HOW FAIR HOUSING LAWS AFFECT MARKETING

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A great deal of nonsense is floating around out there about constraints imposed by fair housing laws on marketing rental property.  It is beyond the scope of this article to deal with each and every state, county, city, and town ordinance and law dealing with invidious discrimination.  But all of these laws, and the Federal fair housing laws, have one concept in common.  This principle is that landlords ought not to discriminate against individuals on the basis of certain attributes, usually race, creed, sex, sexual proclivity, marital status, age, and physical handicap.  A simpler way to state it is that each person will be judged as an individual, not as a member of a group, and only on the basis of those criteria relevant to renting the available housing unit.

The fair housing laws impact marketing at two stages, advertising and showing.  Fair housing laws affect the way you can present your unit to the market, what you can and cannot say about it.  The undersigned has actually heard real estate professionals say that you cannot describe your unit as having a great view, because that would imply discrimination against blind persons.  This is part of the nonsense.  What is not part of the nonsense is that HUD and local agencies fund investigators who scour ads and act as agents provocateurs to visit landlords that they suspect of trying to discriminate illegally.  For this reason, the careful landlord will give some thought to how he will draft his advertisements and conduct his showings so as to give no hint of invidious discrimination.

Before proceeding further, we should mention that policies affecting the use of the rental unit, occupancy level, use of amenities, tenant responsibilities such as for landscape maintenance, and so forth should be put in writing.  When a prospect comes to view the premises, he should be given a copy of these policies, house rules, if you will, and the fact that they are in writing will shield you to a large extent from the fair housing police.  Leaving them to word of mouth is extremely dangerous.  Not only do you risk forgetting to mention something, but also you invite the unintended appearance, by making a non-uniform presentation, that different applicants may be treated differently, one of the things the fair housing laws are designed to prevent.  We have other articles on written rental agreements, house rules, and policies, and the reader is invited to the Info Center, the Tenant Screening section, and the eForms section for these. 

In drafting your advertising, regardless of the medium chosen, be guided by the following principle:  you may say anything you like to draw attention to the features and benefits of the unit, you may say or imply nothing whatsoever about the people, or “type” of people, you want to rent the unit to.  There is nothing whatsoever in either the Federal fair housing act or regulations thereunder preventing you from doing this.  It is perfectly all right to say that the unit has a spectacular view, this does not mean or imply that only sighted persons can rent the unit, and a blind person might well be attracted to it because his guests can enjoy the view.  There is no rule against saying that the unit is adjacent to a playground.  Do not say that the unit is intended for a family with kids.  It is perfectly proper to assert that the unit is in a quiet complex on a low traffic street.  Do not say that mature applicants will be preferred.  Feel free to mention the unit is handicap accessible with appropriate upgrades, if it is.  Go ahead and announce it is a second or third floor unit.  Just do not refuse to rent to someone with mobility problems if this person believes he can make living in such a unit work.  Feel free to tout your four bedroom, two and one half bath two story house.  Do not advertise a four bedroom, two and one half bath family home.  The benefits and amenities will tend to attract some applicants and deter others, but an honest description of the premises is still no crime, and the fact that someone in a wheelchair might not find a second floor apartment in a building with no elevator particularly attractive is a matter of reality, not discrimination.

When you have drafted your ad, read and re-read it for hidden, double meanings.  If you have just had the place repainted, did you advertise “Freshly painted white family home,” or did you describe it as “Freshly painted white four bedroom house?”  Which one do you think might attract the scrutiny of the fair housing advocates in your area and why?  Examine the advertisement for irrelevant add ons that might get you in trouble even if true.  For example, do not describe the location as “quiet Hispanic neighborhood.”  Throwing in that extra word in the middle adds nothing to the description of what is being offered and could be construed in a number of ways, none of which will be beneficial to you.  If you are in doubt, delete it.

Your ad will draw applicants who want to see the unit.  This is the second point in the marketing process at which you must give some consideration to the fair housing issue.  The best way to avoid problems is with careful preparation and exposure of all units fitting the applicants’ expressed requirements even handedly.  In other articles we deal with techniques for the preparation and showing of the rental unit.  Here the relevant consideration is doing so without inviting the inference that you are discriminating against certain applicants or “steering” them.  “Steering” is the practice of looking at applicants, making a unilateral determination of where you think they ought to live, and then pushing them toward one unit over another.  This is often done by skewing the showing to discourage the applicant from the unit he expresses interest in, and into another or none at all.  For example, you might be steering if you try to discourage a single male from renting a two-bedroom apartment even though he might want the extra space.  You might be steering if you try to get all the families with children to move into the part of your complex close to the playground, and away from the quiet corner at the opposite end.  You might be steering if you try to discourage that blind person we spoke of earlier from renting the unit with the spectacular view.

The key is to do the same as you did with your ad and rehearse the showing in advance so it is fairly uniform.  Uniformity in your presentation will help to prevent misunderstanding.  Lack of preparation can lead to non-uniformity that may create the impression in the applicant that you are not treating him fairly.  For example, if you mention the view of the courtyard to one applicant, and due to press of time or inadvertence fail to mention it to another, the second applicant may, if touchy – and many are touchy – think you are trying to discourage him from taking the unit. 

When the applicant expresses his requirements, show him the units that meet them, extol their features and benefits, and let the applicant decide if the unit meets his needs.  Do not try to do the applicant a favor by pushing him toward a different unit.

There is much you can do to market your unit under the fair housing laws and only a few things you cannot do.  Stick to the facts.  Market the unit, do not try to select the applicants.  Applicants are for screening, which is a very different thing.  Use criteria that the law permits, income, credit, employment, history, etc.  Have reasonable written policies that show that they were formulated independent of invidious factors.  There is no magic formula that will insulate you from bureaucratic action, but by doing these things you will greatly reduce your chances of becoming an open file on a fair housing advocate’s desk.  

Remember also that there is more to fair housing than just the Federal act.  There are state and local laws and regulations that apply.  One of the best ways to inform yourself on the specifics in your local jurisdiction is to contact the local enforcement agency.  They all distribute literature on the subject.  Read all of it, whether it is directed to landlords or tenants.  Remember that a pamphlet from a responsible agency that explains a tenant his rights is doing no more than explaining your duties.