August 2020 Newsletter
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What Everyone Should Know About Fair Housing:
Accommodations & Modifications
What’s fair about fair housing?
It certainly is not the amount of information one must memorize when renting out real estate! However, overwhelming as it may be, the Federal Fair Housing Act (42 U.S. Code § § 3601-3619 and 3631) has greatly increased the ability of those who fall within the seven protected classes to find desirable housing throughout the country.
The Department of Justice (DOJ) and the Department of Housing and Urban Development (HUD) jointly enforce this landmark legislation, and most states and cities have additional Fair Housing laws that are often more restrictive.

The seven classes protected under the Federal Fair Housing Act are:
  • Race
  • Color
  • Religion
  • Sex
  • National Origin
  • Familial Status
  • Disability

While most of these are fairly straight forward, the protected class of disability has an increased amount of regulations tied to it.
Fair Housing requirements make it unlawful for a housing provider or HOA to refuse reasonable accommodations or modifications to a premises when they may be necessary to afford a person with disabilities full enjoyment of a dwelling, including public and common spaces.

But what does that mean exactly?
  • A reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service.
  • A reasonable modification is a structural change made to the premises.

Reasonable modifications can include structural changes to interiors and exteriors of dwellings and to common and public areas. The property owner or manager must permit the modification but they are at the tenant’s expense and must be returned to its original condition upon the tenant’s move-out (also at the tenant’s expense).
Examples of reasonable accommodations are:
  • Allowing a disabled person to have a support animal regardless of a restrictive pet policy.
  • Providing a wheelchair ramp in a common area.
Examples of reasonable modifications are:
  • A resident with a mobility issue wants to install grab bars in the bathroom.
  • A resident with a hearing disability wants to install a doorbell that flashes when pushed.
Other facts about reasonable accommodations & modifications are:

  • The tenant or someone acting on the tenant’s behalf is responsible for all costs associated with a reasonable modification.

  • A reasonable accommodation is at a resident’s request for a person with a disability and the property owner and/or manager can request a 3rd party verification (such as a doctor’s note) that a modification is necessary.

  • A tenant can make a request for a reasonable modification at any time before or during the tenancy.

  • The tenant’s request must be reasonable and should not present an undue burden on the property owner.
  • If the modification to the property is not reasonable or if it would impose an undue hardship, the property owner can deny the request.

  • If the property owner denies a request, the property owner and/or manager should send a letter to the applicant or resident explaining the denial, the facts behind the denial, how they discover the facts, and offer to meet with the applicant/resident.

  • Property owners or managers should not offer to make a modification for a resident but should wait for a resident to request the modification. Offering a modification before it is requested may subject the property owner and/or manager to a claim of discrimination.

  • To show that a requested modification may be necessary, there must be an identifiable relationship between the requested modification and the individual’s disability.
HUD and the DOJ receive numerous complaints alleging that property owners and/or managers are refusing both reasonable accommodations and modification to persons with disabilities. Complaints can lead to legal actions and/or financial losses for real estate investors.

As your property management company, Frontline Property Management takes each request for accommodations and modifications very seriously, reviewing the potential costs and the Fair Housing laws prior to taking any action. We will always work to avoid incurring risk for your investments and consider upholding all Fair Housing laws a top priority.
Jay Hartley MPM®, RMP®
 Owner - Managing Partner
Office | 817.377.3190
Direct | 817.288.5546

Frontline Property Management, Inc.
3000 Race Street, Suite 132
Fort Worth, TX 76111
In-Depth

What the Fair Housing Act Covers

National Origin, Race, or Color
Federal law states that it’s unacceptable to use language that describes the housing, neighborhood, or neighbors in a racial or ethnic way. So you can’t state that an apartment is located in a Hispanic or African-American neighborhood, even if you’re simply trying to point out the excellent Tex-Mex or Southern cuisine.

However, it is acceptable to use words such as “master bedroom,” “desirable neighborhood,” and “exceptional find” in your advertising. These terms aren’t considered racial discrimination and will not warrant the filing of a claim from a potential tenant or buyer.
Sex
You can use terms that describe the property such as “master suite,” “mother-in-law suite,” and “bachelor apartment” when creating your advertising. However, it would not be OK to use terms like “straight couple” or “men only.” Don’t use any verbiage that clearly discriminates against a particular gender or sexual orientation.
And while it should be obvious, avoid anything that remotely resembles sexual harassment while screening tenants.
Religion
It is perfectly acceptable to use descriptive words about the property that are religious in nature.
You can say, “Facility has a chapel,” or “Property has a cafeteria with kosher food available.” You cannot, however, exclude any specific religious organization. Nix any terms like “no Muslims” or “Catholics preferred” in your advertising.
Familial Status
Saying the property is a two-bedroom home or that it has a nursery or family room is perfectly acceptable. But don’t make any outright statements prohibiting individuals on the basis of marital status. Additionally, be careful when discussing acceptable ages for the building unless it is designated for older persons only.
Handicap or Disability
You can describe the property with terms such as “second floor walk-up,” “walk-in closets,” “close to hiking and jogging trails,” and “easy walk to public transportation” without violating fair housing rights. You cannot use terms such as “no wheelchairs” or terms that directly discriminate against an individual. The law requires reasonable accommodations, such as allowing tenants to install wheelchair ramps, for anyone with a disability.
Take Care When Asking Questions
The Fair Housing Act doesn’t just apply to your marketing efforts—it matters when you meet with prospective renters, too. Avoid certain types of questions or statements that may be taken as derogatory in nature, and keep in mind that wording and tone are important, as well. Don’t ask questions such as, “Just how many children do you have?” or “Where do you worship?” or make pointed comments to pregnant women.

Also avoid comments about a person’s age, gender identity, or sexual orientation, otherwise you may unintentionally be using discriminatory practices. Rein in your personal beliefs during tenant interviews and showings. A slip up can be misinterpreted as discriminatory and may provide the foundation for a potential complaint.
Treat All Rental Applicants Equally and Consistently
Stay on the legal side of the Fair Housing Act by, essentially, being a good person. Treat everyone equally and be consistent. Know what questions to ask—and what responses you want—and determine qualification standards ahead of time.

When filling a vacancy, have a predetermined set of qualifications that you require of all applicants. Your qualification standards should be based on valid business reasons. For example, you can set a minimum income requirement. Just make sure you never set different requirements for different people.

And once your tenant has moved in, stick to the lease. Have a written policy for how to respond to all situations—then don’t deviate from it. Deviating from your lease or policy indicates inconsistency, which may lead to an accusation of partiality.

For example, if your lease states that a late fee will be charged for rent not paid by the fifth, you must always enforce that policy. Regardless of your reasoning—one tenant was nice and the other a jerk—enforcing it unfairly could quickly get out of hand. Practice consistency and stick to your written policies.
Ditch the Assumptions
When filling a vacancy, don’t assume you know your potential tenant or know what they want. Don’t make assumptions such as what type of dwelling or neighborhood prospective tenants might prefer. “Steering,” or pointing persons toward specific units or neighborhoods, is also considered discriminatory.

Combat steering by telling the prospective tenant about all your available properties. Let them decide which ones they would like to see and which ones to avoid. Consider pulling together a predetermined list of questions for every potential tenant. Include questions about their price range, the type of housing they prefer, and the size and location they are looking for. That way, you can quickly and legally point them toward any available rentals you have that meet those requirements.

Keep Thorough Records
Keeping records of current (and former) tenants and all prospective tenants is extremely important. Not only will detailed records protect you in the event of a discrimination charge, but it’s also good business practice.

When renting out your unit, keep notes of each tenant contact, including the date and time. Also, keep records of your screening results. If tenants were denied, send them an adverse action notice and keep all the information you collected.

The same goes for current and past tenants. Each tenant should have their own file where all of their information is stored. Keep records of phone calls, emails, letters, texts, complaints, notices, maintenance requests, and repairs. After the tenant is no longer with you, don’t toss their file—keep it in case you ever need it. Not only could it protect you, but accurate and detailed records also make your job much easier.
Legal

Does the Federal Fair Housing Act Apply to Your Rental Property?
When the Fair Housing Act Applies
The FHA applies to most—but not all—types of housing. Types of housing excluded from the FHA include:

  • Owner-occupied buildings with four or fewer units. The FHA generally isn't applicable when a building has two to four units, and the owner lives in one of them.

  • Single-family homes rented without a broker. The FHA doesn't apply when a single-family house is sold or rented without a broker, so long as the owner doesn’t own more than three houses.

  • Religious organizations. If you're a religious organization leasing apartments at a property that you're not operating for a commercial purpose, you may legally limit occupancy or give preferences to people of your organization's religion. However, the FHA points out that this exception is strictly limited to religion and cautions that a religious organization still can't discriminate based on race, color, or national origin (42 U.S. Code § 3607(a)).

  • Private clubs. If you're leasing apartments on behalf of a private club and not for a commercial purpose, the FHA lets you limit occupancy to your club's members.

  • Senior housing. The FHA includes "familial status" as one of its seven protected classes, which refers to the presence of at least one child under 18 living in a household. However, although the FHA bans discrimination against families with children, you may be exempt from this ban if your property qualifies as senior housing. Exempt properties include those that fit the rules of 55 and older or 62 and older communities, or those that participate in a federal, state or local senior housing program.

It’s important to note that even if your property is exempt from the FHA because of one of the reasons listed above, you must still comply with the law's ban on issuing discriminatory statements, notices, or advertising (42 U.S. Code § 3603(b)).

Additional Important Considerations
If the FHA doesn't apply to your property, there may be a local or state fair housing law that does.

If you determine that the FHA doesn't apply to your property (or even if you determine that it does), be aware that there may be a local or state fair housing law that does, and it might prohibit additional forms of discrimination or cover a greater number of properties than the FHA does.

For example, while the FHA generally doesn't apply to owner-occupied buildings with four or fewer units, Massachusetts' fair housing law generally applies to all but owner-occupied, two-family houses. (Mass. Gen. Laws ch. 151B, § 4).

Even if the FHA doen’t apply to your property, there are many other reasons to not discriminate. Aside from fairness considerations and concerns about penalties for violating fair housing laws, many fair housing advocates stress that by being more inclusive you stand a better chance of growing your business and attracting quality tenants.

The policies you create and the manner in which you enforce them could affect your reputation as both a landlord and a human being.
When It Comes to Housing, LGBTQ Legal Protections Come With Bigger Price Tag
LGBTQ Americans are paying more than other Americans for housing if they want to live in areas that protect them from housing discrimination, according to Zillow, the online real estate database company.
Currently, fewer than half of U.S. states have laws explicitly prohibiting housing discrimination based on sexual orientation and gender identity.
Housing Unaffordable for Many in Areas With LGBTQ Protections
The average cost of a home in areas with explicit legal protections for the LGBTQ community is $328,575—63% higher than areas with no protections. Buyers in Hawaii, Washington, D.C., and California—all places with legal protections in place—can expect to pay over 200% more than buyers elsewhere, although home values in Iowa, the only state with statutes specifically for protecting LGBTQ homebuyers, are 23% below the national average.

Many times, these buyers are making significant sacrifices to buy a house they can afford, including choosing homes in much worse condition, in less desirable parts of town, or of much less square footage than originally intended.
Typical Home Value in States with Statewide Protections for LBGT
Because high home values generally correlate with high rents, LGBTQ renters also feel the pain in their pocketbooks. Federal Fair Housing laws protect renters from being denied housing for their age, color, national origin, religion, sex, disability, and familial status. Though sexual orientation and gender identity are not on this list, there are protections for LGBTQ renters that can fall under the sex, disability, and familial status umbrellas.
A 2018 ruling in the U.S. Court of Appeals for the Seventh Circuit (Wetzel v. Glen St. Andrew Living Community) set a precedent for landlord responsibilities for protecting LGBTQ tenants from homophobic harassment by other tenants.

In the ruling, Seventh Circuit Chief Judge Diane P. Wood wrote, "Not only does [the Fair Housing Act]create liability when a landlord intentionally discriminates against a tenant based on a protected characteristic; it also creates liability against a landlord that has actual notice of tenant-on-tenant harassment based on a protected status, yet chooses not to take any reasonable steps within its control to stop that harassment."
Federal Law Doesn’t Protect Against LGBTQ Discrimination
Still, there is no federal law that consistently protects LGBTQ individuals, so their housing discrimination complaints may go unheard. The list of Fair Housing Act protected classes doesn’t specifically include these tenants. The act could provide explicit non-discrimination protections for LGBTQ people in housing by adding “sexual orientation” and “gender identity” as protected characteristics.
Zillow says it’s not likely that legal protections for LGBTQ people increase home values. Still, because these cities and states trend more expensive, the financial impact on LGBTQ buyers and renters is disproportionate.

“In addition to providing legal protections, there are other steps local and state governments can take to create housing markets that are more inclusive and accessible for LGBT people,” said Skylar Olsen, senior principal economist at Zillow. “We know LGBT buyers—especially LGBT buyers of color—are more likely to purchase affordable home types such as condos and townhomes.

“More local governments should work to allow more of these types of homes, opening up areas and neighborhoods that historically priced out many LGBT buyers. Legal protections for LGBT become more meaningful when people can afford to access them.”
Disclaimer: This is designed to provide general information regarding the subject matter covered. It is not intended to serve as legal, tax, or other financial advice related to individual situations. Consult with your own attorney, CPA, and/or other advisor regarding your specific situation.