This article was posted on Tuesday, Feb 28, 2012

Here at the Fair Housing Council, (FHCO) we make ourselves available to those who feel their fair housing rights have been violated, as well as to those with fair housing questions, including housing providers!
For those of us who teach fair housing or write articles on this important industry topic, the neat thing is that there is never a shortage of topics to discuss or information that we can share. Some of the fair housing teachers/writers joke amongst ourselves that we will never find ourselves out of a job.  But you might find yourself out of a job (and relieved of some of your money and assets, too) if you do not keep up with the emerging trends in fair housing today.  Let’s explore some of these:

As of January 2008, the American Nonsmokers Rights Foundation reported that 2,671 municipalities in the United States had restricted to some extent where smoking is allowed.  An example is Calabasas City, whereby January 2012, 80% of all apartments must be designated as non-smoking.  “Unfair – discriminatory – unequal treatment” may be the chant of smokers (in their often raspy voices) and they are right!  It might be unfair; it is certainly discriminatory and unequal treatment.  But it is NOT A VIOLATION of civil rights law or fair housing because smokers have no standing in any protected class.  So smoking restrictions (forbidding smoking, segregating smokers) do not present fair housing issues, and even if there is no governing ordinance, the trend is likely to be that smoking will become a cause for eviction under many leases in the future.  Quite simply, there is no “right to smoke.”

Victims of Domestic Abuse
Many landlords will evict residents if there is a “scene,” if there is damage to the apartment or if the police are called out the apartment on one or multiple occasions.  In fact, these scenarios will often rise to the level of a breach of the lease.  But, some case law and the Violence Against Women Act (VAWA) may mean that an eviction is not acceptable landlord action.  Men can be and are abused by their female domestic partners (wives and significant others), but the statistical reality is that most victims of domestic abuse are women.   Since gender (sex) is a federally protected class, this has become a topic with fair housing overtones.  So what is going on in this area?
A landlord in Denver was sued for not allowing a woman who was raped, beaten and stabbed by her ex-boyfriend in her apartment to relocate to a different community.  While the landlord believes there was no legal basis for the alleged discrimination claim, the landlord did agree to settle for $60,000.
Illinois enacted the Safe Homes Act effective January 1, 2007.  This allows victims of sexual violence to change the locks on their apartments on an emergency basis and to break their leases if they believe it necessary for their personal safety.
Owners who participate in the Section 8 program are prohibited under the VAWA from evicting domestic violence victims because of such criminal activity committed by a member of the victim’s household.
Ponder the words of Kary Moss, executive director of the American Civil Liberties Union in Michigan (which filed suit against a Detroit landlord for evicting a woman whose ex-boyfriend trashed her apartment while she was not home because this was a failure to “properly supervise a guest”):  “All too often, women are victimized twice – first by the abuser and again by a landlord.”  And after pondering those words, recognize that another industry trend is likely to be further expansion of these types of protection.

Criminal Background Issues
Martha Stewart would not be allowed to rent at many apartment communities today.  She could likely afford the rent, she is not a risk to others (annoying, perhaps, but not a risk) and arguably her apartment and the common elements might look lovelier if she could move in.  And it does not seem to matter that she has, under our justice system, paid her debt to society through her imprisonment and should not be able to resume her life.
Now, Ms. Stewart can probably buy an apartment community and then change the rules to suit her, but instead, perhaps Ms. Stewart should consider renting in Madison, WI or the cities of Urbana and Champagne, IL where some protections are in place for the protection of felons.  Charges may be filed for unlawful discrimination in housing due to a prior arrest record or prior conviction record under certain circumstances.  And the Department of Housing and Urban Development (HUD) has established some rules at the federal level as to HUD-funded housing.  While some crimes can result in a lifetime ban (producing methamphetamines on the premises; being a registered sex offenders as examples), other offenses (such as a drug-related eviction) result in a three year ban from such housing.  And that ban can be lifted early if someone completes certified drug or alcohol counseling.  HUD and three modest-sized cities perhaps do not a trend make, but remember that when an entire group of people is denied housing, our government often does step in to protect them.

Transgender Persons
A number of states now have legislation that prohibits gender-identity and transgender discrimination in housing.  These include California, Hawaii, Illinois, Maine, Minnesota, New Mexico, New Jersey, Oregon and Rhode Island, as well as the District of Columbia and some cities such as Lexington, Kentucky and Boulder, Colorado.  These laws represent a major civil rights victory for the transgender community, which has often been denied housing or harassed when housing was provided.  To paraphrase Mara Keisling, executive director of the National Center for Transgender Equality, “These laws make it possible for transgender people to show that the characteristics that help us transition, focus, courage and determination are great assets … give us a chance.

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Pit Bulls and Rottweilers
Even those landlords who do not ban pets completely at their communities will often ban certain breeds of dogs as part of their pet policies.  It is not unusual to find pit bulls, Rottweilers, Chows and other “aggressive breeds” (including mixed breeds related to these) on the restricted list.  Weight limits for pets will also, by their very definition, often result in these aggressive breeds being excluded, since most are medium to large in size.  (We have not yet seen the “Mini-Pitty” toy pit bull.)
Because some insurance policies (homeowner, renter and landlord policies) may exclude these dogs from liability coverage, landlords have thought themselves to be on solid ground when not accepting breeds perceived as aggressive as service animals for those people with disabilities because it would be unreasonable as an accommodation for the landlord to take on an uninsured liability.
This is certainly a “stay-tuned” area of fair housing.  If you, as a housing provider, are having difficulty with an insurance company that will not accommodate your applicant or resident with a service animal, please let us know so that we can assist.

Cultural Clashes
Somalis often use floor to ceiling drapes, which can affect the baseboard heating systems and lead to rotting windowsills.  The Hmong cook in a style that generates a lot of steam, which can result in mold in the kitchens.   The potential existed for these scenarios to have resulted in conflict and a possible fair housing dispute.  But with some open-minded foresight and networking, landlords facing these particular issues where able to resolve them.  (Teaching about stove vents and compromising on drapes that stop short just above the baseboards were solutions.)  When a landlord rents to people of various diversities (ethnic, religious and the like), fair housing law imposes no duty on the landlord to learn about those people or to accommodate their customs or beliefs.  But good business and risk management would suggest that the wise landlord will learn enough to make the rental experience manageable for all.
So, if a particular population is becoming part of a landlord’s demographic, then a self-initiated dialogue with a chamber of commerce, association, organization, religious group or the like just might help dispel myths, resolve misunderstandings and create residents who clearly understand what it takes to be successful.  Successful residents make the life of a landlord so much more enjoyable.

Limited English Proficiency
This issue is a “stay-tuned”, up in the air issue.   As of this writing, the National Multi Housing Council (NMHC) and the National Apartment Association (NAA) have sued HUD over HUD’s LEP guidelines based on a number of legal and practical reasons.  The wheels of justice turn ever-so-slowly, so there is no clarity on what program-based housing is required to do to accommodate those who have a language other than English or only a limited ability to communicate.
UPDATE: In March of 2008, the U.S. District Court for the District of Columbia dismissed the NAA/ NMHC lawsuit.  In its ruling, the court granted HUD’s request to dismiss the case saying that NAA and NMHC did not have standing to bring the suit and that the issue is not ripe for review yet because HUD has not taken any action to enforce the policy, since there is no plaintiff who has suffered damages trying to comply or for failure to comply.  The LEP Guidance, which went into effect on March 7, 2007, requires federally funded apartment owners to translate a broad array of documents in multiple languages to provide verbal translations for those who do not read in their native language.  The court’s ruling as well as a memo analyzing the decision and its impact is available at

Source of Income
In past years, “source of income” has become an oft seen state or local protected class.  In other words, as long as a prospect brings the right amount of money to the table (generally meaning enough money for market rate communities, or not too much money for affordable housing communities), all legal and verifiable income (wages, investment earnings, alimony, child support, welfare, etc) should be counted.  This has meant that in some areas, landlords must accept a Section 8 voucher (and the resident that holds it), if the resident otherwise qualifies for the housing.  “Sorry, we don’t take Section 8” is no longer a legal statement for some landlords.  NOTE:  Legal sources of income (including social security, disability income, unemployment, etc) are protected under Oregon state law.  Section 8 vouchers, however were specifically exempted from that protection.  Some local communities in Oregon are considering protecting Section 8 vouchers within their jurisdictions.

Same Old, Same Old
There is plenty of the “same old – same old” in our industry.  Certain landlords continue to discriminate based on race, color, national origin or because people have children or disabilities.  The various fair housing protections have become law over time because landlords didn’t want “them” – whoever “them” might be.  Some landlords continue to restrict housing and its amenities to the old “them” and now the new “them.”  And when landlords do that, we will continue to have new protections put in place through new state, local and perhaps even federal fair housing laws.  That is a trend that should be unnecessary!

This article was brought to you by the Fair Housing Council.  The information in this article is not to be considered as legal advice and the author strongly suggests that you consult with your local Fair Housing counsel as to any fair housing questions or problems you may have.

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