Apartment hunters hate 'steering' law

Rent it Right

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Feb. 11, 2010

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Rent it Right

Janet Portman
Inman News

Q: My wife and I are elderly and have trouble negotiating stairs. Partly for that reason, we decided to sell our home and rent a place on one level.

We looked at a really nice apartment complex, and asked to be shown only units without stairs. The leasing agent insisted that "the law required" that she show us all available units, which included some with second stories. This wasted our time, was tiring, and made us think that management at this place doesn't know what they're doing. Are we missing something here? --Dottie and Dan M.

A: The leasing agent you encountered is bending over backwards to avoid a charge of "steering." Steering is the term that describes the illegal practice of showing persons of a certain race, ethnicity, sex or other protected class only a certain section of the building or property. In its most insidious form, steering involves sending black prospects to the rear of the building, or prospects with families to an isolated area (or to an area that's set aside for them), and so on.

Steering can also occur when agents think they know where a tenant will be most comfortable, and show the tenant only that unit (for example, an agent might assume that a blind person would be better off on the ground floor, and might show him those units only). Whether insidious or well intentioned, steering is the rental equivalent of "go to the back of the bus."

But what happens when a prospect clearly asks to be shown only units that are near, for example, other families with children? Or who, like you, wants to be on the ground floor? Because leasing agents are trained never to segregate prospects, they will hesitate. They may be afraid that you're setting them up -- asking for a certain location or type of rental, but planning to turn around and cry foul when they comply with your request. To avoid this remote possibility, they take the rigid stance of insisting that you view all available units.

But surely there's a common-sense, middle ground here. Your agent could have listed the available units on the form or card that most agents keep when they interview prospects, and he might have asked you to circle the ones you wanted to see, and to initial the list. This would be good evidence in his favor should he need to prove that he offered you the complete range of vacancies, and you chose the units that interested you.

Q: The tenants who lease my single-family home have become "ham radio" enthusiasts. Without asking me, they erected an antenna in the backyard. It's unsightly and, according to neighbors, emits an annoying noise that disrupts their sleep. The tenants claim that under federal law, they're entitled to erect what they need to get reception. Is this true? --Bob C.

A: Your tenants must be thinking of the FCC rules that were issued (and occasionally amended) after the federal Telecommunications Act was signed in 1996. That law decreed that all Americans should have access to information that comes over the air, and made it very difficult for landlords and homeowner associations to prevent tenants and residents from erecting antennas to capture video programming signals.

In single-family homes, a tenant may install a mast (antenna) that extends up to 12 feet above the roofline without your permission, as long as it's done in a safe manner. You may prohibit an antenna or dish if your property is on the National Register of Historic Places (or is eligible to be there), but not merely because you think that the antenna is an eyesore.

But this law applies only to video antennas, not antennas used for AM/FM radio, amateur (ham) and citizens band (CB) radio, or digital audio radio service ("DARS"). This means that you may treat your tenants' placement of an antenna that's anchored to the ground as you would any alteration or improvement. Hopefully, you have a clause in your lease specifying that tenants must get your approval, in advance, before installing any such improvements.

If you have such a clause, your tenants have violated it, which gives you grounds to serve them with a legal notice to remove the antenna or leave. But before you take this step, meet with them and size up the situation. Has the antenna been placed in a workmanlike, safe manner? How much disruption to the backyard did it cause? What about removing the antenna when they leave: Will the tenants return the space to its original condition? As for the noise, perhaps that's a matter of adjusting a setting or providing some other solution.

If you can't resolve the noise issue satisfactorily, that may be reason enough to demand that the antenna come down. Remember, your tenants must not annoy the neighbors to the extent that they have created a "private nuisance." (A private nuisance is any activity, legal or illegal, that results in others not being able to reasonably enjoy the use of their property.) Noise that causes nightly sleep disruption would surely qualify as such a nuisance.

Because you have control over your tenants (in the sense that you can evict them if they refuse to stop causing a private nuisance), you are ultimately responsible for the problem -- and your neighbors could name you in a complaint to your city or the police. It's far better to get everyone together and try to work out a solution that meets everyone's needs.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord's Legal Guide" and "Every Tenant's Legal Guide." She can be reached at janet@inman.com.

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