Avoid fair housing violation when showing apartments

Rent it Right

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Aug. 16, 2012

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Rent it Right

Janet Portman
Inman News®

Q: My wife and I manage a midsized apartment complex in a quiet part of town. We have a mix of residents, some of whom have lived here for many years, and some new families with children. An older couple applied for an apartment and asked to be shown units that were near older, childless families. We actually have an area that has three couples without kids, and there was a unit nearby, so I showed it to them. My wife says this was illegal. Was it? --James J.

A: Your wife is trying to keep your rental business safe from harm, by advising you to never answer or act in a way that may be interpreted as discriminatory. I can imagine that she said to you, "Dear, what you should have told them is that we have several units available; that we'll show them every one, and they can make a decision based on what they see. If you answer this way, applicants can never say that we steered them to a particular area of the building based on their familial status."

But, you might say, you were simply agreeing to do what the applicants asked -- in no way were you treating them negatively or discriminatorily. And because you weren't turning them away, or sending them to a portion of the building where they did not want to be, they'd have no reason to complain. In short, no harm, no foul.

Your argument makes a whole lot of common sense, but because of the way fair housing laws work, you'd be better off listening to your wife.

Here's the risk you are taking: Suppose that you rent the unit to these folks who later, for some reason, are unhappy and begin looking for reasons to complain about you. They remember that they were shown only one unit, based on their not having children. They conveniently forget that they made the request. It takes only a few minutes to fill out an online complaint form at a HUD website, and with this allegation, the investigation process will be set in motion. You may eventually win (perhaps you have documentation that they requested to be shown this unit), but that's hardly the point. Any fair housing investigation, however short, is one to avoid.

Another risk attends your agreeing to this request: These applicants may be fair housing "testers," applicants who apply for rentals to see whether the landlord is discriminating (most of the time, the testers focus on properties that have a history of discrimination and have been the subject of many complaints). When applicant-testers encounter a landlord who appears willing to steer applicants based on their familial status, they may at least contact you. Again, not a scenario you want.

Keep this in mind if you hear similar, seemingly innocuous requests. "We'd like to be near other families with children," and "If you have [ethnicity, religion] residents here, we'd like to be near them" deserve the same response: "I'll show you what we have available, and you can choose from these." It's up to the applicant to learn about the neighbors, and it's not illegal for applicants to ask current tenants and neighbors any question they wish.

Q: Our neighbor, who rents a single-family house next to ours, has a pet monkey that is quite frightening. He's often loose, in our yard, and menacing. I've complained to the landlord, but he says he can't do anything because the lease allows the tenant to have a pet. Is there anything we can do? --Micah D.

A: Your neighbor's landlord is taking a shortsighted and risky position regarding this "pet." Doubtless the lease simply allows pets, with no explanation as to which kinds, and the landlord has concluded that his hands are tied. Next time, he thinks, he'll specify dogs, cats, fish and so on, and none else.

That resolve will not address the current problem. But, in fact, there is something the landlord can do, and it's no different than if you were complaining about a dog who was loose and menacing. When landlords are aware of a dangerous condition on their properties, they are legally bound to take steps to correct it -- for example, demand that the animal be removed, and terminate the tenancy if the tenant refuses. Failing to do so risks a lawsuit from people who are injured as a result.

For instance, suppose the pet -- of whatever kind -- bites the mail delivery person, or a friend of the family, or a neighbor. A serious bite may result in a trip to a lawyer's office after the visit to the doctor, and the lawyer will look around for responsible and solvent parties. Of course, the animal's owner is responsible, but so too is the landlord, who failed in his duty to maintain a safe property for people whom he could reasonably expect would be on the property. Those people include visitors such as delivery persons, guests and neighbors.

But whom will the lawyer actually sue? Both, of course. If the tenant has a renters insurance policy, there is the deep pocket; if not, all the more reason to also sue the landlord, who will probably have a liability policy. Typically, the cases settle with each side contributing to the settlement.

Your neighbor's landlord has one additional argument for dealing with the pet. A monkey is considered an exotic animal, which is by definition dangerous. As soon as the landlord learned of its presence, he was on notice and needed to act. The pet clause in the lease has nothing to do with this situation -- exotic animals in many judges' eyes are simply not pets.

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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