Clarifying the Rights of Landlords in the Face of Terror
Since the attacks of September 11, 2001, persons who are or are perceived to be Muslim or of Middle Eastern or South Asian descent have reported increased discrimination and harassment, sometimes in connection with their housing.
Many landlords and property managers still have questions about their rights and responsibilities regarding immigrants and Fair Housing – for instance, can they inquire about immigration status when screening tenants.To settle the questions and quell concerns of possible discriminatory practices, HUD has released a paper, Rights and Responsibilities of Landlords and Residents in Preventing Housing Discrimination Based on Race, Religion, or National Origin in the Wake of the Events of September 11, 2001. Here are some excepts:
In response to the widespread concern of future terrorist attacks, landlords and property managers throughout the country have been developing new security procedures to protect their buildings and residents. Many have educated their residents on the signs of possible terrorist activity and how to communicate security concerns to management or law enforcement. Landlords and property managers are working to keep their buildings safe, but at the same time they are responsible for making sure their efforts do not infringe on the fair housing rights of current or potential residents.
The Fair Housing Act
The Fair Housing Act (the Act) prohibits discrimination because of race, color, religion, sex, national origin, disability, and familial status in most housing related transactions. Further, the Act makes it unlawful to indicate any preference or limitation on these bases when advertising the sale or rental of a dwelling. The Act also prohibits harassment of anyone exercising a fair housing right and retaliation against an individual because s/he has assisted, or participated in any manner, in a fair housing investigation.
Screening and Rental Procedures
It is unlawful to screen housing applicants on the basis of race, color, religion,sex, national origin, disability, or familial status. In the wake of the attacks of September 11, 2001, landlords and property managers have inquired about the legality of screening housing applicants on the basis of their citizenship status.
The Act does not prohibit discrimination based solely on a person’s citizenship status. Accordingly, asking housing applicants to provide documentation of their citizenship or immigration status during the screening process would not violate the Fair Housing Act. In fact, such measures have been in place for a number of years in screening applicants for federally-assisted housing. For these properties, HUD regulations define what kind of documents are considered acceptable evidence of citizenship or eligible immigration status and outline the process for collecting and verifying such documents. These procedures are uniformly applied to every applicant. Landlords who are considering implementing similar measures must make sure they are carried out in a nondiscriminatory fashion.
Example 1: A person from the Middle East who is in the United States applies for an apartment. Because the person is from the Middle East, the landlord requires the person to provide additional information and forms of identification, and refuses to rent the apartment to him. Later, a person from Europe who is in the United States applies for an apartment at the same complex. Because the person is from Europe, the landlord does not have him complete additional paperwork, does not verify the information on the application, and rents the apartment. This is disparate treatment on the basis of national origin.
Example 2: A person who is applying for an apartment mentions in the interview that he left his native country to come study in the United States. The landlord, concerned that the student’s visa may expire during tenancy, asks the student for documentation to determine how long he is legally allowed to be in the United States. If the landlord requests this information, regardless of the applicant’s race or specific national origin, the landlord has not violated the Fair Housing Act.
Rules and Privileges of Tenancy
A landlord must make sure s/he enforces the rules of tenancy in a nondiscriminatory manner. A landlord’s response to a violation of the rules must not differ based on the person’s race, religion, or national origin. A landlord may not impose more severe penalties because the person is Muslim, of Middle Eastern or South Asian descent.
While landlords must be responsive to complaints from tenants, they should be careful to take action against residents only on the basis of legitimate property management concerns. Landlords should consider whether a complaint may actually be motivated by race, religion, or national origin.
Example: A landlord receives a complaint from a tenant who claims a Muslim tenant is “having a group of about five or six other Muslim men over to his apartment every Monday night.” The tenant claims “the men appear unfriendly” and thinks they may be “up to something.” However, the tenant’s visitors do not disturb the other residents in their peaceful enjoyment of the premises. A landlord could be accused of religious discrimination if s/he asks the tenant to refrain from having Muslim guests when there is no evidence of any violation of established property management rules.
Landlords must also give all tenants the same privileges. A landlord cannot limit the use of building amenities such as community rooms, gyms, etc. based on person’s race, religion, or national origin.
Example: A landlord typically allows building residents to reserve the community room for activities such as birthday parties. When a tenant who is Arab American asks to reserve the building’s community room for a birthday party for his son, his request is denied even though the room was available. Later, the landlord grants the reservation to a tenant who is white, of European descent. By failing to give persons of different national origins the same privileges, this landlord could be accused of national origin discrimination.
Responding to Problem Tenants
The Fair Housing Act does not protect tenants who are unruly or who pose a danger to other residents. Landlords are allowed to take action against persons whose behavior is disruptive to the neighborhood, including evicting such persons from the property. Of course, landlords must have the same eviction procedures for all tenants. Any disciplinary action taken must be on the basis of a person’s behavior or other violations of property management rules, and not on race, national origin, religion, sex, color, disability, or familial status.
Landlords also do not have to rent to persons who do not financially qualify for the housing and may evict tenants who are delinquent in their payments. As long as the landlord uses the same standards to determine if an applicant is financially suitable and takes the same action against all persons who fall behind in payments, the landlord’s actions would not violate the Fair Housing Act.
Pay Attention to State Laws
States have the authority to provide greater protection to citizens than that provided by the federal government. At least two states, New York and California, limit landlord inquiries regarding the immigration status of a rental applicant. On the other hand, Arizona and a handful of cities across the U.S. have passed rental laws that would levy fines against landlords who rent to illegal immigrants. Check with your legal advisor or review your local laws to avoid fair housing or discrimination complaints.
For more, see Are Landlords Now Immigration Agents?
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