Fair Housing and Reasonable Modifications

California Fair Employment and Housing Act (FEHA) prohibit landlords from engaging in illegal discrimination when renting out their property.

Protected categories FEHA prohibits housing discrimination are on the basis of race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, source of income or disability.

Each of these characteristics is also referred to as a “protected class”.

“Sex” is defined to include gender identity. Gender identity has been clarified to include gender related appearance and expression without regard to whether it is stereotypically associated with the person’s sex as assigned at birth. As an example, a housing provider may not discriminate on the basis that a male tenant dresses in female clothing. “Sex” also includes pregnancy, childbirth, and medical conditions related to pregnancy and childbirth.

“Familial status” means one or more persons under age 18 who reside with a parent, legal guardian, or designee of the parent or legal guardian with the parent’s or legal guardian’s written consent. Familial status also applies to persons who are pregnant and to persons who are in the process of gaining legal custody of an individual under the age of 18.

“Source of income” means lawful, verifiable income paid directly to the tenant or to the tenant’s representative. It is not illegal for a housing provider to ask amount or source of a tenant’s income.

“Disability” is a disease, disorder, or condition that limits a major life activity. The definition of disability, for purposes of discrimination, includes having a disability, having a record or history of such a disability, or being regarded or treated as having such a disability. Disability includes both physical and mental disabilities.

“Sexual orientation” means heterosexuality, bisexuality, lesbian, gay, etc.

As a practical matter in your normal course of business, refrain from asking prospective or current tenants about children and their ages, marital status, employment, national origin, or if they have “special needs”.  Stick to describing the property and stay away from small talk about the tenant.  Provide the same information to all applicants, charge the same deposits to everyone, same rent, same terms, and same allowable uses.

When answering questions, be careful.  Someone might ask who else lives in the building or area.  A good response in an apartment community is, “Anyone who meets our qualifications.” Or “I am sorry, but fair housing laws don’t allow us to discuss that information.”

When processing applications be sure to follow a set procedure.  Be consistent and follow your criteria 100%.  A workable policy is, first come, first qualified, and first served. 

Modifications to your rental and the request for service animals have become a topic of conversation and a source of problems when it comes to working with people who have disabilities.  It is not the landlord’s place to ask what disabilities the prospective or current resident has.  The landlord should allow the question to be asked of them.  Once a request for a modification is made, the question becomes, can a reasonable modification or change in policies be made?  If so, the landlord should proceed to negotiate a modification to the property or policy in order to allow the tenant to have use and enjoyment of the dwelling.  The resident is responsible to pay for any modifications including paying for returning the property to its former state when they vacate.  The landlord is not expected to endure any undue hardship.

Where service animals are concerned, you must drop your pet policies as soon as you are satisfied that a service animal is warranted.  If the disability is obvious, you should do no further checking; proceed to allow the modification to your policy.  If the disability is not obvious, ask for verification.  This can be a written statement from a qualified individual, but is not restricted to a doctor.  I am not defining who a qualified individual is, you must decide, all the time being reasonable.  Do not take into account the breed of the dog, if the service animal is a dog.  However, you can take into account if your insurance company will allow that particular breed.  If not, you should shop for a comparable policy with another insurance carrier.  If you cannot find one, you may disclose this to the tenant.  You may have to turn this company’s name over to the tenant so they can pursue a case with them.  Insurance companies cannot discriminate either!