Oxford Dictionary defines the word discrimination as ..”The unjust or prejudicial treatment of different categories of people or things, especially on the grounds of race, age or sex.”
If you are a prospective tenant in California, your rights are covered by the FHA (Fair Housing Act), a federal law which protects against illegal housing discrimination. Why does the FHA bother using the word “illegal” along with “discrimination”? Isn’t all housing discrimination “illegal”? Apparently not.
According to the FHA, there are “protected classes” of persons which protect them from housing discrimination. These protected classes are: Marriage, race, religion, age, and handicap.
In addition to these “protected classes”, California offers legal protection based on sexual orientation, marital status, familial status (families with kids under 18, women who are pregnant or families in the process of adopting a child) ancestry, and source of income.
Furthermore, the federalADA(Americans with Disabilities Act) requires landlords to provide “reasonable accommodations” to tenants and prospective tenants with “disabilities”, by allowing them to have a “service” or “companion” animal in his/her unit.
This maze of “protected classes” can be confusing and expose a landlord to lawsuits based on “discrimination.” Let’s follow the hypothetical example of Larry the Landlord (LL), who is trying to fill his vacancy. LL places an ad that states the following: “Tenant Wanted: No Men, No pets, No lawyers.” Will this ad expose LL to a lawsuit based on discrimination? Answer: It depends. Let’s break it down:
- No Men – If LL is renting out a room in his single family home, and LL also lives in the home, he has the right to choose if he wants a male or female living with him under the same roof. Let’s call this “good” discrimination, as there is a legitimate reason, such as compatibility or privacy that justifies LL’s desire to share his home with a member of the same sex. The same would apply if LL was a woman, and permitted only women as tenants.
- No Pets – LL clearly stated his “no pets” policy in his ad. Yet a prospective tenant, with good credit, claims that she has a petChihuahuathat serves as a “companion “animal. The tenant then shows LL a note from her doctor to support her medical “condition” .The readers of this magazine (see AOA Magazine for July 2013) know that, nationwide, Landlords have been ordered to pay in excess of $500,000.00 in judgments for being on the losing end of Companion Animal Cases.
How does a landlord make the distinction between a tenant with a legitimate service animal and one that is simply manipulating the law for personal advantage? According to attorney and talk show host Dennis P. Block, “Under the ADA (Americans with Disabilities Act), if you have a legitimate disability, the landlord must make a reasonable accommodation with regard to any disability the tenant may have. Unfortunately, that law has been bastardized by different tenant groups. So anytime a tenant wants his pet permitted in his unit, he goes to a doctor or psychologist, who writes a recommendation that this tenant has a mental problem or anxiety, and it would help the tenant if the pet is allowed in the unit.”
If the Landlord does not accede to the tenant’s ‘disability’, notwithstanding the note from the doctor, Block states that “…the tenant can and will bring forth an ADA lawsuit against the landlord, who may get sued for failure to allow the “service animal” in his building.”
These ADAlawsuits are happening not only in California, but nationwide. Why? “Because it’s free money” continues Mr. Block. “That’s the problem with our society. Every time they pass a law that could legitimately help some people, these same agencies open up a floodgate of litigation and make it much more expensive for landlord’s to own a building. Even if the Landlord prevails the fees will be so high that it won’t be worth contesting the lawsuit.”
So damned if you do and damned if you don’t. Stay tuned for the lawsuit by a tenant with a “companion” cockroach.
- No Lawyers – For the purposes of suing for discrimination, Attorneys are not included in the protected class. Neither are strippers, morticians or acrobats. As most landlord’s and property managers know, lawyers can (but not always) be difficult tenants.
They “know the law” and have a tendency to make unreasonable demands on the landlord for “reasonable” accommodations. Mr. Block has stated many times on his weekly radio show, “Landlord Tenant Radio” (KTYM 1460 am) that a landlord may reject an attorney applicant simply because he is an attorney. This, Mr. Block says, is “good” discrimination.
“Discrimination is synonymous with free choice. It’s what this country was founded upon. So there is such a thing as ‘good’ discrimination.” Block expands on the concept of ‘good’ discrimination by answering the following question posed to him by a caller on a recent broadcast of his weekly “Landlord Tenant Radio show:
Caller: “Mr. Block, I’m a landlord and have a prospective tenant that simply has a bad attitude. May I reject his application on that basis without worrying about being sued for discrimination?”
Block:” If a prospective tenant has a bad attitude, is unkempt, cursing or is visibly unsanitary, it doesn’t matter if they are white, black, blue or green. The landlord may reject this applicant on the basis that he (the applicant) is not the kind of person he wants living in his building. There would be no reason for the landlord not to be able to ‘discriminate’ against this type of person. This is ‘good’ discrimination.” Having said this, the landlord still must tread careful waters in rejecting an applicant for having a bad attitude. For this reason, it’s always a good idea for a landlord to have a witness present while interviewing a prospective tenant.”
Discrimination is a word that means many things to many people. Was the tragic death of Trayvon Martin a result of discrimination? Had Trayvon Martin been a white, unarmed teenager, would the case have been treated with anything more than a 30 second spot on the evening news? In his remarkable “I have a Dream” speech, Dr. Martin Luther King asked us all to judge people not by the color of their skin, but by the content of their character. We should ask ourselves today, individually and collectively, if Dr. King’s dream has been realized.
All prospective tenants should be treated fairly and provided with reasonable accommodations in accordance with the laws of our land. We can only pray that our courts have the insight to understand that not every tenant with a hangnail , a Beagle, or an “axe to grind”, be permitted to re-define the word discrimination at the expense of hard working landlords and for those truly in need.
Zachary Lawrence JD is the owner of Parkside Property Management and Affordable Landlord Consulting. He is also the co-host and producer of “Landlord-Tenant Radio”
(KTYM 1460am Monday’s @1pm) with Attorney Dennis P. Block. For management or consultation services, Zachary Lawrence can be reached at (310) 636- 1200 or [email protected]/