Over the years, we at WZP Legal, have presented at AZREIA and written numerous articles for this newsletter, about the importance of fair housing laws. Whenever we give a presentation, AZREIA members come to us with a “quick question” and ask us what is the best thing they can do, to avoid violating fair housing laws. Frankly, there is not one easy answer that will protect you. All we say is that there is one easy starting point: have a written policy on application standards and follow that policy. We hear too often that landlords are selecting tenants based upon subjective standards, such as how clean the applicant’s car was. While this does have a good logical basis to it, it is an easy way to get slapped with a fair housing administrative complaint or lawsuit.
Fair housing laws provide that a landlord cannot discriminate against a person in a protected class when the decision making is based upon that person’s status in that protected class. This means you can’t take negative action against someone because they are in a protected class; however, it doesn’t prevent you from taking negative action against someone who happens to be in a protected class. For example, if you have an applicant that is in a wheelchair, they are considered disabled for fair housing purposes and are thus in a protected class. Despite this, if the person applies for residency and is in an active bankruptcy, you can reject that application if it doesn’t meet your standards. The person’s disability has nothing to do with why they are being rejected – you don’t want them as a tenant because they are in bankruptcy.
For each person you reject, you should have a non-discriminatory basis for your decision that you can easily reference to your application standard. To be abundantly clear: if you reject someone, you should have a reference to a line in your application as to what standard they failed to meet. Anything short of this, could be viewed as discriminatory because you won’t have objective, identifiable factors do justify your refusing to rent to the person. For example, Arizona law says that you can have certain occupancy standards, but those standards must be in writing and pre-date the application that is the subject of the fair housing complaint.
Imagine you have an applicant that suffers from PTSD that has an emotional support animal. They complete your application and you find that within the last year, they have been evicted for nonpayment of rent and have still not paid off the judgment. According to most landlord standards, this person will not qualify. That person files a complaint alleging they were discriminated against because they are disabled. If a landlord has a written policy prohibiting applicants from having evictions on their record, it will be easy to show that they don’t meet the application standards. However, if the landlord doesn’t have that standard in writing, what was once easy, now leads to a costly and uncertain outcome. At the very least, the attorney general will go through years of tenant files to see whether the landlord has consistently enforced such a policy and if they find variances, they can find that you violated fair housing laws. Even if the attorney general does believe you fairly enforced your standards, the amount you spend on attorneys’ fees to defend yourself, just skyrocketed as compared to the situation where you had a written standard. Remember, a violation of fair housing laws doesn’t require that you have acted with bad-intent. It is often innocent mistakes or a failure to follow a policy. Make sure you have written standards so you can easily defend yourself.
For more AZREIA articles, please visit: http://www.azreia.org