Fair Housing ‘Oops’

Watch out for these commonly overlooked legal infractions.

In many ways compliance with fair housing laws should be an easy task. When distilled down to its basics, the simple message is to make decisions about renting or providing services as a landlord that are not based on the person themselves (for example, the color of their skin, the country that they may come from, how or if they worship). On the other hand, there is much interaction between a landlord and prospects, applicants and residents, and like all human interactions, many factors may come into play (stereotypes, personalities, misunderstandings and the like). Add to that the fact that fair housing violations do not have to be deliberate to be actionable, and even the best-intentioned landlord may end up as a respondent or defendant in a fair housing complaint or lawsuit. Liability attaches whether the fair housing issue is deliberate (call that “evil” discrimination) or unintentional (call that “oops” discrimination). Let’s look at some of those that seem to be the underlying bases for recent cases or which could likely lead to a complaint.

■ Unnecessarily restrictive rules related to the children of your residents. This is a familial status issue, and one rule in particular is leading some landlords down a financially painful path. That rule, which needs to be avoided, is that “children must be supervised by an adult when outside.” As long as children are not being unduly destructive or disruptive (based on the same reasonable behavior standards expected of adult residents), their parents or guardians are the ones to decide if and when their children will play outside.

■ Failure to properly design and construct. Fair housing requirements have been in place for decades, but nonetheless from the outside looking in (the view of fair housing and disability advocates) it seems as if the multifamily housing industry is often disregarding these requirements and the needs that they are intended to meet for those with disabilities. If you are involved in any way with new construction, make sure that your architect and builder is familiar not just with the Americans with Disabilities Act, but the Fair Housing Act, too. The ultimate accountability (which can be and has been in the tens of millions of dollars) is with you (even if you have received your Certificate of Occupancy from your state or local authorities). Hiring someone with the requisite knowledge to review your design/construction plans before ground is broken is a wise investment.

■ Thinking you’re special because you are specialty housing. You may be in the senior housing business, and with the right demographics (and required paperwork, which is sometimes overlooked) you are exempt from the requirement to rent to people with children, but you are “not exempt from fair housing.” Do not impose “independence” as a rental qualification; from a fair housing perspective no one must prove to be “independent” to live in any type of housing, including yours. And if you are a student housing provider, you must also be compliant with fair housing, so don’t think that you can deny an animal that is legitimately providing some service or comfort to a person with a disability.

■ Not separating the person from the issue. Curry! Often landlords ask what they should do when there are neighbor complaints about someone’s cooking, or whether a departing resident can be charged to remediate the curry odor from the vacated apartment. It’s not about curry! And it certainly is not about the resident and what country they may—or may not—come from. It is about an odor. And in multifamily situations, there are issues with cigarette smoke, cigar smoke, (in today’s world for some of you, marijuana smoke), pet smells (including cat urine) and other less than fragrant emanations. Have an odor policy that addresses what you will do anytime any odor is intrusive, disruptive or embedded in the unit and requiring remediation.

■ Not keeping up with the ever-expanding issues. Hoarding is now a disability in and of itself, not just a symptom of a disability. So you must have a plan to reasonably accommodate a hoarder that goes beyond “you have three days to clean this up or you are in default of your lease.” Multiple Chemical Sensitivity is a disability, so your employees (maintenance included!) need to know how to respond to a resident asking that a particular chemical (in the paint, used for pest control, on the lawn, etc.) not be used.

■ Not seeing Fair Housing as a risk management issue. Multifamily housing—if it were easy, anyone could do it. It’s not easy, and it is not always easy to do it right, particularly from a fair housing perspective. You owe it to yourself, your employees, your prospects, applicants, residents, and to your bottom line to keep informed and up-to-date and implement wise policies and strategies. Nadeen Green is senior counsel at For Rent Media Solutions.