Fair Housing Act & Americans with Disabilities Act—What Landlords Need to Know
On April 11, 1968, President Lyndon B. Johnson signed the Civil Rights Act of 1968, which was meant as a follow-up to the Civil Rights Act of 1964. The 1968 Act expanded on previous acts and prohibited discrimination concerning the sale, rental, and financing of housing based on race, religion, national origin, sex, (and as amended) handicap and family status.
“It proclaims that fair housing for all — all human beings who live in this country — is now a part of the American way of life." — President Lyndon B. Johnson
The Fair Housing Act, which is part of the Civil Rights Act of 1968, was signed into law by President Lyndon B. Johnson on April 11, 1968 — only one week after Martin Luther King, Jr. was assassinated. The Act prevents housing discrimination and ensures equal opportunities for all tenants and homebuyers.
Who is Protected?
The Fair Housing Act prohibits discrimination for seven protected classes; race, color, national origin, religion, sex, familial status, or disability cannot be a determining factor when approving a tenant for housing. The FHA prevents landlords from practicing any discrimination against these classes in an attempt to create an equal playing field for obtaining residency; simply put: you cannot accept or reject a prospective tenant based on any of these seven categories.
How do you make sure you abide by The fair housing ACT?
First, you need to know the laws. This will help you steer clear of any potential discriminatory activity. If you do not know the laws, you may, unknowingly, use discriminatory language in your marketing ads and/or leases. Preventing an FHA violation starts with careful language, even in your conversations with the prospective tenants during the screening process.
You must be mindful because it is very easy to unintentionally cross the line. For example: while having a conversation with a prospective tenant you may ask, “is this your spouse?” or “do you have any kids?”, etc. The topics may seem just like casual, polite conversation — but they can get you in trouble. Unless they volunteer the information, you should not be asking, nor should it have any bearing on your decision to select them as tenants.
This also applies to when you market the property — you cannot advertise using discriminatory language or limit who can apply. For example, your listing should never say, “only tenants without children” or “no people living with disabilities”. Carefully marketing your property to be inclusive is mandatory for following FHA regulations.
To ensure you are abiding by Fair Housing laws, be make sure to treat all potential tenants equally and document, document, document! Keep records of your application requirements, all your applicants, and reasons why you may have denied tenants. Any communication between you and the prospective tenant should be kept track of to prevent any future discrepancy.
It is also important to note that the first tenant application you receive that matches your required criteria (preferred credit scores, rental history, etc.) must be selected. As a landlord, you cannot holdout in the hopes that a different or “better” tenant will apply.
What is the difference between FHA and ADA?
The FHA prohibits discrimination based on the seven protected classes listed above, while the ADA only prohibits discrimination for disabled individuals. However, both require landlords to make “reasonable accommodations and/or modifications” for renters with disabilities. Reasonable accommodations/modifications include but are not limited to:
installing access ramps
transferring them to a ground floor unit
reserved parking spot close to entrance
elevators
widening doorways
installing grab bars in bathrooms
Remember, FHA disallows you from not selecting a tenant for a disability, while the ADA enforces proper care of that disabled tenant’s specified needs/requirements.
Who is responsible for the expense of accommodations/modifications?
The Fair Housing Act states that while the landlord must permit the accommodation/modification, it is at the tenant’s expense. However, under the ADA, public housing agencies, other federally assisted housing providers, and state or local government entities are required to pay for the reasonable accommodation/modification. Moreover, landlords may not charge extra fees or deposits for receiving a reasonable accommodation/modification. Keep in mind, that it is reasonable (and legal) to ask that a unit be restored to its original condition after the tenant leaves.
What Types of Housing Are Covered?
The Fair Housing Act covers most housing. However, the Act does exempt owner-occupied buildings up to four units, single-family houses sold or rented by the owner (without the use of a Realtor), and housing operated by religious organizations and private clubs that limit occupancy to members.
Because Fair Housing is a complicated and sensitive aspect of investment real estate, we recommend you talk to your attorney about how to abide by all regulations. They can help you draft a lease (which must be in plain language if you are in the state of Pennsylvania) that will protect you from unknowingly discriminating against a potential tenant.
This information may not be used as a substitute for legal advice and you should consult your attorney for legal advice if you have any questions relating to this advisor guide.