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UNLAWFUL
DISCRIMINATION IN RENTAL HOUSING: THE BASICS
Introduction:
In California
there are strict laws prohibiting various types of discrimination in
leasing which compel landlords to comply with prohibitions against such
discrimination or face penalties that can be quite severe. The tenant
can obtain damages, attorneys fees and, perhaps most importantly, access
to the very home that was previously barred.
Such
discrimination prohibitions go far beyond mere race or creed. The law
also prohibits discrimination based on such varied characteristics as
source of income, disability, sexual orientation or having children.
This article
shall briefly describe the law and relief available and further provide
additional resources for information should the reader wish additional
information. The reader is also advised to read our article on
Security
Deposits on this web site.
What is
Unlawful Discrimination?
The law is
clear and applies to all rental housing in California. It is enforced
both by the State and can be enforced by private action brought by the
individual who claims such discrimination occurred.
It is unlawful
for a landlord to refuse to rent to a tenant or to engage in any other
type of discrimination on the basis of group characteristics specified
by law (such as race or religion) that are not closely related to
the business needs of the landlord. The landlord is allowed to utilize
criteria that is appropriate for determining if the tenant is capable of
performing but even those criteria may be strictly controlled.
For example,
the landlord may properly require that a prospective tenant have
an acceptable credit history and be able to pay the rent and security
deposit, and have verifiable credit references and a good history of
paying rent on time. However, even if the landlord believes that members
of a certain race or ethnic background are more prone to default on
leases than others, the landlord is strictly prohibited from using that
criteria to refuse entry to the premises.
Indeed, the
California Legislature has declared that the opportunity to seek, obtain
and hold housing without unlawful discrimination is a civil right. See
Government Code Section 12921(b). Under California law, it is
unlawful for a landlord, managing agent, real estate broker, or
salesperson to discriminate against a person or harass a person because
of the person's race, color, religion, sex (including gender and
perception of gender), sexual orientation, marital status, national
origin, ancestry, familial status, source of income, or disability. See
Government Code Sections 12926(p) (revised effective January 1,
2004), 12927(e), 12955(a),(d). See Fair Employment and Housing Act,
Government Code Section 12900 and note that the federal government
also prohibits such discrimination in many cases. See the Fair
Housing Act, 42 United States Code Section 3601 and
following.
California law
also prohibits discrimination based on any of the following:
1.
A person's medical
condition or mental or physical disability;
2.
Personal characteristics, such as a person's physical appearance or
sexual orientation that
are not related
to the responsibilities of a tenant (See Civil Code Sections 51,
51.2, 53; Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d
1142 [278 Cal.Rptr. 614].
3. A
perception of a person's race, color, religion, sex, sexual orientation,
marital status, national origin, ancestry, familial status,
4.
Source of income,
5.
Disability,
6.
Or a perception that a
person is associated with another person who may have any of these
characteristics. Government Code Section 12955(m).
Under
California law, a landlord cannot use a financial or income standard for
persons who want to live together and aggregate (combine) their incomes
that is different from the landlord's standard for married persons who
aggregate their incomes. In the case of a government rent subsidy, a
landlord who is assessing a potential tenant's eligibility for a rental
unit must use a financial or income standard that is based on the
portion of rent that the tenant would pay. Government Code Sections
12955(n),(o).
It is illegal
for landlords to discriminate against families with children under 18.
However, housing for senior citizens may exclude families with children.
"Housing for senior citizens" includes housing that is occupied only by
persons who are at least age 62, or housing that is operated for
occupancy by persons who are at least age 55 and that meets other
occupancy, policy and reporting requirements stated in the law. See 42
United States Code Section 3607(b), Civil Code Section
51.3(b)(1).
"Housing for
senior citizens" also includes: Housing that is provided under any state
or federal program that the Secretary of Housing and Urban Development
has determined is specifically designed and operated to assist elderly
persons (42 United States Code Section 3607(b)); or a housing
development that is developed, substantially rehabilitated or
substantially renovated for senior citizens and that has the minimum
number of dwelling units required by law for the type of area where the
housing is
located (for example, 150 dwelling units built after January, 1996 in
large metropolitan areas) (Civil Code Sections 51.2, 51.3. See
Marina Point Ltd. v. Wolfson (1982) 30 Cal.3d 72 [180 Cal.Rptr.
496]).
While the law
prohibits unlawful age discrimination, housing for homeless youth is
both permitted and encouraged. (Government Code Section 11139.3.)
Limited
exceptions exist for single rooms and roommates. If the owner of an
owner-occupied,
single-family
home rents out a room in the home to a roomer or a boarder, and there
are no other
roomers or
boarders living in the household, the owner is not subject to the
restrictions listed above.
However, the
owner cannot make oral or written statements, or use notices or
advertisements which indicate any preference, limitation, or
discrimination based on race, color, religion, sex, sexual orientation,
marital status, national origin, ancestry, familial status, source of
income, or disability. Government Code Sections 12927(c)(2)(A),
12955(c).
Further, the
owner cannot discriminate on the basis of medical condition or age.
Civil Code Sections 51, 51.2, Government Code Section 12948.
It should be noted that a person in a single-family dwelling who
advertises for a roommate may express a preference on the basis of
gender, if living areas (such as
the kitchen, living room, or bathroom)
will be shared by the roommate.
Government Code Section 12927(c)(2)(B).
Example
of Discrimination to Consider:
It is when one
enters the practical world that the above laws are clarified as to what
are the rights of tenants in California and under Federal law. The
following list gives concrete examples of what one can and can not do.
Examples of
Unlawful Discrimination
1.
Under California's Fair Employment and Housing Act and Unruh Civil
Rights Act, it is unlawful for a landlord, managing agent, real estate
broker, or salesperson to discriminate against any person because of the
person's race, color, religion, sex (including gender and perception of
gender), sexual orientation, marital status, national origin, ancestry,
familial status, source of income, disability, medical condition or age
in any of the following ways:
2. Refusing to sell, rent, or lease.
3. Refusing to negotiate for a sale, rental, or lease.
4. Representing that housing is not available for inspection, sale, or
rental when it is, in fact, available.
5. Otherwise denying or withholding housing accommodations.
6. Providing inferior housing terms, conditions, privileges,
facilities, or services.
7. Harassing a person in connection with housing accommodations.
8. Canceling or terminating a sale or rental agreement.
9. Providing segregated or separated housing accommodations.
10. Refusing to permit a disabled person, at the disabled person's
own expense, to make
reasonable modifications to a rental unit that are necessary to
allow the disabled person "full
enjoyment of the premises." As a condition of making the
modifications, the landlord may
require the disabled person to enter into an agreement to restore
the interior of the rental
unit to its previous condition at the end of the tenancy
(excluding reasonable wear and tear).
11. Refusing to make reasonable accommodations in rules, policies,
practices, or services when
necessary to allow a disabled person "equal opportunity to use and
enjoy a dwelling."
The list above
is not exclusive but merely examples.
For example, if
a landlord has had a bad experience with attorneys in the past and
refuses to rent to an attorney on the basis of those memories…the
landlord has violated the law.
If an
landlord’s religious beliefs claim that living together when unmarried
is a sin or that being homosexual is a sin and bans a couple from
renting on either of those two grounds…that landlord has violated the
law.
It is useful
for landlords who find the above intrusive into their business to
consider their business a “public one” and not a private one. By
offering these premises to the public at large, the landlord is engaging
in the realm of public commercial effort and the law applies to any
persons involved in the public realm. Just as a mall could not ban its
premises to a gay couple, so landlords, seeking “customers” to rent
their premises, must comply with the strict antidiscrimination laws
above.
And mere
grumbling can be cause for action. That would be considered,
“harassment,” so that if a landlord uses such words as “The law requires
me to rent to people such as you but I have to tell you I find you
unwelcome, personally,” or such words, the landlord will find him or
herself facing liability.
And note the
above law applies not just to the owner of the property but to the
managers and real estate agents perhaps used by the owner. If you have a
racist or bigoted manager, you face liability and must take corrective
steps.
Resolving
Housing Discrimination Problems:
1. Damages
Available
A victim of
housing discrimination has a variety of relief available to consider
including:
1. Compensation for the actual damages
suffered.
2. Admission into the housing denied or
equivalent housing.
3. Reimbursement for the expenses that
incurred to find other housing.
4.
Damages suffered and are provable, in addition to actual expenses.
5.
Attorney's fees.
Further, the
Court has the power to order a landlord to take specific action to stop
unlawful discrimination. For example, the landlord may be ordered to
advertise vacancies in newspapers published by ethnic minority groups,
or to place fair housing posters in the rental office.
2. Forums
Available to Resolve Disputes Aside From Court.
A number of
resources are available to help resolve housing discrimination problems:
Local
fair housing organizations (often known as fair
housing councils). Look in the white
(business) and
yellow pages of the phone book.
Local
California apartment association chapters.
Look in the white (business) and yellow pages of
the phone book.
Local
government agencies. Look in the
white pages of the phone book under City or County
government
Offices, or call the offices of local elected officials (for example, a
city council representative or a county supervisor).
The
California Department of Fair Employment
and Housing investigates housing discrimination
complaints (but
not other kinds of landlord-tenant problems). The department's Housing
Enforcement Unit can be reached at 1-800-233-3212 (TTY 1-800-700-2330).
You can learn about the department's complaint process at
www.dfeh.ca.gov.
The
U.S. Department of Housing and Urban
Development (HUD) enforces the federal fair housing law,
which prohibits discrimination based on sex, race, religion, national or
ethnic origin, familial status, or mental handicap. To contact HUD, look
in the white pages of the phone book under United States Government
Offices.
Legal aid organizations
provide free legal advice,
representation, and other legal services
in non-criminal
cases to economically disadvantaged persons. Legal aid organizations are
located throughout the state. Look in the yellow pages of the phone book
under Attorneys.
California Department
of Consumer Affairs is an
excellent resource for not only landlord tenant issues but for numerous
other questions that a consumer may encounter. All the above information
and more can be found on their website. They can be reached by the
following contact information: CALIFORNIA DEPARTMENT OF CONSUMER
AFFAIRS, 400 R Street, Sacramento, CA 95814, (800) 952-5210 (916)
445-1254 TDD: (916) 322-1700 email:
dca@dca.ca.gov
Local Landlord
Apartment Owner Associations.
Landlords can normally contact local landlord and realtor associations
in their area who can provide resources such as the San Francisco
Apartment Owners Association and, again, the yellow pages, white pages,
or web is an excellent method to locate these resources.
3. Legal
Actions
Given the
possible damages outlined above, it is quite often in Court that these
matters are determined and legal action is available for any tenant
alleging discrimination as outlined above. Such actions do have strict
statute of limitations, however. The time limits for filing housing
discrimination complaints are short (one year for complaints to the
Department of Fair Employment and Housing). Government Code
Section 12980(b).
Some
Practical Advice:
Any person
seeking to rent units who discriminates is not only acting in violation
of the law but is in the wrong business and sooner or later will find
various enforcement proceedings and legal actions brought against him or
her. Both State and Federal law is strictly enforced in this area and
the landlord MUST learn the law and comply with it or face dire
consequences.
The problem, as
with so much “good law” is that invariably there are those who seek to
exploit it for monetary gain, both attorneys and plaintiffs. Here, the
claim of discrimination is so loaded with emotion in our society that
the mere threat can lead to great expense and anguish for the landlord.
Granted the act of discrimination is both illegal and unethical and
causes great pain to its victims. However this office has seen many well
meaning landlords who failed to keep good records for rationale for
turning down a tenant subjected to months of turmoil by tenants who were
certainly not victims of real discrimination.
An example from
five years ago perhaps illustrates this danger. An elderly woman
inherited a ten unit apartment building in the East Bay and decided to
handle the renting herself. While interviewing a tenant from Mexico, she
happened to mention a criminal act she and her deceased husband suffered
while visiting Mexico City and commented that the felt the Mexican
police did not care to help them in the least. She was voluble in her
description and when she rejected the tenants in favor of Caucasian
renters a week later, suddenly found she was the respondent in a legal
action claiming discrimination.
A conversation,
taken out of context, without the original tones of voice, can sound
remarkably racist in black and white. A comment, “Those Mexicans just
didn’t seem to care about right or wrong or doing what should be done to
help us against the thieves,” stated in open court sounded remarkably
racist when combined with turning down the tenants a week later. What
the landlady thought was a casual conversation became a weapon that was
used against her, perhaps in all sincerity by the angry prospective
tenants. Her real failure to document the fact that the prospective
Mexican tenants had a bad credit history was a critical factor in the
hearing. Put simply, she could not prove to the trier of fact that she
had checked out the credit record before making up her mind. A mere
notation in her records could have saved her tens of thousands of
dollars.
It is vital for
landlords to understand that each word and each action can be
scrutinized for discrimination and that their conversations must be
carefully limited to business. Or, as one of my favorites clients once
commented, “ I don’t know if they’re checking out my apartments or
me…while I’m checking them out. It’s a dance, it is, a dance where you
have to be careful not to step on anyone’s toes.”
But perhaps
another landlord client put it even better: “It’s business and the fact
you have to master some skills in this area is merely one more skill
required in business. It isn’t hard to handle this. When in doubt, shut
up and look to the only color that matters: the green of their money.”
And if you are
a victim of this type of discrimination, know that relief is available
and you probably owe it to the entire community to make sure that truly
racist landlords face the consequences of their actions. |
