Rental Discrimination

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 What Is Rental Discrimination?

Landlords are prohibited from practicing discrimination in their leasing activities when selecting tenants and in their treatment of tenants generally. Landlords cannot legally consider national origin, race, religion, gender, disability, or family status, i.e., whether a person has children or a woman is pregnant, as factors in any aspect of the rental business.

In addition, in 2021, President Biden issued an executive order prohibiting discrimination based on sexual orientation and gender identity. All federal agencies were given 100 days from the date of the order to give effect to the policy and begin enforcement of the order. This applies to federal enforcement of anti-discrimination laws in residential leasing.

This means it is illegal to make advertisements that express preferences for certain personal characteristics instead of others. Landlords and rental agents must be honest about the availability of units for rent and rental conditions with all potential tenants. They cannot direct some tenants to certain rental units and other tenants to different ones. Terms and conditions of leases offered for rentals must be identical for all groups of people.

Other prohibited conduct would be charging one person a higher rent than is charged to others, limiting some people to different types of properties, or restricting the access of some people and not others to available facilities or services, e.g., a gym, pool, or golf course.

All treatment of tenants, including policies regarding the late payment of rent and the penalties for late payment, must be consistent for all tenants. Landlords also cannot end a lease or tenancy for reasons based on bias regarding personal characteristics.

Other prohibited types of conduct are sexual harassment, the failure to make accommodations for disabled tenants, and allowing tenants to harass, threaten, or make discriminating comments about another tenant. A landlord can be held liable for discriminating acts made by employees. In addition, a landlord may be liable under the Fair Housing Act (FHA) if they know that a tenant has suffered discriminatory harassment by other tenants and fails to protect the tenant.

Which Laws Prohibit Rental Discrimination?

The federal Fair Housing Act and Fair Housing Amendments Act prohibit rental discrimination. Today, anti-discrimination laws are enforced by the Department of Housing and Urban Development (HUD) and state and federal courts.

Many states, counties, and cities also have laws and ordinances prohibiting renting discrimination. Some of these laws protect people from discrimination based on age, sexual orientation, and marital status.

Colorado has enacted a law prohibiting discrimination based on the source of a person’s income. Many renters rely on subsidies of various kinds to pay for their housing, and landlords sometimes refuse to accept vouchers and other kinds of income because of the bureaucracy involved in participating in a voucher program.

Those seeking rental properties with non-traditional income also face difficulty, as self-employment earnings and other kinds of income can raise concerns about whether it is reliable and consistent.

Under Colorado law, if a landlord is not exempt, they must now accept any legal source of income as proof of income, including income from self-employment, gig work, and employer-provided housing stipends. Landlords must also accept subsidized payments and follow government housing programs.

The following landlords are exempt under Colorado law:

  • Landlords who own 3 or fewer rental units;
  • Landlords with a maximum of 5 rental units, including single-family residences, are not required to accept federal housing choice vouchers for their single-family residences.

Are Some Properties Exempt from Federal Fair Housing Acts?

Some types of properties are exempt from the federal fair housing acts. For example, some senior housing is exempt under the following circumstances:

  • HUD has determined that the residence is designed for and occupied by elderly residents under a local, state, or federal program; or
  • Residents are all 62 or older; or
  • At least 80 percent of the units occupied are occupied by at least one person who is 55 years old or older. In addition, the facility has to inform the public that it provides senior housing only to people 55 or older.

In addition, if the owner of a building with four or fewer residential units lives in the building, then federal anti-discrimination laws do not apply. Some single-family residences are exempt if the owner is a private person who rents without using a real estate owner or broker and does not use discriminatory advertising. Some housing owned by religious organizations and private clubs that limit occupancy to its members is exempt.

Local and state anti-discrimination in housing laws may still apply to federally exempt property. Often, however, local and state laws accommodate housing exclusively for seniors and other situations.

In What Ways Can Landlords Treat Different People Differently?

Landlords have the right to refuse to rent to people who smoke, have pets, or fall into other non-protected classes. Of course, landlords can ask about a prospective tenant’s income and credit history and check their references. They can refuse to rent to a person if they discover that the person has a bad credit history or cannot afford the rent. They can refuse to rent to a person whose references give them information that indicates the person is a bad tenant.

In such instances, identifying discrimination can sometimes be difficult. For example, a landlord may assume that because a person is a single mother or has a physical disability, they would not be able to keep up with their rental payments. The landlord may assume that a person in these circumstances will be a hassle, even if the landlord has no real reason to support that assumption based on the person’s credit history or other evidence.

In these situations, if the landlord refuses to rent to the single mother or the person with a disability, they may have engaged in prohibited discrimination.

Can a Person Collect Damages for Rental Discrimination?

A person who has experienced rental discrimination can collect damages if they can prove discrimination. A complaint alleging discrimination must be filed with HUD within one year of the date when the alleged incident of discrimination took place. HUD conducts an investigatory search to determine whether the discrimination occurred. Sometimes HUD will attempt to mediate a resolution of the issue between the parties rather than proceed to a judicial hearing.

If mediation is unsuccessful, a HUD official holds an administrative hearing. The point of the hearing is to determine whether discrimination occurred. If a judge determines it did, it can grant actual damages, damages for emotional distress, punitive damages in certain circumstances, and the complaining party’s attorney’s fees. Discrimination cases can also be tried in a federal district court. There is a two-year statute of limitations from the date of the alleged incident of discrimination in federal court.

As noted above, many state and local governments also have anti-discrimination laws, so a tenant has the option of filing a complaint with the appropriate state or local agency that enforces these laws.

Under state and local law, the statute of limitations for filing a complaint may differ from the federal statute. Generally, the procedure for complaining of discrimination is similar to the federal procedures. The agency would conduct an investigation and try to mediate the dispute. If this does not resolve, the person could file a complaint in a state trial court.

Again, it is important to keep in mind that a landlord is legally allowed to refuse to rent to a tenant because the tenant has a poor credit history, low income, a history of not paying rent, previous bankruptcies, bad references, own a pet, or has a criminal record. If a landlord can prove that the tenant was rejected for any of these reasons, a discrimination complaint would not succeed.

Do I Need a Lawyer?

If you believe you have been discriminated against in rental housing because you are a member of a protected group, you should speak with an experienced landlord tenant lawyer. Your lawyer can review your situation and determine if you have been the victim of discrimination. Your lawyer can guide you through HUD or other administrative proceedings and represent you in state or federal court if necessary.


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