MHCO Columns

Liability Is Based Not Just on What Policies Say But How They’re Enforced

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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.

Situation: An Idaho landlord adopted a strict policy banning visitors from parking in spots reserved for tenants. In November 2016, two service providers, one black the other white, visited a tenant at the community. Upon returning to their vehicles, they discovered that the black service provider’s car had been booted while the white service provider’s car had not—even though they had both parked in similarly marked spaces.  

You Make the Call: Did the fair housing group have a valid claim for racial discrimination?

Answer: Yes

Ruling: The Idaho federal court had no problem in relying on this incident as evidence in refusing to dismiss a case alleging a pattern of discrimination over a six-year period. There was also evidence of an earlier incident where the landlord booted the car of a Black visitor who briefly parked in a tenant’s space. When she asked about having the boot removed, the landlord’s parking enforcement agent indicated that he had been “specifically instructed to show no leniency toward the African residents in enforcing the parking rules” [Intermountain Fair Hous. Council, Inc. v. Tomlinson & Assocs., 2023 U.S. Dist. LEXIS 57012].

Takeaway: It’s not enough that parking and other community rules apply to everybody. You also must ensure that those rules are enforced in a consistent and even-handed manner, regardless of the violator’s race, sex, etc.