Avoiding Fair Housing Problems During Evictions and Nonrenewals

This month, Fair Housing Coach tackles one of the most difficult situations that every community must face: ending a resident’s tenancy. It may be at the end of the term, when not renewing a lease, or during the lease period, when initiating an eviction. Each circumstance is subject to different legal requirements, but in the end, they both involve the decision by the community—not the resident—to end the tenancy.

Consequently, there’s a risk that the resident may respond by accusing you of a fair housing violation. It could be a bogus claim intended to delay or derail efforts to end the tenancy, or it may be a legitimate claim that the resident may—or may not—have raised before. Either way, you should be prepared for fair housing trouble any time you take steps to end a tenancy by nonrenewal or eviction.

Fair housing law doesn’t require you to allow a resident to live at your community indefinitely—or to put up with someone who doesn’t pay his rent or commits some other lease violation. Consistent with state and local laws, community owners and managers may exercise solid business judgment decisions about whether to renew a resident’s lease—or pursue eviction proceedings—as long as the decision isn’t intended to discriminate against the resident because of race, color, or other protected characteristic.

In this lesson, we’ll review fair housing laws and other legal requirements related to ending a resident’s tenancy. Then we’ll suggest six rules to help you avoid—or deal with—common fair housing issues that arise in evictions and nonrenewals. Finally, you can take the Coach’s Quiz to see how much you’ve learned.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) is a federal law that prohibits housing discrimination based on race, color, religion, sex, handicap (disability), familial status, or national origin. The FHA lists a variety of discriminatory housing practices, but they fall within several basic categories:

Refusal to rent. These provisions make it unlawful to exclude applicants based on race and other protected characteristics, but they also apply when you end a resident’s tenancy through eviction or nonrenewal. HUD regulations specifically state that an unlawful refusal to rent includes “evicting tenants because of their race, color, religion, sex, handicap, familial status, or national origin or because of the race, color, religion, sex, handicap, familial status, or national origin of a tenant's guest.” The same goes for nonrenewals. You may have the right under state landlord-tenant laws to not renew a lease for any reason—as long as it’s not for discriminatory or retaliatory reasons.

Discriminatory terms and conditions. These provisions make it unlawful to apply different terms, conditions, or privileges of the rental because of a protected characteristic. A common example would be applying more burdensome screening standards—or quoting a higher rent—to Latino applicants or families with children. But it would also apply to your rules and how you enforce them, such as adopting a rule banning children from playing outside or treating Latino residents more harshly than white residents for the same violations.

When faced with the community’s decision to end the tenancy, a resident may accuse the community of committing either—or both—of these violations of fair housing law. And, if the resident acts first—by filing a discrimination complaint or making a disability-related accommodation request—you could be accused of retaliation, which is a separate violation of fair housing law.

Retaliation. Under the FHA, it’s unlawful to “coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of any right granted or protected” under fair housing law. To prove a retaliation claim, the resident must show that:

• He has engaged in a protected activity;
• The community has taken adverse action against him; and
• There is a causal connection between the two.

You run the risk of a retaliation claim any time you take action to end the tenancy of a resident who has filed —or threatened to file—a discrimination complaint against you. The resident has clearly engaged in a protected activity—filing the fair housing complaint—and the community took adverse action against him—filing eviction proceedings or deciding not to renew his lease. There may not be clear evidence to prove the connection, but the resident may get the benefit of the doubt, particularly if the community took action soon after the resident filed the complaint or if the community can’t prove that it had a legitimate, nondiscriminatory reason for its decision. 

What makes matters worse is that you could be liable for retaliation regardless of whether the resident had a legitimate discrimination claim in the first place. The law applies simply because you took action against the resident for exercising his rights under fair housing law, even if the resident ultimately loses the discrimination case.

COACH’s Tip: Check with your attorney about applicable state and local fair housing laws, many of which ban discrimination based on marital status, sexual orientation, and other characteristics. And in some states, landlord-tenant laws protect domestic violence victims from eviction because of the abuser’s misconduct. 

 

SIX RULES FOR AVOIDING FAIR HOUSING PROBLEMS DURING EVICTIONS AND NONRENEWALS

 

Rule #1: Hold Everyone to the Same Standards

You should expect all residents to fulfill their obligations to pay their rent on time, to keep the unit clean, and to refrain from disturbing their neighbors. Your lease agreement and community rules will spell out the details of what’s expected—and the consequences for failure to do what’s expected—subject to state and local law.

Fair housing law bans discrimination against members of protected classes, but that doesn’t give those residents a free pass to break the rules. Even if a resident is protected by fair housing law, you can take action against him if he behaves in a manner that justifies eviction, such as failing to pay his rent, damaging your property, or threatening his neighbors.

But it’s a violation of fair housing law to single anyone out for breaking the rules because he—or his household member or guest—is a member of a protected class. You may have solid evidence that a resident has violated the lease or your community rules, but a resident could put you on the defensive by accusing you of discriminatory motives. Even if he loses, his accusation could result in costly and time-consuming litigation.

Example: In September 2013, a court ruled against a public housing resident who filed a fair housing complaint after being threatened with eviction if he didn’t stop feeding pigeons on his deck. After discovering that the resident was hosting pigeons and feeding them from his deck, the manager sent him several written notices, warning that community rules prohibited the feeding of stray animals and wildlife, and threatening to evict him if he didn’t stop. After a series of inspections, the resident eventually complied, so no further action was taken against him.

Nevertheless, the resident sued the community for discriminating and retaliating against him because of his race. He said the manager falsely accused him of hosting the pigeons, though he admitted that he allowed pigeons to nest on his deck. The court rejected his claim that other residents fed the pigeons but were not disciplined, noting evidence to the contrary: Other residents viewed the pigeons as a nuisance, and they were battling them with poison and other means. Despite various complaints about the manager’s attitude toward residents, there was no evidence that he had any racist or discriminatory motives [Bahati v. Seattle Housing Authority, September 2013].

Rule #2: Make Sure Rules Are Fair—and Enforced Fairly

To ward off discrimination complaints, you should make sure your rules are fair and that you apply them fairly. To be fair, the rules should be neutral—in other words, not based on any characteristic protected by fair housing laws.

Rules themselves often come under attack when communities seek to evict families for exceeding occupancy standards. Under fair housing law, it’s unlawful to adopt overly restrictive occupancy standards that have the effect of excluding families with children. Subject to state and local restrictions, HUD says that two persons per bedroom is generally reasonable under federal fair housing law. Enforcing rules that restrict occupancy to fewer than that—or limiting the number of children, as opposed to the number of people, living in the unit—could trigger to a discrimination complaint based on familial status.

Example: Last year, a Florida condo community agreed to pay $150,000 to settle a discrimination claim initiated by a family with six children living in a four-bedroom townhome. The family claimed that, shortly after moving in,  they were threatened with eviction for exceeding the community’s limit of six occupants in four-bedroom units. The Justice Department sued the community for violating fair housing law by enforcing overly restrictive occupancy standards. Under both the Justice Department’s and HUD’s rules, up to eight people can live in a four-bedroom unit. Anything that limits a family with children to fewer than two persons per bedroom is presumed to be discriminatory. After a series of proceedings, the parties agreed to a settlement that required the community to pay $45,000 to the family, $85,000 into a victim compensation fund, and $20,000 in civil penalties [U.S v. Townhomes of Kings Lake HOA, Inc., August 2013].

More commonly, residents facing evictions raise discrimination claims by arguing that the rules were applied against them unfairly. It could be a general accusation that the community treats members of protected groups more harshly than others for similar misconduct. Or more specifically, the resident may claim he was targeted for harsh treatment because he’s a member of that group. As proof, the resident may point to other residents who’ve gotten away with similar misconduct but who aren’t members of the protected group, and argue that his violation of the rules wasn’t the real reason for evicting him, but merely an excuse to cover up unlawful discrimination.

To counter allegations of discriminatory treatment, the general rule is to enforce your rules consistently, without regard to race, color, or other protected characteristics. Of course, it’s easier to apply a hard-and fast-rule for some violations, such as failure to pay rent, than other violations, such as threatening or disruptive behavior. Fair housing law doesn’t prevent you from exercising reasonable business judgment in how you respond to varying circumstances as long as you have legitimate, nondiscriminatory reasons for your decisions that have nothing to do with race, national origin, or other protected characteristic.

Rule #3: Consider Reasonable Accommodation Requests

Proceed carefully any time a resident raises a disability-related reason for violating the lease or community rules. It may seem like an excuse, but it should be a red flag to alert you to your obligations under fair housing law to provide reasonable accommodations to individuals with disabilities. An accommodation is a change in the community’s leasing rules and policies for someone who is disabled and needs some kind of assistance because of a disability.

An accommodation request often comes up when management discovers a violation of its pet policies. Perhaps your community doesn’t allow pets or imposes restrictions on their size or breed. In many cases, the resident has had the animal for some extended period of time before it comes to light. When management responds—usually by ordering the resident to remove the animal or face eviction—the resident may claim that it’s an assistance animal needed because of a disability.

The timing may seem suspicious, particularly if the animal seems like a normal pet or the resident doesn’t appear to be disabled. But don’t let your doubts cloud your judgment—otherwise, you could find yourself on the defensive if the resident accuses you of unlawfully refusing to consider a reasonable accommodation request.

Example: In August 2013, a court refused to dismiss claims that an Illinois condo community violated fair housing law by trying to evict a resident for keeping cats in her unit despite the community’s no-pet policy. The long-time resident apparently kept several cats in her unit, but the management didn’t know about it until a manager spotted one cat sitting in her window. The resident was ordered to remove them, but she responded by putting a letter from her family doctor into the community mailbox for collecting assessments. In the letter, the doctor explained that the resident was a long-time patient who needed the animals for emotional support and added that it was medically necessary under the Americans with Disabilities Act. The community disagreed, allegedly threatening to evict her unless the cats were removed.

The community initiated eviction proceedings, but the court sided with the resident. Although the pet policy was valid and enforceable, the court noted that she had cats for 11 years in the unit without a problem and that she needed them as a reasonable accommodation for her emotional illness.

The resident sued the community for violating fair housing law. The court dismissed some of her claims, but ruled that the community could be liable for denying her reasonable accommodation request. The community argued that she never properly requested an accommodation, but the court disagreed, ruling that the letter from her doctor was enough to be considered a reasonable accommodation request. The court said further proceedings were needed to resolve whether she was disabled and whether her request for an exception to the no-pets policy was reasonable and necessary [Myers v. Condominiums of Edelweiss, Inc., August 2013].

There are many other types of disability-related accommodation claims that can crop up when disciplining residents for violating the rules. A resident may say he had to park in a restricted area because he can’t walk to his designated space, or a resident may explain that his rent payments are late because he has to wait for his disability check to come in the mail. Whenever a resident cites a disability-related reason for asking you to excuse a violation or to make an exception to your rules, you should carefully consider whether he’s entitled to a reasonable accommodation as an individual with a disability before taking further action against him.

Remember that the disability provisions are broad enough to protect people even if they don’t have a disabling condition. The FHA defines a person with a disability to include individuals with a physical or mental impairment that substantially limits one or more major life activities. But even if they don’t meet that standard, they are still protected under the FHA if they have a record of—or are regarded as—having a disability. And you can’t evict a resident for making an accommodation request, even if it later turns out that the request was not reasonable, because that would be a form of retaliation.

Example: In February 2012, a federal appeals court upheld a ruling ordering a Virginia community to pay $150,000 for discriminating and retaliating against a resident based on its mistaken belief that she was disabled due to multiple chemical sensitivity. For years, the resident complained that she was sensitive to paint fumes, tobacco smoke, and mold, which she said caused severe and debilitating physical symptoms. She requested various accommodations to avoid exposure to paint, chemicals, fumes, dust, mold, and other substances. Among other things, she objected to the type of paint used during a renovation project, demanded mold remediation after a water leak, and complained about cigarette smoke emanating from a neighbor’s unit.

The community made some efforts to respond to her accommodation requests, but it eventually refused to renew her lease, converted her to a month-to-month tenancy at a much higher rent, and refused to allow her to move to another of its properties.

The resident sued the community for violating federal fair housing law. At trial, the manager explained that the decision not to renew wasn’t based on her breach of the lease, but rather that the community simply decided to exercise the right not to renew. Nevertheless, the court found that his denials of discriminatory motives were undercut by his comments—when he blurted out that he was tired of accommodating her sensitivities to paint and cigarette smoke—and sent emails in an attempt to “build a case” to remove her.

The court ruled that the resident qualified for protection under the FHA’s disability provisions even though she wasn’t disabled. Despite the claim that she had chemical sensitivities to paint, smoke, and mold, the resident failed to prove that her condition substantially limited her ability to breathe.

Nevertheless, the resident proved that the community regarded her as having a disability because managers believed that she had sensitivities to various substances and treated her as having such an impairment. Based on that belief, the community discriminated and retaliated against her by refusing to renew her lease or allow her to move to another location, and by applying an exorbitant rent increase while she lived there in a month-to-month tenancy [Matarese v. Archstone Communities, LLC, February 2012].

Rule #4: Investigate Complaints by or About Residents

Adopt policies for investigating—and documenting—complaints by or about residents. Based on what you find, you may end up evicting the resident—or not renewing his lease—and you could find yourself on the defensive if he responds with a fair housing complaint.

When there’s a dispute between neighbors, things can get out of hand quickly and, with both parties accusing each other of misconduct, it can be difficult to unravel who’s at fault. Whichever way you decide, the other party may accuse you of discrimination or retaliation if you take action against him.

Be prepared to counter any potential fair housing complaints by setting the groundwork to show that you had legitimate, nondiscriminatory reasons for taking action against residents who break the rules. Take complaints seriously and investigate them thoroughly. During the investigation, explain the rules, tell residents about complaints against them, and give them an opportunity to respond. Give ample warning so the resident understands the need to stop the offending behavior and the consequences for failing to do so. Along the way, you can check with your attorney if you’re concerned about a potential fair housing claim.

It’s particularly important to get legal advice before taking action against a resident who blames disruptive or threatening behavior on a mental disability. The law doesn’t protect individuals with disabilities who pose a direct threat to the health and safety of the community and its residents, unless the threat can be eliminated or reduced by reasonable accommodations. The law has specific rules to determine whether a resident’s behavior poses a direct threat. Even if it does, you may be required to hold off eviction proceedings—at least temporarily—as a reasonable accommodation if the resident receives treatment or agrees to other measures to reduce the risk of a recurrence.

Rule #5: Be on Guard for Potential Retaliation Claims

Whatever the circumstances, be careful before taking action to remove a resident through eviction or nonrenewal if they’ve already filed, or threatened to file, a discrimination complaint against the community.

Under the FHA, it’s unlawful to “coerce, intimidate, threaten, or interfere with” anyone who has exercised his rights under fair housing law, as well as anyone who has helped or encouraged someone to do so. This applies whether the resident has a past or pending discrimination complaint, helped another resident to file a complaint, or made a disability-related request for a reasonable accommodation or modification.

You could face liability under fair housing law for retaliating against a resident in response to the complaint or request regardless of its merits or outcome. That’s because the retaliation provisions are a separate offense, which apply even if the resident ultimately loses the initial discrimination claim or case, or he wasn’t entitled to the accommodation in the first place.

You don’t have to tolerate misbehavior simply because the resident has filed a previous discrimination complaint or accommodation request. But before taking action against the resident, you should call your attorney to make sure you have everything in place to dispel any suggestion of retaliatory motives with evidence showing a legitimate, nondiscriminatory reason for your actions.

Rule #6: Keep Good Records to Fend off Fair Housing Trouble

Though you can take steps to minimize it, there’s always a risk that a resident may accuse you of discrimination or retaliation to delay or prevent loss of housing through eviction or nonrenewal. No matter how valid the reasons for ending a tenancy, your motives may be called into question if the resident raises it as a defense in an eviction case, files a HUD complaint, or sues you for violating fair housing law.

If you’ve set the groundwork, then your files should contain documentation to persuade HUD investigators—or the court—that you had legitimate, nondiscriminatory reasons for your actions. If it’s an eviction for nonpayment of rent, then you should have records to show late or missing rent payments.

If it’s for disruptive behavior, then you’ll need proof of a serious lease violation, including police reports, complaints by or about the resident, and other evidence of the frequency and severity of the problem behavior. Your files should also include your efforts to investigate and resolve the problem, including written warnings sent to the resident and his response.

Finally, you should be prepared to show that you’ve consistently evicted other residents for similar misbehavior to dispel any suggestion of discriminatory or retaliatory motives.

• Fair Housing Act: 42 USC §3601 et seq.

COACH Sources

F. Willis Caruso, Esq.: Co-Executive Director, The John Marshall Law School Fair Housing Legal Support Center and Clinic, 321 South Plymouth Ct., Ste. CBA-800, Chicago, IL 60604; (312) 786-9842; 6Caruso@jmls.edu.

Robin Hein, Esq.: Attorney at Law, Fowler, Hein, Cheatwood & Williams, P.A., 2970 Clairmont Rd., Ste. 220, Atlanta, GA 30329; (404) 633-5114; RobinHein@ApartmentLaw.com.