Your Fair Housing Questions Answered – Part 2

Thank you again to all our community contributors! You asked some really thought-provoking fair housing questions, and Kathi is back to answer them.

A woman standing with her arms crossed considering fair housing questions.

Estimated reading time: 7 minutes

What are the best ways to advertise while keeping within fair housing guidelines?

We have to start by looking at the kind of basic fair housing issues that can come up with advertising. First of those are the words that you use. A recent video we produced on advertising provided the words that were probably good to avoid because they may have negative fair housing consequences.

The other thing is you have to be sensitive to what your pictures portray, especially if they’re pictures of people. Over a period of time, the pictures you use need to be diverse and cover the protected categories, not every single picture, but the pictures that you use over, say, several months in your advertising. And when we talk about advertising, we’re not just talking about billboards, TV, or newspaper advertising but social media as well, as that is more commonly used today.

Depending on the size of your organization, regular spot-checks of all your advertising needs to be done. Whether it’s in-house or sourced out to a marketing company, just be sure they are well-aware of fair housing standards to ensure ongoing compliance.

If a homeowner rents their home on their own, do they have to follow fair housing laws?

This is a very good but challenging question. The Fair Housing Act does not apply in a limited way to a homeowner who owns three or fewer units. So, for instance, if they lived in their house, that would be one. If they owned a duplex, that would be three. Also, they can’t use a real estate professional to manage or lease the property. If they do, they lose their exclusion. And finally, they cannot have any discriminatory advertising as there is never an exclusion for this. So as you can see, it is a very limited category.

However, keep in mind that other federal laws and even some state laws might apply to this type of housing situation. For instance, there’s a federal law that prohibits discrimination on the basis of race when you’re contracting with someone. So obviously, a lease is a contract, and there are also some state laws that could get involved. Either way, it’s always a best practice to do everything you can to avoid any appearance of discrimination when you are renting out your property.

We have multiple markets at our site, so do we need to provide reasonable accommodations to our market renters?

The general answer is: regardless of what kind of housing you provide, if it’s market rate, if it’s a low-income tax credit, or if it’s subsidized federally—any and all types of housing—the housing provider is required to at least consider a request for a reasonable accommodation. And if in that request the housing provider finds out that the resident is indeed disabled and needs the requested accommodation, then in most cases, you need to and are required to provide that accommodation. I don’t want to confuse that with the issue of who pays for any costs that result from a reasonable modification. We’re going to cover that in just a minute, but you absolutely need to provide reasonable accommodations in all types of housing.

Maintenance on a rental house/apartment is not being done, is that also in the Fair Housing Act? Would someone not fix something because they are discriminating against someone?

Assuming that we’re looking from the resident’s perspective and their maintenance work is not getting done, the question is, could that be illegal discrimination? So I would answer the question like this: If a landlord provides good maintenance service to one tenant but refuses to provide the same kind of maintenance services to another tenant, and those two tenants are in a different protected category, then absolutely, this would look like illegal discrimination. However, on the other hand, if the landlord is just doing poor maintenance services for all their tenants, then that’s not different treatment, so it wouldn’t be considered discrimination. That’s just a really bad landlord.

What are some of the biggest fair housing mistakes you have seen or heard about being made by student housing providers?

The two most common issues are: the refusal to permit assistance animals in student housing and roommate matching. When it comes to assistance animals, I understand why that can be a real problem because usually, in student housing, roommates are sharing the unit and sharing a living space together, and so if somebody has an animal, it certainly creates some issues. In regards to the roommate matching process, if a property permits the students or maybe the students’ parents in some situations to put limitations on the roommates that that student will live with and any of those limitations end up relating to the protected category of a potential roommate, then that can be viewed as illegal discrimination in housing. I think the best way of addressing both of these issues is to have very clearly openly-stated policies that state that management is required to follow the Fair Housing Act when assigning roommates or making decisions about assistance animals.

So which landlord has to pay for reasonable modifications – the private landlord or the subsidized landlord?

As far as the Fair Housing Act is concerned, private market landlords do not have to pay for reasonable modifications. That is the responsibility of the resident. However, we also want to remind you that there are a couple of states and at least one or maybe more local fair housing laws that put that requirement to pay on the landlord regardless of what type of property it is. So it’s important to know your local laws. There are also limited exceptions in certain areas of the country where subsidized landlords, regardless of where they are, have to pay reasonable costs for modifications if needed because of the disability of the resident, unless those costs would pose a financial and administrative burden on the landlord.

Our application asks if they need the features of a “mobility accessible unit”. Does the word ‘mobility’ need to be present?

This can be a little bit of a complicated answer. Let me begin by just answering the question. Yes. I think the use of the term mobility accessible unit is important. And the reason it’s important is that that’s not the only type of accessible unit. There are two types, one is mobility accessible, and those units have things like wider doorways features like maybe a walk-in shower, a roll-under sink in the bathroom, in the kitchen, lower countertops, lowered cabinets, and things like that. And so those are mobility-accessible units. Usually, it has to be designed from the beginning of when that property was built. There is also what we call an AV-accessible unit for hearing and visual accessibility. Those units require much less modification. It’s mostly wiring and places for a T D D machine to be plugged in.

So chances are, the term ‘mobility’ is being used to identify what kind of a unit it is and what type of disability people probably have to need those special features. Also, you should be asking applicants to identify whether they need either mobility or an AV-accessible unit. So then you can make your assignments depending on which type of unit they need.

Stay tuned for part three of our series: Your Fair Housing Questions Answered

*The answers portrayed in this article/video are based on The Fair Housing Institute’s years of professional experience. They are general responses based on best practices. They do not replace legal advice and should not be used as such.

Jonathan (00:12): Hello everyone. And welcome to episode 52 of the Fair Housing Insiders. I'm your host, Jonathan Saar. And today joining with me is Kathi Williams. Kathi, how are you doing today?

Kathi (00:24): I'm good, Jonathan. And I'm looking forward to answering a few of these questions that we've gotten from our mini FHI community members.

Jonathan (00:34): Absolutely. Yes. Wonderful segment that we introduced this year. For all those who've posed their questions. You're gonna be entered into a contest for a random drawing. So that's exciting. So we thank you. Not only do you get your question answered, but a chance at, at winning some, a little bit of money to at the same time. So be sure to look out for the winner in a future newsletter that's coming out. And as well for everyone else, if you haven't submitted a question before, we love those questions. So we have another episode coming up in a few months where we'll entertain those questions and answer 'em here on our show. So in order for you to keep in the loop, please sign up for our newsletter, subscribe to our YouTube channel connect with us on our Instagram account at Fair Fousing Institute.

And not only will you get your questions answered, but again, how exciting, you know, you get an opportunity to, to win a little bit of money in the, in the as well. So let's get into some of our questions. So we've had so many that have come in over the last few months between February and April of, of this year. So we're grateful Kathi, that you're available for the show today to be able to give us your, your comments and thoughts. Anything you'd like to share Kathi, before we get into our first question.

Kathi (01:56): Sure. you know, we always have to remind our listeners that while I am a fair housing attorney and have a lot of expertise in that legal area, when, when I answer questions in a video format, obviously I am not providing legal advice because legal advice is based on very specific facts that apply to a situation and in fair housing, that is what we're talking about. There are certainly best practices, and that's what I am referring to you or for you when I give you answers to your questions. So just, you know, keep that in mind in any particular situation, there may be a fact that would require a different answer when you're talking to your lawyer. So I'm gonna give you the best I can in a more general context. And I hope you understand that as we go through these questions, I'll try to be as brief as I can, but still provide you with a thorough answer.

Jonathan (03:04): Very good. Yeah. Very good reminder. Thank you, Kathi, for providing some framework as we get into our question. So our first question, and thank you Brianne Jones for your question. What are the best ways to advertise while keeping within fair housing guidelines?

Kathi (03:23): Well, Brianne that's a good question. And we have to look at kind of the basic issues, fair housing issues that can come up with advertising. So I'd say the first of those are the words that you use. And, and if you remember during our video on that, we provided the words that were probably good to avoid because they may have negative fair housing consequences. So you do have to be concerned with the words and descriptions you use. The other thing is you have to be sensitive to what your pictures portray, especially if they're pictures of people. So over a period of time, the pictures you use need to be diverse and cover the protected categories, not every single picture, but the pictures that you use over say several months in your advertising. And when we talk advertising we're not just talking about billboards, which is what the old type of advertising or TV or newspaper advertising now most advertising is done using social media.

So if your property, if your company has those kinds of pages, they need to be reviewed regularly for those issues about pictures and words and descriptions. So don't forget about those once in a while. You also need to make sure that someone is looking at all this so that a lot of companies, large companies have marketing departments. So they take care of this, but what about the companies that are much smaller and don't have staff that are signed full time to marketing somebody in the supervisory chain at headquarters periodically every six months, couple times a year needs to look at all documents, all social media posts, all newsletters any kind of publications that's done by your property, your company, to make sure that the fair housing concerns are being reviewed and avoided whenever possible.

Jonathan (05:59): Excellent. Thank you. Yeah, that was a great episode and good practical reminders. Thank you, Kathi. So our next question comes from an apartment community, Cascade Springs. Here's their question. If a homeowner rents their home on their own, do they have to follow fair housing laws?

Kathi (06:19): Mm. Okay. So this question is asking, are there situations where the fair housing act does not apply? And I don't usually talk about this in training because I think it's dangerous to suggest that there are situations where a homeowner can just intentionally discriminate against somebody. So let me just say the the law, the fair housing act does not apply to a very limited situation for a homeowner that owns three or less units. So for instance, if they lived in their house, that would be one. If they owned a duplex, that would be three. Okay. Right. Three or less units. And they don't do any discriminatory advertising. There is never an exclusion for discriminatory advertising and they can't use a real estate professional to manage the property, to lease the property if they do, they lose their exclusion. So that's the very limited time.

There's also sometimes some other federal laws and even some state laws that also apply. So I really don't wanna say, if you fall under the fair housing act exclusion, you don't have to worry about any other laws that may, you may be violating if you discriminate against someone because they, there are other laws out there. For instance, there's a, a federal law that prohibits discrimination on the basis of race when you're contracting with someone. So obviously a lease is a contract and there are also some state laws that could get involved. So I can't really say there's ever a situation. You don't have to worry about it at all. Right. and in fact, I think it's probably the best practice to do everything you can to avoid even the, the issue of discrimination in any case where you're renting to a tenant either a house or an apartment that you own.

Jonathan (08:57): Right. Very good. Okay. Thank you very much, Kathi. All right. Our third question comes from Darlene Santana Dow. She makes this statement. We have multiple markets at our site, so do we need to provide reasonable accommodations to our market renters?

Kathi (09:18): Okay. Well, I wanna make sure I understand the question. The general answer is regardless of what kind of housing you provide, if it's market rate, if it's low income tax credit, if it's subsidized federally subsidized in any, and all types of housing, the housing provider is required to at least consider a request for a reasonable accommodation. And if in that request, the housing provider finds out that the re the tenant is indeed disabled, that the tenant does need the requested accommodation. Then in most cases you need to and are required to provide that accommodation. I don't wanna confuse that with the issue of who pays for any costs that result from a reasonable modification. We're gonna cover that in just a minute, but you absolutely need to provide reasonable accommodations in all types of housing.

Jonathan (10:32): Very good. Okay. Thank you, Kathi. And thank you Darlene, for, for that question as well. So our next question is from Patty Hess. And so her question is so maintenance on a rented house. Certain apartment is not being done. Is that also in the fair housing act? Would someone, if they're not fixing something because they're, would someone not fix something because they're discriminating against someone. So thank you. Thank you, Patty, for that question. Kathi,

Kathi (11:03): Okay. Patty, that is a question that's almost assuming that we're looking from the tenant's perspective and their maintenance work is not getting done. And could that be illegal discrimination? So I would answer the question like this. If a landlord provides good maintenance service to one tenant, but refuses to do the same amount of maintenance services on another tenant, and those two tenants are in a different protected category, then absolutely. That would look like illegal discrimination. We don't know whether it is or not depending on the facts, but it, it could look like that if a landlord on the other hand is just doing poor maintenance services for all their tenants, then that's not different treatment. So that's not discrimination. That's just a really bad landlord.

Jonathan (12:10): Mm-Hmm very good. Thank you. Okay. So our next question is from Rebecca Snyder. So thank you again, Rebecca, we appreciate your, your questions in the past, and thank you for posing some more. So, Kathi, here's our next question. What are some of the biggest, fair housing mistakes you've seen or heard about being made from student housing providers?

Kathi (12:37): Okay. I think I think Rebecca, the two most common issues are one the refusal to permit assistance animals in student housing. And I understand why that can be a real problem because usually in student housing, the roommates are sharing the unit and sharing a living space together. And so if somebody has an animal, it certainly creates some issues. The other problems that I see and it's unique usually to student housing, and that is how they do roommate matching. And if in the roommate matching process, they permit the students or maybe the student's parents in some situations to put limitations on the roommates that that student will live with. And any of those limitations end up relating to the protected category of a potential roommate, then that can be viewed as illegal discrimination in housing. So it is usually those two issues that end up in fair housing cases against student housing providers. I think the best way of addressing both of those is to have very clearly openly stated policies on how the housing provider handles those two issues. Always reminding everybody that's gonna live in that unit, that the fair housing act applies to student housing, just like it does other apartments and that the management agent is going to have to follow the fair housing act when assigning roommates or making decisions about assistance animals.

Jonathan (14:44): Okay. Very good. So a couple of nice common ones there. Thank you for that. Thank you again, Rebecca. We appreciate your, your support of the community. Okay, Kathi. So our next question is from Steve Bobak. Steve, I hope I pronounced your name correctly, but thank you for your question, Steve, appreciate that. So, which landlord has to pay for reasonable modifications, the private landlord or the subsidized landlord?

Kathi (15:13): Okay. and Steve, we, we do try to make this clear whenever we do training, because this is a big difference between management of market rate and low income tax credit, housing and management of subsidized or federally subsidized housing. And the answer is this under the fair housing act, private market landlords do not have to pay for reasonable modifications. That is the responsibility of the resident. However, we also wanna remind you that there is a couple of states and at least one maybe more local fair housing laws that puts that requirement to pay the cost for reasonable modifications on the landlord that there aren't a lot of those laws out there, but there are a few which is why you always need to know where the property's located and what laws apply to it. So I wanna make sure you're aware that there, there are those limited exceptions in just certain areas of the country subsidized landlords, regardless of where they are have to pay reasonable costs for modifications if needed because, because of the disability of the resident, unless those costs would pose a financial and administrative burden on the landlord.

Jonathan (16:57): Very good. Thank you. Thank you, Kathi. Thank you again, Steve. Excellent question. All right. Our next question is from Sonya. So our application asks if they need the features of a mobile mobility accessible unit, does the word mobility need to be present?

Kathi (17:18): Okay, Sonya, great question. Little bit of a complicated answer in general. Let me begin by just answering the question. Yes. I think the use of the term mobility accessible unit is important. And the reason it's important is because that's not the only type of accessible units. There are two types, one is mobility accessible, and those units have things like wider doorways features like maybe a walk in shower, a roll under sink in the bathroom, in the kitchen, lower countertops, lowered cabinets, tree, things like that. And so those are mobility accessible units, and it is very difficult to create a mobility accessible unit. Usually it has to be designed from the beginning of when that property was built. There is also a, what we call an H V accessible unit hearing and visual accessibility. Those units require much less modification. It's mostly wiring and places for a T D D machine to be plugged in.

So it's, it's not nearly as structurally difficult to create or modify a unit to be an AV accessible unit. So chances are the term mobility is being used to identify what kind of a unit it is and what type of disability people probably have to need those special features. I also would remind you that in subsidized housing you need to find out whether someone needs and access a mobility accessible unit or in a, the accessible unit because that resident, that applicant has a priority for a vacant, either mobility accessible or AV accessible. So chances are, you should be asking applicants to identify whether they need either a mobility or an AV accessible unit. So then you can make your assignments as appropriate depending on which type of unit they need.

Jonathan (20:04): Okay. Very good. Thank you, Kathi. Thank you, soya for your question.

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