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Strategies for Avoiding Fair Housing Complaints – Part 3 – By Michael A. Brennan, Esq.

Posted on 01. Jun, 2013 by in all, Magazine Articles

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In the last article, I gave a brief overview of the Fair Housing laws, who enforces them, and who can be found liable for the violation of those laws. In this article, I will address the most common mistakes made by landlords in their day to day business activities that often result in Fair Housing complaints. This article focuses on strategies for avoiding the most common mistakes made in advertisements as well as those made during the application and screening process.

The Advertising & Application Process

One of the most common forms of Fair Housing complaints is called a “refusal to rent” complaint. The complaint generally comes from someone who applied for an apartment but whose application was denied by the landlord on, more often than not, legitimate qualifying factors. The applicant who was denied often believes they were illegally discriminated against and contacts one of the many fair housing councils to file their complaint. You might be asking yourself, “How can someone whose application was denied based on qualifying factors file a complaint for illegal discrimination”? And the answer is . . . it is not WHAT you say but, rather, how it is interpreted that matters.

Section 804 of the Federal Fair Housing laws makes it illegal to make or cause advertisements that indicate either a preference, limitation, or discrimination based on any of the protected categories. It is often times easier than one might think to place an ad within which language is used that can be interpreted as evidence of the landlord’s intent to discriminate. An example of an ad that shows a preference, whether intentional or not, would be where the landlord has a studio apartment available and runs an ad stating something to the effect of “perfect for a single person”. While the landlord may have no intention of limiting who applies, the argument has been made that such an advertisement is discriminatory based on marital status and, so, it runs afoul of the law.

The best way to avoid this and other potential pitfalls in advertising your units is to simply steer clear of mentioning people in any way. Focus on describing the property instead. When drafting the language for your ads, it is important to recognize and remember that your ads are possibly being monitored by one of the local Fair Housing advocacy groups, who use testers to call on ads that appear to have discriminatory language or pictures. So be both intelligent and diligent in choosing the words you use for your ads.

There are four key guidelines to remember when advertising your available units.

  • First, promote the features and benefits of the property in your ads. A simple statement regarding the number of bedrooms, bathrooms, the square footage of the unit, and the monthly rental amount is generally enough to generate calls.
  • Second, avoid references to people, whether the type of people currently living in the property, (families, young and single, etc.) those you would like to have (singles, families, Christians, etc.), or those who need not apply.
  • Third, avoid using words or phrases that either directly or indirectly refer to a protected class, or words that could be interpreted by individuals to mean that members of a certain class are not welcomed. If you follow guideline number two, this should not be an issue.
  • Finally, consider adding language to your ad stating applications are accepted from everyone who wants to be considered for the unit. HUD publishes a list of acceptable advertising language which includes words and phrases that are either “acceptable”, “unacceptable” or those that should be “used with caution”. You can locate it on the internet, or, if that approach isn’t working, you can contact my office and we will be glad to email it to you. By familiarizing yourself with the list and utilizing the four suggestions above, the result should be advertising that is neutral, unbiased, and non-discriminatory.

Even if you follow my suggestions above, you are not out of the woods yet, since the language used in advertisements is not the only language with which landlords should be concerned. Next, we will address verbal communications, whether on the phone or at the property, in a manner that insulates you from complaints of discrimination. Even after you’ve done your homework and chosen your words with caution, it is still easy for landlords and their managers to inadvertently expose themselves to liability from a claim of discrimination when discussing the property on the telephone.

The key to remember when communicating with people on the phone is to be brief and try to get them to visit the property in person. Try telling them that you only provide general information about the property over the phone and if they are interested in seeing the unit based on what you’ve told them, you’d be happy to meet them at the property to give them an application, your rental criteria, and a tour of the property, as well as answer any questions they might have. Remember, the less you say on the phone, the better. You never know whether the individual on the other end of the line is a legitimate prospective tenant or a tester calling to see how you respond to their questions.

One client of mine runs her ad with a telephone number that goes directly to voicemail. When someone calls, the voice message provides the general information about the unit, a list of her rental criteria used in selecting acceptable tenants, and indicates that anyone interested in visiting the property to pick up an application, a hard copy of the rental criteria, and to see the unit should leave their telephone number and a couple of days and times that they would like to visit the property. She recently told me how effective her approach has been at reducing her time on the phone (and concerns about saying the wrong thing) and weeding out a lot of “looky-loos”.

In addition to keeping your telephone conversations brief, consider designing and implementing “scripts” or “canned responses” that answer the most common questions you receive. In addition to providing the exact same answers to the most common questions, be sure you are asking the same questions to everyone that calls. The reason I say that is testers are looking for anomalies in your practices and procedures in an attempt to demonstrate a subjective component to your decision making. By asking the same questions and providing the same answers to everyone with whom you interact, whether in person, on the phone, or through email, you deprive them of a basis for claiming your actions or decisions are arbitrary or vary depending on who you happen to be speaking with. The key to protecting yourself is uniformity in your policies and practices, applied consistently to everyone.

Now that you have gotten past the initial phone call, and the applicant has agreed to meet you at the property, it is time look at the most common mistakes made by landlords while doing the on-site tour/interview.

Maybe the single most common mistake made by landlords while showing an applicant the property is a practice known as “steering”. Steering can be defined as “attempting to determine the outcome of where a person lives based on their membership in a protected class”, and it occurs when the landlord or the manager directs the applicants to a certain area or unit in the building, (or to another building altogether), based on the applicants membership of a protected class. Whether steering occurs intentionally or innocently, the end result is a discriminatory practice that can land you in trouble.

An obvious example of intentional steering is showing an applicant an unfinished unit in an attempt to dissuade him or her from completing an application while, in fact, there is a finished unit ready to go. A less obvious, (and likely innocent) example of steering occurs where a family shows up to a building to look at the vacancies, and is shown a unit in the back of the building because it is closer to the park or playground even though there were units available in the front of the building as well. Another example can be seen where a suggestion is made to a disabled applicant that they might be better suited taking a first floor unit rather than one on a higher floor. While the intent of the landlord or manager may be entirely innocent, the end result is that steering has occurred and the landlord is now exposed to a fair housing complaint.

One approach that can be taken to avoid steering altogether is to let the applicant know everything you have available and the rent for each unit, letting them decide which unit fits into their budget and which they want to see. In the event the applicant volunteers something such as a preference for a downstairs unit, or a unit in the rear of the building, simply make a note of that preference and keep it with their application documents. By doing so, you are later able to establish a legitimate reason for showing the applicant a specific unit or location should you find yourself being investigated for a claim of discrimination.

The important point to take from this article is this; whether in your ad or your verbal communications with prospective applicants and tenants, remember that it is not what you say that can get you in trouble, it is how your words can be interpreted by the listener. A reasonable approach to advertising your vacant unit while minimizing your exposure to fair housing complaints is to place basic information about the property in your ad and, when someone calls to discuss the property, keep your communications brief and focused on the features of the property. Ideally, you want to meet the individual at the property to provide them with an application and a hard copy of your rental criteria, to show them the unit, and to answer any questions they might have in person. Furthermore, consider developing scripts to answer the most commonly asked questions in a neutral, unbiased, and non-discriminatory manner, and be sure to give the same answers and ask the same questions to everyone with whom you interact. Written policies that implement these or similar practices on a consistent basis with every applicant will reduce the chance of a discrimination complaint being filed against you.

The foregoing information is presented and intended to address the topic(s) covered above in a general nature.  Specific situations and their facts should be presented to your attorney for review.  The Brennan Law Firm is one of the fastest growing and most experienced landlord-tenant law firms in Southern California, representing landlords exclusively in evictions, negotiations, and judgment enforcement. Mr. Brennan is a frequent speaker and contributing author for AOA, and may be reached at (626)294-0500, or toll free at (855)285-2230. Visit www.MBrennanLaw.com  for more information.