Tag Archives: Fair Employment and Housing Act

Are you discriminating against Section 8 Tenants?

I follow a blog for real estate investors, Biggerpockets.com. Today, it had an article 8 Myths about Section 8, Corrected: Here’s the Profitable Truth. Landlords often have many questions about renting to tenants who received Section 8 subsidies. The basics of a Section 8 tenancy are that a tenant and the landlord enter into a rental agreement, and the local housing authority pays the landlord a certain amount of subsidy for that rent directly to the landlord. Thus, there are actually two contracts: (1) the rental agreement between the landlord and tenant and (2) the agreement between the housing authority and the landlord.

Can a Landlord Intentionally State “I do not accept Section 8 tenants?”

The basic answer to this question is yes. A landlord is not required to accept a tenant who receives a Section 8 subsidy. Donald Sterling of the Los Angeles Clippers fame brought this issue to the California Court of Appeals. In Sabi v. Sterlingthe California Court of Appeals found that a landlord could intentionally refuse to rent to tenants who received Section 8 subsidies. Sabi v. Sterling (2010) 183 Cal. App. 4th 916. This case found that a landlord does not violate the Fair Employment and Housing Act or the Unruh Civil Rights Act by refusing to rent to a tenant who has a Section 8 voucher.

Although this is the legal reasoning behind refusing to rent to Section 8 tenancies, a landlord still cannot refuse to rent to a tenant for a discriminatory reason. Further, a landlord may want to read the article from Biggerpockets to see some of the reasons you may want to rent to Section 8 tenants.

How many people can you allow to live in a unit?

Limits on the number of people living in a unit are very common and often depend on the number of bedrooms, bathrooms, and size of the units. However, before making a limit on the number of people living in a unit, a landlord should be aware that a low limit could make the landlord subject to a claim under the Fair Housing Act for discriminating against families.

The Fair Housing Act allows local governments to restrict the number of occupants in a rental unit as long as the reasonable occupancy limit does not discriminate against families and is applied uniformly without regard to who consists of a family. For example, a group of 5 people consisting of a mother, father, and three children must be treated the same as a group of five friends that act as a family.

However, the Fair Housing Act does not expressly allow a landlord to restrict the number of occupants in a unit. HUD takes complaints about occupancy standards seriously and will evaluate to determine whether a restriction discriminates against families.

The FHA has found that a 2 person per bedroom rule is  reasonable; however, it has also found a one person per bedroom rule is discriminatory because it discriminates against single parents with children. Further, the FHA has found that 2 person occupancy for a 2 bedroom unit is discriminatory because a two bedroom could only house either a couple or a single parent or child but not a couple with children.

A common occupancy limit is 2 occupants per bedroom plus one occupant. For example, a one bedroom would be three people, a two bedroom would be five people, and a three bedroom would be seven people. Also, when creating an occupancy limit, it is important to note that a landlord cannot differentiate between adults and children. For example, a landlord is not able to say that a unit can have 2 adults and 2 children, but not 4 adults or only 3 adults and no children.

There have also been cases that allow a landlord to have a lower occupancy limit if there is a demonstrable relationship to a legitimate business interest. For example, if a two bedroom unit is smaller than a typical two bedroom unit.

Occupancy limits can be an important issue because it is important for landlords to have clear guidelines to who they will rent to and apply those rules uniformly for all tenants.

If a lease only allows a certain number of persons and is not discriminatory, a landlord can prohibit additional occupants from living in the unit. Under Los Angeles’ rent control ordinance, a landlord can raise the rent 10% per additional resident within 60 days of the landlord discovering the tenants or when a landlord should have discovered the additional residents. In areas without rent control, a landlord can serve a Three Day Notice to Perform Covenants or Quit to require a tenant to remove additional residents not on the lease.

Fair Housing and Advertising for Landlords

Under the Fair Housing Act and California’s Fair Employment and Housing Act, advertisements to rent or sell housing must not discriminate or state a preference even if the housing is exempt from fair housing laws.  Generally, advertisements must not state a words that refer or relate to a particular class to describe the housing unit, the apartment complex, the neighborhood, other tenants living in the apartment complex, or the landlord. For example, landlords and property managers should not include references to age, sex, race, religion, or disability. An ad should never contain a statement such “adults only” or “no kids” because it would be discriminating against families.

There are many nuances to advertisements for rental housing that landlords and property managers that could be held to be violations of fair housing laws. For example, an ad should not state that a landlord or property manager is looking for a “Christian tenant,” or a “mature couple.”

In addition to a landlord or property manager being liable to a fair housing violation, the media that publishes the ad could also be held liable.

April is Fair Housing Month

April is Fair Housing Month, so I will be writing a few articles on how Federal and California fair housing laws apply to landlords, real estate brokers, property managers and other real estate professionals who lease property. The Federal Fair Housing Act prohibits unlawful discrimination based upon a tenant or potential tenant’s race, color, national origin, religion, sex, familial status, or handicap. California has its own version, known as the Unruh Civil Rights Act found in Civil Code Section 51 et seq.

The Unruh Civil Rights Act prohibits discrimination based upon sex, race, color, religion, ancestry, national origin, disability, or medical condition. Further, California also has the Fair Employment and Housing Act found in Government Code Section 12900 et seq. The Fair Employment and Housing Act is much broader than the Federal Fair Housing Act or the Unruh Civil Rights Act. It prohibits discrimination based upon the following:

  • Age (40 and over)
  • Ancestry
  • Color
  • Religious Creed (including religious dress and grooming practices)
  • Denial of Family and Medical Care Leave
  • Disability (mental and physical) including HIV and AIDS
  • Marital Status
  • Medical Condition (cancer and genetic characteristics)
  • Genetic Information
  • Military and Veteran Status
  • National Origin (including langauge use restrictions)
  • Race
  • Sex (which includes pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, childbirth or breastfeeding)
  • Gender, Gender Identity, and Gender Expression
  • Sexual Orientation

Further posts will highlight some of these categories and what constitutes discrimination. It is important for all real estate professionals, brokers, landlords, and property managers to understand fair housing laws and apply them in their course of business.