It’s a simple truth that you can be a terrific property manager and still commit an act of housing discrimination under the Fair Housing Act. That’s because it doesn’t matter what your good intention was: a violation is a violation. Fair housing laws are tricky, so we’re going to look at several laws property managers must know.
But first, there’s a general rule that applies to every policy you set, exception you allow and decision you make. Document everything.
- Why you approved or denied an applicant based on screening criteria, making sure that non-discriminatory reasons are clear should you be challenged or sued
- Written policies and implementation processes
- Evidence that policies are distributed evenly and fairly
Yardi Breeze has several tools to help you keep accurate records. The texting and email features will permanently store communications in the cloud, making them easy to access at all times.
Use the Activity Feed in Yardi Breeze
Breeze offers a unique notetaking tool for special circumstances or events that don’t fit into other, predefined categories.
- Set reminders for recurring tasks
- Track tenants and transactions
- Add payments to your calendar from the Activity Feed
- Locate old notes quickly
- Monitor requests related to natural disasters, economic downturns or other unexpected situations
Let’s look at the fair housing laws property managers need to know in 2021. Most of this information was originally presented as an NAA webinar on fair housing concerns.
1. Laws around emotional support animals
Emotional support animals have become one of the most talked-about topics in property management. Landlords, leasing agents and owners all need to be aware of residents’ rights to assistance animals. It’s important that property managers say the right thing whenever the issue comes up.
According to the Fair Housing Act (FHA), housing providers are required to make “reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford [a person with a disability] equal opportunity to use and enjoy a dwelling.”
In simpler language, property managers are required to help disabled residents through reasonable policy changes.
What counts as a “reasonable” change in policy?
A reasonable accommodation is a change or an exception that helps someone with a disability enjoy their space. For instance, an emotional support animal (ESA) is a reasonable accommodation in a building with a no-pet policy.
If there’s going to be a disagreement between your office and a prospect/resident, it’s probably going to happen if each party has a different idea of what is reasonable. They might think a baby goat is a reasonable ESA. You (backed by city/state ordinance) will probably disagree.
Assistance animals are not “pets”
Assistance animals may be a service animal or an ESA. Generally speaking, property management businesses don’t run into many issues with service animals. These assistance animals tend to be dogs and can legally go anywhere their owner does, with few or no restrictions.
On the other hand, ESAs can be any animal (within reason) and are generally restricted to the dwelling.
How does someone request an assistance animal?
Requests for an animal can come in writing or verbally. So, if a resident stops by your office and says, “I need an emotional support animal,” that counts as them informing you.
The first thing you should do is document that the person stopped by your office and requested the animal. Include the date, time, animal type and any other important details about the request. If you use property management software, make sure to log it there.
Look for the nexus
It is important for the resident to provide what is referred to in the industry as the nexus. This is the disability-related need for an assistance animal. If your building has a no-pet policy, the nexus cannot simply be “I want an emotional support animal.” They need to provide proof that the animal is tied to a disability.
The property manager can ask for a doctor’s note (proving the animal’s link to a disability). However, you can only do this if the applicant’s or resident’s disability is not apparent. The note can come from someone in the healthcare field: a therapist, nurse, doctor, etc.
What not to do
There are two things that can get you into big trouble. It can be easy to slip up without meaning any harm, so pay attention to the following:
- Never ask what the resident’s disability is or why they need the animal
- Never refer to an assistance animal as a pet, even if the resident does
Additional Rights of a property manager/owner
For most emotional support animals, the person’s need is not apparent, so you can probably ask why the need the animal. Nonetheless, you may want to consult an attorney about specific cases, especially if you’re worried about restricting animal access in certain areas (e.g., pool area, fitness center, communal kitchens).
Property managers and owners may not:
- Apply breed or weight restrictions on dogs (but you can deny an animal based on its behavior)
- Put ownership conditions, barriers or restrictions (e.g., requiring pet insurance)
- Add fees or ask for a deposit
Property managers and owners may:
- Deny a request if it fundamentally alters the nature of your services
- Claim an undo financial and administrative burden (be specific)
- Provide evidence that the animal would cause extreme damage to the property
- Put up signs in common/office areas that say, “All assistance animals are welcome”
For more information on ESAs, check out the NAA Toolkit, Emotional Support Animals: A Practical Guide To Reasonable Accommodation Requests.
2. Policies that unfairly target families & children
Families with children sometimes experience discrimination from property managers who do not want children in their units. Such intentional discrimination is called disparate treatment.
It can even be illegal to target your advertising toward single people or couples without children.
Disparate impact, unlike disparate treatment, is a policy that seems neutral on its face. This sort of discrimination may have a negative impact on members of a protected class under the FHA.
Check out what NAA has to say: Disparate Impact and Fair Housing
The wording of your policies matter
Sometimes, you simply need to reword your policy to make it FHA compliant.
- Good wording: For safety purposes, keep balconies clear of obstructions (does not target a specific group)
- Bad wording: No toys on balconies (targets children)
Always keep your language broad and inclusive. State specific justifications for each policy.
3. Occupancy standards
There are additional occupancy standards and guidelines that further protect families. You probably know the common “2+1 rule,” which limits occupancy to two people per bedroom, plus one more (generally a child).
For instance, what do you do if a couple ends up with twins? Or, what if they’re expecting a second child when they sign the lease?
The solutions to these issues aren’t cut-and-dried. You need to be able to review your own policies on a case-by-case basis.
As with everything that relates to fair housing laws, document exceptions to your rules. Include full details and reasons for your actions.
Start with general policies & “soften” them as needed
Rigid and blanket occupancy restrictions should be avoided, especially if the size of each unit varies within a housing complex. Consider:
- Size and configuration of the units
- Age of children
- State and local laws
4. Laws around criminal record screening
You should have a written and thoughtfully developed criminal screening policy. Tailor it to reflect legitimate concerns over convictions.
A legitimate concern is one that relates to the interests of a housing provider.
Conducting criminal background screenings might seem safe enough, but a policy of not renting to those with past criminal records could unfairly target minorities. Criminal records-based barriers to housing are more likely to affect minority apartment seekers. Every criminal record needs to be taken into context.
Remember, a blanket policy that denies tenancy to people simply because of a prior conviction could violate fair housing laws. (Yet another example of disparate impact.)
How to approach criminal record screening
Here are some best practices for the resident screening process:
- Write down justifications for your policy
- Give greater weight to convictions that reflect specific housing concerns
- Allow an individual the opportunity to provide evidence of rehabilitation if they are declined for residency
- Provide detailed training to staff to consistently apply the screening policy and understand justifications for it
5. Laws around eviction screening
Approach eviction screening as you would criminal record screening, as minorities are statistically more likely to be evicted. You want every denial to be for a specific, legitimate reason(s).
Denial should not be related to prior discrimination based on race, religion, etc. Doing so, even unintentionally, could violate fair housing laws.
If you see an eviction in your applicant’s screening results, follow up with the landlord who evicted them.
Property management is as much art as it is science. You’ll have to navigate complex fair housing laws. These laws are political in nature, and they change often. Play it safe and think about your long-term interests. Here are some tips from NAA on how to do just that:
- Have clear, written policies so your entire team can follow them
- Determine legitimate interests
- No automatic conviction exclusions
- Ignore arrests that did not lead to conviction
- Apply policies equally and consistently
- Narrowly tailor inquiries
- Train staff on your policy as well as updates to fair housing laws
Please note that this article does not constitute or replace legal advice. We hope this information is helpful, and we encourage you to do more research. Consult an attorney for help on specific cases related to fair housing laws.