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Fair Housing Laws

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Immigration was a divisive topic in 2017, but California has been the capital of democratic resistance in the Trump era, making a concerted effort to protect immigrants from the rhetoric and anticipated changes coming down the pike.

One example is the passage of AB 291, or the Immigrant Tenant Protection Act, which prevents rental housing providers from using an individual’s immigration status against tenants.

Under existing California Law, it is not permissible for landlords to inquire as to a tenant’s immigration status, but AB 291 was designed to address the unfortunate acts of intimidation some owners have used to influence tenants to vacate the unit or face being reported to immigration authorities. It adds greater teeth to anti-discrimination laws for renters that are already on the books. Specifically, AB 291:

  • Prohibits landlords from threatening to report tenants to immigration authorities, whether in retaliation for engaging in legally-protected activities or to influence them to vacate.
  • Bars landlords from disclosing information related to tenants’ immigration status.
  • Provides tenants the right to sue landlords who report them to immigration authorities.
  • Codifies an existing defense to unlawful evictions based on immigration status.
  • Prohibits questions about tenants’ immigration status in discovery or at trial.
  • Prohibits attorneys from reporting, or threatening to report, the immigration status of persons involved in housing cases.

Watch David Chiu (D-San Francisco make his case for the Bill on the Assembly floor.

The new law isolates the few bad apples, and so it will not affect the day-to-day operations of most law-abiding rental businesses; however, it does highlight the duty of care that landlords must use with the information they glean from their relationship with tenants.

This includes their social security numbers, native languages, the times they are home, the identity of their families among other sensitive information, and so landlords must use caution to make sure that any information is not misused.

Calvin Coolidge once said that “advertising is the life of trade.” For the rental property industry, we might also add that advertising is the life of discrimination lawsuits that are proliferating in the Bay Area and beyond.

We see a built-in collision between good advertising and federal housing laws. Clearly, effective advertising is warmly and immediately human. It deals with human needs, wants, dreams and hopes, and coddles a sense of belonging. To win the hearts and minds of people, advertising aligns the core values of people by painting a broad brush with words and images that matter. What is intuitive for advertisers, then, may not be advisable for investment property owners.

In achieving its purpose, advertising can easily cross a line with buzzwords that indicate a preference, discrimination, or limitation based on color, race, sex, religion, handicap, national origin, sexual orientation, or familial status.

For its part, Craigslist has a page dedicated to the Fair Housing Act and instructions here.

Being warmly welcomed in a Hispanic community may be good advertising. Living within walking distance of a synagogue may be appealing to a Jewish family, just as a well-to-do household may enjoy being within proximity to a country club, but these representations also create discriminatory preferences that fair housing organizations, testers, aggrieved tenants and their attorneys are all too willing to enlarge. This short video explains these semantics.

Such blatant use of words, phrases, symbols, or visual aids that convey a preference are easy enough to avoid, but HUD peels the onion deeper by prohibiting advertising that selectively uses media, human models, logos, and locations that may signal a preference or limitation.

At Bornstein Law, we advise the industry to include persons with disabilities and ethnically diverse models in its advertising campaign and verbiage that highlights fair housing compliance policies.

We hasten to say that advertising is more than the traditional staples of billboards, commercials, newspaper ads and postings on Craigslist. It also encompasses flyers, banners, leaflets, brochures, deeds, applications, and the like.

It extends even further to anything the landlord or staff members verbally say or imply to prospective tenants. These statements might be uttered in person, sent in an email, condensed in writing, or made during a phone call.

An extended phone conversation is a particularly insidious breeding ground for housing discrimination claims, as the landlord or property manager attempts to conduct a full-blown interview to weed out undesirable applicants. No matter how scripted or conscious of fair housing laws the interviewer is, these types of open-ended calls give plenty of rope for landlords to hang themselves, which leads us to advise against them.

In parting, we want to stress that staying in compliance with fair housing laws is not limited to ads in print or on the web. The key is to instill a culture where words matter, and one that places compliance with fair housing laws over attraction.

Toward that end, education is key. With high employee attrition, property management companies are especially vulnerable to a culture of ignorance, when new employees do not have a solid understanding of the law and need to be trained in the many nuances of housing discrimination.

For those of you who have followed us for any length of time, we were going to say that we are preaching to the choir. But even that would be exclusionary under fair housing laws.

 

With Facebook embroiled in controversy as of late, it’s gone from bad to worse. Now is the perfect time for landlords and property managers to heed this lesson: brush up on fair housing laws.

If you’ve ever posted photos on Facebook of your kids at soccer practice, talked about being a stay-at-home mom or a disabled veteran, “liked” Telemundo or wrote about learning English as a second language, Facebook advertisers may have been able to target you – or exclude you – from viewing housing ads.

That was the claim by a recently filed federal lawsuit lodged by civil rights groups that don’t “like” the “egregious and shocking” discrimination perpetrated by the social media giant that has been allegedly serving up ads that fly in the face of the Fair Housing Act.

The $440 billion advertising company has built its success around the ease by which marketers can finitely target audiences, but now the magic of transmogrifying every like, status update and mouse click into a detailed consumer profile has the potential to enable marketers to exclude groups based on “ethnic affinities,” from seeing ads.

“Facebook’s platform is the virtual equivalent of posting a for-rent sign that says ‘No families with young kids’ or ‘No women’… But it does so in an insidious and stealth manner so that people have no clue they have been excluded on the basis of family status or sex.” 

~ Fred Freiberg, executive director of Fair Housing Justice Center and a plaintiff in the lawsuit

The lawsuit comes in the wake of Facebook’s loose handling of data, the likes of which the company has never seen in its 14-year history of addressing privacy concerns.

It’s been said that the Internet is the largest experiment in anarchy that humans have ever had, but Bornstein Law predicted early in the Airbnb phenomena that the law will eventually catch up with technology and restore order to the anarchism. Sure enough, regulators reined in the laissez-faire nature of unregistered short-term rental units and now have the upper hand. There is no reason to believe that lawmakers and regulators will not restore a similar equilibrium with Facebook and ensure the real estate industry will not use the platform as a proxy to minorities.

We have always preached that rental housing providers should couch their words carefully when using Craigslist and other online portals when adverting their rentals. Seemingly innocuous language can easily cross the lines into fair housing law violations.

Defending these type of discrimination lawsuits can be a hugely expensive undertaking, and unlike tech giants, owners and property managers do not have the vast legal resources and billions of dollars in their coffers.

Avoiding perilous discrimination suits begins with an education of all employees. With a high attrition rate, property managers are especially vulnerable to exposing themselves to discrimination claims through the actions of employees that have not familiarized themselves with what is permissible and what is not.

Finding a model tenant who pays rent on time, studiously cares for the rental unit, and is a good neighbor can be a challenging endeavor, driving landlords and property managers to be overzealous in the tenant screening process and stepping precariously close to crossing the lines of housing discrimination.

About the only thing worse than seeing a car parked on your lawn, a party on the porch, and your freshly-painted, well-kept apartment in shambles is being named in a housing discrimination lawsuit, the likes of which are proliferating here in the San Francisco Bay area and throughout California.

RELATED POST: Housing Discrimination Often Begins In The Tenant Application Process

It should go without saying that under State and Federal Law, it is illegal for rental housing providers to discriminate against a person because of the person’s race, color, religion, sex, marital status, national origin, ancestry, familial status, disability, sexual orientation, or source of income. Indeed, the California Legislature has declared that the opportunity to seek, obtain and hold housing without unlawful discrimination is a civil right, a proclamation codified in Government Code Section 12921(b) and in the Unruh Civil Rights Act, Civil Code Section 51.

Tenant hoarders, emotionally challenged people who require a comfort animal, even ex-offenders, are reshaping housing policy in California, which defines disability more broadly than Federal law, but today, the focal point is a tenant’s source of income.

Most rental property owners know that you can set income requirements as income requirements do not conflict with Fair Housing laws. It is common practice for landlords to require that income is 2 or 3 times the amount of rent to instill more confidence in the tenant’s ability to pay rent and meet other obligations such as car payments, insurance, utilities, and the like, and these parameters are entirely acceptable. In a pool of candidates, it is also legal to rent to the highest qualified income earner.

Although rental housing providers are on solid legal footing to set income guidelines, it is landlords’ balking at the source of income which exposes them to potential liability. Expressing a preference for one occupation over another is another pitfall we’ve seen all too often.

It doesn’t matter who signs the check.

California Government Code §12921 prohibits housing discrimination based on source of income as does §12955(d). Section 12955(p) defines “source of income” as “lawful, verifiable income paid directly to a tenant or paid to a representative of a tenant.” Since “source of income” is a protected class, it is illegal to dictate or selectively choose where the tenant’s income comes from. The law makes no distinction between income sources, so long as it is “legal.” These legal sources of income may include disability insurance, Social Security benefits, alimony, child support, pensions, veteran benefits, and the like. Many people sow their entrepreneurial oats and are self-employed, creating the infusion of legal income which can be documented through bank statement records or tax records to verify income.

The takeaway is that if the applicant’ income is legal and verifiable, it must be accepted.

When it comes to these type of communications, less is more.

As we noted in an earlier article on an Airbnb host’s blatant racial slur, most forms of housing discrimination are less recognizable and surface in extended conversations that attempt to weed out undesirable candidates or prying too much over the phone.

For instance, you tell an applicant, “I’m really looking for someone with a Google paycheck,” or a self-employed prospect is told, “Congratulations on starting your business, but we prefer someone who has a more stable income.” Maybe you encounter someone receiving government benefits and you say, “Thanks for your interest, but there is too much paperwork involved, and I don’t want the hassle,” or “I’ve found that there are other problems with people on welfare, so I really want to avoid these problems.” If someone has alimony or child support, some landlords may be inclined to utter something like, “That sounds like a messy process with the courts, I’m sorry but I’d rather not risk it.” If you make statements like any of the above, you have a discrimination lawsuit brewing, folks.

The best practice is to provide objective information about the rental unit and general criteria, encourage the applicant to visit the property and submit a written application.

A word about Section 8 housing

Section 8 Housing Choice Vouchers are not considered tenant income under California law, and thus, landlords are not required to accept a voucher, with exceptions. There are a handful of municipalities that have taken matters into their own hands by enacting local ordinances that require housing providers to accept Section 8 and other rental assistance.

One such city is Berkeley, which passed Ordinance №7,568-N.S., adding to the Berkeley Municipal Code Chapter 13.31. With a shortage of landlords enrolled in Berkeley’s Housing Voucher Programs and the city’s perceived discrimination to explain the lackluster participation, the city prohibits landlords from, among other things, discriminating against housing assistance payments. Read the full ordinance here (PDF)…

The overarching point is that if you say “no” to a tenant receiving Section 8 assistance, it may be tantamount to discrimination, and so it’s advisable to seek the guidance of an attorney before closing the door on Section 8 applicants.

Certainly, most affordable housing properties that are financed with federal funds and tax credits are required by law to accept Section 8 vouchers.

As always, Bornstein Law is happy to answer any questions and protect your rights as a rental property owner, a mission we continue after 23 years of practicing landlord-tenant law.