The Fair Housing Act prohibits discrimination in the sale, rental, or financing of dwellings based on race, color, national origin, religion, sex, familial status and disability. As a REALTOR®, whether you are working with buyers or sellers, or you are working with landlords or tenants, you need to know the basics of the Fair Housing Act, and stay informed of recent developments.
The Fair Housing Act includes discrimination reflected in any notice, statement or advertisement relating to the sale or rental of a dwelling that indicates a preference, limitation or discrimination based on race, color, religion, sex, handicap, familial status or national origin. REALTORS® need to be mindful of this when they are listing properties on MLS or when they are advertising the property through any other means, including Facebook, Twitter and LinkedIn. REALTORS® should always double check what they have included to promote the property, and if there is any doubt, LEAVE IT OUT!
Rentals and Reasonable Accommodations
The Fair Housing Act specifically prohibits discrimination because of a handicap. This includes a handicap of a buyer or renter, a person residing in or intending to reside in the dwelling, or any person associated with the buyer or renter. Discrimination includes the refusal to allow the handicapped person to make reasonable modifications to a dwelling. If you have a potential renter who is handicapped or will have someone living in the dwelling who is handicapped, make sure that any and all modifications or alterations they want to make are discussed prior to entering into the lease agreement, and include the specific agreed upon modifications in the lease. If the owner will not agree to a requested modification, you should advise the owner to contact an attorney to ensure that they would not be in violation of the Fair Housing Act by refusing to allow the modification. Remember these rules when you are helping your friend or family member rent their home.
The “reasonable accommodation” requirement includes assistance animals, including those for emotional support. An assistance animal must assist the disabled individual in some identifiable way that makes it possible for them to have more effective use of their housing. Assistance animals do not have to be certified, individually trained, or require a special license. They include dogs, cats, birds, or other domesticated animals – which recently included a miniature horse. When a prospective tenant requests (either orally or in writing), to live with an assistance animal, only certain specific questions may be asked. These questions are: (1) Does the person seeking to live with the assistance animal have a disability? (2) Does the animal work, perform tasks, etc. for the benefit of the disabled individual? You may only ask for reliable documentation if the disability or the disability related need for the assistance animal is not readily apparent or known. You MAY NOT ask for access to medical records or medical providers or ask for detailed or extensive information or documentation regarding the disability.
The disabled person may be required to properly manage the assistance animal and they may be held liable for damages caused by the assistance animal. However, you cannot do any of the following: (1) unreasonably delay, condition or deny the request for the assistance animal; (2) require an emotional support animal to have any specific training; (3) have specific weight or breed restrictions; (4) require pet insurance; (5) charge a pet deposit. There are some very limited exceptions for emotional support animals. If an owner seeks to invoke one of the exceptions, you should advise them to consult with an attorney because the exceptions are very limited. You should also be aware that the Fair Housing Act is broader and applies in more circumstances than the requirements under the Americans with Disabilities Act.
Rentals and Criminal Background Checks
Most recently, the Department of Housing and Urban Development published Fair Housing Act guidelines relating to criminal background checks. While persons with criminal records are not a protected class, criminal background checks may have a greater impact on minority groups. REALTORS® involved in property management where they use background checks for potential tenants should develop a program with consistent procedures and uniform standards. Financial and credit checks should be run prior to the criminal background check. If the credit report shows an issue, then you do not need to order the criminal background check. If a criminal background check is used, the nature and severity of the crime should be considered. You should also establish a specific period of time that you will use to look back for convictions. There are some indications that HUD may suggest a seven year look back period. You should also allow the individual to provide an explanation or mitigating facts relating to the criminal conduct.
NAR Code of Ethics
REALTORS® should be aware that in addition to the protected classes under the Fair Housing Act, NAR specifically opposes discrimination based on sexual orientation or gender identity. The NAR Code of Ethics includes NAR’s policy to support equal opportunity on the basis of sexual orientation and gender identity. Thus, while discrimination based upon sexual orientation or gender identity may not violate the Fair Housing Act, it is a violation of the Code of Ethics.