Despite all landlords being subject to the relevant local, state and federal fair housing laws, many landlords are unaware of the laws broad application and nuances.  The federal Fair Housing Act prohibits discrimination in rental, sales and lending on the basis of race, color, national origin, religion, sex, disability and familial status.  This single, seemingly-straightforward sentence carries limitless interpretations and potential liability for an unwitting landlord.  As this is an ever changing area of the law, it’s important that landlords become familiar with the practices to prevent fair housing discrimination, and to regularly get updates on the changing application of the laws.

Discrimination can take the form of: (1) intentionally treating tenants differently; (2) having neutral policies that unintended negative impacts upon groups of people; and (3) failing to make reasonable accommodations to allow persons with disabilities to properly enjoy your property.  Outright discrimination is obvious – the refusal to rent to someone, or treating them differently, based upon their protected class.  However, the less overt discrimination is much more difficult.  For example, most people understand that, as a reasonable accommodation, a blind person is allowed to have a seeing eye dog in a no-pets property.  However, many people don’t know that a mini-horse, a pig or an iguana can also be an assistive animal.  Also, when allowing an assistive animal, a landlord cannot charge a pet deposit, as the animal is not considered a pet.  In such circumstances, the animal is more akin to a wheelchair than a pet and therefore a deposit is inappropriate.  However, if the animal causes damage to the unit, the landlord can still hold the tenant liable after the termination of the tenancy.  This brief, multi-level analysis into a tiny area of fair housing, demonstrates the potential issues of which all landlords must be aware. 

 On a national level, only the above-referenced 7 categories of people are protected from discrimination on housing (local laws may have additional protected classes).   If a person’s class does not fall within one of these protected classes, the tenant may or may not successfully claim fair housing discrimination.  Whether the person is protected, however, is often difficult to determine.  For example, in the past, sexual orientation has not been a protected class on a national level.  Therefore, apartment complexes were created which were advertised as lesbian only, as straight tenants could not allege discrimination when they were refused tenancy.  However, a successful discrimination lawsuit was brought in these circumstances, on the basis that lesbian-only housing discriminated against men, and therefore discriminated based upon gender.  Recently, the Department of Housing and Urban Development (HUD) has issued a policy indicating their intent that sexual origin cases likely do constitute discrimination under the current classes, and HUD may begin prosecuting such cases.  The final outcome of such a policy will likely be decided in the courts.

 The best way to protect against fair housing claims is to have written policies, apply them uniformly and to document requests by all prospective applicants and tenants.  Landlords should have easy to follow standards for residency that a third person could understand and use to approve applicants.  The standards should not allow for subjective decisions, as that results in unintended biases and discrimination.  If a person is qualified under tenancy standards, they should be approved as tenants.  No exceptions.  Landlords should keep all applications and written documentation submitted by applicants and tenants.  This documentation becomes crucial in defending against allegations that they discriminated against an applicant or tenant.

 Many readers of this article (owners of small complexes or single family homes) may think that fair housing laws will never affect them.  This is misguided.  Most apartment complexes have policies and procedures in place to avoid discrimination complaints.  It’s the landlord that is unaware of the broad scope of fair housing laws that usually faces discrimination complaints, even when no discrimination was intended.  We often see discrimination cases, where the landlord was trying to help the tenant, and inadvertently violated fair housing laws.  Landlords must be careful to treat all tenants the same.