Landlords, it’s up to you to ensure that no tenants are being discriminated against on the basis of race, color, religion, sex, national origin, disability or familial status under the Fair Housing Act. Make sure you know the fair housing act rules and which actions are and aren’t prohibited before you rent out your next property. Here’s everything you need to know about the Fair Housing Act explained for landlords.
What Is the Fair Housing Act?
The Fair Housing Act (FHA) is a United States federal law that protects people from housing discrimination based on race, color, national origin, religion, sex, familial status (including children under 18 living with parents or legal custodians, pregnant women and people securing custody of children under 18), and handicap. It was passed as Title VIII of the Civil Rights Act of 1968 and it prohibits landlords from refusing to rent to any person because of their protected class. In addition, landlords cannot discriminate against renters or homebuyers in how they are treated if they live in a location where there is a majority of another demographic or racial group.
Very limited exemptions may exist such as for owner-occupied buildings with no more than four units, familial status for senior housing facilities, single family housing being sold without a broker if the owner is a private individual who does not own more than three single family units at one time and not under Pennsylvania law, owners renting out individual rooms within their primary residence, and housing operated by religious organizations and private clubs that may limit occupancy to members. As a landlord, you should always check federal, state, and local laws to make sure you are always compliant.
What Does Fair Housing Mean?
If you run a business and sell or rent homes to people in your community—like most landlords do—you need to know what fair housing means and what it looks like. Even if you are renting out a second home or own one or two investment properties to plan for retirement, the law can still apply to you. As a more basic definition, fair housing means a person has the freedom to choose or be considered for housing of their choice without discrimination. To understand why the concept of fair housing is important and why it is still relevant today, it’s important to understand what federal, state, and local agencies are reacting to.
Similar to the 1968 Civil Rights Act, the creation and application of fair housing laws is a reaction or response to what is perceived in the lives of Americans. One way to do this is to look at data and trends. Here is information based on HUD reports that provides some statistics on fair housing.
Who Is Protected Under the Fair Housing Act?
It’s important to understand that the Fair Housing Act (FHA) makes it illegal to discriminate in any aspect of selling or renting housing including marketing, pricing and negotiating. The FHA applies to all types of housing, including single-family homes, apartment buildings, mobile home parks, and dormitories. We’ve mentioned them in previous sections, but let’s specifically name again the seven protected classes that are protected from housing discrimination: race, color, religion, sex/gender (including gender, gender identify and sexual orientation), national origin, familial status, and disability. For example, it is illegal to refuse to rent a one bedroom apartment because you don’t want children living on your property. Under the FHA, landlords cannot set different terms or conditions for buying or renting a property based on a person’s membership in one of these protected classes. If a landlord rents to people in these protected groups, he or she can also not add extra fees or deposits for them. In general, if you, as a landlord, treat someone differently than you because of their association with a class that is covered under fair housing law you may be subject to a complaint against you under fair housing law.
Who Isn’t Protected Under the Fair Housing Act?
If someone is not part of a protected class, that individual is not protected under the Fair Housing Act. In addition to some of the limited exemptions mentioned earlier in this article, other situations can fall outside of a protected class. Handicaps or disabilities can include diseases such as drug addiction and alcoholism that a person is recovering from, but a current illegal drug user is not covered according to the Department of Justice. Persons with criminal history are not protected, but a pattern of using criminal history to target a protected class would be a form of discrimination. Other non-protected classes include students, smokers, marital status, and veterans. However, although someone may not be protected under federal law, they can be protected under state and local law. For example, many state governments offer fair housing protections specifically to veterans, and bar against discrimination based on marital status. Similarly, many cities have human rights laws that prohibit housing discrimination.
Some Examples of a Fair Housing Act Violation
- Having a “no pet” policy, but not reasonably accommodating a tenant applicant who has a service dog or emotional support animal.
- Providing different lease terms and conditions for persons born outside the United States.
- Treating tenants of one gender differently than another such as more inspections or unannounced visits to the dwelling.
- Not processing certain areas of the application for persons who “look” trustworthy with a pattern that favors one ethnic group over another.
- A housing advertisement that specifies “looking for a nice couple to rent this wonderful home”.
It’s important to note that some situations are borderline and could be resolved by a disclaimer. For example, a religious symbol such as a stand-alone cross on an advertisement, may indicate a religious preference, but a disclaimer stating “we do not discriminate based on race, color, national origin, religion, sex, familial status” can be provided as evidence of non-discrimination if a complaint is filed. Here’s a helpful memorandum from HUD for advertising and marketing.
Penalties for Violating the Fair Housing Act
Under federal law, there are serious penalties for those found guilty of housing discrimination. The fine can range from $16,000 to $65,000 per violation depending on if there have been repeated infractions. Additionally, a lawsuit may be filed against an individual or a company on behalf of a person claiming they were wrongfully denied housing because they fall into one of the protected classes. Depending on which state you live in, it’s possible someone making such a claim could sue for damages equal to 3-4 times what they would have paid had their landlord not discriminated against them. In California, damages can even reach 5 times what would have been paid. On top of that, defendants must pay plaintiffs’ attorney fees if they lose in court. After all of that, you may end up being forced to provide the housing to the individual who filed the complaint against you!
Recent Updates for LGBTQ Fair Housing Act Protection
In Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020), the Supreme Court decided that discrimination on the basis of sexual orientation or gender identity is also discrimination “because of sex” as prohibited by Title VII of the 1964 Civil Rights Act which makes it illegal to discriminate against someone on the basis of race, color, national origin, sex (including pregnancy, sexual orientation, and gender identity) or religion. Following this ruling, the Biden Administration on January 20, 2021, issued an executive order that prompted HUD to issue a follow up memorandum to administer the protected class of sex to include sexual orientation and gender identity.
As a landlord, it’s important to stay up to date on how this area of the law is being interpreted at the federal and local levels as well as agency policies. Some examples of discrimination could include:
- Failing to take action if a contractor has been harassing a tenant because they are a lesbian.
- Refusing to rent to same sex couples.
- Refusing to add a same-sex partner to a lease.
- Refusing to process an application because of how a transgender person listed their name on the application.
- Refusing to rent to a qualified LGBTQ family that has a child under the age of 18.
Other Related Laws to the Fair Housing Act
- The Civil Rights Act of 1866 prevents housing discrimination on the basis of race or color.
- Americans with Disabilities Act: Title 3
- The Equal Credit Opportunity Act prohibiting discrimination on the basis of race, color, religion, national origin, sex, marital status, age, receipt of public assistance, or good faith exercise of any rights under the Consumer Credit Protection Act.
- State and Local government laws and policies
In Conclusion
Federal laws can be complicated and difficult to understand and follow, but the Fair Housing Act is straightforward in making it illegal to discriminate against individuals looking for housing that fall under the protected classes of race, color, national origin, religion, sex, familial status (including children under 18 living with parents or legal custodians, pregnant women and people securing custody of children under 18), and handicap or disability. It’s important to follow the law in every area from marketing and advertising, through application processing, lease agreements and day-to-day interactions with tenants. If you have a complaint filed against you that winds up being a valid violation, you can be fined and incur substantial costs. If you need help making sure you aren’t breaking any laws, contact appropriate federal and local agencies. In addition, seek and get the right legal advice.
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