When HUD investigates a licensee for discriminatory practices, it may consider failure to prominently display the equal housing opportunity poster in the licensee’s place of business as evidence of discrimination. HUD Fair Housing Definitions HUD’s regulations provide specific definitions that clarify the scope of the Fair Housing Act. Housing The regulations define housing as a dwelling that includes any building or part of a building designed for occupancy as a residence by one or more families. A residential dwelling is defined as a 1-4 unit building where the Owner lives in the building. Familial status Familial status refers to the presence of one or more individuals who have not reached the age of 18 and who live with either a parent or guardian. In effect, the familial status reference means that the act’s protections extend to families with children. The term includes a woman who is pregnant. Unless a property qualifies as housing for older persons, all properties must be made available to families with children under the same terms and conditions as to anyone else. It is illegal to advertise properties as being for “adults only” or to indicate preferred number of children. Occupancy standards (the number of persons permitted to reside in a property) must be based on objective factors such as sanitation or safety. Landlords cannot restrict the number of occupants to eliminate families with children. Exemptions to the Fair Housing Act The federal Fair Housing Act provides for certain exemptions. It is important for licensees to know in what situations the exemptions apply. However, licensees should be aware that no exemptions involve race, and no exemptions apply when a real estate licensee is involved in a transaction (including when selling or leasing his own property). The Fair Housing Act exempts:
- Owner-occupied buildings with no more than four units,
- single-family housing sold or rented without the use of a real state licensee, and housing operated by organizations and private clubs that limit occupancy to members.
- The sale or rental of a single-family home is exempt when the home is owned by an individual who does not own more than three such homes at one time (and who does not sell more than one every two years),
- a real estate licensee is not involved in the transaction, and
- discriminatory advertising is not used.
The rental of rooms or units is exempt in an Owner-occupied one to four-family dwelling. Note that dwelling units owned by religious organizations may be restricted to people of the same religion if membership in the organization is not restricted on the basis of race, color, or national origin. A private club that is not open to the public may restrict the rental or occupancy of lodgings that it owns to its members as long as the lodgings are not operated commercially. The Fair Housing Act does not require that housing be made available to any individual whose tenancy would constitute a direct threat to the health or safety of other individuals or that would result in substantial physical damage to the property of others. Housing for older persons While the Fair Housing Act protects families with children, certain properties can be restricted to occupancy by elderly persons. Housing intended for persons aged 62 or older or housing occupied by at least one person 55 years of age or older (where 80 percent of the units are occupied by individuals 55 or older) is exempt from the familial status protection. Disability A disability is a physical or mental impairment. It is unlawful to discriminate against prospective Tenants on the basis of disability. The term includes having a history of, or being regarded as having, an impairment that limits one or more of an individual’s major life activities. Persons who have AIDS are protected by the fair housing laws under this classification. Landlords must make reasonable accommodations to existing policies, practices, or services to permit persons with disabilities to have equal enjoyment of the premises. For instance, it would be reasonable for a Landlord to permit service animals (such as guide dogs) in a normally “no-pets” building or to provide designated parking spaces for persons with disabilities. People with disabilities must be permitted to make reasonable modifications to the premises at their own expense. Such modifications might include lowering door handles or installing bath rails for a person in a wheelchair. Failure to permit reasonable modification constitutes discrimination. However, the law recognizes that certain reasonable modifications might make a rental property undesirable to the general population. In such a case, the Landlord is allowed to require that the property be restored to its previous condition when the lease period ends. However, where it is necessary in order to ensure with reasonable certainty that funds will be available to pay for the restorations at the end of the tenancy, the Landlord may negotiate as part of such a restoration agreement a provision requiring that the Tenant pay into an interest-bearing escrow account, over a reasonable period, a reasonable amount of money not to exceed the cost of the restorations. The Landlord may not increase the customarily required security deposit for persons with disabilities. The law does not prohibit restricting occupancy to persons with disabilities in dwellings that are designed specifically for their accommodation. In newly constructed multifamily buildings with an elevator and four or more units, the public and common areas must be accessible to persons with disabilities, and doors and hallways must be wide enough for wheelchairs. The entrance to each unit must be accessible, as well as the light switches, electrical outlets, thermostats, and other environmental controls. People in wheelchairs should be able to use the kitchen and bathrooms; bathroom walls should be reinforced to accommodate later installation of grab bars. Ground-floor units must meet these requirements in buildings that do not have an elevator. Licensees should be aware that state and local law may require stricter standards.
