Question 1 is about pet policies. Let’s say a landlord has five rental units. The tenants in four of them are neat and clean. The fifth tenants are not. They leave trash around their unit, and during inspections the landlord wonders if they ever clean the place. If both a “neat and clean” tenant and tenant number five want to adopt a dog, is it discriminatory to approve Mr. Clean’s request and turn down the other tenant?
Discrimination is defined by the Fair Housing Act (FHA). Pet policies have nothing to do with the FHA. The only tenants who are protected regarding pets are those who fall under the protection of the Americans with Disabilities Act (ADA). A service animal must be allowed, regardless of your pet policies. All other pets are completely at your discretion.
Question 2 is regarding appearance. A landlord has two applicants for the same apartment. The first arrives in a clean, well-maintained late-model car. She is nicely dressed, and wears expensive-looking jewelry. The second arrives on a bicycle, wearing baggy jeans, a baseball hat turned backwards, and a torn t-shirt. Is it discriminatory to decline the second prospective tenant’s application without going any further?
Yes. Landlords may not discriminate on the basis of appearance. Smart landlords are blind to appearance, using solid tenant background screening as the decision maker. In this case, the first applicant could be way overextended on her credit, have a bankruptcy in her credit history, and owe her previous landlord a few months’ rent. The second could have bicycled straight from work, where he is well-respected, earns a good salary, and has solid credit. Appearances can be deceiving.
Question 3 is regarding advertising. Landlord Jane wants to pre-screen tenants by describing her expectations in the “for rent” ads she places in the paper. Her ad reads as follows: “1BR 1BA apartment, clean building, safe neighborhood near church. No pets, no kids, no smokers, no drinkers, no bums. Background and credit checks. Ref req’d.” Is Jane’s ad discriminatory?
Could be. Describing the rental unit as “near church” could be interpreted to mean she desires tenants of that church’s denomination. “No kids” can be problematic. You cannot discriminate against people with children, although a one-bedroom apartment could be considered too small for more than one person. Parents or a parent and infant in most states are allowed to share a one-bedroom dwelling. Check your local and state laws. Landlords can prohibit smoking in rental units and alcohol consumption in common areas, but not a general “no drinking” or “no bums” rule. Jane’s definition of a “bum” is most probably discriminatory.
Remember, landlords must be very familiar with the Fair Housing Act, which bars discrimination against persons based on race, color, national origin, religion, sex, familial status (including children under the age of 18 living with parents or legal custodians), pregnant women, and people securing custody of children under the age of 18), and handicap (disability). Treating all of your tenants fairly and consistently is a smart way to avoid charges of discrimination.
The Fair Housing Act, also known as Title VIII of the Civil Rights Act of 1968, prohibits landlords from discriminating against applicants on the basis of race, color, national origin, religion, sex, family status and disability. Various Executive Orders cover more details, such as requiring federal agencies to promote and further fair housing in the programs and prohibiting discrimination in the sale or leasing of properties owned by the federal government or provided with federal funds.
The FHA covers most housing in this country, but there are certain exemptions in some circumstances. If you need to know if your circumstances qualify for an exemption, check with your attorney.
Specifically prohibited actions based on the definition of the FHA in leasing situations include:
- Refusing to rent housing
- Making housing unavailable
- Setting different terms, conditions, or privileges for rental of a dwelling
- Providing different housing services or facilities
- Falsely denying that housing is available for inspection or rental
It is also illegal to threaten, coerce, intimidate or interfere with anyone exercising or assisting others to exercise their rights under the FHA, and to advertise or make a statement that indicates any limitation to housing or preferential treatment in offering housing based on race, color, national origin, religion, sex, family status, or disability.
In addition, the Fair Housing Act prohibits landlords from discriminating against tenants with physical and mental disabilities, and requires them to allow reasonable modifications to the dwelling unit to accommodate their disability. This can be done at the tenant’s expense, and, where reasonable, you may require that they return the unit back to its original condition when they move out. For example, allowing a disabled tenant special parking when requested is required.
Landlords are also required to make reasonable accommodations for disabled tenants who require service animals. Even if you have a “no pets” policy, you must allow service animals, which are not considered pets.
However, the FHA does not require that landlords make housing available to persons who are direct threats to the health and safety of others or who use illegal drugs.
Remember, you are within your rights when screening tenants prior to leasing. For more landlord resources
, including forms and information on tenant screening,
turn to E-Renter.com.
You’ll know that you have the best possible tenants when you prescreen tenants
What are your risks when considering applicants for your rental property? Even in these tough times, you cannot approve every applicant. It’s important to know your parameters when you must reject a potential tenant.
The federal Fair Housing Act prohibits discriminating against tenants on the basis of race, religion, sex, disability, or national origin. Some states have laws making it illegal to discriminate based on sexual orientation or marital status.
Of course there are legitimate reasons to turn down an applicant. Just be sure to document your process thoroughly and to be fair and consistent with each applicant—so you are well prepared if you’re ever accused of discrimination.
Here are some legitimate reasons to turn down a rental applicant:
Income level: It is legal to use a prospective tenant’s income as a basis to approve or reject their application. Be sure to check the income of all tenants on the application to avoid any potential problems.
Bad Credit History: Prior bankruptcies or low credit score are objective criteria for rejecting tenants.
Exceeding Occupancy: You do not have to rent to a family of six applying to rent your one-bedroom apartment.
Inadequate Rental History: You may require a reasonable number of positive rental references, and reject an applicant based on a negative reference from a previous landlord.
Past Eviction: If an applicant has ever been evicted, you may reject the application. However, if he or she won an eviction lawsuit brought by a previous landlord, you cannot hold the lawsuit against them.
Criminal Record: If an applicant has been convicted of a crime, it is probably enough reason to reject their application. Take care, however, to make a distinction between an arrest and a conviction.
Pets: If you do not allow pets in your rental unit, you may reject a pet-owning applicant. However, be aware of how the Americans with Disabilities Act (ADA) views therapy pets. You may have to make an exception to your no-pet rule to accommodate a disabled tenant.
As always, staying consistent with procedures is extremely important—especially when considering whom to approve or reject as tenants. Keep your paperwork in tip-top shape, and follow the same process with each applicant. Favoring any person or type of person over another is a lawsuit waiting to happen.
Your best practice is to run credit and background checks on each applicant. Screening tenants is quick, easy, and inexpensive—and it could potentially save you thousands in legal fees. Use the facts—just the facts—to determine whether or not you approve an applicant.
If you are a landlord, reducing risk should be an ongoing part of your business. Nobody likes to think about lawsuits and liability insurance, but the facts are that rental property owners are sued every day. You cannot control every liability that comes with rental property ownership, but you can minimize risk with awareness and planning.
Smart landlords know that keeping their properties in good repair and prescreening tenants are two ways to reduce the liability of owning income property. But there are other areas you may not be aware of that could be putting you at risk. Protect yourself and your assets by controlling your actions in these areas.
Hiring workers: Both federal and state government entities actively search for employers who don’t properly document their employees. Landlords who hire workers fitting the description of “employee,” who then pay them in cash and do not withhold proper taxes, unemployment and insurance, are breaking the law.
Employers who pay “off the books” are subject to back taxes and penalties if they get caught—and the IRS and state agencies are definitely on the lookout for these folks. Your best bet is to hire contractors and repair people who are self-employed, with their own corporations. Keep their business cards and check out their form of ownership. Require proof of insurance, too.
Discrimination in renting: Federal laws make it illegal to discriminate when renting on the basis of race, color, religion, nationality, familial status, age, gender, and disabled status. Your local and state laws may protect additional groups. Even if you do not intend to discriminate, you must be aware of how the laws affect your advertising and rental procedures.
For example, you should avoid advertising your property as being close to a church, because you could be sending the message that you prefer churchgoing tenants. You cannot advertise that your property is “perfect for a nice family,” because you could be seen as discriminating against single people. Avoid asking personal questions as a rule. You cannot rent based on tenants’ marital status, whether or not they have children, or how they choose to worship—or not.
We have covered renting to persons with disabilities in this blog. But while most landlords know that a person in a wheelchair must be accommodated, keep in mind that it is discriminatory to ask about the disability. All disabilities—even those that are not obvious—are protected under the law. Knowing how you must comply and keeping good records are both vital to all landlords.
Improper legal documentation: It may be tempting to use real estate forms that you buy from an office supply store or borrow from a friend, but it’s in your best interests to cover yourself thoroughly before signing any legal documents. Sure, you can download forms from the internet, but have them reviewed by a real estate attorney before you start using them for your tenants.
Be sure to periodically update your forms, too. Outdated forms could put you at risk if new housing laws have been passed. Plus, you may be asking tenants to sign agreements that are unenforceable.
Respecting tenants’ rights to privacy: Landlords must avoid entering properties without proper notice. In most states, it is not okay to stop by unannounced to check on things or make repairs. It’s not worth it if this type of action results in a tenant being released from the rental agreement or is awarded damages.
Reducing your liability and staying out of court will definitely increase your bottom line! So, keep up with changing laws, stay informed, and always ask yourself if there is a better way to do things.
For more landlord resources
, including everything you need to know about tenant screening,
turn to E-Renter.com.
You’ll know that you have the best possible tenants when you prescreen tenants
The Fair Housing Act
You are required to comply with The Fair Housing Act (FHA) if you rent private housing, housing that receives Federal financial assistance or State/Local government housing. Essentially, if you rent any property whatsoever, you must follow the laws established under the FHA.The FHA prohibits discriminating on the basis of race, color, religion, sex, national origin, and family status. It also prohibits discrimination on the basis of disability. Under this section, owners of rental properties are required “to make reasonable exceptions in their policies and operations to afford people with disabilities equal housing opportunities.”
Who is considered disabled?
The Americans with Disabilities Act (ADA) defines an individual with a disability to be
“a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.”
Pretty broad definition! And, the ADA does not specifically name all the impairments that are covered (it’s probably a very long list).
So, if you’re a landlord, you are required to make “reasonable exceptions” to ensure disabled folks are not discriminated against. For example, even with a “no pets” policy, you may be required to make an exception to accommodate a service or companion animal. While a dog wearing a special red “service animal” vest or a wheelchair-pulling canine are pretty obvious, other companion animals are not so easy to spot.
You might think a deaf tenant would always be allowed to keep a dog to help out when the doorbell or phone rings, or the fire alarm is activated. Actually, a court decided that a dog owned by two deaf women had never been trained to assist them in any way, and therefore was nothing more than a “house pet”—and the landlord won its case.
[Bronk v. Ineichen, 54 F.3d 425 (7th Cir.1995)]
In another case, a dog with no training as a service animal was found to be therapeutic solely because of his “innate qualities.” The tenants were allowed to keep him. In still another case, a mentally disabled tenant was not allowed to keep two birds and two cats “for companionship.”
[Auburn Woods Homeowners Ass'n v. Fair Employment and Housing Commission, 121 Cal.App.4 1578, 18 Cal.Rptr.3d 669] [Janush v. Charities Housing Development Corp., 169 F.Supp.2d 1133 (N.D. Cal, 2000).]
What’s a Landlord to Do?
The law protects both physically and mentally disabled individuals. Don’t assume a person is not disabled based on appearance.
Not all trained service animals wear special vests or harnesses. Don’t assume a prospective tenant’s animal is not a service animal based on appearance.
Highly trained service animals, as well as companion animals who might not be specially trained, are not considered “pets.” Therefore, a “no-pet” policy would not apply.
Emotional support animals provide just that service—emotional support—to their owners.
It is reasonable to ask for proof of disability and need for a service/companion animal from a tenant’s physician or other health care provider in cases where the disability and/or need is not obvious.
It is reasonable to require all animals living on your property to be properly vaccinated and to follow any and all rules regarding leashing, waste disposal, etc.
While you cannot discriminate under the FHA, you are perfectly within your rights to screen all prospective tenants’ background and credit history.
Because court rulings on this topic are as varied as the genetic makeup of a pound puppy, it seems there are no hard and fast rules to follow. Consider the following general guidelines, and remember: this is not legal advice! Every jurisdiction is subject to individual case law, so always seek the advice of your attorney for specific questions on your local laws, as well as FHA and ADA.
Sources: Americans with Disabilities Act, Fair Housing Act, Fair Housing Institute
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