Fair Housing Defense : Fair Housing Lawyer & Attorney : Fox Rothschild Law Firm : Federal Fair Housing Act (FHA), Discrimination Complaints

As we have reviewed many times on this blog, the Fair Housing Act (FHA) protects individuals from housing discrimination based on their race, color, religion, national origin, gender, disability or familial status.  Additionally, some states and localities include additional protected classes in their laws, such as source of income or sexual orientation.  But there is more to the FHA than just those protected classes. 

Advertising is also protected under the FHA. This provision in the statute makes it unlawful to prepare, print, or publish discriminatory statements in any type of media. For example, if a management company were to put the statement “no children allowed” in an advertisement for an apartment community which is published in a newspaper, magazine or even over the internet, that could well be considered discriminatory advertising as it would act to limit the housing choices of families with children.

Cases interpreting the FHA have made clear that anyone who acts on behalf of the landlord can also be held liable for housing discrimination. This includes people such as the owner, management company, property management company employees, maintenance staff members, and real estate agents as well as anyone else who is acting on behalf of the landlord seeking tenants.

Think nobody is paying attention to apartment community advertisements? Think again. Many fair housing testers specifically look for advertisements with potentially questionable content and then they file a case with HUD. And then you have to defend against it.

Yet another reason to follow the law.

Just A Thought.

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As professional apartment community owners and managers, we try hard to get it right. Combating housing discrimination is part of what we do. It would be naïve, however, to think that errors do not occur. We must be vigilant and we must keep good records. Following the Fair Housing Act and its implementing regulations are prerequisites for anyone in our field.

In addition to following the law, there is another reason not to discriminate: there are many community fair housing and testing entities out there looking to catch us making a mistake. These testers call and/or visit our properties to determine if they can claim discrimination. And then they file a complaint with HUD or a state agency. And then I get involved.

One way to test management is to have, for example, an African American call the property seeking an apartment and then have a Caucasian call later in the day seeking the same type of unit. The testers will compare and contrast how they believe each caller was treated. While I have serious questions concerning how leasing office staff members are expected to tell the race or national origin of a person based on a single call (and I have successfully defended against these types of cases), you need to know they are out there. In fact, in one recent study, the testing agency concluded that 54% of the testers “sounding” African American were treated less favorably than the testers “sounding” Caucasian.  That is an extraordinary figure and even if only a portion of the findings are accurate, management needs to know these testers are looking to file cases.

To be sure, I have seen a number of cases in which the reason for the alleged different treatment was simply because the apartment in question was leased during the interim time between the two calls. If someone else puts a deposit down, the apartment simply is no longer available. And what could have been unlawful discrimination was simply benign leasing office business.

It sounds simple but it is always worth repeating: treat all applicants the same. Keep good records.

Just A Thought.

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The owners and management companies of the apartment communities I represent are almost always covered by the Fair Housing Act (FHA).  In practice, the FHA and its implementing regulations are part of the guidebook concerning how we do business.  The FHA does, however, contain a few exceptions -- one of the exemptions is referred to as the "Mrs. Murphy" exception.

"Mrs. Murphy's" Exemption provides that if a dwelling has four or fewer rental units and the owner lives in one of those units, that home is exempt from the FHA.  "Mrs. Murphy" is the hypothetical elderly widow who has converted a portion of her home into a rental apartment to supplement her limited income.

To be sure, the exemption does not apply to rental advertising.  That means Mrs. Murphy cannot run a discriminatory advertisement indicating, for example, that a certain religious group is not welcome to rent her apartment or room.  Also, this exemption does not apply when a real estate agent is representing the property owner as the law presumes agents are professionally trained and aware that housing discrimination is against the law.

Also, HUD takes the position that the Civil Rights Act of 1866 (yes, 1866) makes it illegal to discriminate based on race -- and as such, there is not exemption from the law when dealing with race.

Should the "Mrs. Murphy's" of the world discriminate?  Of course not.  But, the FHA does not apply in this limited circumstance and it can be a defense to a housing discrimination action.

Just A Thought.

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Fair Housing Act (FHA) cases are literally filed across the country.  Every so often, however, a case gets filed right in our own backyard.

Recently, HUD charged two Bucks County, Pennsylvania landlords with violating the FHA for discriminating against families with children when renting residential properties. In one instance, the landlord allegedly went so far as to terminate one tenant’s lease after she adopted a child.

In March 2007, the tenant rented a three-bedroom apartment from the landlords in Doylestown, Pennsylvania. While viewing the apartment, the tenant informed the landlord that she planned to adopt a child, to which the landlord allegedly replied that she never rented her properties to people with children. The landlord also allegedly informed the tenant that she deliberately advertised that her apartments had fewer bedrooms than they actually contained to discourage families from renting them.

In December 2007, the tenant adopted a 9-year old boy. The newly formed family lived in the apartment until approximately April 2009, when the landlord informed the tenant that her lease had been terminated.  As a result of the lease termination, the family was forced to move to a new town, which deprived the child of his school, friends, and family members that he visited regularly.

The tenant approached the Fair Housing Council of Suburban Philadelphia, who suggested that the tenant send an email to the landlord inquiring into the reason for the lease termination. In response, the landlord wrote, in pertinent part: “When you rented the apartment... you were told we cannot have children living in the apartment because the property is zoned commercial and is used commercially by three companies, we have never had children living on the property because of liability.” 

To the contrary, according to HUD, the property in question is zoned for residential use.

If the HUD Administrative Law Judge finds after a hearing that a violation of the FHA has occurred, the court can award damages to the family for its losses and may also order injunctive and other equitable relief. In addition, the landlord may be subject to additional fines and may be ordered to pay the tenant’s attorneys’ fees.

While I always want to learn both sides of any story, these charges are another cautionary tale that if you get into the rental housing marketplace you must know and follow the FHA.  Or you can be subject to unnecessary and unneeded litigation.  And lawyers like us.

Just A Thought.

Article by Christian Moffitt.

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