The Fair Housing Act is the federal law that prohibits discrimination because of a person’s protected class when renting or buying a home, getting a mortgage, seeking housing assistance or engaging in other housing-related activities. The act was originally adopted as part of the Civil Rights Act of 1968. It was broadened in 1988 to prohibit discrimination on the basis of disability and familial status.
Equal housing opportunity is the notion that all persons should be granted the same chances when it comes to choosing housing. This law is administered and enforced by the Office of Fair Housing and Equal Opportunity (FHEO), an office within the U.S. Department of Housing and Urban Development (HUD). HUD was given enforcement responsibility by the Fair Housing Act of 1968.*
Rental discrimination is when a landlord or property manager treats an applicant differently based on the applicant’s inclusion in a protected class. Courts recognize that discrimination may result from both intentional and unintentional conduct.
Intentional discrimination (called “disparate treatment” discrimination) occurs when someone treats a renter adversely because of their status in a protected class.
Unintentional discrimination (called “disparate impact” discrimination) occurs when an action or policy triggers adversely affects members of a protected class, even if there was no intention to discriminate. The U.S. Supreme Court has recently confirmed that the Fair Housing Act recognizes disparate impact liability. As a result, landlords and property managers should be aware that they may be liable for policies and practices that, even unintentionally, have a materially adverse impact on people in protected classes. Such disparate impact liability is often recognized under state law as well, and landlords and property managers should research state and local anti-discrimination laws to ensure their compliance.
An example of intentional discrimination is posting a sign that says “No [insert protected class] need apply.” Such overt discrimination is relatively rare today, but other practices — such as imposing restrictions on families with children — still occur.
An example of unintentional discrimination may be when a landlord or property manager applies a “one strike” tenant screening rule for arrests. HUD guidance explains that because people of color are disproportionately arrested, and being arrested may have no relationship with your ability to be a good tenant, then people of color may be disproportionately disqualified from housing by tenant screening policies despite those policies not serving any legitimate business justification.
In fair housing terms, discrimination means treating someone differently because they are part of a protected class. Beyond the federal fair housing laws, state and local laws may provide further protection to renters in additional protected classes, some of which are summarized below.
Protected classes under federal law:
Protected classes under state and local law can include:
Criminal history: In spring 2016, HUD provided guidance about the potential discriminatory impact of screening tenants on the basis of criminal history.
Limited English proficiency: While English proficiency is not a separate protected class under the Fair Housing Act, English proficiency is closely connected with national origin, so refusing to rent to someone because they are not proficient in English may constitute national origin discrimination.
Max occupancy: Although the Fair Housing Act does not expressly prohibit occupancy standards that limit the maximum number of occupants, some occupancy standards can have a discriminatory effect. You should be careful if you set a maximum occupancy for your rental. Use the word “persons” when referring to occupants and never specifically limit the number of children. You may not want to count Infants under the age of 1 as occupants.
You should consult with a lawyer to determine whether there are additional state or local anti-discrimination laws in your community.
Familiarize yourself with applicable laws about maximum occupancy, which may vary depending on the square footage, bedroom size and configuration of your unit. Some landlords and property managers use the Keating Memorandum, a national guideline for occupancy issued by HUD (63 Fed. Reg. 70255), while others use square footage guidance from the Building Officials and Code Administrators (BOCA) code.
Two persons are allowed for each bedroom, subject to some exceptions and limitations. Under this standard, housing providers must consider the following: Whether there are state or local laws that set a different standard, the property size and layout, building system capacity, and the age of children.
Whichever rule you use, be sure to standardize and document the policy and familiarize yourself with state and local regulations.
Familial status — that is, the status of a legally recognized relationship between an adult and a child under the age of 18 in the household — is another protected class with important details to be aware of. All properties (other than housing for older persons) are supposed to accommodate children. If you recommend against specific apartments to families with children, you’re steering them away from particular units and this is a form of discrimination. According to the Zillow Group Consumer Housing Trends Report 2018, one-third of renters (33%) live with children, so it’s important to keep these guidelines in mind:
Fair housing laws generally apply to all single-family homes and multifamily dwellings, but there may be Fair Housing Act and state law exemptions for landlords and property managers. While discriminatory advertising is always illegal, in limited circumstances, other exemptions are available under federal law if:
Under the Fair Housing Act, multifamily properties that constitute “housing for older persons” are allowed to refuse to rent to families with minor children. This includes properties where all units are occupied by persons age 62 or older, or those where at least 80% of all units are occupied by at least one person age 55 or older.
Certain other conditions may be required. Consult with an attorney to ensure your property adheres to these requirements and related state and local laws.
The laws were created to ensure that “every neighborhood is a place of opportunity” and to prevent discrimination and segregation based on someone’s inclusion in protected classes. Fair housing laws for apartments and other rentals prohibit landlords and property managers from taking any of the following actions because of race, color, religion, sex (including sexual orientation and gender identity), disability, familial status or national origin.
While marketing and showing your rental, beware of subtle practices that could be perceived as discriminatory. In your search for a qualified tenant, make sure your advertising is compliant with fair housing laws by focusing on the property and the amenities in your rental listing description — not on who you think an ideal renter would be.
Fair housing laws describe advertising for a specific group of people as:
Tips for landlords:
As part of a strategy to minimize the possibility of unintentional discrimination, consider using a documented and consistent method to screen and accept applicants. Give everyone an equal opportunity to apply — no matter what they look or sound like, no matter what their name is — and accept or deny renters based on criteria that are applied consistently and aren’t related to a prospective renter’s status as part of a protected class.
Fair housing laws describe discrimination in the screening process as:
Tips for landlords:
Unlawful steering occurs when a landlord tries to attract or deter a potential tenant to or from a particular neighborhood or property based on their inclusion in one of the protected classes. It’s not an outright refusal to rent to a person within a protected class — rather it consists of efforts to deprive a person of housing opportunities in certain locations.
Fair housing laws describe denying renters access to housing opportunities as:
Tips for landlords:
As a landlord, you have every right to create policies and rules for your properties to promote a safe and comfortable living environment, as long as they do not have an unintended disparate impact on protected classes. According to the Zillow Group Report, 75% of renters find it extremely or very important that their neighborhood feels safe. But while you’re in pursuit of a safe living environment, be sure the policies and rules you set are standard across all groups of people and don’t single out any one group or category of resident.
Fair housing laws describe setting inconsistent qualification criteria as:
Tips for landlords:
The best way to ensure you and your team are maintaining fair housing practices is to build them into your processes and procedures. That allows you to document that everyone is treated the same, every time, so you’ll be prepared if you receive a complaint.
Fair housing laws describe retaliation against or harassment of a tenant as:
Tips for landlords:
In fiscal year 2021, a plurality of housing complaints investigated (41.5%) were in relation to a disability. Landlords and property managers need to be aware that there are extra protections for accommodating a renter with a disability. A disability can be a mental or physical condition, and under the Fair Housing Act and state or local laws can include (but is not limited to):
Fair housing laws describe refusing to accommodate persons with disabilities as:
Tips for landlords:
A reasonable accommodation is when a tenant makes a request to a landlord or other housing provider for an exception to their rules or policies, based on a disability-related need of that tenant or someone who is associated with them, like their friends or family. The request is made to allow for an equal opportunity to use and enjoy the dwelling, the same as non-disabled tenants. These accommodations could include:
A request for a reasonable accommodation should be handled on a case-by-case basis, based on the specific circumstances of the requested accommodation and the tenant making the request. In general, the request should be approved if the request is made by or on behalf of an individual with a disability, is reasonable, and the request will address a disability-related need.
In terms of how to identify whether the disability qualifies for a reasonable accommodation, if the landlord knows that the tenant or someone associated with the tenant is disabled (e.g., they use a wheelchair to move around), or perceives that the person is disabled, then the landlord should assume that the person qualifies as disabled under the law. If a disability is not obvious, then the housing provider may request additional information that is necessary to verify that the person is disabled, describes the needed accommodation, and shows the relationship between the person’s disability and the need for the accommodation. A doctor, other medical professional, or a reliable third party who is knowledgeable about the person’s disability may provide verification of a disability. Generally, a landlord should not need to ask about the nature or severity of anyone’s disability.
No matter what, the landlord should not ignore the request, and should engage in what is called an “interactive process” to consider the request and discuss the tenant’s proposed accommodation. If the landlord believes the request is unreasonable because it would impose an undue financial and administrative burden, or it would fundamentally alter the nature of the landlord’s operations, or granting the request would impose a direct threat to the health or safety of other tenants based on actual and objective evidence, then it may be denied. However, as part of the interactive process, the landlord should strive to offer possible alternative accommodations that may address those concerns.
Consult an attorney or local legal professional with any questions about reasonable accommodations, cost to the landlord for reasonable accommodations, verification of the disability-related basis for the request and before denying a request.
An emotional support animal (ESA) is a type of assistance animal for a person with a disability that is recognized as a reasonable accommodation under the Fair Housing Act. The assistance animal is not a pet, according to HUD, and in general, the landlord or other housing provider cannot:
A tenant requesting an ESA:
A landlord can:
A reasonable modification is a physical change to the property that gives the resident equal opportunity to access the property and its amenities. These modifications could include:
Establish procedures for how applicants and residents make reasonable accommodation or modification requests and how you respond to them. Even a verbal request may trigger reasonable accommodation or reasonable modification duties, and a delayed response may be equivalent to a denial.
Consult an attorney or local legal professional with any questions about reasonable modification issues, when determining who’s responsible for the cost, when verifying the disability-related basis for the request and before denying a request.
*Properties that receive certain forms of federal financial assistance may be subject to other federal anti-discrimination laws. Properties including places of public accommodation — such as rental offices or retail space — may be subject to the Americans with Disabilities Act. You should consult with a lawyer to determine the full range of anti-discrimination laws that apply to your property.