Avoiding Housing Discrimination Claims: Three Tips for Landlords

Avoiding housing discrimination claims is a must for any Massachusetts landlord. Such claims come with enormous penalties and exposure, and are frequently litigated in Massachusetts.

Even landlords with the best intentions can have problems with these matters if they are not careful. Here, I’ll discuss three tips to help landlords avoid housing discrimination claims.

Know the Law

While it may sound obvious, knowing the law is the most important tip for avoiding housing discrimination claims. Both state and federal law prohibit housing discrimination. State law, however, typically provides greater protections for tenants, and is the law that landlords should pay particular attention to.

I’m sometimes asked about exceptions to fair housing laws. Some exist, but in my opinion, landlords are best to assume that they are covered by all applicable housing discrimination laws. Doing so keeps one’s potential liability to a minimum.

Emotional support animals, in particular, have become an increasingly large source of these claims. I’ve written and presented on this topic in the past.

Keep Detailed Records For All Applicants and Tenants

As with every landlord-tenant matter, landlords should keep detailed records on all matters concerning applicants and tenants. Housing discrimination claims often come up months (and sometimes years) after the alleged discrimination occurred. Having good records is the key to defending against such charges.

Be Consistent With All Applicants and Tenants

Housing discrimination often arises when an applicant or tenant believes they were treated differently than a similar, other applicant or tenant. To avoid potential discrimination claims, landlords should be consistent in their dealings with such persons.

For example, a landlord should use similar questions when reviewing all potential applicants for tenants. If it is learned that a landlord required certain information from one applicant that was not requested from another, this can be grounds for a potential discrimination claim.

Landlords sometimes believe that housing discrimination requires landlords to rent to those tenants under these protected classification. This is incorrect: housing discrimination simply means that a landlord cannot treat an applicant or tenant differently solely due to their protected classification. If the landlord has a non-discriminatory basis for their conduct, this can be a defense to a charge of discrimination.

Final Thoughts

Housing discrimination claims are a nightmare for landlords. Avoiding such matters is the easiest way of limiting a landlord’s liability from such claims. If you need assistance with such a matter, contact me for a consultation.

Tenants With Criminal Backgrounds

Tenants with criminal backgrounds is a topic that landlords need to be careful about when selecting potential tenants. A guidance from the Department of Housing and Urban Development (“HUD”) suggests that a landlord’s decision to outright deny renting to any potential tenant with a criminal background can constitute housing discrimination.

What is Housing Discrimination?

Housing discrimination is when a landlord refuses to rent to a tenant based upon a protected classification. Housing discrimination comes from both federal and state law. State law, which is broader than the federal housing discrimination laws, prevents discrimination on the basis of:

  • Race
  • Color
  • National Origin
  • Religion
  • Sex
  • Familial Status (i.e. children)
  • Disability
  • Source of Income (e.g. a Section 8 voucher)
  • Sexual Orientation
  • Gender Identity
  • Age
  • Marital Status
  • Veteran or Active Military Status
  • Genetic Information

There are some exemptions to these laws, but they are narrow in scope. The best practice for Massachusetts landlords is to assume that housing discrimination laws apply to all of their rental properties, and proceed with extreme care and caution when selecting tenants.

Potential Tenants With Criminal Backgrounds: What To Do

Tenants with criminal backgrounds are not a protected class from discrimination. However, a HUD guidance advises that a landlord’s blanket refusal to rent to tenants with criminal backgrounds may be discriminatory.

Why? As explained in the guidance:

Across the United States, African Americans and Hispanics are arrested, convicted and incarcerated at rates disproportionate to their share of the general population. Consequently, criminal records-based barriers to housing are likely to have a disproportionate impact on minority home seekers. While having a criminal record is not a protected characteristic under the Fair Housing Act, criminal history-based restrictions on housing opportunities violate the Act if, without justification, their burden falls more often on renters or other housing market participants of one race or national origin over another (i.e., discriminatory effects liability).

Importantly, a landlord can commit racial discrimination even if they had no intention of doing so, if their actions (while neutral in nature) have the result of discriminating against a protected class over others (known as disparate impact).

With this in mind, landlords need to be careful when dealing with tenants with criminal backgrounds. A landlord should never outright refuse to rent to a tenant simply because the tenant has a criminal arrest or conviction. Rather, the landlord needs to make such decisions on a case-by-case basis, and decide if there is a real justification for denying a tenant solely from a criminal past.

As with all matters regarding landlord-tenant law, landlords should keep detailed, written records of all potential tenants, in case an issue ever arises.

Final Thoughts

If you need assistance with a landlord-tenant matter, contact me for a consultation.

Housing Discrimination in Massachusetts: A “Ruff” Lesson On This Important Area of Law

A recent case from Western Massachusetts of a landlord refusing to rent to tenants with service animals is an example of the perils of ignoring state and federal housing discrimination laws, and a reason why landlords need to be extremely careful when advertising rental units.  Discriminating against tenants with service animals will put landlords in the doghouse (pun intended!).

Housing Discrimination 101

Both state and federal law prohibits discrimination in housing.  This includes, but is not limited to: race, national origin, sex, and disability status.  The list of these protected categories is long, and it is best to check on this by reviewing the state and federal government websites on fair housing laws, which do a good job of explaining the basics about housing discrimination.  Simply put, a landlord is not allowed to deny a tenant housing based on one of these protected categories.

In this case, the landlord advertised that it would not accept pets or service animals.  While a restriction on pets is generally okay (and common) for rental units, the latter is a big no-no: a blanket restriction on service animals is discrimination on the basis of disability.

Practical Implications

Although the landlord in this story was likely fine in not allowing tenants with pets, it was not lawful to outright prohibit service animals.  If a tenant with a service animal wished to apply for a rental unit, the landlord would have to consider them for a reasonable accommodation.  If the landlord fails to properly consider this request, this is housing discrimination.

The increased use of service dogs promises that this will be an issue for years to come.  While every situation is different, I would imagine that most landlords will have difficulty making a case that a service dog is not a reasonable accommodation.  Landlords who fail to take this issue seriously set themselves up for severe damages and penalties.

In this case, the penalty against the landlord was likely not as bad as it could have been.  It is not unheard of for housing discrimination cases in Massachusetts to result in steep damages for landlords.

Conclusion 

If you need assistance with a housing discrimination matter, contact me for a consultation.