Fair Housing

Landlords may be liable for discrimination if they harass or allow their leasing staff, managers, and other agents to harass tenants on the basis of race, etc. Recent cases pose the controversial question of whether landlords can also be liable for the harassment committed by their tenants. The two federal courts that had specifically addressed this issue until now have reached conflicting results. In 2023, another federal court weighed in on the question of tenant-on-tenant liability.

Continuing previous patterns, most of the 2023 cases alleged discrimination on the basis of disability; most of the disability discrimination claims alleged failure to make reasonable accommodations, specifically with regard to assistance animals. Explanation: The FHA requires landlords to make reasonable accommodations “necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling.” Waiving a no-pets rule so that a disabled rental applicant or tenant can keep an assistance animal is the classic example of a reasonable accommodation.

But allowing a tenant to keep an assistance animal is only one issue; it’s also important to understand the rules that apply after that. Landlords have the right to hold tenants responsible for ensuring that their assistance animals obey safety, sanitation, noise, property, and other community rules. However, they may not impose unreasonable restrictions.

Situation: A Philadelphia apartment community makes allowances to its longstanding no-pets policy for assistance animals, as long as tenants meet certain strict rules:

• Assistance animals are allowed only in freight and not passenger elevators;
• Assistance animals must wear a bark-suppressing collar at all times;
• Tenants must pay deposits on their assistance animals and maintain $1 million in insurance naming the landlord as a beneficiary; and
• Tenants guilty of more than three violations forfeit their rights to keep their assistance animal.

A tenant who owns an assistance animal sued the landlord, seeking punitive damages for disability discrimination.

In determining whether a landlord has committed discrimination, HUD, fair housing groups, and courts consider not only what policies say but how they’re actually enforced. Rental policies or restrictions that appear neutral on their face will constitute discrimination to the extent they’re selectively enforced based on race, etc. An Idaho landlord learned this lesson the hard way.

Like other real estate businesses, you may be using ChatGPT, Bard, Bing, and other generative AI products, a.k.a. chatbots, for marketing purposes, such as developing advertising strategies, analyzing housing markets, and generating property listings, ads, social media posts, and other marketing content. Just recognize that for all their potential benefits, chatbots contain flaws that make them risky to use for marketing and advertising.

While vital to prevent overcrowding, occupancy standards may violate fair housing rules to the extent they have the effect of excluding families with children.

Spot the Discrimination Mistake

A tenant who shares a one-bedroom apartment with her husband tells the landlord she’s pregnant with the couple’s first child. Along with a smile and warm congratulations, the landlord offers her an eviction notice. Explanation: Once the baby is born, the couple will be over the community’s strict two-person-per-bedroom occupancy standard.

Adult supervision requirements are the leading source of pool-related family discrimination complaints. The safety rationale for such rules is clear. After all, swimming without adult supervision is the leading cause of drowning deaths for young children.

Family status is the fourth most commonly alleged ground of federal fair housing discrimination, trailing only disability, sex, and race. Many familial status complaints are the result of misguided safety rules involving children, particularly with regard to swimming pools.  

Illegal immigration is a touchy and politically charged subject. It’s also an issue that many landlords in America need to address on a daily basis. There are approximately 11.5 million undocumented aliens living in this country, according to U.S. Census Bureau estimates. Because the vast majority of these people don’t own a home, they must look to the rental market for their housing. So, landlords need to be aware of the legal implications of leasing to them.

The Pros & Cons of Leasing to Undocumented Aliens

Because they constitute a major part of the rental market in some parts of the country, categorically refusing to rent to undocumented aliens or even asking about immigration status may impair your rental business. It may also expose you to risk of liability under fair housing laws. This is especially true if the aversion is based on stereotypes about immigrants. Landlords may shy away from leasing to undocumented aliens based on stereotypes about their being unlikely to work hard and pay rent diligently.  

On the other hand, in some states and municipalities, you can get into trouble if you do knowingly lease to undocumented aliens. You may also encounter difficulties if you do seek to hold such tenants legally accountable when rental or other disputes arise. “An undocumented alien has a much greater chance of being judgment-proof,” a Maryland attorney explains. “The landlord’s toolbox for collecting a judgment is neutered since there’s no bank account or legal job generating paychecks to garnish.” And if the state or municipality makes it illegal to rent to undocumented aliens, the landlord will want to avoid going to court in an eviction situation.  

While there are no easy or absolute answers, the legal principles that landlords must understand to navigate this dilemma. Specifically,  the fair housing implications of leasing—and not leasing—to undocumented aliens and non-U.S. citizens. 

Ask anyone who works on a Senior Living Community how they like their job and I can almost guarantee that they will tell you they have a love-hate relationship with it. Most employees will tell you that they love working with seniors; that they are a nice group of people, and they have a bond with them that they have never experienced while working on a multi-family community.  They will also tell you of the heartaches and troubles of a senior community; and this is not just the obvious complications of dealing with an aging resident population. You will hear about the vast disparity between “the new senior” and “the elderly,” the trends seniors are setting, the financial issues many seniors are facing, the troubling issue of increasing mental illness in seniors, and the demands seniors are making on staff. How does all this affect not only the senior market, but how will it affect the market at large? How do we stay on top of trends, and how do we assist the employees in this highly specialized market segment? 

A somewhat odd case out of California illustrates another important qualifier of the landlord’s duty to provide a requested accommodation.

Situation: A tenant with “electromagnetic hypersensitivity” (EHS), which causes him to be physically and neurologically affected by radiofrequency emissions from cell phone equipment, asks the city to remove a cell tower near his unit. The city refuses, noting that the tower’s placement is based on requirements of federal environmental law. So, the tenant sues the city and homeowners association for disability discrimination.