Staying in Compliance With the Fair Housing Act

Staying in compliance with the Fair Housing Act is a growing concern for landlords as the population becomes more and more diverse.  A wise landlord will take proper precautionary steps and meticulously keep detailed records to avoid violating the Fair Housing Act and possibly being on the receiving end of a lawsuit from an upset tenant. There are several key stages during the landlord/tenant relationship where Fair Housing issues play an important role in the landlord-tenant relationship.  Knowing when to anticipate these issues and how to handle them will determine whether or not a landlord has violated the Fair Housing Act.

THE ESSENTIAL RULE

In a nutshell, the Fair Housing Act prohibits discrimination in the sale, lease or rental of real property based on ancestry, race, color, religion, sex, disability, familial status, national origin or military status

ADVERTISING

Perhaps the most important stage for a landlord to avoid violations occurs when the rental property is being marketed. Certain catchphrases should be avoided and descriptions of the property should be handled in a certain way in order to avoid a discrimination claim.  For example, GRIFFITH LAW GROUP recommends marketing the property according to its amenities and floor plans rather than what the landlord is seeking in a tenant. The goal is to find the best way to advertise and spread the word about a rental property without soliciting a certain type of demographic that could be considered discriminatory. Remember, the landlord is leasing property to tenants, not placing personal ads.

SCREENING AND STEERING POTENTIAL TENANTS

An important measure to take in order to evidence compliance with the Fair Housing Act is to keep detailed and consistent records of all current, past, and present tenant applications, phone calls, emails, and appointments.  Keeping all records and logs is always recommended and can help deter or win a lawsuit down the road.  Avoid asking tenants personal questions about their behaviors or mental/physical disabilities.  Certain questions regarding evictions, bankruptcy history, prior landlord relationships, or prior judgments may and should be inquired by the landlord, and will not violate the Fair Housing Act if done in a non-discriminatory manner.

Steering prospective tenants to certain properties could be discriminatory.  It is acceptable for a tenant to request to skip a property, but a landlord should never suggest certain types of property or mention types of people that live around certain types of properties, as these activities suggest discrimination and a violation of the Fair Housing Act.

Written policies in regard to applications is always a best practice for landlords and if any tenant asks the landlord to deviate from a standardized application process, the landlord should consult legal counsel before moving forward.  GRIFFITH LAW GROUP recommends two important steps in this regard. First, landlords should formally adopt and utilize the Fair Housing Act’s Equal Housing Opportunity Logo and the nondiscrimination statement which reads:

Secondly, landlords should create and memorialize leasing criteria for each property before taking the first application.  That leasing criteria will address issues such as: disposable weekly income, credit score, minimum time on the job, prior evictions, prior money judgments, prior bankruptcies, reasons prospective tenant wants to move, rent amount, security deposit amount.

THE LEASE, RULES OF THE PROPERTY, AND REASONABLE ACCOMODATIONS

The lease is the next defense to bar Fair Housing violations claims, and a wise landlord will be sure to standardize terms, conditions, and rules with all prospective and current tenants.  Modifying lease terms or aiming property rules at certain demographics or age groups, such as “No Children under 7 in the pool,” can be seen as discriminatory.  Using terms such as “resident” or “guest” can help landlords draft lease terms or rules while avoiding discrimination claims.  An accommodation to the property for a disabled tenant should only be undertaken, if (1) it is requested by the tenant, (2) it is reasonable, and (3) it is not an undue burden on the landlord.  The landlord should never suggest making an accommodation as it is discriminatory in and of itself.  Rather, a landlord should wait for the tenant to request an accommodation and contact an experienced real estate attorney to map out a response.

EVICTION AND LOCAL RULES

If the landlord wishes to evict a tenant for something other than non-payment of rent, two major questions should be asked before proceeding in order to avoid discrimination: (1) Has the tenant breached the lease in a serious way, and (2) Has the landlord and would the landlord evict other tenants for the same reason?  Either way, your legal counsel should likely be consulted before proceeding.  State, county, and local rules and ordinances can also apply to how a landlord rents property.  For example, one of Indiana’s first local ordinances was passed in Bloomington, Indiana prohibiting discrimination based on sexual preference.  So, the Fair Housing Act is the start, not the end, of a landlord’s analysis in avoiding discrimination claims.

Ultimately, staying in compliance with the Fair Housing Act is all about treating all tenants the same and documenting the landlord’s every decision and act.  Some complicated issues, such as local occupancy standards, employee training standards, harassment issues, modifications to the property and so on can arise with tenants who feel they have been discriminated against.  Remember an ounce of prevention is better than a pound of cure.

GRIFFITH LAW GROUP recommends that landlords have all tenant documents reviewed by an attorney to ensure compliance, including: the application, the lease, and any rental property rules or regulations. For more information or training concerning compliance with Fair Housing Act, contact GRIFFITH LAW GROUP at (317) 663-0650 or by email to one of our attorneys.