Fair Housing Act Turns 50 and Continues to Evolve

Musicians need to practice their instruments, both to learn music and to hone their craft. A beginner’s practice might be difficult to listen to, but beginners usually do not practice for a long time. Professional musicians will sound better, but they may practice several hours per day.[1]

For those living next door, even professional musicians’ practice may not be “music to the ears.” As a result, it is not unheard of for professional musicians to find themselves in disputes with neighbors or landlords. Some landlords have been known to refuse to rent to musicians for this reason.

For a long time it also was legal in much of the United States to refuse to rent or sell housing[2] to someone because of his or her race, sex, national origin, color, religion, or disability or because he or she had children.  On April 11, 1968, in the aftermath of Martin Luther King, Jr.’s assassination, President Lyndon Johnson signed the Fair Housing Act (FHA).

Who is Protected by the Fair Housing Act

At first, the FHA only prohibited discrimination because of race, color, religion, and national origin. Sex was added to the FHA in 1974. In 1988, the FHA was amended again to add disability and familial status to the protected groups. 

Familial status includes not only the presence of children, but also the age of the residents generally. Therefore, although FHA wouldn't prohibit refusal to rent an apartment to a professional musician, the FHA might prohibit refusal to rent to a family whose child takes trumpet lessons.

The FHA does not prohibit all discrimination. Sexual orientation and gender identity are not protected under the FHA. However, such discrimination may fall under another category, such as sex or familial status discrimination. For example, it might be unlawful familial discrimination to refuse to rent to a family consisting of two male spouses and their children. Or, it may be unlawful sex discrimination to refuse to rent to a transgender individual due to nonconformance with expectations associated with the sex assigned to the individual at birth.

The FHA does not protect individuals from discrimination based upon occupation. So, our professional musicians will be out of luck under federal law. But, some states and localities prohibit discrimination against sexual orientation, gender identity, and even, occupation.

Exceptions to the Fair Housing Act

There are very few exceptions to the FHA:

• Owner-occupied multifamily housing of two- to four-units. If the owner owns a duplex or four-plex and lives in one unit, that property is excepted from the FHA.
• Private clubs. Private clubs which provide housing to their members are excepted from the FHA, provided they do not offer housing to the public.
• Single-family home sales. If no real estate broker is used and subject to limitations on the number of homes owned, frequency of sales, and advertising limitations, an owner may rent or lease a single-family home without complying with the FHA.
• Religious organizations. Religious organizations may limit housing to adherents of their religion.
• Occupancy limitations imposed by local law. Most local laws limit how many individuals can live in apartments of specific size. For instance, it may be lawful to refuse to rent a small studio apartment to a four-person family with two children due to the number of people and size of the apartment.
• Age-restricted communities. Certain housing for age 55 or older or age 62 or older are exempt from the familial (but not other forms of discrimination), provided the housing meets certain very specific requirements.[3]

What Acts Violate the Fair Housing Act

The FHA covers much more than refusal to rent or sell housing to individuals in the listed classes. For example, it also prohibits the following types of discrimination in housing:

• Setting differing terms or conditions for sale or rent or offering different services or options;
• Steering– trying to convince an individual to live (or not to live) somewhere because of race, religion, national origin, or another covered class;
• Blockbusting–a real estate broker trying to persuade people to sell or move based upon claims that individuals of protected demographic, such as race, have moved into the neighborhood;
• Claiming that certain housing is not available when it is;
• Refusing to provide information about loans or discrimination on the terms and conditions;
• Refusing to provide or discrimination on the terms and conditions of homeowners’ insurance.

Individuals with Disability Have Additional Rights

Individuals with disabilities may have the right to reasonable accommodations of their disabilities. These rules are complex and worthy of an article of their own, but I will summarize some key points. 

A disabled individual must request an accommodation. It is improper for an owner to make assumptions about the individual’s abilities based upon a perceived disability. That, itself, could be unlawful discrimination. A possible accommodation might include allowing a service animal[4] in pet-free housing. Under some circumstances, an owner might provide a disabled individual a convenient, accessible parking location.

Owners need not provide accommodation exactly as requested. For instance, an owner is not required to agree to install an elevator in a building which does not have one to enable a tenant to live on an upper floor. But, if a mobility-challenged tenant requests a unit near to an existing elevator, such a unit must be provided if it is available.

Also, the owner may not have to pay to make a rental unit accessible for a disabled tenant. Sometimes an owner might be required to allow the resident to make modifications to a rental unit to accommodate a disability. However, frequently the resident must pay for the cost of the modifications. The owner also can require restoration of the property to its previous condition at the resident’s expense upon move-out.

Additional accessibility requirements apply to buildings first occupied after March 13, 1991. The requirements vary depending upon whether the accessibility concerns are inside a dwelling unit or are in a common area. For multi-floor buildings, the rules vary depending upon whether the building has an elevator.

Fair Housing Best Practices

Fair housing is not only the law and the right thing to do, but it is important to the bottom line for a multifamily property. Discriminatory practices cost money in fines and lawsuits to the owner and distract staff from running the property. Also, individuals who violate the FHA may have to personally pay damages.

• Advertising. Be sure that advertising does not include language which could violate the FHA. For instance, advertising “no children” or “great for empty nesters” looks like discrimination based upon familial status.  Or, advertising “close to churches” looks like religious discrimination.
• Consistent, Written Tenant Screening. Have neutral tenant screening policies. Apply policies consistently to everyone. For example, background and credit checks should be used for everyone and evaluated on the same basis for all.
• Check State and Local Laws. Many states, counties, and cities have laws that expand upon the FHA. Be aware of those laws and of how they affect your property.
• Staff Training. Train staff thoroughly and frequently about fair housing requirements.  Be sure that training includes training on state and local laws. Use fair housing posters at the site to remind staff and assure prospective tenants that the property is operated in compliance with fair housing laws. 
• Don’t Assume. Do not make assumptions about an individual’s disability or needs. But, if the individual makes those needs known, try to accommodate them if reasonably possible.
• Proactive Updates. Even if a property was built before 1991, consider making basic changes to make it more welcoming to disabled individuals. Inexpensive updates might include handicapped parking spots, wheelchair curb cuts, easy grip door levers, and alarms with both visual and audible alerts.
• Communicate. If you must turn down a prospective tenant, tell the tenant why. For instance, tell a prospective tenant if he/she cannot rent a unit is because local zoning laws limit the number of people who can live in that unit. Don’t deny the rental application without explanation.

As we wish a happy 50th birthday to the FHA, it is a good time for owners and property managers alike to check their fair housing practices.  This is the perfect reminder to be prepared as the FHA continues to evolve and expand.

© 2018 by Elizabeth A. Whitman

DISCLAIMER: The content of this blog is for informational purposes only and does not provide legal advice to any person. No one should take any action regarding the information contained in this blog without first seeking the advice of an attorney. Neither reading this blog nor communication with Whitman Legal Solutions, LLC or Elizabeth A. Whitman creates an attorney-client relationship. No attorney-client relationship will exist with Whitman Legal Solutions, LLC or any attorney affiliated with it unless and until a written contract is signed by all parties and any conditions in such contract are fully satisfied.

[1] MUSIC GEEK NOTE: Pianists and string players tend to practice the most, simply because they can. If a wind player or vocalist were to try to practice four or five hours per day, bruised or blistered lips or damaged vocal cords might result. There are practice mutes made for string and brass instruments. These significantly quiet the sound from the instrument, and many musicians will use them for practicing in, for example, a hotel room. Practice mutes have their place, but they change the responsiveness and sound produced by the instrument, so they are not a full-time practice option.

[2] Although the FHA applies to rental, sale, and financing of housing, in this article, I may refer to only rental or sale.

[3] Either the apartment complex must be limited to age 62 and older or 80% of the rental units must have someone who is age 55 or older residing in them. Further, there are certain requirements regarding verification of resident age.

[4] Service animals include only dogs (and interestingly, miniature horses) which have been trained to perform a specific task, service, or help for a disabled individual. Service animals might include a guide dog for the blind, a dog trained to alert an individual of an impending seizure, or a dog trained to retrieve needed objects for a paraplegic. Service animals are different from comfort animals or emotional support animals, which may include animals other than dogs and miniature horses. Comfort or emotional support animals do not have specific training, as their function may be to provide comfort or emotional support, rather than performing a task or service for a disabled individual.