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By Nadine Green

Those in the fair housing industry often joke that, given the ever-evolving fair housing landscape, we will never find ourselves out of a job. But you might find yourself out of a job (and relieved of some of your money and assets, too) if you do not keep up with the emerging trends in fair housing today. This article will explore some of these national trends.

Criminal Background Issues
As an ex-felon, Martha Stewart would not be allowed to rent at many apartment communities today. She could likely afford the rent, she is not a risk to others (annoying, perhaps, but not a risk), and arguably her apartment and the common areas might look nicer if she could move in. It also does not seem to matter that she has, under our justice system, paid her debt to society through her imprisonment and should be able to resume her life.

Perhaps Stewart should consider renting in Madison, Wisconsin, or the cities of Urbana and Champagne, Illinois, where some protections are in place for former felons. Charges may be filed for unlawful discrimination in housing due to a prior arrest record or prior conviction record under certain circumstances.

The Department of Housing and Urban Development has also established some rules at the federal level as to HUD-funded housing. While some crimes can result in a lifetime ban (like producing methamphetamines on the premises or being a registered sex offender), other offenses (such as a drug-related eviction) result in only a three-year ban from such housing. That ban can even be lifted early if someone completes certified drug or alcohol counseling. HUD and three modest-sized cities do not a trend make, but remember that when an entire group of people is denied housing, our government often does step in to protect them.

Transgender Persons
A number of states now have legislation that prohibits gender-identity and transgender discrimination in housing, including California, Hawaii, Illinois, Maine, Minnesota, New Mexico, New Jersey and Rhode Island, as well as the District of Columbia and other cities such as Lexington, Kentucky, and Boulder, Colorado. These laws represent a major civil rights victory for the transgender community, which has often been denied housing or harassed. According to Mara Keisling, executive director of the National Center for Transgender Equality, “These laws make it possible for transgender people to show that the characteristics that help us transition—focus, courage and determination—are great assets and give us a chance.”

Smoking
As of January 2008, the American Nonsmokers Rights Foundation reported that 2,671 municipalities in the United States had in some way restricted where smoking is allowed. An example is Calabasas City, California, where by January 2012, 80% of all apartments must be designated as non-smoking. “Unfair,” “discriminatory” and “unequal treatment” may be the chant of smokers (in their often-raspy voices) and they are right. It might be unfair; it is certainly discriminatory and unequal treatment. But it is not a violation of civil rights or fair housing laws because smokers have no standing as a protected class. So smoking restrictions (forbidding smoking, segregating smokers) do not present fair housing issues, and even if there is no governing ordinance, the trend is likely to be that smoking will become a cause for eviction under many leases in the future. Quite simply, there is no “right” to smoke.

Cultural Clashes
Somalis often use floor-to-ceiling drapes, which can affect baseboard heating systems and lead to rotting windowsills. The Hmong cook in a style that generates a lot of steam, which can result in mold in kitchens. The potential existed for these scenarios to have resulted in conflict and possibly a fair housing dispute. But with some open-minded foresight and networking, landlords facing these particular issues were able to resolve them. (Teaching tenants about stove vents and compromising on drapes that stop short just above the baseboards are examples of some solutions.)

When a landlord rents to people of various ethnic and religious backgrounds, fair housing law imposes no imperative on the landlord to learn about those people or to accommodate their customs or beliefs. But good business and risk management would suggest that the wise landlord learn enough to make the rental experience manageable for all. So, if a particular population is becoming part of a landlord’s demographic, then a self-initiated dialogue with the appropriate cultural association, organization or religious group just might help dispel myths, resolve misunderstandings, and create residents who clearly understand what it takes to be a successful tenant.

Limited English Proficiency
As of this writing, the National Multi-Housing Council and the National Apartment Association have sued HUD over its Limited English Proficiency guidelines, based on a number of legal and practical reasons. The wheels of justice turn ever-so-slowly, so there is no clarity on what program-based housing is required to do to accommodate those who primarily speak a language other than English or have only a limited ability to communicate in English. This issue is a stay-tuned, up-in-the air issue.

Victims of Domestic Abuse
Many landlords will evict residents if there is a “scene,” if there is damage to the apartment, or if the police are called out to the apartment on one or multiple occasions. In fact, these scenarios will often rise to the level of a breach of the lease. But some case law and the Violence Against Women Act (VAWA) may mean that an eviction is not an acceptable landlord action.

Men can be and are abused by their domestic partners (wives and significant others), but the statistical reality is that most victims of domestic abuse are women. Since gender (sex) is a federally protected class, this has become a topic with fair housing overtones. So what is going on in this area?

Recently, a landlord in Denver was sued for not allowing a woman who was raped, beaten and stabbed by her ex-boyfriend in her apartment to relocate to a different community. While the landlord believes there was no legal basis for the alleged discrimination claim, the landlord did agree to settle for $60,000.

Illinois enacted the Safe Homes Act, effective January 1, 2007. This allows victims of domestic and sexual violence to change the locks on their apartments on an emergency basis and to break their leases if they believe it necessary for their personal safety.

Owners who participate in the Section 8 program are prohibited under the VAWA from evicting domestic violence victims because of criminal activity committed by a member of the victim’s household. Ponder the words of Kary Moss, executive director of the ACLU in Michigan (which filed suit against a Detroit landlord for evicting a woman whose ex-boyfriend trashed her apartment while she was not home because this was a failure to “properly supervise guests”): “All too often women are victimized twice—first by an abuser and again by a landlord.” Another industry trend is likely to be further expansion of these types of protections.

Pit Bulls and Rottweilers
Even landlords who do not ban pets completely at their communities will often ban certain breeds of dogs as part of their pet policies. It is not unusual to find pit bulls, rottweilers, chows, and other “aggressive breeds” (including mixed breeds) on the restricted list. Weight limits for pets will also, by their very definition, often result in these aggressive breeds being excluded, since most are medium to large in size. (Breeders have not yet created a “toy” pit bull.)

Because some insurance policies (homeowner, renter and landlord policies) may exclude these dogs from liability coverage, landlords have thought themselves to be on solid ground when not accepting aggressive dogs as service animals (for those people with disabilities) because it would be unreasonable as an accommodation for the landlord to take on an uninsured liability.

However, the fair housing agencies of Washington State have taken the position that the landlord has a duty to ask the insurance company to evaluate the animal in question and, if there is no evidence of danger, provide coverage in that situation. The agencies go on to suggest that the landlord could file a fair housing complaint against the insurer if such a reasonable accommodation is not made. There was a case filed along these lines in the Mid-Atlantic area; that case was ultimately dismissed without a determination as the plaintiff could not be located, so we don’t know what the result from this case would have been, or if a trend might have been started. This is certainly a stay-tuned area of fair housing.

Source of Income
In past years, “source of income” has become an oft-seen state or local protected class. In other words, as long as a prospect brings the right amount of money to the table (generally meaning enough money for market-rate communities, or not too much money for affordable housing communities), all legal and verifiable income (like wages, investment earnings, pensions, alimony, child support and welfare) should be counted.

This has meant that in some areas landlords must accept a Section 8 voucher (and the resident that holds it) if the resident otherwise qualifies for the housing. “Sorry, we don’t take Section 8,” is no longer a legal statement for some landlords.

Certain landlords continue to discriminate based on race, color, national origin, gender, religion or because people have children or disabilities. Various fair housing protections have become law over time because landlords didn’t want “them,” whoever “them” might be. Some landlords continue to restrict housing and its amenities unfairly, and when landlords do that, we will continue to have new
protections put in place through state, local and perhaps even federal fair housing laws.

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The opinions expressed in this article are those of the authors and do not necessarily reflect the viewpoint of SFAA or SF Apartment Magazine. Nadeen Green is the senior counsel with For Rent Media Solutions™. The information contained in this article is not to be considered legal advice, and the author and FRMS strongly recommend that you consult with your own counsel as to any fair housing questions or problems you may have. Copyright © 2008 by SF Apartment Magazine. All rights reserved.