Fair Housing for landlords: the 60-minute primer

The Fair Housing Act is 58 years old and still catches new landlords by surprise every week. This is the 60 minute overview that covers 90 percent of the risk. It is not a substitute for a real conversation with a landlord-tenant attorney in your state, but if you read only one thing on fair housing this year, this is the right one.

The seven federal protected classes

• Race
• Color
• National origin
• Religion
• Sex (including sexual orientation and gender identity as of 2021)
• Familial status (having or expecting children)
• Disability

You cannot base any decision, direct or indirect, on any of these categories. That covers who you show the home to, who you approve, what you charge, what rules you enforce, and how you respond to maintenance. All of it.

State and local additions to know

Most states add at least one class. Common additions include:

• Source of income (Section 8 vouchers) in 21 states and hundreds of cities.
• Marital status in most states.
• Age (in some states, above 40 or 45).
• Military or veteran status.
• Ancestry.
• Genetic information.
• Immigration status (in a growing number of cities).

Intent does not matter. Impact does.

Fair housing liability comes in two flavors. Disparate treatment is when you knowingly treat someone differently because of a protected class. Disparate impact is when a policy that appears neutral has a disproportionate effect on a protected class without a legitimate business justification.

You can lose a disparate impact case even if you never had a discriminatory thought. Example: a blanket ban on any criminal record disproportionately excludes protected classes and is not defensible under current HUD guidance, even though the policy applied equally to everyone on paper. Impact is the measurement, not your intent.

The four places you can get in trouble

1. Advertising

Every phrase in your listing is regulated. Perfect for a young professional, great for families, quiet Christian neighborhood, all violations. Describe the home, not the occupant. Even innocent phrases like walking distance to church or in a family-friendly area can be cited. When in doubt, describe distance in blocks, not lifestyles.

2. Showings

Steering is illegal. If you tell a Black applicant about your rental in one neighborhood and a white applicant about a different one, that is steering. Show every applicant the same properties in response to the same inquiry. Do not volunteer opinions on which neighborhood would suit them better.

3. Screening

Screening criteria must apply equally. If you ask one applicant about children and not another, that is disparate treatment. If your criteria disproportionately exclude a protected class without a business justification, that is disparate impact. Never ask about pregnancy, marriage plans, religion, or country of origin. Never.

4. Lease terms and conduct

Different security deposits, different rules for guests, different responsiveness to maintenance requests, all can produce a fair housing claim if they correlate to a protected class. The lease you offer must be the same lease you offer every approved applicant, with the same deposit calculated the same way.

Reasonable accommodations and modifications

Disabled applicants and tenants can request two things: accommodations (changes to rules or policies) and modifications (physical changes to the property). You must engage with the request in good faith.

• Accommodation example: waiving a no-pet policy for a service or emotional support animal.
• Accommodation example: allowing rent to be paid on the 5th instead of the 1st to align with disability benefit deposits.
• Modification example: installing a grab bar in the bathroom.
• You cannot charge extra rent or fees for a service or emotional support animal.
• You can require written documentation from a medical provider for non-obvious disabilities.
• The tenant typically pays for modifications and may be required to restore the property at move-out.

Testers exist and they work

Fair housing organizations send matched pairs of testers to inquire about your rental. One tester is in a protected class, one is not. They compare how you responded, how long you took, and what information you offered. This is how most fair housing complaints originate, and it is completely legal.

Assume every inquiry is a test. Respond identically. The identical response is your defense. Copy-paste your initial reply from a saved template so you literally cannot vary it based on the sender.

The three phrases that most often trigger complaints

1. 1This might not be the right neighborhood for you.
2. 2I usually rent to families or professionals like yourself.
3. 3We have a lot of children in this building, so you would fit right in.

All three are meant kindly. All three are cited in complaints every year. Do not editorialize about who lives near the property or who might fit. Answer questions about the property. Refer questions about the neighborhood to public sources.

Penalties are meaningful

First-offense civil penalties under federal law can reach $19,787 per violation. Repeated violations reach $99,000. Add actual damages, punitive damages, and attorney fees. A single mishandled application can cost more than a year of rent. Insurance sometimes covers the defense, rarely covers the settlement.