animals.
There were a few important takeaways for all investors to know.
- Unless you fall within a narrow statutory exception, which most investors do not, AZREIA members are most likely covered by the applicable fair housing laws. A lot of investors are unaware that fair housing laws do not only apply to large apartment communities. While there are a few minor exceptions, the general presumption is that if you are involved in the buying, selling, renting, or financing of real estate, you are bound by fair housing laws.
- Fair housing laws trump contract terms and other areas of the law. We often take questions about what a landlord is supposed to do when a tenant is requesting something under fair housing laws, but it conflicts with the terms of the lease, with the HOA CC&R’s, or with the city’s municipal code. For example, an HOA may have a no pets policy, but the resident wants an assistance animal. If they meet the requisite standard, their rights under fair housing laws control over the CC&R, and your resident would be allowed to have an assistance animal.
- Owners must allow disabled residents to make physical changes to the structure of their buildings when needed to allow the person to reasonably use and enjoy the property. This is often a surprising rule for new landlords, but if a disabled resident needs to make changes to the rental property, they are allowed to do so, provided certain criteria are met. For example, a resident in a wheelchair may elect to have kitchen cabinets lowered from off the wall, so they can be used. The tenant does have to pay for the changes, and many also have to tender a deposit to cover returning it to its original condition. (See rule #5 below).
- While sharing a lot of similarities, there is a difference between ADA and fair housing laws, and they apply to different things. People often confuse fair housing laws and the Americans with Disabilities Act (ADA) because they both implicate rights for disabled persons. However, the ADA and fair housing laws cover different areas and have different standards. Fair housing laws govern residential real estate. The ADA covers “public accommodations” which are anywhere the public can go, such as hotels, bars, restaurants, theaters, and potentially some parts of residential properties (e.g., apartment offices). Further, the ADA only recognizes service animals, while fair housing uses the broader term assistance animals which includes emotional support animals. It is important not to get confused about what law applies to your business.
- Each of the foregoing, like many aspects of fair housing, contains numerous rules and exceptions. Before taking any action, make sure you speak with an attorney or someone else qualified to give advice on the nuances of this area of the law.