Complying with Fair Housing Law When Renting to Students

This month’s lesson focuses on complying with fair housing law when renting to students. Not so long ago, the major fair housing concern was discrimination against students—who faced difficulty finding housing based on a lack of positive credit history and worries about loud parties, property damage, and other potential problems. In some places, it was such a problem that local fair housing measures were adopted to add student status as a protected class.

Though that may still be true for many students, there’s been a noticeable upswing in the development and positioning of housing that’s specifically designed to attract students. While most on-campus housing is still university built, owned, and operated, an increasing number of delivery and operating models have surfaced in recent years. And there are many different types of off-campus housing communities designed and operated to intentionally attract students, with various configurations and amenities. Despite the various options, purpose-built student housing communities have much in common—particularly in the way that they usually operate, which is very different from most conventional housing communities: by renting bedrooms within units—generally one person per bedroom, with shared kitchen and living areas—instead of renting the entire unit.

But for all these differences, there’s one thing that all rental housing communities have in common: the need to comply with fair housing law. In that regard, student housing is just like any other type of rental housing, which may face liability for discrimination based on race, color, religion, sex, familial status, national origin, disability, and any other characteristics protected under state and local law.

In this issue, we’re going to review fair housing requirements and offer six rules to avoid fair housing trouble when renting to students. Along the way, we’ll point to some particular fair housing issues of concern for student housing providers. Then, you can take the COACH’s Quiz to see how much you’ve learned.

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) prohibits housing discrimination based on race, color, religion, sex, familial status, national origin, or disability. In general, that means that housing providers may not exclude or otherwise discriminate against students—or anyone else—based on these protections.

When dealing with students, communities violate the Fair Housing Act if they make distinctions between students based on any of these protected characteristics. You could face a discrimination claim based on national origin if, for example, you require international students to meet more stringent qualification standards than generally required of students born in the United States. You could also face fair housing trouble by steering student applicants away from your community—or toward certain areas within the community—because they have children or a disability.

The FHA also imposes additional requirements related to individuals with disabilities. The law’s disability provisions apply if an individual has a physical or mental impairment that substantially limits one or more major life activities—even if the disability isn’t obvious or apparent. HUD’s list of impairments includes many physical and mental conditions that do not have obvious symptoms that would alert you that a particular prospect qualifies under the FHA’s disability-related provisions.

Under the FHA, housing providers have an obligation to make reasonable accommodations in rules, policies, practices, or services—or to allow reasonable modifications to the interior and exterior of a unit—when necessary to afford an individual with a disability an equal opportunity to use and enjoy a dwelling. The FHA also imposes accessibility requirements in the design and construction of covered multifamily housing communities built since the early 1990s.

Depending on where your community is located, you could be subject to additional fair housing requirements under applicable state and local laws, many of which have added age, marital status, sexual orientation, source of income, and other characteristics to the list of protected classes.

For example, it’s unlawful to discriminate against students under local laws in several jurisdictions. In Washington, D.C., for example, the law bans housing discrimination based on “matriculation,” which is defined as “the condition of being enrolled in a college, or university; or in a business, nursing, professional, secretarial, technical, or vocational school; or in an adult education program.” Across the country, similar bans on discrimination based on student status laws are in place on the local level, such as in Los Angeles, Austin (Texas), East Lansing (Michigan), Madison (Wisconsin), and Urbana (Illinois).

Student Housing: FHA Applies

All communities, including student housing, must comply with applicable federal, state, and local fair housing laws, according to fair housing experts Nadeen Green and Terry Kitay. As they informed attendees at the 2014 NAA Student Housing Conference earlier this year, student housing is not exempt from fair housing law, so it’s important to know all protections where your community is located and to craft policies accordingly.

6 RULES FOR COMPLYING WITH FAIR HOUSING LAW

WHEN RENTING TO STUDENTS

 

Rule #1: Consider Fair Housing Concerns Involved in Excluding Students

Some communities shy away from renting to students, believing that they’re more likely to damage units, disturb neighbors, or have trouble paying the rent. Student status is not protected under federal law, so there’s no general rule to prevent you from adopting a policy against renting to students.

Nevertheless, there are some circumstances in which a policy against renting to students could raise fair housing concerns. For example, you could trigger a fair housing problem if your community is located close to a historically black college or traditionally male- or female-only educational institution. The same thing goes for communities situated near colleges and universities with religious affiliation. These days, many have opened their doors to anyone, but they may still have a high proportion of students from these protected groups. If turned away from your community, students could claim that your no-students policy violates federal fair housing law because it has a disproportionate effect on members of a protected class. Another issue that might be raised against you is that your no-students policy is actually a pretext designed to keep people of a particular race, gender, or religion from renting in your community.

In other areas, it’s a matter of state and local law. If, for example, your community is in Washington, D.C., or any other jurisdiction that bans discrimination based on student status, it’s unlawful to adopt a policy against renting to students.

Or you could have a problem under state and local laws banning discrimination based on age. If subject to these laws, you could trigger an age discrimination complaint by adopting a policy against renting to students since it would presumably have a disproportionate impact on younger people.

Your best bet is to check with your attorney so you’ll fully understand possible ramifications under federal, state, and local fair housing laws before adopting any policy against renting to students.

Rule #2: Beware of Discrimination Based on Familial Status

The FHA bans housing discrimination based on familial status, which is commonly understood to protect families with one or more minor children. But it also covers parents, guardians, and others who have a child 18 or under in the household, as well as pregnant women and those in the process of obtaining legal custody of a child under the age of 18.

Under the familial status provisions, it’s unlawful to deny housing to applicants solely because they have a minor child living with them. If you rent to anyone, including students, it’s a violation of fair housing law to refuse to rent to a student with a young child on the same terms and conditions as you would to other applicants.

Student Housing: Occupancy Standards

Student housing providers are risking fair housing trouble when it comes to housing decisions about students with minor children, according to our fair housing experts. Kitay and Green say that many student housing communities are in violation of the FHA’s ban on familial status discrimination.

On campus, students who have children are often shut out of housing entirely—or offered no option but to live in separate family housing areas, says fair housing expert Eric Luskin, senior vice president at The Scion Group LLC, which is a national student housing advisor, owner, and operator. The Fair Housing Act is intended to allow anyone with a child who otherwise qualifies for housing the right to live where she wants on the same basis as her childless counterparts, he says.

Of particular concern are the fair housing implications of the “one student per bedroom” policy so prevalent in purpose-built housing, says Kitay. Though it’s yet to be the subject of federal enforcement action, it’s been the subject of administrative challenges, which pose a “real world” fair housing issue to student housing providers, she says.

Under the FHA, it’s a violation of the familial status provisions to enforce overly restrictive occupancy policies that have the effect of excluding families with children. In general, HUD has said that two people per bedroom is a reasonable standard, subject to state and local restrictions. But that’s only a rule of thumb, so it may not be reasonable in certain cases based on the size of the bedrooms and the overall unit, the unit configuration, and other relevant factors.

Luskin warns student housing providers that rent to students by the bed against turning students away—or charging them extra—solely because they have a child living with them.

As a general policy, he says that all applicants should be asked about the type of unit they are looking for and how many others will be living with them. If the student has a child, he says that she should have the option (but not the requirement) of renting a unit—rather than a single bedroom—and letting her find her own roommates (if needed) to fill the unit. All the adult roommates would be parties to the lease, so there’s joint and several liability for the rent for the unit. He says it’s a win-win: The student has access to desirable student housing and can control who else lives within the unit, while the community avoids the difficulty of re-renting the space if someone moves out.

Kitay and Green agree that the familial status issue in student housing shouldn’t be ignored. Kitay believes that there’s no question that a “one per bedroom” occupancy policy is more restrictive than generally considered “reasonable,” and would thus result in a presumption of familial status discrimination that would be difficult to defend. For instance, if you allow a single 30-year-old man who is not a student to rent a one-bedroom, then you’d have to allow a 30-year-old student with a minor child to rent the bedroom as well, she says.

To guard against such a result, Kitay and Green recommend a policy requiring all residents to be students (defined as enrolled at an institution of higher learning, but not a particular institution). In that way, it would be akin to a university dormitory, where residents clearly have to be enrolled as a student to live there—and clearly exclude anyone who’s not.

With a policy that “only students” can rent, Kitay reasons that the 30-year-old could rent if he or she was a student, but not otherwise, and not with a child who is not a student (who would not be enrolled in an institution of higher learning). Kitay says that the impact is, therefore, on anyone who is not a student, a much more diverse group than anyone who does not live alone.

Otherwise, Kitay and Green believe that student housing providers should allow students to share their bedroom with children under a certain age.

Rule #3: Ensure Consistency in Applying Screening Standards

Subject to state landlord-tenant laws, communities may adopt reasonable screening standards based on income, credit, and past rental history to ensure an applicant’s ability to pay the rent.

This can be a problem for students, few of whom have established a long positive credit history or have a rental history, says Luskin. As an alternative, many communities—including nearly all student housing providers—require students who can’t meet those financial qualifications to have someone else—often a parent—cosign or guarantee the lease, or make a significant pre-payment of rent, or some combination of the two, he says.

To comply with fair housing law, you must apply qualification standards consistently. It’s unlawful to subject students to different terms and conditions—such as offering alternative financial arrangements to some students, but not to other students—based on their race, national origin, or other characteristic protected under federal, state, or local law. This is particularly pertinent with international students who have just as sparse a financial and rental history and for whom doing the credit check is not likely to produce any record at all here in the United States, says Green.

It’s also problematic to offer alternative financial arrangements only to students, but not to other applicants who can’t meet your community’s financial standards. For example, you could be accused of disability discrimination if you allow students with insufficient credit history to have a guarantor, but deny the same opportunity to an individual with a disability with similar financial limitations due to his disability or to the recent immigrant applicant who also doesn’t have a credit history here in the United States.

Rule #4: Consider Fair Housing in Roommate Matching

Many communities rent apartments to groups of students as they would to other households, but many student housing providers rent to students “by the bed,” so each student leases a bedroom and shares living space. In purpose-built student housing, it’s common to see four students sharing a four-bedroom unit—each signing a lease for his bedroom—with shared kitchens and living areas.

Since most involve students who don’t know each other, renting by the bed means matching up strangers as roommates. That could spell fair housing trouble—so much so that Green strongly recommends that student housing providers stick to the housing business—not the roommate-matching business. If the community rents by the bed, she says that delegating roommate matching to a third-party provider—much as you do for criminal background and credit checks—is your best bet from a risk-management perspective.

Whatever system you use—a third-party, software program, or in-house—to do roommate matching, then you must ensure that it’s not tied to race, national origin, or any other protected class, says Luskin. Green and Kitay agree that if you choose to do roommate-matching, then you should adopt a formal policy that your community won’t make room assignments based on race, national origin, or any of the other protected classes. The only exception is gender: Kitay says that communities are allowed to designate a unit as all-male or all-female if it has shared living space.

If a prospective or current student resident says he doesn’t want to live with or near someone of a particular race or any other protected class, then make it clear that you won’t honor the request. Explain that you must offer housing to any person who meets your community’s qualifications.

The same goes for requests from students after room assignments have been made. If the student wants to make changes because he doesn’t perhaps like the race, religion, national origin, or disability of another student, don’t offer to move anyone. You should tell the complaining student that he has signed a lease and made a commitment to “stay and pay,” suggests Green. If he then chooses not to do so, you should seek to enforce all rights available to you under the terms of your lease. If a resident breaches his lease for discriminatory reasons—for example, an African-American student moves out because you assigned a white student to the apartment—and you don’t enforce your rights, your inaction could be interpreted as supporting the resident’s discrimination and you could be in violation of fair housing law.

Roommate problems happen, says Luskin, so training for resident staff and other on-site employees is critical. The staff should be trained to recognize—and respond appropriately—to any potential fair housing problems. He cited an example where a staff member, who was friendly and well liked by the residents, was working near the pool when he saw two students talking. One was clearly distraught, so he asked what was going on. She said her roommates criticized the clothes she wore, the friends she had, the posters on her wall, and the music she played—and shunned her when their friends came over. Recognizing that it could be a problem related to race, religion, or national origin, he reported it, which triggered an investigation to address the problem. At the very least, management would respond by informing the parties that any violation of fair housing law won’t be tolerated and could result in termination of the agreement, leaving the wrongdoer with the requirement of paying rent in full, at least until the vacancy could be filled by someone else.

Do Roommate-Matching Services Violate the FHA?

You may have heard about a court case against an online roommate-matching service accused of violating fair housing law by enabling users to screen potential roommates based on their sex, sexual orientation, or whether children would be living with them. The court ruled that the FHA doesn’t apply to individuals making decisions about the sharing of living spaces, so the company’s conduct in aiding discriminatory roommate searches didn’t violate the FHA [Fair Housing Council of San Fernando Valley v. Rommate.com, LLC, 2012].

Though it hasn’t been tested in court, Green doesn’t believe this ruling protects housing providers from liability for discrimination in roommate matching when renting to students by the bed. That’s because it involved a separate company accused of helping individuals to screen their own roommates based on discriminatory criteria, but had no control over housing decisions. In contrast, housing providers renting to students by the bed do control who lives in the unit, so they could face liability for conducting roommate matching in a way that denies or limits housing for discriminatory reasons.

Rule #5: Consider Requests for Assistance Animals

It’s common to have policies that prohibit or restrict pet ownership. But assistance animals are not pets, so you must consider making an exception to your pet policy as a reasonable accommodation to allow a student with a disability to have an assistance animal.

When you get such a request, you should consider the answers to two questions:

1. Does the student have a disability—that is, a physical or mental impairment that substantially limits one or more major life activities? (Note that you should not ask about the nature of the disability.)

2. Does the student have a disability-related need for that assistance animal—that is, does the animal work, provide assistance, or perform tasks for the benefit of a person with a disability—or provide emotional support that alleviates one or more identified symptoms or effects of a person’s disability? (Note that you should not ask what the animal actually does on behalf of the person.)

If the answer to either question is no, then you may deny the request, according to HUD.

If the answer to both questions is yes, then HUD says you most likely must make an exception to your pet policy so the student can live with and use an assistance animal(s) in all areas in the premises where people are normally allowed to go, unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of the housing provider’s services. 

If there’s no clear answer to either question, then you can ask for more information. For example, you may ask a student who has a disability that’s not obvious or apparent to submit reliable documentation of a disability and her disability-related need for an assistance animal. Just be careful—it’s good idea to check with your attorney to make sure you abide by rules limiting disability-related inquiries.

Student Housing: Assistance Animals

The FHA’s rules on assistance animals apply to all types of housing—even in on-campus housing, according to HUD. In recent years, there have been several cases against colleges and universities for denying requests by students with disabilities to keep assistance animals in on-campus housing. Most have settled, but at least one court has rejected claims that the FHA does not apply to campus housing.

Example: In 2013, a court ruled that the University of Nebraska could face liability under the FHA for denying a request by a student with a disability to have an assistance animal in her dorm room. The complaint alleged that the incoming freshman had anxiety and had a therapy dog, which was trained to respond to her anxiety attacks, but that her requests to live with the dog were denied based on the school’s no-pet policy. Although the university argued that the FHA didn’t apply to campus housing, the court refused to dismiss the case, ruling that the dorm rooms were “dwelling units,” and therefore subject to federal fair housing law [U.S. v. University of Nebraska at Kearney, April 2013].

Example: Late last year, the University of Iowa agreed to pay $10,000 to settle a fair housing complaint filed by a student with disabilities who claimed she was denied housing in a multi-unit student residence hall because she had an assistance animal, according to the Iowa Civil Rights Commission. As part of the settlement, the university acknowledged its obligations under fair housing law to make reasonable accommodations for persons with disability including the use of assistance animals.

FHA vs. ADA: Assistance Animals

Though they have much in common, the FHA and the Americans with Disabilities Act (ADA) have very different rules on assistance animals used by individuals with disabilities. In large part, that’s because they apply to different places: the ADA to a wide variety of public establishments, and the FHA to private areas in and around where people live.

With only one exception (for miniature horses trained to guide those with visual impairments), the ADA rules narrowly define “service animals” as dogs that have been individually trained to do work or perform tasks for a person with a disability—and specifically exclude animals that provide only emotional support.

But the FHA—not the ADA—governs use of assistance animals in housing communities, and that includes student housing. Under the FHA, assistance animals may include species other than dogs, with or without training, and animals that provide emotional support.

Fair housing experts Green and Kitay sum it up this way: Only a dog meeting the ADA definition of a service animal must be allowed to accompany a student with a disability in the non-housing portions of a university. But under the FHA, students with disabilities may be entitled to keep any type of animal that provides disability-related assistance, including emotional support, in university housing or private-sector student housing.

Rule #6: Abide by Accessibility Requirements

As a general rule, the FHA—not the ADA—also controls accessibility requirements in most off-campus housing communities. Generally speaking, the ADA applies only to the leasing office and other areas open to the public.

The FHA requires all newly constructed multifamily dwellings of four or more units intended for first occupancy after March 13, 1991, to have met seven design and construction requirements:

• An accessible entrance on an accessible route;
• Accessible common and public use areas;
• Doors sufficiently wide to accommodate wheelchairs;
• Accessible routes into and through each unit;
• Light switches, electrical outlets, and thermostats in accessible locations;
• Reinforcements in bathroom walls to accommodate grab bar installations; and
• Usable kitchens and bathrooms configured so that a wheelchair can maneuver about the space.

These requirements apply to all units on floors serviced by an elevator; if there’s no elevator, it applies only to the ground-floor units.

If the community was built before the 1991 effective date of the design and construction standards, then the FHA does not impose accessibility requirements, unless it’s associated with a disability-related reasonable accommodation or modification request.

ADA vs. FHA: Accessibility

Though the FHA controls accessibility in most off-campus housing communities, Kitay says that student housing providers should be aware of additional accessibility requirements under the ADA for “housing at a place of education.” If the community is considered housing at a place of education, then it would be subject to both the FHA and the ADA, which has more rigorous accessibility requirements.

Under the ADA, housing at a place of education means housing that’s “owned or operated on behalf of” a place of education. That means that the ADA clearly applies to on-campus housing owned and operated by colleges and universities.

Kitay explains that it could also apply to privately owned student housing if it’s operated “on behalf of a university.” For example, it would apply to housing that’s limited to students at a particular university, she says. It would also apply in private communities where the university leased whole floors or blocks of units for its students and operates them like campus housing by assigning roommates to share the space, she says. According to Luskin, the ADA standard may apply to off-campus housing even with the mere presence of an affiliation agreement, whereby the school promotes housing options at the property.

The rules are complicated, but the bottom line is that private student housing communities could be subject to additional accessibility requirements under the ADA if it’s considered housing at a place of education.

• Fair Housing Act: 42 USC §3601 et seq.

COACH Sources

Nadeen W. Green, Esq.: Senior counsel, For RentMedia Solutions™, 294 Interstate N. Pkwy., Ste. 100, Atlanta, GA 30339; (770) 801-2406; nadeen.green@forrent.com.

Theresa L. Kitay, Esq.: Attorney at Law, 578 Washington Blvd., Ste. 836, Marina del Rey, CA 90292; (310) 578-9134; tkitay@kitaylaw.net.

Eric D. Luskin, CPM: Senior Vice President, The Scion Group LLC, 30 W. Hubbard Street, Ste. 500, Chicago, IL 60654; (312) 704-5100; eluskin@thesciongroup.com.