The 10 Most Common Fair Housing Liability Pitfalls & How to Avoid Them

We present scenarios based on actual cases. Your job: Spot the fair housing mistake.

 

April is National Fair Housing Month, a perfect time to step back and take stock of your current compliance program and policies. Whatever your beliefs about the current state of social justice and equality in America (whether regarding housing or other aspects of society), there’s one thing that’s hard to dispute: Fair housing litigation is growing at a concerning rate. According to the National Fair Housing Alliance (NFHA), a not-for-profit advocacy group that has tracked discrimination lawsuits for 25 years, 31,216 federal fair housing complaints were filed in 2021 (the NFHA hasn’t yet reported the 2022 numbers). That’s an 8.7 percent increase over the 28,712 fair housing complaints that were filed in 2020. What makes these unprecedented numbers even more sobering is that seven fewer agencies reported complaint data to NFHA in 2021 than did in 2020.

What the NFHA data does not and cannot reveal is blameworthiness. You can be sure that not all of the housing providers named in these 31,216 complaints engaged in the discrimination of which they’re accused. Even among those who ultimately do have to pay money damages for discrimination, either as the result of a guilty verdict or a settlement to avoid the risks of trial, it’s a pretty good bet that they were, like you, well-intentioned landlords who earnestly tried to comply but got into trouble because they didn’t recognize that their actions or omissions ran afoul of fair housing laws.

It is to these legions of inadvertent wrongdoers that we dedicate this month’s lesson. Our objective: to ensure that you don’t ultimately end up among their ranks. Rather than focus on a single, discrete issue as we usually do, to recognize National Fair Housing Month, we’ll take a broad approach and cover a lot of fair housing law ground, focusing on the most common fair housing mistakes landlords make each year and how to avoid them. This will provide a perfect opportunity to reinforce some of the most important fair housing compliance lessons we’ve covered in recent years.

We also want to engage you in the analysis. So, rather than spoon feeding the information, we’ll present a scenario based on an actual case in which a landlord committed a common SNAFU. Your job: Spot the fair housing mistake. We’ll then reveal the problem and explain specific measures you can take to avoid committing the same mistake at your own apartment community properties.  

AVOIDING 10 COMMON FAIR HOUSING PITFALLS

Pitfall 1: Not Exempting Assistance Animal from No-Pets Policy

Failure to make reasonable accommodations for a rental applicant or tenant with a disability is, perennially, the most common type of fair housing complaint, accounting for nearly 60 percent of all cases, according to HUD. Many, if not most of these complaints, involve assistance animals. So, that’s where we’ll start our analysis.

Pitfall: HUD and the U.S. Department of Justice (DOJ) interpret the federal Fair Housing Act (FHA) duty to make reasonable accommodations as requiring exemptions to no-pet policies necessary to enable individuals with disabilities to keep “assistance animals” that directly assist with a disability-related need. “Assistance animals” include dogs or other common domestic household animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities. Significantly, assistance animals need not have any specific certification or training. By contrast, under the Americans with Disabilities Act (ADA) duty to accommodate applies only to “service animals” trained to do work or perform tasks for the benefit of an individual with a disability.

Thus, while the refusal of the landlord in our scenario to accommodate the stray cat might have been okay under the ADA, it violated the FHA.

Example: A Pennsylvania federal court ruled that the DOJ had a legally valid claim against a landlord that took the same position as the landlord in our scenario, and allowed the case to go to trial [United States v. Perry Homes, Inc., 2022 U.S. Dist. LEXIS 87064, 2022 WL 3021040].

Solution: Keep in mind that neither assistance animals nor service animals count as pets and that, unless the ADA applies, you must accommodate both to the point of undue hardship. You may, however, ask for information about the relationship or connection between the disability and need for the assistance animal to the extent the disability is non-observable and/or the animal provides therapeutic emotional support. In addition, you don’t have to accept an assistance or service animal that would create an unreasonable risk of harm, injury, or damage to property.

Pitfall 2: Charging a Pet Deposit for an Assistance Animal

The assistance animal SNAFU isn’t the only common mistake made in the context of reasonable accommodation no-pets policy exemptions.

Pitfall: If allowing a tenant’s assistance animal is required as a reasonable accommodation, you can’t ask the tenant to provide a pet deposit, extra insurance, or indemnity for keeping the animal.

Example: A Minnesota apartment community paid $35,000 to settle claims of placing undue conditions on a tenant’s request for a service animal by requiring her to:

• Buy an insurance policy covering the dog and listing the landlord as a co-insured;
• Make the dog wear a special emotional support animal vest at all times outside the apartment; and
• Sign an “indemnification and hold harmless waiver” covering the landlord against any harm the dog caused [United States v. Brooklyn Park 73rd Leased Housing Assoc., LLC (D. Minn., Jan. 22, 2016)].

Pitfall 3: Charging Tenants a Fee to Process Accommodations Requests

Designated parking spaces for mobility-impaired tenants is another frequent source of reasonable accommodations complaints and legal mistakes. Consider this common scenario.

Pitfall: The ban on charging a fee for granting a requested reasonable accommodation also applies to charging fees or deposits for processing an accommodations request. Requesting processing or administrative fees is a common mistake, especially in the context of parking accommodations that entail monetary costs or additional liability risks to the landlord.

Example: A Pennsylvania senior housing provider had to shell out $80,000 to settle discrimination claims brought by mobility-impaired tenants and fair housing agencies, including for allegedly charging tenants with disabilities as much as $350 for designated parking spaces necessary to make their apartments accessible [Clover Group, May 2020].

Solution: Recognize that if an accommodation is reasonable, you must pay the associated costs out of your own pocket and not charge the requestor a fee or deposit to defray the associated expenses. In addition, you can’t deem a requested accommodation unreasonable simply because it costs time and money to provide.

To reject an accommodation as being unreasonable, the burden must be “undue,” based on the financial resources, the benefits to the requestor, and the availability of cheaper, easier alternatives that would effectively meet the requestor’s needs. Thus, for example, you don’t have to create extra parking spaces or enlarge your parking lot just to accommodate a single tenant.  

Pitfall 4: Not Allowing Children to Use the Community Swimming Pool

Family status is the fourth most commonly alleged ground of federal fair housing discrimination, trailing only disability, sex, and race. Many familial status complaints are the result of misguided safety rules involving children, particularly with regard to swimming pools.  

Pitfall: While banning children from the community pool might prevent drownings, it would also run afoul of FHA regulations that make it illegal to “deny or limit services or facilities in connection with the sale or rental of a dwelling” on the basis of family status [24 C.F.R. §100.65(a)]. Prohibited actions include “[l]imiting the use of privileges, services or facilities associated with a dwelling because of . . . familial status” [24 C.F.R. §100.65(b)(4)].

Although HUD guidelines state that it’s okay to impose “reasonable health and safety rules designed to protect minor children in their use of facilities associated with the dwellings,” they also impose specific restrictions. Among other things, the rule must serve a compelling safety interest that can’t be achieved via less discriminatory alternatives.

Example: A California landlord adopted a rule stating that “under no circumstances may children play” in the pool area walkways. The federal court held that the rule was “facially discriminatory” because it treated children less favorably than other persons. While child safety was a compelling goal, the rule wasn’t the least restrictive means of ensuring it, the court reasoned. If the landlord was concerned about safety in the pool walkways, it should have banned all residents from playing on them, not just children [Rojas v. Bird, 2014 WL 260597, at *2 (C.D. Cal. Jan. 10, 2014)].  

Solution: Even if you could show that its sole intention is to ensure kids’ safety, banning children from the pool would be all but unjustifiable given all the less restrictive ways you could accomplish that objective. If it’s unruly behavior you’re worried about, the answer isn’t to exclude children but any and all troublemakers. If children are the problem, your first recourse should be to speak to their parents or guardians.

Pitfall 5: Not Letting Children Use the Community Pool Without Adult Supervision

Adult supervision requirements are the leading source of pool-related family discrimination complaints. The safety rationale for such rules is clear. After all, swimming without adult supervision is the leading cause of drowning deaths for young children.

Pitfall: As HUD acknowledges in a 1992 Memo, “requiring a responsible adult to supervise young children and provide written designation of an adult supervisor are policies which appear more tailored to protect legitimate health and safety interests and appear less problematic” than a total or partial ban on children’s use. However, the legality of adult supervision rules depends on how they’re framed. Basic Rule: You can require adult supervision as long as the rule is narrow and no more restrictive than it has to be to accomplish the purpose.

While it’s true that many young kids can’t swim, lots of adults also lack proficiency in swimming. The danger of swimming unsupervised, in other words, is based not on a person’s age but the fact that they can’t swim. Once you introduce age and family relationship into the equation, you take the supervision rule to places it shouldn’t go. 

Example: The parents of three young children sued their California landlord for adopting a rule stating that “Children under the age of 18 are not allowed in the pool or pool area at any time unless accompanied by their parents or legal guardian.” Too restrictive, said the federal court. A “prohibition on unsupervised swimming which would prevent even a 17-year-old certified lifeguard from swimming unaccompanied is overly restrictive.” While recognizing “the inherent dangers of unsupervised swimming,” the court concluded that requiring that a parent or legal guardian to supervise “transforms this rule” from a legitimate safety precaution to an unjustified restriction on children and their families” [Iniestra v. Cliff Warren Investments, Inc., C.D. Cal. 2012, 886 F.Supp.2d 1161].

Solution: The least restrictive and most nondiscriminatory way to accomplish the safety objective of the adult supervision rule is to frame the rule in terms of swimming proficiency and the ability to supervise responsibly. Options:

• Require supervision of not just children of certain ages but any person who can’t swim;
• Require all would-be pool users—and not just children—to pass a swimming proficiency test administered by a competent lifeguard or swim instructor; and
• Rather than a “parent” or “adult guardian,” require non-proficient swimmers to be supervised by a proficient swimmer.

Revised Pool Rule: In the interest of safety and in accordance with local laws, individuals who are not proficient swimmers may not use the community pool unless they are supervised by a person who is a proficient swimmer.

Pitfall 6: Overly Restrictive Occupancy Standards

While vital to prevent overcrowding, occupancy standards may violate fair housing rules to the extent they have the effect of excluding families with children.

Pitfall: In 1991, HUD issued guidance called the Keating Memo establishing two-per-bedroom as the default standard for reasonable occupancy standards. However, attorneys caution that the most common mistake landlords make with occupancy standards is applying the two-per-bedroom rule on a blanket basis. The reasonableness of a particular occupancy standard depends on the specific situation. Thus, two-per-bedroom may be too restrictive for some situations and not restrictive enough for others.  

Example: A Connecticut landlord forced a married couple to move out of their one-bedroom apartment for violating the community’s two-per-bedroom occupancy standard after the wife gave birth. I just followed the Keating Memo, the landlord claimed. But the court didn’t buy it, noting that Keating is a “totality” test that the landlord applied as a blanket rule without considering the other factors the Memo cites, like the size and sleeping area of the bedrooms [Gashi v. Grubb & Ellis Property Management Servs., 801 F. Supp. 2d 12 (D. Conn. 2011)].  

Solution: While two-per-bedroom might be the starting point, landlords must consider other factors listed in the Keating Memo to determine how many people can occupy it in safe and habitable conditions, including:

• How big the bedrooms are: Rejecting a family of five for a two-bedroom apartment might be unreasonable if at least one of the bedrooms is large enough to accommodate three persons. By the same token, it may be justifiable to refuse to rent a two-bedroom unit to a family of four if one of the bedrooms is too small for two people to share safely and in habitable conditions.
• Size and configuration of the apartment: Consider the unit’s overall size and configuration, including other rooms or spaces that can be used as bedrooms. Thus, two-per-bedroom may be too restrictive for an apartment with a den that can be easily converted into a bedroom; but it may be not restrictive enough for an apartment that doesn’t have ample living or dining room space per occupant.
• Physical limitations on the property or building systems: Consider the age and condition of the building, including the capacity of water, sewer, sanitation, electrical, HVAC, and other critical building systems. Thus, for example, occupancy standards of less than two-per-bedroom may be justifiable for older buildings with crumbling and fragile infrastructure.
•  Age of children: Occupancy standards are typically based on the premise that occupants can share bedrooms. However, the age of the child(ren) may challenge the basis of that premise. For example, suppose a couple wants to share a one-bedroom apartment with their child in violation of the landlord’s two-per-bedroom standard (absent other factors):
  • Child is a newborn or infant: Rejecting the couple is likely to be unreasonable;
  • Child is a teenager: Rejecting the couple is likely to be reasonable.

Caveat: Age doesn’t come into play in determining whether children of different sexes can share a bedroom. The Rule: Whatever your moral views, you can’t require male and female children to have separate bedrooms, regardless of their age. Period.

Pitfall 7: Seeking to Influence Housing Choices Based on Protected Characteristics

Steering is a discriminatory practice that occurs when a landlord tries to influence prospects’ choice in housing based on their race, religion, family status, or other personal characteristics protected by fair housing laws. It’s illegal because it limits peoples’ choices and denies them the opportunity to rent the housing they choose. Practiced on a wider basis, steering creates and perpetuates segregation across apartment communities, neighborhoods, towns, cities, and wider communities.

Pitfall: “Steering” summons up images of landlords, homeowners, and mortgage bankers deliberately attempting to direct minorities to housing away from white buildings and neighborhoods. While such practices do remain a national problem, steering can also be the inadvertent result of well-intentioned efforts to do what the steerer perceives to be in the prospect’s best interests. That, in fact, is what the leasing agent is doing in the above scenario in seeking to influence the couple not to seek the housing they choose on the 10th floor.

Solution: It’s critical to train your leasing agents about the dangers of steering and seeking to tell prospects where they should rent based on their protected characteristics. Examples of things leasing agents should never say (all of which come from actual HUD cases where landlords were found guilty of steering):

• “I think there are other apartment communities in town that cater more to kids”;
• “We have a few apartments in the back of the building for people with wheelchairs”; and
• “I wouldn’t be comfortable renting in this neighborhood if I were a young single woman.”

The word “comfortable” is an especially bright red flag. All too often, the critical assumption is that people are more “comfortable” with people of their own race, color, etc. Accordingly, telling prospects that they’d be uncomfortable in your community or more comfortable somewhere else suggests that you’re trying to influence them on the basis of their protected characteristics.

Pitfall 8: Using Discriminatory Buzzwords in Advertising Materials

Section 804(c) of the FHA makes it illegal “[t]o make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin.”

Pitfall: Unlike obscenity, you can’t necessarily recognize discriminatory advertising when you see it. While phrases like “whites only,” “not suitable for the disabled,” “Christian community,” and/or “no children” clearly cross the line, landlords can also get into hot water by using words and phrases that send a more subtle message of discrimination against or preference for certain groups. The owner in the scenario above used three such phrases in its ad: “mature renter,” “empty nester,” and “golden ager.” These phrases send a clear message: This housing isn’t suitable for families with children. It doesn’t matter whether the owner intended to send such a message. Liability for discriminatory advertising is based not on what you mean but what you say.  

Solution: To avoid liability, you must recognize and refrain from using discriminatory buzzwords in ads. Government guidelines from the State of Oklahoma offer what may be the best and most comprehensive “dictionary” of words and phrases that are and aren’t permissible.

Red Light: Words & Phrases to Avoid
able-bodied adult community* adult living* adults only* adult park* African agile AIDS alcoholics, no American Indian Appalachian Asian black(s) blind, no board approval required Catholic Caucasian Chicano children, no/number child(ren) (number of)	Chinese Christian colored crippled, no church deaf, no disabled not suitable for drinker(s), no employed empty nesters* English only ethnic references golden agers* group homes, no handicapped not suitable for healthy only Hindu	Hispanic HIV Hungarian impaired, no Indian Irish Italian integrated Jewish landlord, (description) Latino married mature* membership approval req’d mentally disabled, no mentally ill, no	Mexican-American migrant workers, no Mosque Muslim (nationality) Negro non-drinkers non-smokers older person(s)* one child Oriental parish park rules, must comply with Philippine physically fit only Polish preferred community	Protestant Puerto Rican quiet tenant(s) (religious references) responsible retarded, no seasonal workers, no senior discount* smoker(s), no Social Security Insurance (SSI), no Spanish speaking stable Synagogue Temple tenant(s), description of two people unemployed, no white, white only
Yellow Light: Words & Phrases to Be Cautious with
55 and older community* 62 and older* active bachelor bachelor pad close to country club, near couple couples only curfew exclusive executive female(s) only female roommate	fisherman’s retreat gay(s), no (gender) gentleman’s farm grandma’s house golden agers only* handicap handyman’s dream heterosexual homosexual ideal for… lesbian(s), no male(s) only male roommate	man, men only membership approval required Mormon Temple mother-in-law apt. nanny’ s room near newlyweds one person older person* perfect for… person(s), (number of) play area, no prestigious	quality neighborhood restricted retired retiree(s)* retirement home* safe neighborhood Section 8, no secure seeking same senior(s)* senior citizen(s)* senior housing* (sex or gender) Shrine	singles only single person single woman, man sophisticated straight only student(s) students, no temple traditional two people walking distance to… woman, women only
Green Light: Acceptable Words & Phrases
Accessible alcohol, no assistance animals only bedrooms, (number of) bus, near convalescent home convenient to credit check required den desirable neighborhood domestic quarters drugs, no drug use, no	Equal Housing Opportunity family, great for family room fixer-upper golf course, near great view guest house handicap accessible hobby farm kids welcome luxury townhouse master bedroom membership available	(neighborhood name) nice nursery nursing home places of worship, near play area privacy private driveway private entrance private property private setting public transportation, near	quality construction quiet quiet neighborhood references required responsible (school district) (school name) seasonal rates secluded security provided senior discount* single family home	sleeping area(s), number of smoking, no (square feet) townhouse traditional style tranquil setting verifiable income view, of view, with wheelchair accessible winter rental rates

* Senior housing may be exempt under the “housing for older persons” exception

Rule of thumb: Market the property and its amenities, not the people who live there or who you think should live there. Vet every ad, slogan, and marketing piece you create with one question in mind: Will prospects who look at this item feel welcome? In making this determination, set aside your own personal opinions and consider the view of the “ordinary reader or listener,” since this is the standard by which you’ll be judged if somebody files a fair housing complaint.

Pitfall 9: Asking Rental Applicants If They’ve Ever Used Drugs

Tenants who abuse drugs and alcohol may endanger not only themselves but also their neighbors. Tenant substance abuse can result in criminal activity, violence, fires, disturbances, and other threats to apartment community health, safety, and tranquility. However, seeking to exclude substance abusers from your community may be a form of disability-based discrimination banned by fair housing laws.

Pitfall: The reason this question is discriminatory is that under FHA rules, former drug addiction is a disability and you’re generally not allowed to ask rental applicants if they have any disabilities (unless such questions are directly relevant to their qualifications for housing reserved for persons with that particular disability, a group home for recovering or drug addicts.) While FHA regulations (24 CFR §§100-202) say that questions to determine whether an applicant is a current illegal abuser or addict of a controlled substance are okay, the part of the question asking about previous use crosses the line.

Solution: The first thing you need is an understanding of the drug use-related questions that you can and can’t ask a rental prospect:

Questions You Can & Can’t Ask Rental Applicants

Illegal Questions	Legal Questions
Have you ever used illegal drugs?   Have you ever been arrested of manufacturing or distributing illegal drugs?   Have you ever had a drinking problem?   Do you currently have a drinking problem?	Do you currently use illegal drugs?   Have you ever been convicted for manufacturing or distributing illegal drugs?   --   --

 

Caveat: You can’t necessarily exclude applicants even if you know that they’re currently using drugs unless you determine that they pose a “direct threat” to the health and safety of other tenants. Subjective beliefs, generalized stereotypes, and speculation about substance abusers isn’t enough. According to HUD/DOJ joint guidance, a landlord’s determination of a direct threat must be based on an individualized assessment based on “reliable objective evidence”—for example, about the person’s current conduct or a recent history of overt acts.

Example: A landlord evicted a tenant for engaging in erratic and dangerous behavior. The tenant admitted to urinating in the elevator, threatening to kill a neighbor, throwing a lit cigarette and coke can at the doorman, and a number of other incidents. But he contended that this was all caused by his mental disorders and sued the landlord for disability discrimination. The Illinois state court granted the landlord summary judgment on the claim—essentially, tossed the discrimination complaint without a trial—finding that the landlord was justified in evicting the tenant for posing a direct threat. The appeals court concluded that the ruling was reasonable and refused to reverse it [Wirtz Realty Corporation v. Freund, 721 N.E.2d 589 (Ill. App. 1999)].

Strategic Pointer: You can’t ask applicants any questions about alcohol use, current or former. That’s because fair housing laws don’t distinguish between current and former alcohol use the way they do with drug use.

Pitfall 10: Automatically Rejecting Applicants with a Criminal Record

No landlord wants to have murderers, rapists, drug dealers, arsonists,  and other dangerous criminals as tenants. And because “criminal background” isn’t a protected characteristic, the common assumption is that you can legally exclude people who have a criminal history from your community. Unfortunately, it’s not nearly as simple as that.

Pitfall: Even though the FHA doesn’t mention criminal background, refusing to rent to people with a criminal record may be an indirect form of racial, national origin, and other forms of discrimination that the law does expressly ban. Explanation: Studies demonstrate that African Americans and Hispanics are arrested, convicted, and incarcerated at disproportionately higher rates than whites with respect to their share of the general population. Thus, while it may seem neutral on its face, automatically excluding individuals with a criminal record has the effect of discriminating against these groups.  

In 2016, HUD published guidance on this issue. HUD makes it clear that landlords have a legitimate right and compelling interest to perform criminal records checks on rental applicants, as long as:

• The screening policy and methods don’t actually have a discriminatory effect on a protected group;
• Excluding people with a criminal record is necessary to achieve what HUD refers to as a “substantial, legitimate and nondiscriminatory interest” (which we’ll refer to as the “substantial interest standard”); and
• There’s no less discriminatory alternative for achieving the purpose.

In addition, as we noted in the analysis on drug use, landlords may exclude members of protected classes that pose a “direct threat” to the health and safety of other tenants.

Solution: Not all forms of criminal conduct satisfy the substantial interest standard and direct threat criteria. So, implementing pre-determined, blanket rules, such as automatically rejecting any applicant with a criminal record the way the landlord in our scenario did is a surefire recipe for liability.

Example: A New York City community rejected an African-American applicant after learning of his felony conviction. The community claimed its policy of automatically rejecting anyone with a felony conviction was nondiscriminatory because it applied to all applicants regardless of race, etc. The applicant contended that the policy had the effect of racial discrimination, citing “empirical evidence showing that nationally, and in New York State, blanket bans on eligibility, based on criminal history, result in the denial of housing opportunities at a disproportionate rate for African Americans and minorities.” Although the applicant would still have to prove his claim at trial, the court found that the statistical evidence was enough to warrant holding a trial and dismissed the owner’s motion to dismiss [Jackson v. Tryon Park Apartments, Inc. et al, No. 6:2018cv06238 - Document 17 (W.D.N.Y. 2019)].

Other key points from the 2016 HUD guidance and case law:

• Rejections must be on the basis of criminal convictions, not simply arrests;
• In weighing convictions, distinguish between dangerous and non-dangerous crimes;
• Consider how long ago the conviction occurred—the unofficial rule of thumb is that a person isn’t deemed a danger to tenant and health safety if the conviction happened more than seven years ago, unless the crime was sexual assault, in which case no shelf life applies; and
• Consider the circumstances of each individual conviction, including how old the applicant was at the time of committing the crime and evidence of rehabilitation.