Fair Housing

A fair housing myth: You have to treat everyone the same to comply with fair housing law. It’s a common belief, but it’s not as simple as that. The law requires that you give everyone an equal opportunity to live at your community—not that you treat everyone the same.

It’s often true that treating everyone the same helps to counter any perception of discriminatory motives, but there are many important exceptions that you must understand and apply properly to comply with fair housing law. Because of these exceptions, having a one-size-fits-all policy can sometimes hurt you rather than help you to avoid fair housing trouble.

Chief among the exceptions are disability-related requests for reasonable accommodations, which by definition involve exceptions to your general policies, procedures, or rules when necessary to enable an individual with a disability an equal opportunity to live in and enjoy housing at your community. Disputes over reasonable accommodation requests, often involving assistance animals or parking accommodations, are the number one reason why communities find themselves on the hot seat to defend themselves from accusations of housing discrimination.

Legal Risk: People who are in this country illegally can’t sue for discrimination under the FHA if that’s the sole reason they experience discrimination. Explanation: In January 2003, HUD issued a memo clarifying that the FHA “does not prohibit discrimination based solely on a person’s citizenship status”; nor, the memo adds, does the law bar discrimination based on “immigration status or resident alien” status. However, undocumented aliens and non-U.S. citizens who get excluded may have valid grounds to sue for other forms of discrimination, including religion, race, and especially national origin. Rule: FHA protections extend to every person in the U.S., regardless of their immigration or citizenship status. Stated differently, a person doesn’t have to be a U.S. citizen to sue for discrimination.

Landlords may be liable for discrimination if they harass or allow their leasing staff, managers, and other agents to harass tenants on the basis of race, etc. Recent cases pose the controversial question of whether landlords can also be liable for the harassment committed by their tenants. The two federal courts that had specifically addressed this issue until now have reached conflicting results. In 2023, another federal court weighed in on the question of tenant-on-tenant liability.

Continuing previous patterns, most of the 2023 cases alleged discrimination on the basis of disability; most of the disability discrimination claims alleged failure to make reasonable accommodations, specifically with regard to assistance animals. Explanation: The FHA requires landlords to make reasonable accommodations “necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling.” Waiving a no-pets rule so that a disabled rental applicant or tenant can keep an assistance animal is the classic example of a reasonable accommodation.

But allowing a tenant to keep an assistance animal is only one issue; it’s also important to understand the rules that apply after that. Landlords have the right to hold tenants responsible for ensuring that their assistance animals obey safety, sanitation, noise, property, and other community rules. However, they may not impose unreasonable restrictions.

Situation: A Philadelphia apartment community makes allowances to its longstanding no-pets policy for assistance animals, as long as tenants meet certain strict rules:

• Assistance animals are allowed only in freight and not passenger elevators;
• Assistance animals must wear a bark-suppressing collar at all times;
• Tenants must pay deposits on their assistance animals and maintain $1 million in insurance naming the landlord as a beneficiary; and
• Tenants guilty of more than three violations forfeit their rights to keep their assistance animal.

A tenant who owns an assistance animal sued the landlord, seeking punitive damages for disability discrimination.

In determining whether a landlord has committed discrimination, HUD, fair housing groups, and courts consider not only what policies say but how they’re actually enforced. Rental policies or restrictions that appear neutral on their face will constitute discrimination to the extent they’re selectively enforced based on race, etc. An Idaho landlord learned this lesson the hard way.

Like other real estate businesses, you may be using ChatGPT, Bard, Bing, and other generative AI products, a.k.a. chatbots, for marketing purposes, such as developing advertising strategies, analyzing housing markets, and generating property listings, ads, social media posts, and other marketing content. Just recognize that for all their potential benefits, chatbots contain flaws that make them risky to use for marketing and advertising.

While vital to prevent overcrowding, occupancy standards may violate fair housing rules to the extent they have the effect of excluding families with children.

Spot the Discrimination Mistake

A tenant who shares a one-bedroom apartment with her husband tells the landlord she’s pregnant with the couple’s first child. Along with a smile and warm congratulations, the landlord offers her an eviction notice. Explanation: Once the baby is born, the couple will be over the community’s strict two-person-per-bedroom occupancy standard.

Adult supervision requirements are the leading source of pool-related family discrimination complaints. The safety rationale for such rules is clear. After all, swimming without adult supervision is the leading cause of drowning deaths for young children.

Family status is the fourth most commonly alleged ground of federal fair housing discrimination, trailing only disability, sex, and race. Many familial status complaints are the result of misguided safety rules involving children, particularly with regard to swimming pools.