How to Avoid Discrimination and Preferential Treatment When Advertising Your Rental Property

As a landlord advertising your rental property, it is your responsibility to ensure that you meet the standards set by the Fair Housing Act. The Civil Rights Act of 1968 (or the Fair Housing Act), including amendments to the act that were added in 1974 and 1988, is intended to give everyone, regardless of their race, color, religion, national origin, sex, handicap, or familial status equal access to available housing.

Identifying conduct that constitutes discrimination

By federal law, discrimination is the unfair treatment of people based on characteristics defined in the seven protected classes. Here’s how the current Fair Housing Act addresses the subjects of discrimination and protected class:

In General: It shall be unlawful for any person or other entity whose business includes engaging in residential real estate-related transactions to discriminate against any person in making available such a transaction, or in the terms or conditions of such a transaction, because of race, color, religion, sex, handicap, familial status, or national origin.

Here are a few examples of conduct that’s considered discriminatory under the Fair Housing Act:

  • Posting a rental ad stating that “no children” are allowed

  • Not showing a second-floor apartment to someone in a wheelchair

  • Rejecting an applicant for no other reason than that the person is in one of the protected classes

  • Telling someone who is of a certain race or nationality that you have no apartments available when you actually do

  • Arbitrarily charging people of a certain race or nationality higher rent or a higher security deposit

  • Using different eviction criteria for men and women

  • Delaying maintenance or repairs (or not performing them at all) for residents in a particular protected class

Identifying conduct that constitutes preferential treatment

Landlords typically have no trouble grasping the concept of discrimination and how antidiscrimination laws apply to their daily activities. They tend to have more trouble avoiding conduct (specifically in advertising their rental units) that shows a preference for renters based on one or more of the protected classes. Specifically, the Fair Housing Act states that “it shall be unlawful …”

To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.

Expressing a preference for a certain type of resident based on protected class, includes the following illegal practices:

  • Posting an ad on Craigslist that states “Couples preferred” or “English-speaking preferred”

  • Including pictures in your rental office that show only fit, white, young adults

  • Advertising the location of your rental property as being close to a certain country club that caters primarily to the upper class

  • Advertising a unit as a “bachelor apartment” or perfect for “empty nesters”

Noting exceptions to the law

The Fair Housing Act does have a couple of exclusions that may apply to you, depending on the type of property you’re renting. Here they are:

  • In owner-occupied apartments with four (or fewer) units, owners may discriminate against members of protected classes — for example, by not renting to families with children. But they may never advertise a discriminatory preference. This type of housing is often referred to as a “Mrs. Murphy” Exemption.

    “Mrs. Murphy” is the hypothetical elderly widow who uses a portion of her residence as a rooming house to supplement her income. Although the landlord of a “Mrs. Murphy” apartment building may not advertise in a discriminatory way, the building is otherwise exempt from coverage by the Fair Housing Act.

  • A single-family rental home rented by the owner without the assistance of an agent as well as rentals operated for a noncommercial purpose by a religious organization or a private club. However, in such situations there is still a prohibition against discriminatory advertising.

  • If the housing meets the criteria for housing for older persons — residential properties that can be marketed as “55+” or “age restricted,” as long as it is either occupied only by persons who are 62 or older, or it houses at least one person who is 55 or older in at least 80 percent of the occupied units.

    Advertising may specifically target senior prospects who would qualify under the property’s age restrictions. Take care not to advertise for “Adults Only.” There is no exception for adults, only for seniors. Also don’t designate specific areas of a non-senior property for adults or families, as that could lead to a familial status violation.

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