Title VIII of the Civil Rights Act of 1968, as amended by Congress in 1988, prohibits discrimination based on race, color, national origin, religion, familial status, sex and handicap.
In addition, Nevada State Law also includes protections based on ancestry, sexual orientation and gender identity or expression
Silver State Fair Housing Council
The below is from www.petriestocking.com
Archive for category Fair Housing / Discrimination
Simply stated, occupancy standards focus on how many individuals can live in a rental unit. Landlords have the right to set reasonable, non-discriminatory, limits as to how many people can live in a rental unit.
Many landlords believe that as long as they follow a policy of ”2 person per bedroom” that they will be fine. Unfortunately that is not always the case. There is no clear-cut occupancy guideline and as such there is confusion amongst landlords, management companies, and even the attorneys representing them : ).
In what is referred to as the Keating Memo, the Department of Housing and Urban Development (HUD) stated that it believes that “an occupancy policy of two persons per bedroom, as a general rule, is reasonable under the Fair Housing Act.” However, the memo goes on to say that ”the reasonableness of any occupancy policy is rebuttable” and HUD clarifies that the memos it issued in the past on the subject of occupancy standards do not state or imply that HUD will determine compliance with the Fair Housing Act based solely on the number of people permitted in each bedroom.
In fact, HUD issued the following statement in the final rule implementing the Fair Housing Amendments Act of 1998:
“Thus, the Department believes that in appropriate circumstances, owners and managers may develop and implement reasonable occupancy requirements based on factors such as the number and size of bedrooms and the overall size of the dwelling unit.”
In the Keating Memo, HUD sets forth what factors it will consider when reviewing fair housing complaints involving occupancy issues:
1. Size of the bedroom and unit
2. Age of the children
3. Configuration of the unit
4. Other physical limitations of housing (i.e. capacity of the septic, sewer, or other building systems)
5. State and local law
6. Other relevant factors, such as:
- if the landlord has made discriminatory statements
- if the landlord has taken steps to discourage families with children from living in its housing
- if the landlord has enforced its occupancy policies only against families with children
So what occupancy standard can a landlord set forth that will avoid discrimination complaints and keep the landlord out of trouble? I wish that I could provide you with a simple answer but unfortunately there is no bright line rule.
What I can tell you is the key issue or focus in discrimination cases that involve occupancy limits is always whether or not the landlord is discriminating against a family with children. So even if your occupancy policy is reasonable, if you make some discriminatory comment to the applicant, you can forget about hiding behind your occupancy standards. As such, an occupancy policy based on the number of children per unit is much less liklely to be found to be reasonable than one which limits the number of persons per unit. A Mississippi property management company learned that lesson the hard way earlier this year.
Margaret Bowitz of the Metropolitan Milwaukee Fair Housing Council stated during a seminar that I attended, that “2 persons per bedroom” is just a starting point. Next, a landlord should look at the size of the bedroom. So if you have a large-sized bedroom than possibly more than 2 persons could sleep there. If the bedroom is smaller than average, maybe only 1 person would be allowed. Consider an occupancy code of 70 square feet per person for one person using the room for sleeping purposes and 50 square feet per person for rooms to be used for sleeping purposes by more than 1 person. Ms. Bowitz added that if the room is less than 70 square feet you would not have to allow it to be used for sleeping purposes, although you could allow it. She also mentioned that one can consider whether or not the area must be allowed to be considered a “sleeping quarter.” So for instance, if you have to walk through the room in order to get to another room in the rental unit, you would not be required to allow it to be used for sleeping purposes.
The city of Milwaukee has an ordinance that was created to prevent overcrowding (not to serve as an occupancy standard) that focuses on size (square footage) and ignores the number of bedrooms in a rental unit entirely.
Some states such as California have laws that state that “2 persons plus one” is the occupancy standard that should be used..
So ”clear” guidance on this issue is hard to come by.
I am currently defending a landlord against a fair housing complaint for refusing to rent a two-bedroom unit to a family of 5 persons. When speaking with the investigator I was told that HUD’s policy is 2 person per bedroom and if that was my client’s policy, the case would most likely be dismissed. But later in that same conversation I was asked if the rooms were larger than average and then told that if they were then maybe more than 2 people could live there. I was told that measurements of the room would need to be taken. So obviously, it is not as simple as having an occupancy standard of “2 persons per bedroom.” If it was, why would HUD have even investigated this claim against my client.
Another example that demonstrates that the “2 person per bedroom” occupancy standard is not the panacea that some landlords believe it to be, occurred in December of 2012 when 3 real estate groups in Connecticut agreed to pay a local woman $40,000 as a result of a complaint she filed against them for discrimination based on familial status (i.e. children). The woman’s complaint alleged that a “2 person per bedroom” occupancy limit was more restrictive than state and local law and therefore unreasonably limits the ability of families with children to rent from the 3 real estate groups. Again, if it was as simple as “2 persons per bedroom” why would the Connecticut case have been investigated and why would the landlords involved have agreed to pay out $40,000 to the complainant.
So it is pretty clear to me that the “2 person per bedroom” occupancy limit is not enough to protect an landlord. However, to confuse the issue further, I have read conciliation agreements (i.e. settlement agreements resolving a claim of discrimination) between HUD and a landlord in which the settlement language requires that the landlord adopt an occupancy standard of “2 persons per bedroom” going forward. What gives?
All I can tell you is there is no “hard and fast” rule for occupancy limits in residential rental housing. Whether or not the occupancy standard that you have in place will be found to be reasonable will depend on the specific facts of your rental property and the specific facts of your interactions with the prospective tenant that says you discriminated against her.
So don’t be foolish and assume that you are “safe” as long as you follow the “2 person per bedroom” rule, otherwise you might find yourself on the wrong side of a discrimination claim.
UPDATE 8-26-13: Here is yet another example of the 2 person per bedroom rule no longer being acceptable for HUD.
I have been promising that I would blog about this topic for months (could it possibly be over a year even) and the time has finally come. So let’s talk about companion/comfort animals in rental properties.
I will use the terms comfort animals and companion animals interchangeably throughout this post.
So we are all on the “same page” a companion animal is an animal that is NOT specifically trained or certified but rather provides a tenant with a disability with emotional support. Specifically trained and certified animals that assist people with disabilities is beyond the scope of this post.
Wisconsin does not have a specific statute related to comfort animals. Many people improperly think that sec. 106.50(2r)(4)(bm), Wis. Stats. entitled “Animals Assisting People with Disabilities” applies to companion animals. It does not. That section deals only with specially trained and certified animals that help people with mobility, vision or hearing impairments. Comfort animals are not specially trained and/or certified and they do assist people with disabilities afecting more than just mobility, hearing and vision.
So what is the applicable Wisconsin law dealing with companion animals or comfort animals if they do not fall under this provision? Comfort animals are dealt with under a much more broad section of fair housing law dealing with “reasonable accommodations” which can be found at sec. 106.50(2r)(4), Wis. Stats.
A “reasonable accommodation” is a request made by a tenant for a change in a landlord’s rules, policies, practices or services that are associated with housing when such accommodation is necessary to afford an individual equal opportunity to use and enjoy housing.
For example, a request by a tenant to keep a companion animal is a request for a reasonable accommodation to a landlord’s “no pet” policy.
It is considered to be discriminatory to refuse to allow a tenant’s request to keep a comfort animal if they meet the following requirements:
1. The tenant meets the definition of having a disability under Wisconsin or federal law (“an individual with a physical or mental impairment that substantially limits one or more major life activities, a person regarded as having such an impairment, or a person with a record of such an impairment”).
2. The accommodation must be necessary to afford the disabled tenant an equal opportunity to use and enjoy the rental property.
3. There must be an identifiable relationship (or nexus) between the tenant’s disability and the request.
So in the case of a request for a companion animal, the tenant must demonstrate a nexus between their disability and the function or service that the companion animal provides.
A landlord may request reliable disability-related information from a tenant that is necessary to: (1) verify that the tenant meets the definition of having a disability, (2) describes the needed accommodation, and (3) shows the relationship between the two. If the disability is open and obvious then the landlord should not request verification of the disability from the tenant.
The tenant’s specific disability need not even be disclosed – just the fact that the tenant has a disability is sufficient.
A tenant’s request for a reasonable accommodation may be oral or in writing and the actual term “reasonable accommodation” need not be used. The request can even be made by someone on the tenant’s behalf.
In case you are wondering, the threshold that a tenant must meet in order to be able to keep a comfort animal is very low.
It is not even required that the tenant’s doctor confirm that the tenant has a disability. ’HUD and DOJs Joint Statement on Reasonable Accommodations Under The Fair Housing Act (May 17, 2004) states that a doctor or “other medical professional, a peer support group, a non-medical service agency, or a reliable third party who is in a position to know about the tenant’s disability” may provide the verification of the tenant’s disability.
As mentioned previously, a tenant’s comfort animal need not be specially trained or certified. A comfort/companion animal can be any type of animal that the tenant wants. It could be the dog or cat (or mouse, rat, lizard, fish, . . . ) that the tenant owned prior to becoming disabled. It could be the stray dog that the tenant found walking down the alley last week. It could be a cat that the tenant’s mother no longer wants in her house. It could be the rat that the tenant bought at the local pet shop.
I have read articles, case law, and been involved in cases in which all kinds of animals have been requested to serve as a tenant’s companion animals . . . a miniature horses (because it would live longer than a dog and the tenant’s mental health disability would be exacerbated by the death of another dog that wouldn’t not outlive her), 5 cats (each one allegedly assisted the person with a different aspect of their disability), snakes (tenant was allergic to dander), and pit bulls (why . . . . just because). There is no limit on the type/breed, size, or age of a companion animal.
So if the tenant wants a Bull Mastiff as their companion animal even though they live in an efficiency apartment and a much smaller dog could serve the same purpose, they can do that.
A landlord can deny a tenant’s request for a companion animal if it:
1. Poses a direct threat to the health or safety of others unless the threat can be eliminated or greatly reduced.
2. Results in substantial physical damage to the property of others unless the threat can be eliminated or greatly reduced.
3. Poses an undue financial burden and administrative burden.
4. Fundamentally alters the nature of the housing provider’s operations.
For example, a landlord could exclude a tenant’s comfort animal if that animal’s behavior poses a direct threat because it attacked another tenant.
In order to make a decision to deny a tenant’s reasonable accommodation request to keep an animal that poses a direct threat to others safety, you will be required to go through a very fact intensive analysis. You cannot just refuse the tenant’s pit bull comfort animal just because you might believe that all pit bulls are inherently dangerous. There must be a direct threat not just a speculative risk. Even if the animal was once dangerous, if the tenant takes the animal to obedience training, administers medication, or purchases the animal equipment (like a muzzle) which causes the animal to no longer be dangerous, then it may no longer be reasonable to exclude the animal.
I have worked with many landlords and management companies in analyzing whether a tenant’s request for a reasonable accommodation to keep a companion animal should be granted. Without a doubt the single most difficult concept for my clients to accept is that a comfort animal IS NOT A PET.
I find it easier for landlords to understand this concept if they think of the comfort animal as an assistive device such as a wheelchair, crutches, or pain medication. By thinking this way, many landlords will be better able to keep themselves out of trouble. Let me explain provide an example.
One of my clients generally understood that he had to allow his tenant to keep a comfort animal but he was wondering if he could at the very least require the tenant (and the companion animal) to live in the one building in his apartment complex that allowed pets. It was a very innocent question and one that I sure many landlords might have themselves.
The answer is a resounding “NO.” Why is that?
Remember, a companion animal is not a pet. Again, think of the companion animal as an assistive device such as a wheelchair. Would it be acceptable to require all tenants that use wheelchairs to live in one building together? Would it be OK to require all tenants that are prescribed antidepressant medication to live on the same floor? Of course not. Well the same goes with the tenant with the companion animal.
Since comfort animals are not pets a landlord is also not allowed to make the tenant that has one enter into a Pet Agreement or pay a monthly pet fee or even a pet deposit.
Having said that, a tenant that has a companion animal is still responsible for the animal’s behavior and any damage that it may cause. For example, the tenant must still pick up after the companion animal. The tenant must still keep the comfort animal on a leash and prevent it from jumping on or harming others. The tenant must still prevent the comfort animal from making excessive noise or damaging the rental property.
If a tenant does not take responsibility for the actions of their companion animal a landlord has every right to serve that tenant with the appropriate notice to correct breach or vacate and evict if them if needed. Since comfort animals are not specially trained or certified poor behavior is often an issue. I have had to evict several tenants with companion animals as a result of their poor behavior. In one case the companion animal which happened to be a dog repeatedly escapeed from the rental unit and ran free in the common areas of the building. Another case the animal (a dog again) bit another tenant. Another, involved a dog that crapped all over the lawn and the tenant refised to pick up after it.
The popularity of comfort/companion animals is not waning. I expect that landlords and management companies will be getting more and more requests as more people are being diagnosed and treated for mental health issues for which a companion animal may prove helpful. Not to mention that many war veterans are returning with PTSD, depression, and/or anxiety, for which comfort animals are being prescribed. And there will always be those tenants that just want to have a pet without having to pay a pet fee or move to a rental unit that allows pets, so they buy a pet, play the system, and “disguise” their pet as a comfort animal.
If you have not already dealt with a request by a tenant for a reasonable accommodation to your “no pet” or “limited pet” policy, I am certain that you soon will. As such, it is very important that you educate yourself on the applicable laws so that you can properly handle such a request from a tenant and not run afoul of federal or state laws.
If you would like to learn more about comfort animals, reasonable accomodations, and fair housing (discrimination) law considering attending the ’AASEWs upcoming LANDLORD BOOT CAMP on February 23rd, 2013.
04-30-13 UPDATE: HUD has issued a Notice on Assistance Animals and Reasonable Accomodations For Persons with Disabilities. See my post on this.
The below is from www.petriestocking.com
Does Your Tenant Have A Pet? If Yes, Then You Should Be Using A Written Pet Agreement
In talking with my clients and potential clients over the past year, I have also noticed that more and more landlords are allowing tenants to keep pets. I am not sure if this is because of the many pet owners that were also homeowners that have since lost their homes to foreclosure and have been forced to become renters or if it is because landlords are trying to be more accomodating to their tenants’ wishes in order to keep their rental units occupied during a difficult recesssion — or a combination of both.
Whatever the reason for this trend, if you are allowing your tenants to have pets then you must make sure that you are using a strong written Pet Agreement. Unfortunatly too many landlords do not use such a document – and it typically is to their detriment. Let’s face it, “man’s best friend” (if never trained or poorly trained) can cause A LOT OF DAMAGE to a rental unit. Don’t even get me started about cats. While I personally have a cat that I am very fond of my experience with cats in rental units has not been good. Can you say “personal litter box?” Here is a Wisconsin Court of Appeals caseabout the damage that pets can cause to a rental unit.
Whether or not you choose to allow pets in your rentals is a business decision that all landlords must grapple with at one point or another. All animals, even rabbits, birds, reptiles, and fish can end up causing damage to a rental unit. If you have made the decision to allow pets then you need a good Pet Agreement.
Pet Agreements are considered to be part of the Nonstandard Rental Provisions document. Despite this your Pet Agreement should be a separate written document and not just a numbered provision within your NSRP.
A good Pet Agreement should have 4 key componants. First, it should specifically identify the pet that is being allowed to reside in the apartment. Second, it should set forth all charges/deposits for the pet. Third, a Pet Agreement must include the terms and conditions relating the keeping of a pet – the rules. Finally, the agreement should clearly explain what the consequences will be if any of the pet rules are violated.
1. Specifically Identify the Pet:
A client of mine had allowed his tenant to keep a dog as a pet – it was a fairly small dog - small enough to fit on a person’s lap or a woman’s purse (OK someone will need to explain to me the purpose of keeping a dog in your purse – I just don’t get it). Anyways, that small dog eventually died and the tenant decided to buy another dog. Problem was the replacement dog could not fit in a purse as it was the size of a small car. It was too big for the rental property and it scared the neighbors and other tenants because of its gigantic size. While my client was using a written Pet Agreement, the agreement did not specifically identify the pet that was allowed to reside in the property – it merely said that the tenant could keep 1 dog. While the original (little) dog had passed away and was replaced with a much larger canine, the tenant still only had one dog — problem was it was not the dog that the landlord wanted in his property and there was nothing he could do about it as the tenant had not violated the Pet Agreement.
A good Pet Agreement should clearly identify the animal/s that are being allowed to reside in the unit In order to do this the Agreement must identify the following:
- The type of animal (dog, cat, iguana etc.),
- The breed of animal (beagle, labrador, border collie),
- The name of the animal (you know . . . . Fido, Scrappy, Puss ‘N Boots),
- The color of the animal,
- The age of the animal, and
- The weight of the animal.
If there are any other distinguishing characteristics of the pet then you should list them as well.
The Pet Agreement should clearly restrict the tenant to keeping the identified animal only. Should the “allowed pet” pass away during the tenancy then the tenant will not be allowed to replace that pet unless the landlord consents to the replacement pet by entering into a revised Pet Agreement.
2. List All Charges For Keeping A Pet
A second componant of a good Pet Agreement is that it should clearly state what charges will be required in exchange for keeping the pet. A landlord has many options in this regard. You can charge the tenant an increased monthly rent, a non-refundable pet fee, and/or refundable pet deposit. You also may charge all of the above or any combination of the above. There are no restrictions in this regard but their are some suggested guidelines.
I have allowed past tenants to keep pets in my rental property. I opted to charge a non-refundable pet fee and a refundable pet deposit. The non-refundable pet fee was set high enough to cover the cost of having the carpets professionally cleaned at the end of the tenancy. Remember, a pet deposit is different from a security deposit (as long as you clearly delineate it as such in your rental documents) so you are legally able to charge a tenant a pet fee that will be used to clean the carpets. You will run into problems however if you do not clearly refer to the pet fee as a pet fee and instead just increase the amount of the security deposit. Do not do this.
Additionally, I required my tenants to post a refundable pet deposit to cover the cost to repair any damages that their pet may cause to my property. If there are no damages then the tenant gets this money back. Once again since this is a pet deposit, and specifically identified as such in my Pet Agreement, I am not bound by the ATCP 134 requirements regarding security deposits. Despite not being required to return the pet deposit within 21 days a landlord shouldn’t hold onto this money for a lengthy period of time if there is no damage as it is the tenant’ s money. If there are damages to the unit that were caused by the pet then I would use this money to repair the damage. While not technically required, it is good practice to send the tenant a letter explaining how the pet deposit was applied and why it is not being returned if that is the case.
I have never charged increased rent for the keeping of a pet, but I do know of landlords that do. Nothing is wrong with charging additional rent for the pet – the reasoning for using this option is that there will be increased “wear and tear” to the unit as a result of the pet and even if that wear and tear is not “damage,” the landlord should be compensated for that additonal use.
Pet Agreements should also clearly state that the tenant’s financial obligations for the pet are NOT limited to the non-refundable pet fee, the refundable pet deposit, or the increase monthly rent. If Sparky uses the baseboards in the unit as his personal rawhide bone and/or the Kitty unrinates and defecates all over the carpet and hardwood floors, you should be able to recoup all of the damages from the tenant and not be limited to only the amount of any fee or deposit.
3. List All Rules For The Pet
The third componant to a Pet Agreement is to list all of the rules that pertain to the keeping of the pet. Possible rules could include:
- The dog must be keep on a leash at all times when outside of the unit
- The cat’s litter box must be changed twice per week and the contents of the litter box must be disposed of in a sealed bag and placed in the dumpster located outside of the rental unit
- The iguana must remain properly caged at all times and any waste must be cleaned or removed on a frequent basis so as to prevent odors
- All waste must be removed from the yard immediately.
4. Explain What The Consequences Are If The Agreement Is Breached
Finally, your Pet Agreement needs to include what I call “The Hammer” — essentially you need to explain what will happen if the tenant and his/her pet are in violation of any of the rules. Will they be fined? If so, how much? Will a violation of the rulesbe considered a material breach of the agreement such as to give rise to the termination of the tenancy and an eviction lawsuit? Could a violation result in the removal of the animal? Obviously the consequence will depend on the nature of the violation and its severity. A tenant needs to clearly understand that they do not have a right to keep a pet in your rental unit – the keeping of a pet is a privilege – and there are consequences if the animal or the owner violates the rules.
I would be remiss if I didn’t mention that a service animal or an animal that is needed to ”reasonably accomodate” a disabled tenant is NOT a pet. If a person meets the definition of “disabled,” under federal, state or municipal law, and otherwise meets any other requirements for the use of an assistance animal or a companion animal, then they are legally entitled to keep that animal in their rental unit. Think of such an animal as a device that assists a disabled person live their life rather then a pet. An assistance animal is similar to a wheelchair, hearing aid, crutches, or medication. The difference between a pet and an assistance or companion animal will need to be covered in a future post (or many posts as it is a somewhat complicated topic).
If you would like to see an example of a good Pet Agreement visit Wisconsin Legal Blank Co. which sells a Pet Agreement that I have authored.
All information is my best guess and intended to help landlords. However information is deemed reliable but not guaranteed and subject to errors.