Fair Housing Act: The Basics of Fair Housing Laws (2023)

In this article:

• What does equal housing opportunity mean?
• What is rental discrimination?
• What classes are protected from rental discrimination?
• How should you determine max occupancy?
• What should you consider when renting to families with children?
• Who is exempt from fair housing laws?
• What do fair housing laws prohibit?
• What is reasonable accommodation?
• What is reasonable modification?

Whether you own one investment property or manage 200 units, it’s important for you and your team to understand and abide by applicable federal, state and local fair housing laws; promote an equal housing opportunity for tenants; and run a compliant rental business.

The Fair Housing Act is the federal law that grants fair housing protections and rights to renters and buyers. The act was originally adopted as part of the Civil Rights Act of 1968, and it was subsequently broadened in 1988 to prohibit discrimination because of a person’s protected class when renting or buying a home, getting a mortgage, seeking housing assistance or engaging in other housing-related activities.

What does equal housing opportunity mean?

Equal housing opportunity is the notion that all persons should be granted the same chances when it comes to choosing housing. This law is administered and enforced by the Office of Fair Housing and Equal Opportunity (FHEO), an office within the U.S. Department of Housing and Urban Development (HUD). HUD was given enforcement responsibility by the Fair Housing Act of 1968.*

What is rental discrimination?

Rental discrimination is when a landlord or property manager treats an applicant differently based on the applicant’s inclusion in a protected class. Courts recognize that discrimination may result from both intentional and unintentional conduct.

Intentional discrimination (called “disparate treatment” discrimination) occurs when someone treats a renter adversely because of their status in a protected class.

Unintentional discrimination (called “disparate impact” discrimination) occurs when an action or policy triggers adversely affects members of a protected class, even if there was no intention to discriminate. The U.S. Supreme Court has recently confirmed that the Fair Housing Act recognizes disparate impact liability. As a result, landlords and property managers should be aware that they may be liable for policies and practices that, even unintentionally, have a harsher impact on people in protected classes. Such disparate impact liability is often recognized under state law as well, and landlords and property managers should research state and local anti-discrimination laws to ensure their compliance.

Examples of rental discrimination

An example of intentional discrimination is posting a sign that says “No [insert protected class] need apply.” Such overt discrimination is relatively rare today, but other practices — such as imposing restrictions on families with children — still occur.

An example of unintentional discrimination may be when a landlord or property manager applies a “one strike” tenant screening rule for arrests. HUD guidance explains that because people of color are disproportionately arrested, and being arrested may have no relationship with your ability to be a good tenant, then people of color may be disproportionately disqualified from housing by tenant screening policies despite those policies not serving any legitimate business justification.

What classes are protected from rental discrimination?

In fair housing terms, discrimination means treating someone differently because they are part of a protected class. Beyond the federal fair housing laws, state and local laws may provide further protection to renters in additional protected classes, some of which are summarized below.

Protected classes under federal law:

• Race
• Color
• Religion
• Sex
• National origin
• Familial status
• Physical or mental disability

Protected classes under state and local law can include:

• Citizenship
• Age
• Veteran or military status
• Genetic information
• Sexual orientation
• Gender identity or expression
• Source of income (including federal, state or local rental-assistance programs, such as Section 8 housing choice vouchers and temporary rental assistance)
• Criminal history

Additional fair housing guidelines to consider

Criminal history: In spring 2016, HUD provided guidance about the potential discriminatory impact of screening tenants on the basis of criminal history.

Limited English proficiency: While English proficiency is not a separate protected class under the Fair Housing Act, English proficiency is considered a subset of national origin, so refusing to rent to someone because they are not proficient in English may constitute national origin discrimination.

Max occupancy: Although the Fair Housing Act does not expressly prohibit occupancy standards limiting the maximum number of occupants, some occupancy standards can have a discriminatory effect. You should be careful if you set a maximum occupancy for your rental. Use the word “persons” when referring to occupants and never specifically limit the number of children. You may not want to count Infants under the age of 1 as occupants.

You should consult with a lawyer to determine whether there are additional state or local anti-discrimination laws in your community.

How should you determine max occupancy?

Familiarize yourself with applicable laws about maximum occupancy, which may vary depending on the square footage, bedroom size and configuration of your unit. Some landlords and property managers use the Keating Memorandum, a national guideline for occupancy issued by HUD (63 Fed. Reg. 70255), while others use square footage guidance from the Building Officials and Code Administrators (BOCA) code.

Keating Memorandum:

Two persons are allowed for each bedroom, subject to some exceptions and limitations. Under this standard, housing providers must consider the following: Whether there state or local laws that set a different standard, the property size and layout, building system capacity, and the age of children.

BOCA code:

• The unit must be at least 150 square feet for the first occupant.
• The unit must increase by 100 square feet for each additional occupant.
• Every room occupied for sleeping purposes by one occupant must contain at least 70 square feet of floor space — or at least 50 square feet per person if occupied by more than one person.

Whichever rule you use, be sure to standardize and document the policy and familiarize yourself with state and local regulations.

What should you consider when renting to families with children?

Familial status — that is, the status of a legally recognized relationship between an adult and a child under the age of 18 in the household — is another protected class with important details to be aware of. All properties (other than housing for older persons) are supposed to accommodate children. If you recommend specific apartments to families with children, you’re steering them to or away from particular units and this is a form of discrimination. According to the Zillow Group Consumer Housing Trends Report 2018, one-third of renters (33%) live with children, so it’s important to keep these guidelines in mind:

• You cannot refuse to rent to a family solely because they have children under the age of 18.
• You also cannot direct families with children to specific units that you deem more “kid-friendly.”
• You cannot charge extra fees based on familial status.

Who is exempt from fair housing laws?

Fair housing laws apply to all single-family homes and multifamily dwellings, but there may be Fair Housing Act and state law exemptions for landlords and property managers although generally, discriminatory advertising is always illegal. In limited circumstances, exemptions are available if:

• An owner-occupied building has four or fewer units.
• Single-family houses are sold or rented by the owner without the use of a real estate agent.
• Housing is run by a religious organization or private club that limits occupancy solely to members.

Fair Housing Act exemptions to “housing for older persons”

Under the Fair Housing Act, multifamily properties that constitute “housing for older persons” are allowed to refuse to rent to families with minor children. This includes properties where all units are occupied by persons age 62 or older and at least 80% of all units are occupied by at least one person age 55 or older.

Certain other conditions may be required. Consult with an attorney to ensure your property adheres to these requirements and related state and local laws.

What do fair housing laws prohibit?

The laws were created to ensure that “every neighborhood is a place of opportunity” and to prevent discrimination and segregation based on someone’s inclusion in protected classes. Fair housing laws for apartments and other rentals prohibit landlords and property managers from taking any of the following actions because of race, color, religion, sex, disability, familial status or national origin.

1. Advertising for a specific group of people

While marketing and showing your rental, beware of subtle practices that could be perceived as discriminatory. In your search for a qualified tenant, make sure your advertising is compliant with fair housing laws by focusing on the property and the amenities in your rental listing description — not on who you think an ideal renter would be.

Fair housing laws describe advertising for a specific group of people as:

• Making, printing or publishing any notice, statement or advertisement related to the rental that indicates any preferences, limitation or discrimination
• Falsely denying that a rental is available

Tips for landlords:

• Avoid saying that your property is great for a young couple or senior citizens — this could be perceived as discrimination against families with children.
• If you plan to use human models in your advertising, consider using a diverse group of models that includes members of protected classes.
• Avoid falsely stating that the property is no longer available to dissuade specific applicants.

2. Discrimination in the screening process

As part of a strategy to minimize the possibility of unintentional discrimination, consider using a documented and consistent method to screen and accept applicants. Give everyone an equal opportunity to apply — no matter what they look or sound like, no matter what their name is — and accept or deny renters based on criteria that are applied consistently and aren’t related to a prospective renter’s status as part of a protected class.

Fair housing laws describe discrimination in the screening process as:

• Refusing to rent or negotiate for housing
• Discouraging someone from renting
• Making a rental unavailable

Tips for landlords:

• Avoid questions or suggestions that may be perceived as discriminatory, including things like “This unit would be great for a young couple.”
• Ask the same questions of all tenants.
• Score prospective tenants in the same manner, without regard to any applicant’s status as a member of a protected class.
• When in doubt, keep the conversation focused on the property and amenities.
• Let the potential renter ask you questions so you can answer factually.
• Properly qualify renters with a rental application.
• Use credit checks, background checks and income verification to supplement the application materials, but be aware of state and local restrictions on the use of criminal history, rental history, and credit score. Consult with an attorney familiar with the laws in your area for more information.
• Provide renters with a reason for denial if they weren’t approved.

3. Denying renters access to housing opportunities

Unlawful steering occurs when a landlord tries to attract or deter a potential tenant to or from a particular neighborhood or property based on their inclusion in one of the protected classes. It’s not an outright refusal to rent to a person within a protected class — rather it consists of efforts to deprive a person of housing opportunities in certain locations.

Fair housing laws describe denying renters access to housing opportunities as:

• Providing a tenant different housing services or facilities — or limiting their privileges, services or facilities
• Assigning a tenant to a particular building, neighborhood or section of a building or neighborhood
• Refusing to rent to a family solely because they have children

Tips for landlords:

• Provide all renters equal access to your listings.
• Show the vacancies you have.
• Allow renters to indicate what units they want to see.
• When describing the property and community, focus on facts, not assumptions about the residents or neighborhood.

4. Setting inconsistent qualification criteria

As a landlord, you have every right to create policies and rules for your properties to promote a safe and comfortable living environment, as long as they do not have an unintended disparate impact on protected classes. According to the Zillow Group Report, 75% of renters find it extremely or very important that their neighborhood feels safe. But while you’re in pursuit of a safe living environment, be sure the policies and rules you set are standard across all groups of people and don’t single out any one group or category of resident.

Fair housing laws describe setting inconsistent qualification criteria as:

• Setting different terms, conditions or privileges for the rental
• Using different qualification criteria, applications, standards or procedures
• Imposing different rental charges

Tips for landlords:

• Avoid making rules that single out a protected class.
• Make all policies and rules inclusive.
• Never make rules just for families with children.
• Familiarize yourself with applicable laws about maximum occupancy.

5. Retaliation against or harassment of a tenant

The best way to ensure you and your team are maintaining fair housing practices is to build them into your processes and procedures. That allows you to document that everyone is treated the same, every time, so you’ll be prepared if you receive a complaint.

Fair housing laws describe retaliation against or harassment of a tenant as:

• Failure to perform or delay in performing maintenance or repairs
• Evicting a tenant or a tenant’s guest because of their protected class
• Harassing a person because of their protected class
• Threatening, coercing, intimidating or interfering with anyone exercising a fair housing right or assisting others who exercise the right
• Retaliating against a person who filed a fair housing complaint or assisted in a fair housing investigation

Tips for landlords:

• Receive regular training on fair housing laws from qualified local legal professionals.
• Document every interaction with renters and applicants using a spreadsheet or CRM software.
• If you’re presented with a complaint, promptly contact a legal professional — don’t retaliate.
• Negotiate resolutions of housing discrimination complaints.

6. Refusing to accommodate persons with disabilities

In 2017, more than half (59.4%) of housing complaints investigated were in relation to a disability. Landlords and property managers need to be aware that there are extra protections for accommodating a renter with a disability. A disability can be a mental or physical condition, and under the Fair Housing Act and state or local laws can include (but is not limited to):

• Visual, hearing and mobility impairments
• Mental illness
• Intellectual or developmental disabilities
• HIV/AIDS
• A history of disability
• Alcoholism
• Drug addiction (other than addiction caused by current illegal use of a controlled substance)

Fair housing laws describe refusing to accommodate persons with disabilities as:

• Refusing to make housing accessible to persons with disabilities
• Refusing to make reasonable modifications that may be necessary to allow persons with disabilities to enjoy their housing

Tips for landlords:

• Only ask questions that could be asked of every applicant or tenant — even if the questions are well-meaning.
• Avoid any questions about a renter’s health, disability or illness.
• Consider all reasonable accommodations and reasonable modifications.

What is reasonable accommodation?

A reasonable accommodation is when a tenant makes a request to a landlord or other housing provider for an exception to their rules or policies, based on a disability-related need of that tenant or someone who is associated with them, like their friends or family. The request is made to allow for an equal opportunity to use and enjoy the dwelling, the same as non-disabled tenants. These accommodations could include:

• Allowing a live-in caregiver or assistance animal (assistance animals are not considered pets)
• Setting up reserved parking
• Changing certain cleaning products or pesticides that may trigger allergies or other chemical sensitivities

How to handle a reasonable accommodation

A request for a reasonable accommodation should be handled on a case-by-case basis, based on the specific circumstances of the requested accommodation and the tenant making the request. In general, the request should be approved if the request is made by or on behalf of an individual with a disability, is reasonable, and the request will address a disability-related need.

In terms of how to identify whether the disability qualifies for a reasonable accommodation, if the landlord knows that the tenant or someone associated with the tenant is disabled (e.g., they use a wheelchair to move around), or perceives that the person is disabled, then the landlord should assume that the person qualifies as disabled under the law. If a disability is not obvious, then the housing provider may request additional information that is necessary to verify that the person is disabled, describes the needed accommodation, and shows the relationship between the person’s disability and the need for the accommodation. A doctor, other medical professional, or a reliable third party who is knowledgeable about the person’s disability may provide verification of a disability. Generally, a landlord should not need to ask about the nature or severity of anyone’s disability.

No matter what, the landlord should not ignore the request, and they need to engage in what is called an “interactive process” to consider the request and discuss the tenant’s proposed accommodation. If the landlord believes the request is unreasonable because it would impose an undue financial and administrative burden, or it would fundamentally alter the nature of the landlord’s operations, or granting the request would impose a direct threat to the health or safety of other tenants based on actual and objective evidence, then it may be denied. However, as part of the interactive process, the landlord should strive to offer possible alternative accommodations that may address those concerns.

Consult an attorney or local legal professional with any questions about reasonable accommodations, cost to the landlord for reasonable accommodations, verification of the disability-related basis for the request and before denying a request.

Emotional support animals

An emotional support animal (ESA) is a type of assistance animal for a person with a disability that is recognized as a reasonable accommodation under the Fair Housing Act. The assistance animal is not a pet, according to HUD, and in general, the landlord or other housing provider cannot:

• Require a tenant to pay a pet deposit or pet fee.
• Limit the assistance animal based on general assumptions about certain species or breeds.
• Ask about the nature or severity of the disability, or unreasonably delay the request.
• Limit access for the ESA. Generally, the assistance animal should be allowed wherever any other tenants are allowed, including full access to the dwelling unit and common areas.

A tenant requesting an ESA:

• May be asked to submit reliable documentation (typically from a medical doctor, treating therapist, or other knowledgeable and reliable third party) of the disability and disability-related need for the ESA if their disability is not known or readily apparent.

A landlord can:

• Engage in the interactive process and make an evaluation of the ESA to determine if the specific assistance animal poses a direct threat of harm or would cause substantial property damage, based on actual and objective evidence.
• Deny the request for the ESA if their insurance carrier would cancel, adversely change the policy terms or substantially increase the costs of the insurance policy.
• Require that the tenant clean up after the ESA and cover any costs to repair damage to dwelling and common areas, so long as both assistance animals and pets are held to the same standard.

What is reasonable modification?

A reasonable modification is a physical change to the property that gives the resident equal opportunity to access the property and its amenities. These modifications could include:

• A ramp leading to the entryway
• Grab bars in the shower
• Lower countertops

How to handle a reasonable modification

Establish procedures for how applicants and residents make reasonable accommodation or modification requests and how you respond to them. Even a verbal request may trigger reasonable accommodation or reasonable modification duties, and a delayed response may be equivalent to a denial.

Consult an attorney or local legal professional with any questions about reasonable modification issues, when determining who’s responsible for the cost, when verifying the disability-related basis for the request and before denying a request.

Resources:

• National Fair Housing Alliance
• National Fair Housing Alliance 2019 Fair Housing Trends Report
• U.S. Department of Housing and Urban Development

*Properties that receive certain forms of federal financial assistance may be subject to other federal anti-discrimination laws. Properties including places of public accommodation — such as rental offices or retail space — may be subject to the Americans with Disabilities Act. You should consult with a lawyer to determine the full range of anti-discrimination laws that apply to your property.