Fair Housing

Treat Every Applicant Fairly and Equally … and Document That You Did!

Rent to the First Fully Qualified Applicant

It is extremely important for all landlords to become very familiar with Fair Housing Laws. Discrimination lawsuits can be avoided by understanding the law and using a detailed and well-documented tenant selection system that applies the same criteria to each applicant. Use a phone log to date and document names and conversations of those calling about your unit. Treat every applicant fairly and equally but you can still use your best business sense to select which applicant(s) you wish to start screening based on which ones best meet your criteria.

The mission of the Civil Rights Acts and Federal Fair Housing Acts is to prohibit discrimination. On the Washington State level, the Human Rights Commission enforces the law (RCW 49.60) that protects all Washington residents from certain unfair and discriminatory practices involving the sale or lease of residential property, and prohibits discrimination in advertising, lending, real-estate brokerage and other services in connection with residential real estate transactions, including rentals, its rules and policies. The Department of Housing and Urban Development investigates complaints from applicants and tenants. A large percentage of the complaints were found to be cause complaints, where information gathered in investigation revealed evidence of discrimination. An alleged harmful act or event can be reported to HUD within one year of the incident. Washington State Human Rights Commission uses the Northwest Housing Alliance to "test" landlords for compliance. "Testing" involves numerous calls to the same landlord or property about a rental listing to see if all of the prospective tenants are treated equally.

What is Prohibited by the Federal Fair Housing Act?

You are not allowed to take the following actions based on someone's race, color, religion, sex, national origin, family status, disability, sexual orientation, or veteran/military status:

  • Refuse someone as a tenant or buyer
  • Set different terms and conditions for sales and leases
  • Provide different housing services or facilities
  • Lie that the housing is unavailable for rent or sale
  • Advertise (or state) any preference or limitation based on race, color, religion, sex nationality, family status, military service, marital status, handicap, or any other protected classes (see below).
  • Using discriminatory criteria when choosing tenants such as "No Muslims” or “Lots of Hispanics”
  • Discrimination in the terms/conditions/rules/policies of a rental because of a tenant's protected class. (ex. Sending a rule violation to an African-American who breaks a rule but not a Caucasian who breaks the same rule). ALWAYS APPLY RULES CONSISTENTLY AND DOCUMENT.
  • Refusing to rent to an individual or group who would have otherwise qualified (not renting to a single woman because she has 3 children, or because a person who would otherwise qualify is Jewish)
  • Changing the terms of a lease or agreement for different tenants who are otherwise equal
  • Only informing prospective tenants about some of the available units, not all
  • Asking an individual if he has a disability, or steering a person in a wheelchair to first floor only units, or suggesting to a family that the unit with the balcony is not safe.
  • Representing that the property is not available for inspection, rent, etc. when it is in fact available
  • Channeling prospective renters toward or away from specific neighborhoods, units, or homes based on them being part of a protected class, in order to maintain or change the character of those neighborhoods, or apartment buildings. Putting seniors in one area and young adults in another area.
  • Refusing to receive an application, or giving an application to some and not to others
  • Sorting applications, giving preference to certain applicants who would be equal when compared
  • Steering families with children to a particular area of a complex or only allowing one person per bedroom. (Refer to the Fair Housing Act Occupancy Guidelines)
  • Pointing out unit disadvantages to some, but not to others
  • Applying different standards of income or deposits based on protected class (increasing damage deposit for family with teenager, or person with wheelchair). You can still increase damage for dogs (except for Assistance Animals prescribed for disabilities) or ask for first and last if credit is borderline.
  • Enforcing an apparently neutral rule that has disproportionately adverse effect on a protected class. For example, a rule of zero-tolerance for violence, which on its face sounds like a good policy, could have an unintended, disproportionately harsher impact on women who are statistically more likely to be the victims of domestic violence.See the four types of domestic abuse on p. 7.
  • Failing to provide reasonable accommodation to a person with a disability or refusing to allow the person with a disability to make a reasonable modification.
  • Asking questions that have to do with a possible disability. Do not ask if they have a disability, are on medication, why they are getting Social Security, if you can see their medical records, if they are capable of living independently, or if they have ever been in drug or alcohol rehab.
  • Keeping the damage deposit of a soldier for a broken lease because he/she was "called to duty."

The act does not protect those who are a direct threat to the health and/or safety of others, who are breaking rules, being a clear nuisance to others, are repeatedly late with rent, refuse to pay rent, damage your rental property, break public laws or who are currently using controlled substances.

The key is to address lease violations consistently and equally without regard to the protected class of tenants.

Be Selective but Don’t Discriminate

Be as selective as you possibly can in your choice of tenants, but be very, very careful not to discriminate. What is discrimination as it pertains to the fair housing laws? Treating members of protected classes differently from the way you treat others who are not members of those protected classes.

There are fair housing laws on the federal, state, and some county and city levels which protect certain classes and categories of people. These laws prohibit you from rejecting a prospective tenant or treating them differently once they move in solely on the basis of their protected class status. The following is a list of protected classes and enforcement agencies; also see page 9:

  • Race
  • Color
  • National Origin
  • Religion/Creed
  • Sexual Orientation
  • Disability
  • Parental/Family Status
  • Marital Status
  • Veteran/Military status

The following larger counties and cities in Washington have their own fair housing laws in addition to the Federal Fair Housing Law and some include additional protected classes such as Ancestry, Sexual Orientation, Use of Section 8 Certificate/Housing Subsidy, Political Ideology, and Gender Identity:

  • Seattle Office for Civil Rights
  • King County Office of Civil Rights
  • Tacoma Human Rights and Human Services Department
  • Treating people differently can be illegal discrimination.
  • Someone calls about your rental ad and you take to time to expand on all the details of the unit, and in fact encourage and motivate the caller to rent the unit. Later, with another caller you notice the caller’s accent and your conversation is short and abrupt. If you treated the two callers differently based on their race, parental status, or protected class…you have discriminated.
  • To protect against this plan to treat all callers/applicants the same, maybe have a written script that you or other persons can follow when talking about the rental. Also, when talking avoid using religious or ethnic references such as close to the Catholic Church, or just past the little Greek Deli.
  • Some landlords may think they are being helpful if they show families with children only rental units on the lower floors or close to other units with children. That’s called Steering”, which is an attempt to guide an applicant where you think they should live based on race, color, religion, national origin, sex, age, familial status, disability, handicap, or any other protected class. Steering is illegal and a violation of the Fair Housing Laws. Be very careful not to make suggestions or comments that could be misinterpreted as steering.
  • There are “testers” (funded by HUD and trained by fair housing organizations, calling on rental ads to check that your rental practices are equitable. Treating people equally goes beyond just the rental call. It continues through all interactions with the tenant. It must continue even in the way you respond to request for repairs.
  • Treating people equally must be a way of doing business, a basic premise for you in your success as a landlord.
  • As the owner of rental property, you are responsible and financially liable for an and all illegal discrimination committed by your employees or vendors.

What Happens When a Tenant or Buyer Files a Complaint?

Any tenant or buyer (complainant) who feels that they were discriminated against can file a complaint against the landlord or seller (respondent). This is what happens:

  1. The tenant or buyer files a complaint with HUD.HUD will investigate and decide if housing discrimination had indeed taken place. If yes, HUD will accept the complaint. Otherwise, HUD will close the case.
  2. If HUD accepts the complaint, a formal complaint form will be mailed to the complainant. This form has to be signed and returned to HUD. HUD will also send the respondent a written notice stating that a fair housing complaint has been filed against him or her. Upon receiving this notice, the respondent will have 10 days to respond to the complaint.
  3. An investigation will be launched by HUD - Actions taken may include interviewing all parties involved, checking relevant paperwork and conducting site visits. HUD will also try to get both parties to solve their dispute peacefully and sign a conciliation agreement that will close the case.
  4. If the HUD investigation finds the respondent has violated the Federal Fair Housing Act, it will charge him or her and a HUD judge will be appointed hear the case. The HUD judge can fine a first time offender up to $11,000 per violation and award the complainant damages plus attorney’s fees.

Either party can also choose to have the case heard in a federal court by the Department of Justice instead.

An increasing number of successful discrimination complaints and lawsuits have been brought against landlords. Many of the judgments which have been awarded are quite high. Nationwide, several judgments against landlords have exceeded $100,000. In Washington State, a Bellingham couple was found liable for discrimination by HUD for refusing to rent a three bedroom home, because of size, to a family of two adults and three children. The total judgment award (including fines and damages) was $32,000.

Complaints are easy for tenants to initiate. There are a number of tenant advocacy groups that offer free legal services to tenants. On the federal and local levels there are investigators (testers) who pose as prospective tenants who visit properties to document rental procedures. You may be saying to yourself; that is all well and good, but I don't discriminate. Some landlords charged with discrimination are unaware they have discriminated. Following are examples that might be construed as discriminatory:

Examples that Might be Construed as Discriminatory

  • Have you ever placed a rental ad that used the words: "mature persons", "couple preferred", "nostudents", "single person only", or "adult apartments"?
  • Have you ever refused to rent a three bedroom unit to a family of five?
  • Have you ever refused to rent to a family based on the fact that children of opposite sexes wouldbe sharing a bedroom?
  • Have you ever refused to rent units on upper floors or close to swimming pools to families withchildren?
  • Have you ever refused to rent to a disabled person because they wanted to make alterations (attheir expense) to the property?
  • Have you ever placed limits on the age and/or number of children in a rental unit?
  • Have you ever not given an application to someone who wanted to rent your property?

Occupancy Standards

Landlords need occupancy standards to keep housing from becoming overcrowded and to protect their investment. But in some cases these standards have been used to exclude families with children or to discriminate against protected classes, something the Federal Fair Housing Act forbids.

According to HUD, (The U.S. Dept. of Housing and Urban Development) landlords can set their own "reasonable" occupancy standards. The question of what is a "reasonable" occupancy standard has been a troubling one for landlords for several years. The number of people willing to share a home is often economic but may also be cultural.

HUD announced that it "will not pursue challenges to occupancy standards that are as broad as those provided by the Building Officials and Code Administrators (BOCA) guidelines." According to HUD, compliance with the BOCA code occupancy standard will provide a safe harbor for property owners and managers. That code provides occupancy guidance based on the square footage of a housing unit and various portions of such units rather than on such generalities as bedroom configuration. The BOCA Code provisions outline, "Every dwelling unit must contain a minimum gross floor area not less than 150 square feet for the first occupant and 100 square feet for each additional occupant. Every room occupied for sleeping purposes by one occupant shall contain at least 70 square feet of floor area and every room occupied for sleeping purposes by more than one person shall contain at least 50 square feet of floor area for each occupant." The code, therefore, in certain situations allows for non-traditional sleeping areas such, as living and dining rooms.

In December 1998, HUD released a statement of policy of the factors it will use when evaluating a housing provider's occupancy policies to determine whether discriminatory conduct is occurring against families with children. This is a policy ....not a rule or law. HUD has recommended a guideline of two persons per bedroom as a safe policy for providers. For policies which are more restrictive, HUD will take into account such factors as the size of the bedrooms and dwelling unit, capacity of sewer, septic and other building systems, and any city or state occupancy requirements governing the property to determine if discrimination against families with children is occurring.

Many municipalities have adopted the BOCA Code provisions based on the minimum gross floor area. An occupancy policy which limits the number of people or occupants per unit is more likely to be considered reasonable than one which limits the number of children. In addition, any discriminatory statements or rules against children or families, as well as other steps to discourage families with children from living in the housing, will be reviewed.

People with Pets/Disabilities

The Fair Housing Act requires owners of housing facilities to make reasonable exceptions in their policies and operations to afford people with disabilities reasonable accommodations. For example, a landlord with a "no pets" policy may be required to grant an exception to this rule and allow an individual who is blind to keep a guide dog (service animal) in the residence. Service animals (also known as assistance animals) are not considered to be pets. You cannot charge a pet deposit. Dogs are the most common service animal but it could be other species. Service animals are defined as “any animal that is individually trained to do work or perform tasks for the benefit of a person with a disability”. The Americans with Disabilities Act (ADA) consider animals that are emotional support or companions to be a type of service animal. If you have a request from a tenant for an accommodation of a service animal, federal law requires owners and managers to consider the tenant’s claim and grant the request if it is true and reasonable. One method of determining if the request is reasonable is to get verification from the tenant’s health care provider, doctor, therapist, or social worker. To avoid complaints of favoritism you should have a fair, consistent verification policy/procedure you use on all requests. Ignoring the request may result in a fair housing/ADA complaint. Determining how reasonable a request is can be difficult. One option would be to ask the local fair housing authority. We suggest you get legal advice from an attorney familiar with these types of requests. Maybe the rental owners association in your area can recommend one.

The Fair Housing Act also requires landlords to allow tenants with disabilities to make reasonable access-related modifications to their private living space such as hand rails, ramps, etc., if such changes are required for the tenant to access and use the property, as well as to common use spaces (generally, the landlord is not required to pay for the changes). In return, the landlord doesn't have to pay for the alternations and can require the tenant to restore the dwelling to its original move-in condition at the end of the lease. Other examples include reserved parking spot for the physically handicapped and guide dogs for the visually impaired (in cases where the lease has no pet policy).