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Navigating the Complexities of Fair Housing Laws

June 23, 2017 | Category: Landlord/Tenant Law | Author: Jennifer L. Alexander, Esq. | Share

The Fair Housing Amendments Act of 1988 (“FHAA”) is a federal law prohibiting discrimination in the rental of dwellings for certain protected classes.[1] The exhaustive list of protected consists of race, color, religion, sex, national origin, familial status and handicap.[2] The Americans with Disabilities Act (“ADA”) also provides additional protection for individuals with disabilities. The New Jersey Law Against Discrimination (“LAD”) is a state law that expands upon the federal requirements to include additional protected classes that are not otherwise covered by federal law.[3]

For example, the LAD includes, as protected classes in the rental context, ancestry, sex (including pregnancy), marital status, sexual orientation, gender identity or expression, genetic information, liability for military service and more. The LAD also prohibits discrimination based on lawful source of income, which includes, but is not limited to federal or state loans, alimony, child support, and social security.

To prevent discrimination in accordance with the Fair Housing Act, FHAA, ADA, or the LAD (collectively “Acts”), the Landlord should adopt clear and uniform application and leasing practices to ensure that a members of all protected classes are treated equally. The Department of Housing and Urban Development (HUD) issued guidance on background checks in a document, dated April 4, 2016, conducted during the application process.[4] Criminal background checks are being reviewed by HUD to determine whether this process has a potential “disparate impact” (meaning “unintentional impact”) on protected classes, regardless of whether a background check policy is non-discriminatory on its face. Thus, while criminal background checks should be conducted in a uniform manner, the results should be reviewed and analyzed on an individual basis to ensure that applicants are not denied based on discriminatory purpose or disparate impact. This shows that even uniform policies have a potential to discriminate. Accordingly, landlords should consult their legal counsel with regard to their leasing practices.

Additionally, case-by-case analyses are required to prevent discrimination in the Landlord’s treatment of individuals with disabilities. Landlords must provide requested reasonable accommodations or modifications to individuals with handicaps.[5] It is considered discriminatory if landlords refuse to provide requested reasonable accommodations/modifications.[6]

Landlords are required to provide reasonable modifications if they are “necessary to afford such a person full enjoyment of the premises.”[7] An exception to this policy allows landlords to condition a reasonable modification on the requirement to have the handicapped tenant restore the modified apartment to its original condition upon vacating the apartment if it would affect the use and enjoyment of the apartment by the next resident.[8]

Landlords are required to provide a reasonable accommodation in “rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.”[9] An accommodation, however, is not reasonable if it causes an undue financial or administrative hardship on the landlord.

In the rental of apartments, ignorance of the Acts is not considered an excuse for avoiding liability. A discriminatory act or statement at any stage of the rental process can place landlords on the losing side of a lawsuit. Landlords can be held liable, through vicarious liability, for any discriminatory act made by an employee who is at any level in the company, or an agent of the landlord. By holding landlords liable for all levels of employment or third-party agents, the landlord must take affirmative action to provide training to all staff. Landlords should protect against liability under the Acts by ensuring that all levels of staff are educated on, and aware of, the complexities of these Acts.

To handle the complexities of these Acts, let skillful, experienced, and knowledgeable attorneys assist you. Contact Griffin Alexander, P.C. with questions, comments or concerns.

[1] 42 U.S.C.S. § 3604(a).

[2] Id.

[3] N.J. Stat. § 10:5-1.

[4] Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate Related Transactions (April 4, 2016).

[5] 42 U.S.C.S. § 3604(f)(3)(A) and (B).

[6] Id.

[7] 42 U.S.C.S. § 3604(f)(3)(A).

[8] Id.

[9] 42 U.S.C.S. § 3604(f)(3)(B).

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