I get this question from time to time: Under the Fair Housing Act (FHA), does a tester have standing to bring a claim? “Standing” is a term which denotes that a plaintiff has the legal right to bring a complaint. If a party lacks standing, the case can be dismissed without ever getting to the merits of the claims. 

Fair housing testers regularly pose as applicants seeking an apartment. For example, a local group might send out an African American couple to a community seeking a certain apartment and then it will send out a Caucasian couple to see if less favorable terms and/or conditions have been offered by management. Additionally, the group might contend that housing was not offered to one tester or even that one tester was not offered the same pleasantries and/or amenities.


There are any number of legitimate defenses to these claims. The most common, of course, is that the specific apartment presented to the first tester was subsequently rented before the second tester arrived. For this defense to be used, however, accurate records must be kept to ensure management can prove up the date and time the apartment in question was leased. Also, while management tries to ensure everyone receives the same welcome, different leasing office employees may have slightly different styles or presentations. Good training is essential to combat this allegation.


Some owners and management companies believe they are being unfairly treated in tester cases because the complainant had no intent to actually rent an apartment and, in fact, lied to the management office staff.  


While I understand and am sympathetic to the position that management is facing testers who have no desire or intent to rent an apartment, applicable Supreme Court precedent holds that testers have standing to bring claims under the FHA. Just another reason to ensure that all leasing office staff members treat each and every applicant the same.


Just a Thought.