Fair Housing: Federal, State, and Local Anti-discrimination Laws
Property rental practices are subject to a variety of antidiscrimination regulations under the Fair Housing Act (FHA) and related laws. Landlords should make themselves familiar with these laws prior to renting property. What is the purpose of fair housing laws? Quite simply, the FHA and its brethren are intended to provide a unitary housing market. As applied to rental units, the laws ensure that a renter’s background (as opposed to financial resources) do not arbitrarily restrict access. Fair housing laws exist at the federal, state, and local levels of government. They apply to tenant screening, occupancy standards, accommodation requests (e.g. installation of a wheelchair ramp, grab bars, etc.) apartment rules, and more.
The Federal Housing Acts (42 U.S. Code § §3601-3619, 3631) prohibit discrimination based on race, religion, national origin, gender, age, familiar status, physical or mental disability (including recovering alcoholics and people with past drug additions). State and local laws expand these categories. Michigan’s Elliott Larsen Civil Rights Act of 1976 adds height, weight, and marital status to the list of protected classes. A growing number of Michigan municipalities also offer protections based on sexual orientation and gender identity.
Anyone who deals with tenants and prospective tenants must follow fair housing laws. This includes landlords, property management companies (PMs) and all their employees. Yes, landlords and property management companies can be held legally liable for their employees’ discriminatory statements and/or conduct. If you have employees, it’s a good idea to require anti-discrimination training. Landlords should also have written policies in place regarding fair housing laws and how to comply with them.
Executing logical, business-based decisions help ensure fair housing compliance. Landlords who make business choices based on personal, religious or political ideology open themselves up to lawsuits. Consistency is also important. Treat all tenants equally. Enforce all rules and standards in a uniform manner. Landlords who apply arbitrary, tougher standards for certain renters over others are also setting themselves up for a lawsuit—especially when differing standards are applied to persons of a protected class.
Problems also arise when landlords give certain renters special privileges or breaks. For example: when a landlord agrees to lower the security deposit for a single mother but not for other tenants who happen to be married, that landlord is risking a charge of discrimination from the other tenants—it does not matter whether the landlord intended to be discriminatory. The law does not require a discriminatory motive. Proof of the different treatment is enough to move a case forward in court.
In sum, don’t be discriminatory. Keep yourself and your business alerted to potential discriminatory behavior—and stop it in its tracks. Here are some pointers to keep in mind throughout the rental process:
Advertising: Choose Your Words Carefully
Advertising is the most common method for finding prospective renters. When advertising a rental unit, landlords should be careful to describe property amenities, not what they desire in a renter. Apply common cense. Certain property descriptions that welcome specific types of people often do so at the exclusion of others. Keeping this in mind, avoid advertising descriptions such as “bachelor pad”, “great for young people”, “just right for two people” or “walking distance to St. Robert’s church.” Courts have ruled that such descriptions are discriminatory and thus clear violations of fair housing laws.
Advertising: Include a Disclaimer
At the end of a rental advertisement, landlords are advised to either include an image of the fair housing logo or a disclaimer stating that the business does not discriminate on the basis race, religion, national origin, gender, age, familiar status, physical or mental disability, height, weight, marital status, sexual orientation, or gender identity. Also, if you are going to limit the number of occupants, be sure to include a statement that you are doing so based upon the local housing code—and be specific.
When showing properties, landlords must be careful to avoid steering and any appearance of steering. “Steering” refers to an unsavory practice in which landlords guide prospective renters towards or away from certain properties based on their race or other protected class factors.
Avoid any appearance of steering by showing all available rental units to all prospective renters. Don’t stereotype and don’t make assumptions. Let the prospective tenant decide which apartments to view and which to skip. Also let them decide which amenities to view. Failing to show a disabled person the fitness room could create liability—especially if your standard practice includes showing the fitness room.
Choose your words carefully. Don’t say things like, “You would like this particular apartment because it’s nice and quiet with few children around”, or “You will enjoy living in this particular building because most of the tenants are your age.” Both statements can be viewed as discriminatory. As a rule, avoid commenting on the “types” of people who live here or there.
Avoid fair housing claims by implementing an objective screening process. Written rental policies that detail occupancy guidelines, availability policy, and rental criteria should be uniform and available for all prospective renters. Let them know how the rental application process works, and what the clear-cut requirements are for approval.
Application questions should not inquire about race, disabilities, or other protected class information. Questions about prior bankruptcies, judgments, and prior evictions are appropriate—but they must be uniform.
For more information on the screening process, see RPOA’s related article on Suggestions Regarding Criminals & Tenant Screening.
Occupancy standards limit how many individuals can live in a rental unit. Landlords have the right to set reasonable, non-discriminatory limits as to how many people can live in a unit. They do not have the right to set limits that discriminate against certain renters’ familial or marital status.
Where is the line drawn between discriminatory and non-discriminatory practices? The answer is complicated.
Congress enacted a law in 1996 based on a 1991 memo from the U.S. Department of Housing and Urban Development (HUD). The HUD recommendations, known as the “Keating Memo” advise that a two-person-per-bedroom standard is acceptable in most situations. Even so, rigid restrictions on occupancy standards should be avoided, especially if unit size varies within a housing complex. Size and configuration may lend itself to a higher maximum number of occupants per room. For example, units with significantly larger bedrooms should have occupancy limits that reflect such differences. Looking to local housing codes is a more practical way of setting limits. Many communities use the International Property Maintenance Code (IPMC) to enforce local property maintenance. The IPMC sets the maximum number of occupants based upon the number and size of bedrooms and the size of living rooms, food preparation areas and dining area.
The takeaway from the Keating Memo: although HUD suggests that a two-person-per-bedroom policy is “reasonable” as a “general rule” under the Fair Housing Act, the two-bedroom presumption is rebuttable. Courts will look at all the circumstances applied to occupancy standards when determining if there has been familial status discrimination.
Landlords are wise to establish a set of rules for all renters to live by. Again, it’s essential that the rules are applicable to all residents and are enforced in a uniform manner. Rules that broadly target children are usually considered discriminatory; efforts should be made to construct such rules in a narrow manner that specifies their basis (usually safety). For example, a rule that says, “no children under the age of four in the pool area” is discriminatory, while a rule that says, “children under the age of 12 in the pool area must be supervised by a competent swimmer or an adult” is not.
Reasonable Accommodations and Modifications
Landlords are required to make reasonable accommodations when a disabled tenant requests an exception to the established rules/policies. To qualify, the tenant’s request for accommodation must be related to their disability, and it must be reasonable. The request is not considered reasonable if it presents and undue burden on the landlord. In refusing an accommodation request, the landlord should send the denial in writing, including the facts behind the denial and how those facts were discovered. The letter should also include an offer to meet with the tenant for further discussion.
Lastly, it is important to note that a landlord should not offer to make an accommodation for a tenant unless that tenant specifically requests it. Offering an unrequested accommodation may subject the landlord to a discrimination claim.
Modifications are not the same as accommodations. A reasonable accommodation is a change, exception, or adjustment to a property rule, policy, practice, or service. A reasonable modification is a structural change made to the premises.
Reasonable Accommodation Request: a request by a tenant in a wheelchair for a guide dog in an apartment community with a “no pets” policy.
Reasonable Modification Request: a request by a tenant in a wheelchair to install grab bars in the bathroom.
Under FHA, the landlord is generally responsible for the costs associated with a reasonable accommodation, while the tenant is responsible for the costs associated with a reasonable modification. Exceptions exist when the requested modification was already required by law; or, when the property receives federal funding.
Service, Comfort & Emotional Support Animals
The FHA prevents landlords from discriminating against tenants (and potential tenants) accompanied by a service (“assistance”) animal. The FHA also prevents landlords from disallowing a tenant’s assistance animal based upon an existing pet policy.
The FHA does not place any limits on what may be considered an assistance animal. These animals do not have to be trained or otherwise certified. Also, in situations involving service animal dogs, breed, size, and weight limitations may not be applied.
According to the law, a service animal is not a pet. Therefore, service animals are not subject to pet deposits or additional cleaning fees that landlords may require for true pets.
Assistance animals perform many disability-related functions, including but not limited to, guiding individuals who are blind or have low vision, alerting individuals who are deaf (or hard of hearing) to sounds, providing protection or rescue assistance, pulling a wheelchair, fetching items, alerting persons to impending seizures, or providing emotional support to persons with disabilities who have a disability-related need for such support.
In all cases regarding persons with disabilities, landlords are required under law to make reasonable accommodations unless there is an undue financial burden. Reasonable accommodations for assistance animals are no exception.
Sometimes, an accommodation has potential to create an undue financial burden. For example, an undue financial burden would ensue if the arrival of a service animal would cause a landlord to lose his/her current insurance while preventing that same landlord from securing comparable replacement insurance. Provided the burden is real and supported by evidence, the loss of insurance would seem to end any reasonable opportunity for the landlord to provide the accommodation.
Landlords in such situations should research their own insurance policy (as well as other options) before declining an accommodation request. All efforts should be documented as potential evidence demonstrating why the accommodation wasn’t reasonable.
Beginning on April 10, 2017, landlords in Michigan will not be required to accommodate tenants’ smoking and growing of medical marijuana, and here’s a reason why they might think twice before doing so:
It’s common for landlords to have a clause built into leases that allows them reasonable access to their rental property. Yet, conflict may arise when any tenant is a registered patient who is legally growing plants for personal medical use.
The law requires the patient-tenant to keep marijuana plants “in an enclosed, locked facility,” meaning that no one except for the patient can have access. This wording in the law, in effect, prevents the landlord from accessing the rental unit.
What if the landlord wants to show the rental property during an existing lease term? What if the landlord needs to make reasonable repairs to the property (as required under the law)?
In both cases, messy legal action could ensue, as any attempt to enforce such access would force the tenant to violate the Michigan Medical Marijuana Act.
Some landlords may wish to accommodate the above situation by providing new construction of secure “facilities” within each unit. Many landlords may prefer to avoid the situation altogether. A new law will allow them to do so. The new law, Public Act 546 of 2016, will allow rental property owners to legally disallow the smoking and cultivation of medical marijuana in a written lease or a lease addendum. This law, which goes into effect on April 10, 2017, lets the landlord choose whether to allow the smoking and growing of medical marijuana.
We’ve created a free new addendum for member’s use which can be downloaded from the RPOA website. (Note: if your tenants are on a month to month lease, you must give them 30 days’ notice. If your tenant is on a fixed term lease, such as one-year, you’ll have to wait until the lease is renewed—unless your tenant voluntarily agrees to sign the addendum earlier.)
For more information on this subject, please see RPOA’s related article: Medical Marijuana in Rental Properties.
Landlords should maintain records on all prospective, current, and past tenants. Being able to produce consistent records as evidence of non-discriminatory practices is vital to any FHA defense. However, it is not a good idea to retain photos of tenants either during the screening process or after the tenants have vacated the property. In the case of evictions, documentation is necessary to show that there was a legitimate, non-discriminatory reason for evicting the tenant. For more on evictions and the eviction process, please see RPOA’s related article: What are the steps to legally evict a tenant in Michigan?
Landlords sometimes ask: How will “they” find out if I’m discriminating? Landlords are most frequently accused of discrimination by those that have applied for a rental and have been denied. The second most frequent accusation will come from a local advocacy organization that is monitoring online and printed rental advertising and sending out “testers.” Those that have feel they have been discriminated against most often report this information to the local advocacy group as well.
Fair Housing Training
Interested in learning more? The RPOA provides Fair Housing training. Feel free to contact us via email or telephone (800) 701-7762 for more information.