According to law, a landlord is not allowed to discriminate against people because of their race, color, religion, national origin, ancestry, sex, age, disability, sexual orientation, marital status, children, past involvement in a discrimination complaint, veteran status, or status as a recipient of public assistance.
The following are some of the ways landlords may avoid discrimination charges.
The Attorney General’s office contacted SPOA several months ago and said that many landlords get into trouble by innocent slips of the tongue. Of course, they may also get into trouble from overt actions.
The AG’s office has reached many settlements against landlords, real estate agents and property managers across the Commonwealth for violating anti-discrimination laws. Many times the evidence against a landlord comes from the AG’s staff monitoring for-rent ads on Craigslist and in the newspaper. Those ads are easy for the AG’s office to monitor, and the guilty statement is right there in black and white.
A good rule of thumb is to advertise only the basic characteristics and amenities of the property and NOT what you are looking for in a renter. Never make any suggestion that might indicate a preference for a tenant based on race, color, religion, national origin, sex, sexual orientation, disability, age, family size, source of income or family status.
Also never mention that a property has lead paint in it. Mentioning lead paint in an advertisement is considered steering, a practice of discouraging a tenant from a decision based on a personal characteristic, like having young children, to avoid the owner’s duty to eliminate lead hazards. Such steering is considered discriminatory. Even suggesting an alternative apartment is problematic.
To prevent claims of steering, a landlord can make prospective tenants aware of all units available and let them chose which units they wish to view. Avoid suggesting that a tenant would like one unit over another because the neighbors would be of their ethnic background or racial group.
When showing an apartment, if you have any concerns about the possibility of a discrimination complaint, arrange for someone to accompany you. They would be your witness in answering the complaint. At the end of advertisements some landlords use a disclaimer that they do not discriminate on the basis of the categories mentioned above.
Make it a habit of returning all telephone inquiries. Testers, persons with accents or who sound ethnic that are hired by the anti-discrimination agency to catch people, pose as potential tenants. If a minority tester does not get a call back, agencies may then have another tester call who does not have an accent or sound ethnic to see if they get a response. Not returning such phone calls may be considered a violation of the fair housing laws. The Fair Housing Center of Greater Boston regularly employs testers to catch landlords acting in discriminatory ways.
When talking on the telephone or in person, do not let on that you recognize a potential tenant’s race, ethnic background or national origin. Keep records of phone calls. Be consistent by treating all tenant applicants in the same way. Keep it professional.
Avoid using terms like “honey,” “dear” and “sweetheart.” For some people, such terms are just a way of being kind, but using these terms can also be considered sexual harassment. Besides shaking hands, any physical contact is off limits. Avoid off-color jokes. Do not refer to an applicant’s or tenant’s appearance. If you are suspicious, bring someone with you to be a witness.
Many housing claims arise as a result of issues in the screening and application process. Landlords who have a written rental policy detailing their screening and application procedure have an effective weapon against a discrimination complaint. During the screening or application process, avoid questions about physical or mental disabilities, drug or alcohol use or lawsuits.
Questions about prior evictions, prior money judgments, bankruptcy and why a prospective tenant is leaving their current residence are allowed. Getting references from the current and more importantly the former landlord is recommended. It is important to remember that the current landlord may give a good reference to get rid of a bad tenant.
A landlord can avoid many problems with a thorough background check on all applicants. The background check, of course, protects one against bad tenants, and being consistent – treating all applicants the same – protects against discrimination lawsuits.
A discrimination complaint can arise if one turns down a family as too large for an apartment. The official occupancy capacity of an apartment is generally based on the size of bedrooms and the whole apartment. The standards are set by various federal agencies and the state sanitary code. The standards, however, allow much denser occupation than most landlords would think “normal.”
The state sanitary code specifies at least 150 square feet of floor space for the first occupant and at least 100 square feet for each additional occupant. A bedroom or any room used for sleeping needs to be at least 70 square feet for one occupant; for more than one occupant, at least 50 square feet per occupant. A landlord cannot make determinations such as that a teenage boy and girl cannot sleep in the same room.
A reasonable accommodation is a request by a person with disabilities to help them with their challenges. All landlords are required by law to make reasonable accommodation for persons with disabilities. The request, however, must not place an undue burden on the landlord. Of course, this is open to interpretation. It is advisable to contact an attorney early in this process if a landlord feels that an accommodation is unreasonable. If the request is denied, a letter should be sent to the resident explaining the denial. Landlords should not offer to make accommodations before they are requested as it is possible to become subject to a claim of discrimination. Examples of a reasonable accommodation could be a grab bar in a shower or bath for an aging tenant or the parking space closest to the house for a tenant with a mobility disability.
Written evidence is always better than verbal evidence. So landlords should keep all records of advertisements, credit reports and tenant applications even if the applicant did not end up in a tenancy. This information should be kept under lock and key, as it contains sensitive personal information that may be prone to identity theft. There are strict rules about protecting personal information.
If you have a handyman or handywoman, a superintendent or a maintenance person that you employ, make sure that they understand the fair housing laws. You can be held responsible for their discriminatory behaviors. They are considered your agents.
Make sure that you use the same criteria for all evictions or the tenant you are harder on may claim discrimination. Keep all warning letters and eviction notices, written complaints regarding the tenant from third parties, logs of the unacceptable behavior, i.e. loud fights, music, property damage, unpaid rent. Keep copies of any police records and take photographs when possible to document any problems. Keeping a good paper trail will be protection in the event of a discrimination accusation.