Americans believe in the fundamental principle of equal opportunity for all citizens. Toward that belief, the United States and each state within it have developed laws designed to provide equal opportunity in housing for everyone. However, the area of law known as “Fair Housing” has grown in scope and depth to a point that most landlords really have no idea what constitutes “discriminatory behavior” anymore, let alone “patterns and practices” of discrimination. Simply stated, it is both very easy to run afoul of the Fair Housing laws and simultaneously very difficult to figure out what specific behaviors or actions constitute “discrimination”. This will not change, as Fair Housing laws will not diminish. In fact, as both the Federal government and California continue to pass and amend these laws, the body of law and the behaviors it is designed to regulate will only continue to grow.
This is part one of a multi-part article series on avoiding Fair Housing complaints by applicants and tenants. The purpose of this article is to provide landlords and managers of residential rental property with a broad overview of relevant Fair Housing law information so they can both review their current practices and procedures for potential violations and incorporate Fair Housing compliant practices into their daily operations.
The topic of Fair Housing is vast and encompasses a body of law too large to be covered in great depth by an article of this length. Instead, this article is designed to provide landlords and management personnel with an overview of the most common Fair Housing questions. Future articles will address additional topics of concern for landlords, such as potential traps during the screening process, handling requests for comfort pets, reasonable accommodations, etc., so stay tuned!
Introduction: What Fair Housing Laws Govern Landlords?
There are five main sources of law concerning Fair Housing. They are: 1) United States 1968 Civil Rights Act; 2) Fair Housing Amendments Act of 1988; 3) California Civil Code §51 (Unruh Civil Rights Act); 4) Americans With Disabilities Act; and, 5) California Fair Employment & Housing Act of 1992 (Government Code §12955). The combination of these laws makes it illegal for landlords and/or their agents “discriminate” against any person in connection with housing based on the individual’s race, color, religion, sex, national origin, familial status, marital status, sexual orientation, age, ancestry, source of income, medical condition, disability, gender, and even genetic information. While that may seem simple enough, recognizing policies, procedures, practices or methods that constitute “discrimination” may not always be so simple.
Who Enforces Fair Housing Laws?
Fair Housing laws are enforced at the federal, state, and local levels by both governmental agencies and private attorneys. On a governmental level, they are enforced primarily on the federal level by the Fair Housing and Equal Opportunity (FEHO) section of HUD. The Department of Justice (DOJ) also has a hand in enforcement, enforcing Fair Housing, ADA, and civil rights laws. In California, the Fair Housing laws are primarily enforced by Department of Fair Employment and Housing (DFEH). Furthermore, there are countless numbers of county, city and local organizations set up throughout the state designed specifically to address allegations of Fair Housing complaints. Those organizations offer a variety of services which include investigations, mediation services, and even classes for violators.
On a private level, an individual can also seek enforcement of Fair Housing laws by filing a private action using a private attorney. Such a case is in addition to the right to file a complaint with the governmental agencies listed above.
What Properties Are Covered by Fair Housing Laws?
All housing that is for sale or rent in California is covered by Fair Housing laws, including apartments, single family residences, time-shares, mobile home parks, marinas, etc. While there are a few minor exceptions, (such as a “lodger” or “boarder” in a single family house, or senior housing facilities which require residents to be 55 years old or older) they are the exception to the rule. Virtually all residential rent property is covered by Fair Housing laws to one degree or another.
Who Can Be Sued Under Fair Housing Laws?
It is important for owners to understand that any personnel they hire, including resident managers, on-site employees, and even maintenance are deemed to speak and act on behalf of the owner and/or management. Discriminatory words or behavior by personnel will be imputed to the landlord and/or the management company. For example, should a maintenance personnel employee decide to ignore the repeated requests for repairs in a tenants unit due to the tenant’s perceived membership in a protected category, the landlord and, possibly management, could be held directly liable in a Fair Housing suit.
In addition to the landlord being liable for the discriminatory actions of his or her agents and/or employees, all personnel can be individually liable for Fair Housing violations. That includes onsite managers, supervisors, administrative and maintenance personal. This is true whether the individual engaging in the discriminatory action acted on their own or at the direction of their employer. On that note, it is illegal for an employer to instruct an employee to discriminate, or to threaten the employee with termination for failure to act in a discriminatory manner as directed.
Therefore, it is critical to the successful operation of your business that landlords, management, and employees are all properly trained and educated about Fair Housing laws. One effective approach to doing this is to establish clear, written Fair Housing policies that each employee reads and signs, indicating they have read it, understand it, agree to abide by it, and have received a copy of it.
What Activities Are Considered Illegal Under Fair Housing Laws?
The following is a list of protected classes: race, color, religion, sex, sexual orientation, age, national origin, familial status, disability, marital status, ancestry, source of income, medical condition, gender, and even genetic information. The following housing practices are considered illegal when they are utilized based on an individual’s status as a member of one of the above protected classes:
- denying to rent or sell housing to an individual;
- treating applicants for housing differently
- treating existing tenants differently in connection with the terms, conditions, rules, or maintenance of their units;
- advertising a discriminatory preference or limitation;
- providing false or misleading information about the availability of units;
- harassing, threatening, or otherwise intimidating people in an attempt to prevent them from enjoying their rights under the Fair Housing laws;
- “blockbusting”, which is the act of encouraging owners to sell or rent their properties by telling them that members of a protected class are moving into the neighborhood;
- “steering”, which is encouraging applicants of a specific protected class to another building or a specific section of a building, including specific units, corners, areas, etc.
What Are The Penalties And Costs For Violations Of Fair Housing Laws?
Violations of Fair Housing laws can bring awards which include compensatory damages, injunctive, and equitable relief. The monetary penalties for Fair Housing violations are steep. For example, HUD can award civil penalties of roughly $16,000 per occurrence for the first offense, $37,500 for the second, and $65,000 for each additional violation. DOJ has the ability to assess fines as well, including punitive damages for the violation itself, as well as monetary awards for emotional distress, embarrassment, and humiliation. Add to those awards the costs of hiring an attorney to defend yourself against the charges, and the cost of a Fair Housing violation can become staggering. In fact, cases in California have seen awards that exceed $1 million dollars!
Landlords should keep in mind that most insurance packages do not cover allegations of Fair Housing violations. While such coverage is available under the heading of “employment practices liability”, it comes at an additional cost. Pricing is based on number of employees, number of claims, and, location. California’s litigious atmosphere makes it a tough market for pricing this type of coverage. Furthermore, even if the landlord is willing to incur the costs, the insurance will not cover situations in which the violation is found to be willful or intentional.
In light of these facts, landlords are best served by staying abreast of the changes of laws in this area and constantly revisiting their policies and practices with an eye toward making the necessary changes to avoid allegations of Fair Housing complaints in the first place.
Stay tuned for part two continued next month – Pre-tenancy Considerations and How to Avoid Lawsuits.
The foregoing information is presented and intended to address the topic(s) covered above in a general nature. Specific situations and their facts should be presented to your attorney for review. The Brennan Law Firm is one of the fastest growing and most experienced landlord-tenant law firms in Southern California, representing landlords exclusively in evictions, negotiations, and judgment enforcement. Mr. Brennan may be reached at (626)294-0500, or toll free at (855)285-2230. Visit our website at www.MBrennanLaw.com for more information.
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