TEN FAIR HOUSING SAFETY FEATURES

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The landlord does not conduct his business to avoid fair housing suits. He conducts his business so that he can secure good tenants, keep them happy, and make a profit. For that reason, the tips we are offering are designed to be practical, understandable, and workable. Following them will not guarantee that the landlord will never be sued under the fair housing laws. No person, policy, procedure, or cookbook formula can do that. It is possible to build an airplane that is totally safe and poses no risk of injury to the passengers and crew, under all conditions. Unfortunately it would be too heavy to fly. To make oneself proof against any possible claim by an underemployed attorney who spends his time scanning the horizon for injustices would make it impossible for the landlord to do business. These safety features will help make the inevitable risks acceptable, without killing the landlord’s business.

1. Know the basics. In the United States of America at the turn of the millennium discrimination for or against any person on account of race, color, religion, sex, handicap, familial status, or national origin is forbidden.

2. Know the laws. The federal government, all states, and many local governments, have enacted their own antidiscrimination laws. You must know which ones apply to you and how, in practice, to comply with them.

3. Make sure every person you employ has exposure to the requirements of the fair housing laws which apply to your properties, understands your policies, and implements them. Fire anyone who violates these policies.

4. Keep a log of all contacts from purported applicants. This should be on the desk of the person who fields all such calls, or, if more than one person fields the calls, each should have one. This log should be separate from any other type of incoming call log that you have. The log should include the date, time of day, name of the caller or visitor, and a brief note of what was said. The typical telephone message book would work fine. Finally, make sure there is an "official clock," a nice, large wall model, easily visible, which employees can use to set their own watches. A discrimination lawsuit could easily turn on the date and time of a particular call.

5. Do not steer applicants to a particular unit, or conceal the availability of certain units based on your own assessment of the needs or desires of the applicant. Steering is not the same thing as selling. If visited by a family with two young children, by all means suggest the two bedroom right next to the playground and away from the pool (convenience to the monkey bars and safety from drowning). But do not conceal the fact that you have other units in other areas as well. Your suggestion is just good selling, the concealment may be discrimination against minor children, which is illegal in practically all cases.

6. Make the same offers to everyone. There are two commonly made mistakes. The first is concealing the existence of an available unit or refusing to rent it because you do not think the prospect would be happy there. Let the prospect decide. Maybe that single guy would really like to have the two bedroom because he is a toy train buff and would like to set up his Lionels in the extra room. The second common mistake is offering the unit at different rents and under different conditions unless justified. For example, you would be justified in demanding a higher deposit from a prospect who has a pet, but if you do so because he walks with a cane, you are asking for trouble. While your unit is first on the market, you may find that you are getting inquiries but no applications and decide to lower the rent to spur interest. Document when the decision was made and why so that an earlier caller, noticing the new ad after you have rented the place to someone else, cannot claim you quoted him a high rent to drive him off.

7. Document all applications and decisions and your reasons for making them. This includes decisions to rent or not to rent, decisions to change the terms of the offering, all efforts to verify references and credit information, and so on. If a claim is ever made against you, these records will refresh your memory about what happened, or constitute business records proving what an employee did, if the person is no longer available to speak on your behalf.

8. Create a selection profile for applicants and apply it consistently. By this is meant that the selection profile must be neutral both in its impact on the protected categories, and in the manner in which it is applied. There should be as little room as possible left in the decision process to permit an inference that it was tainted by unlawful discrimination. The selection profile will consist of a number of categories which you think important. These might include income as a multiple of the rental rate, stability on the job, credit rating, previous evictions, and so forth. All these are neutral as far as the law is concerned. Next, develop a policy under which these criteria are applied. For example, you might wish to assign different weights to different categories. You might weigh a previous eviction much heavier on the negative side than a derogatory on the credit report for late payment of a medical bill. One technique which has been suggested is to assign a point value for each category. In the income category, an applicant who meets the minimum requirement (say, net pay equals two times the rent) would get one point, an applicant with a multiple of three would receive two points, one with a multiple of four times, three points, and so on. The applicant who has the most points above the minimum necessary to qualify gets the right of first refusal. The object is to be able to refer to a standard as far removed as possible from subjective feelings or prejudices, which is easy to understand and implement , and which, when consistently applied, refutes the charge that improper personal prejudices influenced the decision.

9. Use a competent screening service and rely on their information. Make sure you comply with the Fair Credit Reporting Act and retain the credit report for future reference.

10. Consult a legal professional once your proposed policies and procedures have been formulated, and obtain a written opinion. There are two excellent reasons for doing this. First, a lawyer’s opinion letter stating that your screening polices and procedures comply with the Fair Housing Laws is a powerful defensive weapon if you do get sued, and may allow you the protection of his professional liability policy if he makes a mistake. Second, there is a vast quantity of lore out there, mostly nonsense, passed around by barrack room lawyers, masquerading as requirements of the law. Much of this stems from reading newspaper or trade journal articles in which the authors have omitted or misstated the basis for sensational judicial decisions. Seeing a professional will assure that you know what the law actually is.

The fair housing laws do not make it illegal to discriminate among applicants for your rental units. The whole purpose of the screening process is to rationalize such discrimination. The fair housing laws make it illegal to discriminate against individuals for certain reasons, such as race, handicap, etc. Compliance with these laws comes when you use criteria for discrimination which are not prohibited, but safety under these laws comes only when you have so structured and documented your decision making processes as to make the fact of compliance obvious.

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