Housing Providers

Fair housing law requires landlords to consider all requests for reasonable accommodations, including those for assistance animals. If the tenant’s disability isn’t obvious, a landlord may require the tenant to provide a letter from a qualified individual who knows the person’s situation (examples include their medical or mental health provider, case manager, pastor, or drug or alcohol counselor) attesting to the disability and the necessity of the accommodation. If the condition is verified, the landlord is legally required to make a reasonable accommodation — in this case, an exception to a no-pets policy. Under fair housing law, the assistance animal does not need to be a certified and/or trained service animal; it may also be a “companion,” “therapy,” “emotional support,” or “comfort” animal. A landlord cannot charge a deposit or a fee for an assistance animal, but they may require that the animal follow all property rules and not damage the property or disturb neighbors.

Fair housing law does allow landlords to deny applicants who have a criminal history that demonstrates a risk to the safety of other tenants and/or the property. However, landlords must abide by HUD guidance issued in 2016 that requires the following regarding criminal history screening:

• They cannot consider arrest records that did not result in a conviction, unless the charges are still pending;
• They must consider how long ago a conviction happened; and
• They must consider the rehabilitation of the applicant.

This guidance requires landlords to consider applicants on a case-by-case basis and have established criteria regarding how a criminal history will affect consideration of an application.

Landlord-tenant law encompasses all aspects of a tenant’s relationship with the housing provider, from move-in to move-out, and can include issues regarding timely repairs, rent increases, notices, and evictions. Fair housing law may involve any of these issues as well — but with the added element that the housing provider is violating a tenant’s rights due to their protected class status. If a housing dispute does not involve differential treatment due to protected class status, it would not fall under fair housing law, but it might fall under landlord-tenant law. FHCO staff can help you determine if your dispute involves a violation of fair housing law.

A landlord is not required to pay for any modifications unless the rental has a federal subsidy (i.e., the building is funded with federal HUD or Rural Development funds). Landlords have the right to ensure the work is done in a professional manner by a licensed contractor and that it meets all local building codes. If the landlord wants the rental changed back to its original condition upon move-out, they have the right to require the tenant to change it back — however, with the scarcity of accessible units on the market, they can legally advertise the unit’s accessible features.

Overly restrictive occupancy standards have a disproportionate impact on families with children, making it difficult for them to find suitable housing. Having such standards violates the familial status protection under fair housing law. FHCO recommends landlords use an occupancy standard of “2+1” — two persons per bedroom plus one additional person. This would mean a five-occupant maximum in a two-bedroom unit or a seven-occupant maximum in a three-bedroom. It is also illegal for housing providers to dictate that boys and girls cannot share a bedroom or to otherwise dictate where occupants sleep in a unit.

A “no smoking” rule is not illegal under fair housing law as long as the rule is enforced consistently. Smokers are not a protected class, and owners and managers have the right to restrict smoking to certain areas or ban it altogether on a property. However, under fair housing law, a resident with a disability can request a reasonable accommodation or exception to a policy that permits smoking. A respiratory disability (such as asthma) that has a major impact on breathing is considered a disability under fair housing law, and a resident with asthma living in a building that permits smoking may find the condition has worsened as a result of second-hand smoke. In this situation, the resident may request a reasonable accommodation or modification from their landlord or HOA for assistance in alleviating the problem. This might involve assistance in relocating to a unit in a non-smoking building, establishing a separate ventilation system, or sealing off the unit to prevent the smoke from entering.

Private or individual landlords do not have a legal responsibility to assist those with limited English proficiency (LEP), but providing move-in forms in additional languages is a big help to many applicants. Federally assisted housing providers, however, are required by Title VI of the Civil Rights Act and the Fair Housing Act to provide meaningful access to people with LEP. LEP persons include anyone “who does not speak English as their primary language and who has a limited ability to read, write, speak, or understand English…” (HUD LEP Guidance, 6872 Fed. Reg. 273244) (Jan. 22, 2007). Meaningful access can include written translations of documents such as rental applications and legal notices, having bilingual staff members, or providing referrals to community liaisons proficient in the language of the LEP person.

It is legal to rent to an undocumented individual; housing is different than employment laws. Anyone living in the United States receives fair housing protections. If someone is living in the U.S. without documentation, they still have the right to file a fair housing complaint but may choose not to do so since the information will become public record. FHCO provides confidential information and assistance.