Fair housing laws are the most significant limitation on a landlord’s discretion in selecting or evicting tenants. They require landlords not only to avoid intentional discrimination against certain classes but also to use selection criteria that don’t unduly burden (i.e., have a disparate impact on) members of protected classes.
Landlords have a legitimate interest in selecting tenants who will pay the rent on time, won’t damage the premises, and won’t disturb other tenants. The landlord’s attorney must be able to advise the client on factors and procedures that may be used to achieve these ends without violating any antidiscrimination laws.
For a tenant’s attorney, knowledge of the fair housing laws is key to providing effective representation. This is particularly important in a tight rental housing market, in which the landlord may consider certain groups to be undesirable, such as families with children. Tenants can use fair housing laws to limit a landlord’s arbitrary selection criteria and to enhance their own potential for gaining access to housing.
Here’s an overview of the fair housing laws and what they prohibit or require:
- Laws prohibit discriminatory refusal to rent. Various federal, state, and local laws bar discrimination on specific grounds, such as race, national origin, sexual orientation, religion, sex (including gender identity, appearance and behavior), familial status, source of income, age, or medical condition. See e.g., 42 USC §3604; Govt C §§12926, 12955. Some antidiscrimination laws prohibit any arbitrary discrimination. Generally, the law that gives the most protection controls over other laws. See 42 USC §3615; Govt C §12955.6.
- Laws prohibit discriminatory rental terms and conditions, advertising, and statements on housing availability. Fair housing laws also cover conduct occurring after a tenant takes occupancy (see Committee Concerning Community Improvement v City of Modesto (9th Cir 2009) 583 F3d 690, 713), but they don’t preclude enforcement of valid rental contracts even if the enforcement of the contract is racially motivated. Haber v ASN 50th St. LLC (SD NY 2012) 847 F Supp 2d 578.
- Laws may require accommodation. In some contexts, fair housing laws require landlords to do more than merely refrain from discrimination. For example, a landlord may be required to assume reasonable financial burdens to accommodate disabled residents. See Jankowski Lee & Assocs. v Cisneros (7th Cir 1996) 91 F3d 891. Refusing to accept Section 8 vouchers may also constitute a fair housing violation. See Murphy v Fullbright (SD Cal, Oct. 4, 2012, No. 12-cv-885-JM (WVG)) 2012 US Dist Lexis 144081.
- Laws may impose severe consequences for violations. Governmental investigation of housing discrimination complaints and prosecution of meritorious claims are a real possibility. Fair housing laws authorize the courts to issue injunctions and to award compensatory and punitive damages and attorney fees to the aggrieved party.
- Laws may protect those not subject to discrimination. Fair housing protections extend to individuals who are not themselves the objects of discrimination. Trafficante v Metropolitan Life Ins. Co. (1972) 409 US 205 (white tenants had standing to challenge landlord’s racially discriminatory selection criteria because of their interest in living in integrated housing).
When in doubt about a selection policy or practice, contact a local fair housing counseling and enforcement agency such as the HUD Office of Fair Housing and Equal Opportunity or the California Department of Fair Employment and Housing.
Get more information and guidance on all of these fair housing considerations in CEB’s California Landlord-Tenant Practice, chapter 2. Also check out the chapter on residential landlord-tenant issues in CEB’s California Basic Practice Handbook, a guide to help new and retooling attorneys handle whatever comes in the office door.
Related CEB blog posts:
- Fair Housing Acts Don’t Apply to Roommate Listings
- Finding a Great Tenant
- Tailoring Advice for Tenant Organizations
- Remedies for a Lurking Landlord
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