Fair housing is the law. Fair housing is right. And with a proper understanding of fair housing, you can save money.
One way to save lots of money is not to be the target of a fair housing complaint. A landlord came to me several years ago and said he was almost finished renovating a property for rental. A black person who lived in the area had approached him and asked if the house was for rent. The landlord said it was not ready yet. The black person said he was very interested and please let him know when he could apply.
This landlord asked if he had to rent to the black man. He felt strongly that it would be an invasion of his freedom to compel him to do so. I assured the landlord there was a legal way around his problem. Simply deed the house as a gift to the black man, I suggested. That way, I said, you won't have to rent to him because he will own the property! You will save lots of time in court, emotional distress, the cost of legal fees and a stupendous verdict of actual and punitive damages.
Such overt discrimination is rare in my experience. Much more common are fair housing violations caused by ignorance or misguided good intentions. Telling prospective renters that the rooms are too small for teenage children, saying that the schools are far away and steering families away from upper level units are all examples I have seen of landlords getting in trouble because they tried to be helpful.
In one case, an applicant questioned a maintenance person when the rental office was closed. The repairman said he thought the second story apartments were not good for children and an expensive lawsuit followed. In a second case, the landlord asked a tenant who lived next door to the vacant unit to let applicants in to see it. The court ruled that the tenant was the landlord's agent in renting the apartment and the landlord was responsible for whatever the tenant said.
Sometimes a landlord will try to screen applicants on the telephone to avoid showing an apartment to someone clearly not suitable. Even asking: "how many people will be in the apartment," can be interpreted by an applicant as discriminatory. Certainly, do not ask "how many children are in your family." That is asking to be sued. To be safe, show the unit and get a completed rental application from everyone who is interested. Have written standards for selecting applicants and, ideally, post them in the rental office. Of course, be sure your guidelines are legal.
Some landlords, inspired by the hot real estate market for home buyers who bid above the listing price, want to know if they can quote different rental rates and rent to the highest bidder. Theoretically, this may be legal; but it has some big practical problems. Unless you advertise the apartment as for rent to the highest bidder and allow everyone interested to bid, this procedure is likely to draw fire.
All an applicant must do to make a case is show that he or she is in a protected class, was qualified to rent the apartment, the apartment was available and he or she was denied the opportunity to rent. Then it is up to the landlord to prove that there was a compelling business necessity to justify the decision not to rent to that applicant. This justification must convince a jury. Normally, a landlord's own opinion will not be enough without facts showing substantially higher costs or similar problems would be experienced without the landlord's policy.
One landlord, accused of discriminating against a Chinese applicant, defended by showing she had actually rented that same unit to a person of Chinese ancestry and his Hispanic girlfriend. The plaintiff conceded that this showed there was no racial discrimination, and changed his complaint to allege discrimination based on national origin. The successful applicant was born in the United States, while the plaintiff was born in another country. The landlord still had to show why she rented to the US-born applicant rather than the plaintiff.
Sometimes, trying to avoid one problem can lead to another. One landlord would allow four people in a tiny two-bedroom apartment if they were a family but only three people if they were not related. All of the two-bedroom apartments occupied by four people did in fact include children. A group of four people turned down under this rule complained it violated their right to privacy and possibly was discriminatory based on sexual orientation. They also asserted that the manager had made discriminatory statements; which the manager absolutely denied.
Fair housing cases are rapidly increasing. The U.S. Department of Housing and Urban Development (HUD) is now distributing $15 million in grants to fair housing organizations across the country to promote fair housing enforcement. Of this, $1.1 million is earmarked for California. How much money have you budgeted this year for fair housing training?
Fair housing organizations like Project Sentinel and Midpeninsula Citizens for Fair Housing use these grants to send matched pairs of testers to rental offices. One tester poses as a minority, a parent with children or a disabled person. This tester claims to have equal or slightly better qualifications than the second tester in the pair, a person who is not in any protected class. If the landlord treats the second tester better than the first, this is evidence of discrimination.
The fair housing organizations usually do not call the landlord and suggest he change the policies and practices to comply with the law. HUD rewards referrals of fair housing complaints to it by making more grant money available to fair housing organizations that can show increased referrals. If a lawsuit is filed, the fair housing group may join as a plaintiff or otherwise share in the settlement or judgment. Fair housing groups get no reward for mediating the problem.
The best way to avoid fair housing problems is to treat everyone the same. Even if you are a fair person who would not dream of discriminating, it is easy to make a mistake. Fair housing training helps, but is not enough by itself. Only by setting up systematic procedures and following them every time can you be confident. A good fair housing program includes:
1. Fair housing training for everyone who will come into contact with applicants and residents.
2. Legal review of all leases, tenant rules and other documents.
3. Written criteria for selecting tenants, including income required, number of occupants, checking of credit, evictions and references. You can even post the criteria in your rental office.
4. A fair housing poster visible in the rental office.
5. Writing down the results of each application, including why an applicant was rejected. Be sure that your reasons are legal.
6. Constant awareness of fair housing issues. Doing everything exactly the same way each and every time for every single applicant.
Copyright © 2000 Martin S. Snitow Law Corporation. All rights reserved.
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