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When teaching Fair Housing classes to landlords and property managers, I often start with one question: Is it ever okay to discriminate against a prospective tenant? The “knee-jerk” reaction of most attendees is almost always, “No way! It is always wrong to discriminate!”

Wrong answer … believe it or not.

Merriam-Webster’s Dictionary defines “discriminate” as “to mark or perceive the distinguishing or peculiar features of”, or “to distinguish by discerning or exposing differences.” The fact is, landlords and property managers discriminate almost every day. Think about it. According to the dictionary’s definition, every time you check the prior rental history of a prospective tenant, you are discriminating … not necessarily in a bad way, but you are discriminating. Every time you refuse to rent to someone because their dog is too large, you are discriminating. Every time you choose to evict one tenant because of non-payment, you are discriminating.

In other words, the action of “discriminating” is not, in and of itself, necessarily bad. In fact, it is part of a landlord’s job. In our modern-day society, however, we have grown to associate the word “discriminate” with many negative connotations related to racism, sexism, etc. And that kind of discrimination is, of course, very bad, not only for moral reasons, but because it is precisely the kind of discrimination that exposes landlords to liability under federal Fair Housing law.

The federal Fair Housing Act was adopted by Congress as part of the Civil Rights Act of 1968. Fair Housing laws prohibit most landlords and property managers from discriminating against tenants on the basis of race, color, national origin, religion, sex, disability and familial status (which usually means having children under 18 in the household). We refer to these seven categories as the “protected classes.” In other words, a landlord can discriminate against a tenant, as long as the landlord does not do so based upon one of the protected classes.

A tenant who believes that he or she has been the victim of housing discrimination may elect to assert claims against the landlord in one of several ways. First, and probably the most common, the tenant may file a complaint with HUD’s Office of Fair Housing and Equal Opportunity (FHEO), or one if its local affiliates. The FHEO often delegates investigation and enforcement of such claims to local agencies on the state level, such as the local HUD or attorney general’s office. Those agencies will proceed not only with the investigation of such claims, but will also decide whether probable cause exists to pursue the landlord, and the extent of punishment to be administered. In that sense, they act as the judge, jury and executioner, with the power to enforce penalties including

• Ordering the landlord to Compensate the tenant for any actual damages, including humiliation, pain and suffering
• Assessment of fines to be paid to the Federal Government ranging from as much as $16,000 for a first violation to $65,000 for the third within a seven-year period
• Payment of reasonable attorney’s fees and costs
• Other forms of equitable relief, including forcing the landlord to allow the tenant to live in the rental property

The tenant may also choose to bring a private lawsuit against the landlord, in which the tenant might ask for monetary damages, including actual damages, pain and suffering, attorneys’ fees, court costs, and even punitive damages. Most of those cases are filed in federal court, and have a tendency to drag on for years, thus costing a large amount of time, money and resources to defend.

Needless to say, any landlord or property management company faced with a Fair Housing claim should seriously consider seeking the assistance of an attorney experienced in that area.

Any landlord who has been in the business for much time at all is sure to have some horror stories of defending against Fair Housing claims. However, the old adage, “an ounce of prevention is better than a pound of cure” can go a long way in saving the well-prepared landlord a lot of money and heartache when it comes to Fair Housing claims. An attorney experienced in landlord law can assist you to educate you and your employees how to avoid the many pitfalls that surround discrimination claims under Fair Housing, and can help establish protocols to assure that you and/or your company do not engage in activities that can be perceived as discrimination against the protective classes discussed above.

If you are interested in consulting with our office regarding Fair Housing issues, or even in having one of our attorneys travel to your office or one of your properties to teach a Fair Housing class, please call (719) 260-7900.

by Josh Deere, Attorney at Hanes Hrbacek & Bartels, LLC

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