Fair Housing Q&A
by Charles Brown
Q. Are race, color, religion, sex, national origin, familial status and
handicap the only protected classes?
A. These seven categories are the only protected classes under the Fair Housing
Amendments Act of 1988. However, many state and local governments often have
their own laws and ordinances making housing discrimination illegal, and may
include categories in addition to the ones protected by the federal law. For
instance, a city's ordinance may prohibit discrimination on the basis of marital
status. If you refused to rent an apartment to two people of the opposite sex
who are not married, but will rent to two people of the opposite sex as long as
they are married, you have not violated the federal Fair Housing Act, but the
city could take action against you for a violation of the local fair housing
ordinance. Besides marital status, other categories sometimes protected by local
ordinance or state law include: sexual orientation, source of income, and age.
Occasionally, an additional category may be added based on a particular local
condition. For example, Cincinnati's ordinance protects people of Appalachian
heritage from discrimination, while Denver's includes military status as a
protected class. If everyone is treated fairly and consistently, there should be
no need to be overly concerned with the particular protected groups of a
locality.
Q. Can we designate a specific "play area" on a property? We have a lot of
children as residents, and we're very concerned that they will play in the
parking areas.
A. There's nothing wrong with designating a certain area of a property as a
"play area." You need to be careful, however, that your designation isn't
limited only to children. While as a practical matter, children may be the
primary users of the play area, adults sometimes "play" too. A rule that says
"No playing in the parking lot," therefore, is fine, but one that says "Children
may not play in the parking lot," is not appropriate. Remember, while safety is
a legitimate concern, not permitting playing in any area of the property may
result in a fair housing challenge by families with children.
Q. A resident has asked me to make an accommodation to his disability. I
understand I'm required to make accommodations, but I'm not sure he really has a
disability. Can I ask for verification?
A. Both the Fair Housing Act and Section 504 of the Rehabilitation Act of 1973
require housing providers to make accommodations for people with disabilities
when requested. (The nature of the accommodation required differs depending on
whether the Fair Housing Act or Section 504 applies.) Some disabilities are
immediately obvious, such as the loss of a limb, the use of a wheelchair, or a
serious visual or hearing impairment. Other disabilities, which are just as
real, are not so apparent, such as asthma or a heart condition (which may
prevent a person from walking long distances), a sensitivity to common
chemicals, or a mental illness. If the disability would not be immediately
obvious to a reasonable person, you may ask for verification of the disability
and the need for the accommodation at the time the accommodation request is
made. That verification can come from a medical professional, but it might also
come from a social service organization that assists people with the particular
disability. Once the existence of the disability is confirmed, you should not
request further verification or details of the disability. Do not ask for
verification if the disability is immediately obvious to you.
Q. In my advertisements, or when giving information over the phone to a
prospective resident, can I use directional indications that include references
to ethnic or religious landmarks?
A. The Fair Housing Act's implementing regulations caution that "specific
directions which make reference to a racial or national origin significant area
may indicate a preference. References to a synagogue, congregation or parish may
also indicate a religious preference. Names of facilities which cater to a
particular racial, national origin or religious group, such as country club or
private school designations, or names of facilities which are used exclusively
by one sex may indicate a preference." The answer to your question, then, is
that it is best to avoid the use of directional landmarks that are specifically
identified with any particular race, national origin, or religion.
Q. Do I have to waive the pet deposit for a resident with a disability who
requires the use of a service or companion animal?
A. If you manage a conventional property that normally allows pets and charges a
deposit for animals, go ahead and charge the usual pet deposit for a service or
companion animal. If you manage an assisted property, however, the resident may
not be able to afford the deposit. If that's the case, and the deposit would
prevent the resident from renting the apartment, you should waive it for a
service or companion animal. In either conventional or assisted housing, if you
do not normally allow pets, do not create a deposit policy just for service or
companion animals. Let the animal in with no deposit payment.
Q. On an assisted property, I have already provided a visual door knock
indicator for a hearing impaired resident. He wants a different one that is more
expensive. Do I have to provide it?
A. Since this is an assisted property, Section 504 of the Rehabilitation Act of
1973 applied, and it is your responsibility as the housing provider to pay for
reasonable modifications made necessary because of a resident's disability.
However, you need only make accommodations (including physical modifications)
that are effective; you are under no obligation to do everything to the exact
specifications requested by the resident. As long as the door knock indicator
you've installed is effective, you've met your responsibilities under Section
504. Of course, on a conventional property, this would not be an issue, since
the resident is responsible for the cost of the modification, and can choose to
install whatever model door knock indicator he or she prefers.
Bio:
Charles Brown is an attorney who invests in real estate in the Austin, Texas
area. He is Board Certified in Residential and Commercial Real Estate Law by the
Texas Board of Legal Specialization. He can be reached at 512-476-8942.