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For Landlords
| Training opportunities, articles, and fair housing guidance for landlords and property managers. |
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Practical Application of Fair Housing Laws |
TO MAKE SURE THAT YOUR PRACTICES COMPLY WITH THE LAW, YOU MUST CONSULT AN ATTORNEY WHO HAS EXPERTISE IN THIS AREA.
· BE CLEAR
· BE CONSISTENT
· MAKE NO ASSUMPTIONS
· MAKE NO EXCEPTIONS
Clarity is essential. First and foremost, you must determine and express clearly in writing what your policies are.
Consistency means that you apply the same standards –whatever they are—to everyone.
Make no assumptions is another way of saying be consistent. Decisions based on assumptions rather than facts are likely to be poor decisions and are likely to leave you open to charges of discrimination. This is true no matter how many years of experience you have or how good a judge of people you believe you are!
Make no exceptions. It can be tempting to make an exception for someone to whom you react positively. However, what you are willing to do for one person, you must be willing to do for everyone.
REMEMBER----RESPONSIBTLITY FOR COMPLIANCE WITH THE LAW CANNOT BE DELEGATED. If an agent acts in a discriminatory manner, his or her superiors can be held legally accountable. By the same token, simply following instructions is not an excuse for breaking the law.
In addition, it does not matter whether you intend to discriminate or not. If the effect of your actions is to deny someone equal access to housing based on his/her membership in a protected class, you have broken the law.
GUILDLINES FOR ACTION
In many ways, good business practices are indistinguishable from non-discriminatory management. Good business dictates that you have the largest pool of applicants from which to select your tenants (based on clearly defined standards), which you are courteous to all potential applicants, that you are consistent and fair in the application of your policies and that you communicate clearly with people so that misunderstandings and ill will are not created.
ADVERTISING
The goal of non-discriminatory advertising is to make clear that your housing is open without restriction, to all persons, and to make sure that persons of all kinds are aware the housing is available.
The first issue is accessibility. If your rental office is open only sporadically, if you do not return telephone calls, and if no knows that you have anything to rent except by word of moth, eventually someone will wonder why it is never possible to get any information about your rentals. BE OPEN! If you vacancy rate is so low that you do not need to spend money for advertising, at least post notices visible from the street when a unit is available. Return phone calls. Do not isolate yourself.
Choose your advertising media carefully and make sure that you are not excluding certain segments of the population who might be interested.
Choose your geographic area carefully. Make sure that it covers a broad spectrum of people.
Do not use words, phrases or symbols that convey any kind of discriminatory preference of limitation.
Do not use descriptions of a locality or directions that send a signal to particular groups.
If you use human models in you advertising, be sure that your choice of models does not indicate a preference based on one or another of the protected classes. The overall effect of you advertising must be to indicate that your housing is open to all. You should not, for example, advertise one complex with models including children and exclude them from ads for another. Unless one complex falls under the 62+ or 55+ exemption, your advertisement should not steer families with children to one place and away from another.
Use the Equal Hosing Opportunity logo and statement and post the Fair Housing poster in a conspicuous place.
THE APPLICATION PROCESS
Nothing in the law says that you must rent to people who would not be good tenants, no matter who they are. However, it is not your job to discourage people from applying for your housing! This many be the most difficult concept for rental managers who many have been trained to see their job as weeding out inappropriate applicants.
You may not make assumptions about people because of their race, color, religion, national origin, sex, disability, or familial status.
You do not have the right to make someone else’s choice for him/her.
You may not restrict someone’s choice of a place to live within the housing, which you have available, if that restriction is based on membership in a protected class. You many not make these restrictions whether you believe it is for the good of prospective tenant, or because you believe that your other tenants would prefer this arrangement.
Treat everyone with equal courtesy, Remember, however, that courtesy cannot be used to disguise discrimination.
Inform all applicants exactly what your polices and procedures are at the beginning of the process. Obviously, this means that all of your employees, including new hires and temporary substitutes or stand-ins, need to know this information!
BEFORE THE INTIAL CONTACT WITH A PROSPECTIVE TENANT (WHETHER IN PERSON OR ON THE TELEPHONE) YOU WILL NEED TO HAVE DETERMINED YOUR POLICY IN EACH OF THE FOLLOWING AREAS:
At what point will you tell those who inquire what your requirements for tenancy are?
What will you tell prospective applicants about the unit?
If you have something available, will you offer to show it? At what point in the process?
Will you take applications over the telephone?
What will you do if you do have more than one applicant?
Should everyone who inquires in person be asked to fill out a guest card and given brochure if you have one?
At what point will you offer an application form?
Will you allow an application to be taken home to be mailed in or to be returned in person?
Do you charge application fees? If so, how much and for what purpose? Refundable or not? Under what circumstances?
How far in advance will you take an application?
What about waiting lists?
What will you do if you have more than one qualified applicant for a unit?
If you have clearly stated and well thought out criteria (rental history, credit history, employment history and/or good personal references), anyone who passes those tests should be a good tenant. If you try to pass judgment beyond these criteria, these judgments are likely to be subjective and may result in a discriminatory decision. The best way to handle this decision is to select tenants by date of application. The first fully qualified applicant should be offered the unit.
TENANT SELECTION CRITERIA
You are allowed to create your own selection criteria and screen out those who do not meet your standards; those criteria should be objective and based on verifiable fact, not on opinion or judgment. They must not be based on someone’s memebership in a protected class, nor may they have the effect of excluding the members of a particular protected class.
Income-amount and source—You may set your own standards. Whatever they are, they should be written down and you should not make exceptions.
Source of income is more complicated. For example, a refusal to rent to persons on public assistance will have the effect of screening out many persons with disabilities. A refusal to accept child supports as a source of income tends to discriminate against women with children ( sex and familial status).
Employment standards
In cases in which the source of the income is employment, you may set your own standards about issues such as length of time in a job or whether a job is full-time. If you have standards about length of employment but are willing to waive these for persons recently relocated from another area, be sure that these exceptions are clear and in writing in advance and that they apply to all applicants in these circumstances.
Credit
You may certainly investigate an applicant’s credit history and require that certain standards be met. Just be sure that your standard be met. Just to be sure that your standards are specific and objectively verifiable and that they are applied to all applicants.
Students
The decision about whether you will accept students is entirely up to you. You may choose not to rent to students or set some additional requirements for them as long as these standards are applied without regard to membership in a protected class.
Co-signers
You should decide under what circumstances, if any, you will accept a co-signer and what the qualifications for the co-signer will be. This decision should be made in advance for considering any particular applicant and the standards should be clear and in writing.
Personal references
You may require whatever you like in the way of personal references as long as your standards are in writing and apply to all applicants.
Criminal convictions
You may screen out applicants based on criminal convictions. Just be sure that, before you ask the question, you know what your standard is apply it equally without regard to membership in a protected class. Do not screen applicants based on arrest records as statistics show that far more persons of color than white persons are arrested in this country; screening on this basis would, therefore, have the effect of discriminating based on race or color.
Age
You may choose to establish a minimum age for tenants if you wish.
Children
You may not exclude children under the age of 18 from your housing unless it comes under 55+ or 62+ exemption in Fair Housing Act. And, if you are setting occupancy standards, these should refer to maximum numbers of persons, not children.
Who make the decision?
A major advantage of having clearly defined application standards is that the decision to rent can be made on a lower level, avoiding unnecessary delays in the leasing process. If you do require that a higher-level individual approve each decision to rent, be sure that individual is going to be using the same written standards everyone else uses. All too often, the “experienced” manager turns out to be the one who wishes to substitute his/her personal judgment for the established objective screening criteria, sometimes with disastrous results!
LEASING THE DWELLING
Notification
Notification of decision on an application should not be made until all the information has been obtained and verified according to your policies and procedures. Then the applicant should be notified promptly; if the application has been rejected, the decision
Should be based on your tenant selection criteria and the applicant should be told the reason(s) for the denial.
Deposits and fees
These should be collected in accordance with the Landlord-Tenant Law and procedures for collecting these should be applied without regard to membership in a protected class. Needless to say, you should not charge higher fees or deposit amounts to certain protected classes, such as families with children. If you charge a pet fee or deposit, this charge should not apply to a service or therapy animal belonging to a person with a disability.
Signing the lease
All parties should sign the lease only when all approvals are final. Nothing makes a tenant angrier or more suspicious than being told there is a problem with his/her qualifications for tenancy after the lease is signed and the tenant is getting ready to move in! In addition, please be sure that the tenant gets a clear, legible copy of the fully executed lease!
OPERATING POLICIES
Your operating policies may be as simple or as complex as you like. What’s important is that they exist in clear, written form and that they are given to all appropriate staff and all tenants, and made available to all prospective applicants. If there is extenuating circumstances, which you believe, warrant the granting of an exception (to grant a reasonable accommodation for a person with a disability, for example), document carefully your reasons for making the exception. When a decision is made to change a policy, be sure that change is examined in terms of its potential discriminatory impact, and be sure that tenants are informed of the change in writing well in advance, in accordance with the Landlord-Tenant Law.
Occupancy standards
Nothing in the law says that you can’t establish reasonable occupancy standards in accordance with HUD’s guidance. Be sure that your standards are the same for families with children as they are for adults.
Curb appeal
This term refers to requirements you may make to be sure that your property looks attractive. Such standards are perfectly fine as long as they are not applied in a discriminatory way-making written rules about toys left outdoors, for example, without similar restrictions on items left out by adults. Or refusing to allow the construction of a ramp by a tenant with a disability because you don’t’ like how the ramp will look.
Pets
You may make whatever pet policy you wish. Just remember that service and therapy animals for persons with disabilities are not pets!
Maintenance
All tenants are entitled to the same terms and conditions of rental, including how quickly and how well their maintenance needs are addressed. Maintenance personnel who do not treat everyone equally can completely undermine a company’s efforts not to discriminate. Be sure that your maintenance personnel are trained about the fair housing law and that they have written policies and procedures to follow in order to ensure consistent service delivery. When complaints about maintenance occur, be alert for possible fair housing issues.
Tenant-tenant disputes
You should have written policies about how you handle theses issues so that your tenants know what steps they can take if problems develop. In addition, you policy should state clearly that you are an equal housing provider and that you will not tolerate discriminatory harassment or coercion by one tenant towards another. Your staff should have written procedures to follow when this type of complaint is received; above all, they should not tell the complaining tenant that the management would take no action in this type of situation. Failure to respond to such a problem may lead to a complaint against you and/or your company.
RECORD KEEPING
The purpose of record keeping is not to bury you under avalanche of paperwork, but to ensure that you are applying your policies consistently and to provide proof that you have done so. You should keep the records described below for two years.
Availability list
The maintenance of an up-to-date written list of available units, whether automated or hard copy, can go a long way towards the prevention of unintended differential treatment of applicants! Just be sure that updated information is made available to all staff including those who come in to temporarily replace an absent worker.
Inquiry records
You should keep a written record of all inquiries received, whether in person or over the telephone. Phone calls can be maintained on simple log sheet and only af ew words need to be recorded to show the name of the caller, the date and time of the call, what he/she asked for, what the caller was told, and the initials of the person taking the call. Guest cards to be completed by those visiting the office can serve the same purpose.
Application records
Everyone who applies for housing should have written application on record (one you had dictated to you over the phone is fine). The form should include the time and date, the type of unit desired, personal information you require, number of people who will live in the dwelling, date they wish to move in, and a record of any fees paid. If the application was denied, the reason for denial should be indicated on the form.
Waiting lists
Whether you keep a waiting list or not is entirely up to you, but BE SURE THAT YOUR STAFF HAVE CLEASR WRITTEN PROCEDURES TO FOLLOW IF YOU DO! You must decide when you will place a person on the list—before or after their application has been approved? How long will a name stay on the list? How often will you try to reach that person before his’/her name is dropped? Will you just call on the telephone, or do you send written notice as well? How long will you wait for a response before going on to the next name on the list?
Maintenance records
You should keep records of all maintenance requests and how they were handled. These should show the name of the person who made request, date and time, nature of the problem (including whether it was an emergency), corrective action taken and the date and time of that action. The name of the maintenance staff performing the work should also be shown. If there were any unusual delays, the reason for these should be also be noted.
If, in spite of your best efforts, there is a housing discrimination complaint filed against you or your company, you best (and often your only defense) will be your ability to document the fact that you have treated everyone equally without regard to their membership in a protected class. The procedures outlined above are designed to help you ensure that you support equal housing and that you have the documentation to prove it. |
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