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Fair Housing Act Primer for Multifamily Owners

By Elizabeth Whitman | April 9, 2018

Fifty years ago, on April 11, 1968, The Fair Housing Act (FHA) became law. At first, the FHA only prohibited housing discrimination based upon race, color, religion, and national origin.

Later amendments expanded the protected categories to include sex, familial status, and disability. Familial status not only includes presence of children but also age and pregnancy. Although the FHA does not prohibit discrimination based upon sexual orientation or gender identity, some courts have used protections based upon sex or familial status so that the FHA also protects those individuals.

State and Local Governments Have Fair Housing Laws Too

Many state and local governments have adopted laws expanding the scope of fair housing laws beyond the FHA. New York City also protects individuals from housing discrimination based upon gender identity, lawful occupation, lawful sources of income, marital or partnership status, pregnancy, sexual orientation, victims of certain crimes, and Veteran or active military status.

California’s list includes sexual orientation, gender identity, gender expression, genetic information, marital status, and source of income in addition to the FHA categories. Washington DC’s fair housing law includes personal appearance, sexual orientation, gender identity or expression, family responsibilities, matriculation, political affiliation, source of income, victim of an intra-family offense, and place of residence or business.

Exceptions to the Fair Housing Act

Some types of housing are exempt from the FHA. These include:

  • Owner-occupied housing consisting of two or four units;
  • Single family home sales and leases, provided no broker and no discriminatory advertising is used;
  • Private clubs which make housing only available to members;
  • Religious organizations which limit housing to those of that religion;
  • Age-restricted communities where either all the residents are over age 62 or 80% of the units are occupied by at least one person age 55 or older.

State and local exceptions to the law may differ from those in the FHA. Most local zoning laws will limit the number of individuals who can reside in an apartment based upon square footage or number of bedrooms. This can operate as an exception to the FHA prohibition based upon familial status.

Examples of Illegal Discrimination

The FHA and most state and local laws go beyond prohibiting just a refusal to rent based upon being in a protected category. Blockbusting (trying to convince owners to sell based upon concerns that individuals having a protected characteristic are moving into the neighborhood) and steering (encouraging individuals to look for housing in a neighborhood because of their traits) both are illegal.

It also is illegal to provide different terms or conditions in a lease or financing or to provide inaccurate information about available housing or financing due to an individual’s protected characteristics. Retaliation for filing fair housing complaints or testifying in fair housing cases also is prohibited.

For individuals with disabilities, owners, properties managers, and lenders must provide reasonable accommodations. Reasonable accommodations depend upon the individual’s needs. Examples include providing a sign language interpreter, allowing a guide dog, or having handicapped parking spots.

Properties built after March 13, 1991, are subject to the Americans with Disabilities Act (ADA). Those properties must meet ADA accessibility requirements, as well as any building code or accessibility requirements under state or local law.

Owner and Property Manager Fair Housing Checklist

Multifamily owners should include the following in their fair housing policies:

  1. Be aware of state and local laws that apply to their properties
  2. Follow HUD fair housing advertising guidelines, with any necessary state or local additions. Use the fair housing logo in advertisements.
  3. Put a fair housing poster from HUD or state or local fair housing office in your leasing office
  4. Quote the same terms and rental unit availability to every prospective tenant
  5. Use the same tenant screen process and criteria for every prospective tenant
  6. Offer the same amenities and services to all tenants
  7. If a property was built after March 13, 1991, conduct an ADA audit to be sure the property complies with the ADA
  8. Evaluate processes to be sure that they do not have a disparate impact on individuals in a protected class

Each property has unique features and is subject to specific state and local laws. Owners should consult their state or local fair housing office, apartment association, or a real estate attorney for information specific to their properties.

Elizabeth Whitman is an attorney and broker who has represented clients in more than $1.3 billion in real estate transactions.Elizabeth's law firm, Whitman Legal Solutions, LLC, is located in suburban Washington, DC and represents real estate owners and securities sponsors throughout the nation.
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