OTHER CONSIDERATIONS IN THE LL-T RELATIONSHIP

Limits on Discretion When Selecting Tenants; Avoiding Fair Housing Complaints

The Questions

What was Congress’ rationale for virtually eliminating housing discrimination, knowing who is protected from discrimination under Federal law, listing exceptions to the Federal law and talking about other protections against discrimination available under state law?

Fair Housing

On April 11, 1968, President Lyndon Johnson signed the Civil Rights Act of 1968, which was meant as a follow-up to the Civil Rights Act of 1964.

The 1968 act expanded on previous acts and prohibited discrimination concerning the sale, rental, and financing of housing based on race, religion, national origin, sex, (and as amended) handicap and family status. Title VIII of the Act is also known as the Fair Housing Act (of 1968).

Office of Fair Housing and Equal Opportunity

Mission: To create equal housing opportunities for all

persons living in America by administering laws that prohibit discrimination in housing on the basis of race, color, religion, sex, national origin, disability, and familial status.

What Does FHEO Do?

Administers federal laws and establishes national policies that ensure all Americans have equal access to the housing of their choice.

Implements and enforces the Fair Housing Act and other civil rights laws, including Title VI of the Civil Rights Act of 1964, Section 109 of the Housing and Community Development Act of 1974, Section 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act of 1990, the Age Discrimination Act of 1975, Title IX of the Education Amendments Act of 1972, and the Architectural Barriers Act of 1968.

Fair Housing Act

Title VIII of the Civil Rights Act of 1968 (Fair Housing Act) prohibits discrimination in the sale, rental, and financing of dwellings, and in other housing-related transactions, based on race, color, national origin, religion, sex, familial status (including children under the age of 18 living with parents or legal custodians, pregnant women, and people securing custody of children under the age of 18), and handicap (disability).

What Housing Is Covered?

The Fair Housing Act covers most housing. In some circumstances, the Act exempts owner-

occupied buildings with no more than four units, single-family housing sold or rented without the use of a broker, and housing operated by organizations and private clubs that limit occupancy to members. E.g.: Owner of small rental building, who also resides in

the same building, may not have to follow the Act.

What Is Prohibited?

Sale /Rental of Housing: No one may take any of the following actions based on race, color, national origin, religion, sex, familial status or handicap:

(1) Refuse to rent or sell housing; (2) Refuse to negotiate for housing; (3) Make housing unavailable; (4) Deny a dwelling; (5) Set different terms, conditions or privileges for sale or rental of a dwelling; (6) Provide different housing services or facilities; (7) Falsely deny that housing is available for inspection, sale, or rental; (8) For profit, persuade owners to sell or rent (blockbusting); or (9) Deny anyone access to or membership in a facility or service (such as a multiple listing service) related to the sale or rental of housing.

Prohibited

Additionally it is illegal for anyone to: Threaten, coerce, intimidate or interfere with anyone

exercising a fair housing right or assisting others who exercise that right.

Advertise or make any statement that indicates a limitation or preference based on race, color, national origin, religion, sex, familial status, or handicap. This prohibition against discriminatory advertising applies to single-family and owner-occupied housing that is otherwise exempt from the Fair Housing Act.

What Does "Familial Status" Mean?

Familial status means the makeup of the family unit. The Fair Housing Act prohibits discrimination on the basis of the type of family. Familial status may include children under the age of eighteen who are living with their parents or legal custodians, pregnant women, and people who are seeking to secure custody of children under eighteen. E.g.: A landlord cannot refuse to rent an apartment to if a tenant tells them that she is pregnant and will soon be having a child unless s(he) has another, legitimate reason for not wanting to rent the property.

Tenants With Disability

Refuse to let you make reasonable modifications to your dwelling or common use areas, at your expense, if necessary for the disabled person to use the housing. (Where reasonable, the landlord may permit changes only if you agree to restore the property to its original condition when you move.)

Refuse to make reasonable accommodations in rules, policies, practices or services if necessary for the disabled person to use the housing.

However, housing need not be made available to a person who is a direct threat to the health or safety of others or who currently uses illegal drugs.

What is a Disability?

If you or someone associated with you has a physical or mental disability (hearing, mobility and visual impairments, chronic alcoholism, chronic mental illness, AIDS, AIDS Related Complex and mental retardation) that substantially limits one or more major life activities and/or has a record of such a disability or are regarded as having such a disability. E.g.: Building with a "no pets" policy must allow a visually

impaired tenant to keep a guide dog. Apartment complex offers tenants ample, unassigned parking must honor request from mobility-impaired tenant for reserved space near apartment if necessary to assure access to apt.

Reasonable Accommodation

People with disabilities may have special needs due to their disabilities; simply treating them the same as others may not ensure that they have an equal opportunity to use and enjoy a dwelling. A "reasonable accommodation" is a change, adaptation or modification to a policy, program or service, which will allow a person with a disability to use and enjoy a dwelling, including public and common use spaces.

Disability access laws require that in making an accommodation, a housing provider will bear costs that do not amount to an undue financial and administrative burden. A housing provider may be required to spend money to provide legally required reasonable accommodations, most of which are no or low cost.

What Is A Reasonable Modification ?

A "reasonable modification" is a physical change made to a tenant’s living space which is necessary to afford the disabled tenant full enjoyment of their dwelling.

Modifications are usually made at the tenant’s expense, except in the case of federally funded housing.

Quality of Work

A housing provider may condition permission for a modification on the renter providing a reasonable description of the proposed modifications as well as reasonable assurances that the work will be

Restoration

Where reasonable, a rental housing provider may condition permission for modification on the renter agreeing to restore the interior of premises to the condition that existed before modification, excepting reasonable wear and tear. When tenant moves out, housing provider should not require restoration of interior to its previous condition when modifications that were made would not interfere with the next tenant’s use and enjoyment of the premises. The housing provider may not require increased security deposit; however, provider may negotiate an agreement that tenant pay into an interest-bearing escrow account, over a reasonable period, an amount of money not to exceed cost of restorations.

When Is Accommodation or Modification Reasonable?

Must be for a person who has a disability. Housing providers may request a letter confirming that the tenant actually has a disability.

Must be necessary, i.e. an identifiable relationship between the individual's disability and the requested accommodation or modification.

Must not impose an undue financial and administrative burden on the housing provider. “Undue burden” usually takes into consideration the housing provider’s entire resources.

Must not require the housing provider to make a fundamental alteration in the nature of the provider's operations.

Housing Opportunities for Families

Unless building or community qualifies as housing for older persons, it may not discriminate based on familial status, i.e. it may not discriminate against families in which one or more children under 18 live with:

A parent Person who has legal custody of child(ren) or Designee of parent or legal custodian, with the parent or

custodian's written permission. Familial status protection also applies to pregnant women

and anyone securing legal custody of a child under 18.

Exemption

Older person housing is exempt from prohibition against familial status discrimination if:

HUD Secretary has determined that it is specifically designed for and occupied by elderly persons under a Federal, State or local government program or

It is occupied solely by persons who are 62 or older or It houses at least one person who is 55 or older in at least

80 percent of the occupied units, and adheres to a policy that demonstrates an intent to house persons who are 55 or older.

Title VI of the Civil Rights Act of 1964

Title VI prohibits discrimination on the basis of race, color, or national origin in programs and activities receiving federal financial assistance.

Section 504 of the Rehabilitation Act of 1973

Section 504 prohibits discrimination based on disability in any program or activity receiving federal financial assistance.

No qualified individual with a disability should, only by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

What discriminatory practices does Section 504 prohibit?

Housing Providers may not: (1) deny/refuse to sell/rent to a person with a disability, and may not impose application or qualification criteria, rental fees or sales prices, and rental or sales terms or conditions that are different than those required of or provided to persons who are not disabled; (2) require persons with disabilities to live only on certain floors, or live in one section of the housing; (3) refuse to make repairs, limit or deny someone with a disability access to recreational and other public and common use facilities, parking privileges, cleaning or janitorial services, or any services which are made available to other residents; (4) deny people with disabilities the opportunity to serve on planning or advisory boards because of their disabilities.

Does Section 504 require housing provider to accept every person with a disability who applies for housing?

Section 504 requires that a person with a disability be evaluated using the same objective criteria that are applied to persons without disabilities. Applicants with or without a disability, may be rejected if they have a record of adversely affecting others such as disturbing neighbors, destroying property, or failing to pay their rent on time. However, the housing provider must make sound and reasonable judgments based on objective evidence (current conduct or a history of overt acts). Subjective fears, unsubstantiated rumors, speculation and generalized suspicion do not constitute objective information that an applicant cannot meet the terms of tenancy.

Section 109, Title I, Housing and Community Development Act of 1974

Section 109 prohibits discrimination on the basis of race, color, national origin, sex or religion in programs and activities receiving financial assistance from HUD's Community Development and Block Grant Program.

Title II of the Americans with Disabilities Act of 1990  

Title II prohibits discrimination based on disability in programs, services, and activities provided or made available by public entities.

HUD enforces Title II when it relates to state and local public housing, housing assistance and housing referrals.

Additionally

Architectural Barriers Act of 1968. Requires buildings and facilities designed, constructed, altered, or leased with certain federal funds after September 1969 be accessible to/useable by handicapped persons.

Age Discrimination Act of 1975 prohibits discrimination on the basis of age in programs or activities receiving federal financial assistance.

Title IX of the Education Amendments Act of 1972 prohibits discrimination on the basis of sex in education programs or activities that receive federal financial assistance.

Tenants Receiving Help

1. HUD investigation 2. Where a serious discriminatory practice is

occurring and tenant needs immediate help, HUD may ask the U.S. Attorney General to seek immediate temporary relief

3. Mediation / Administrative Hearing If Fair Housing Act was violated, tenant may be

compensated for actual damages, including pain and suffering or humiliation. ALJ may be able to force other party to make the housing available /pay a civil penalty to federal government for violating the Act.

TENANT ON TENANT HARASSMENT Under Fair Housing laws, “Discriminatory

Harassment or Intimidation" includes abusive, foul or threatening language or behavior directed at a tenant, staff person or guest because of their protected class.

Protected classes include a person’s race, color, national origin, religion, sex, sexual orientation, disability, familial and status.

Service Animals: Reasonable Accommodations

Reasonable accommodations are changes in rules, policies, practices, or services that are necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling. Allowing residents who have disabilities to live with their service animals is a reasonable accommodation. Under fair housing laws, person is considered disabled if (s)he

has a sensory, mental or physical condition that substantially limits one or more major life activities (such as walking, seeing, hearing, working, etc.). Includes temporary or permanent disabilities, common or uncommon, mitigated or unmitigated.

What is a Service Animal?

Service animals are not pets. Service animals assist people with d isabilities to deal

with the effects of their disabilities. The most common service animals are dogs, but they may be other species (cats, monkeys, birds, etc.). Service animals may be any breed, size or weight. Some, but not all, service animals wear special collars or harnesses. Service animals are not required to have special licenses, to be certified, or to have any visible identification.

What Do Service Animals Do?

Guide – serve as travel aide for legally blind person. Hearing or signal – alerts a person with hearing loss or

deafness when a sound occurs, e.g. alarm/door knock. Mobility assistance – Animal carry, fetch, open doors, ring

doorbells, activate elevator buttons, pull a wheelchair, steady a person while walking, etc.

Seizure response – warns of impending seizure, provides aid during a seizure, e.g. going for help/standing guard.

Therapeutic assistance – aids people with cognitive or psychological disabilities, allowing them to live more independently. Animals may bring emergency phone during a crisis, call 911 or suicide hotline, turn on the lights in a dark room, bring medications, etc.

Protections Limiting Discrimination

Identify additional protections that are available under your jurisdiction’s laws to limit discriminatory practices in the landlord-tenant arena. 

What agencies in your jurisdiction are responsible for investigating violations of your jurisdiction’s law(s)?