What Your Realtor® Wants You To Know About Fair Housing (Part 2)

Each April, Realtors® commemorate the passage of the Fair Housing Act of 1968 which provides protections against housing discrimination and segregation. Here’s Part 2 of a two-part overview of what consumers should understand about their rights and obligations under the law.

In its 2023 Fair Housing Report, the National Fair Housing Alliance reported that in 2022 there were more than 33,000 housing discrimination complaints, the highest number of complaints filed and an increase of nearly 6 percent over 2021. However, some estimate that could be only 1 percent of actual fair housing violations that occur.

Last week we looked at the history of the Fair Housing Act and those who are protected under federal, state, and local regulations, including race, color, religion, sex, national origin, familial status, and disability. This week we highlight some protected classes that housing providers may not know are covered under the Fair Housing Act, including some cases discussed at an education session for our Agents earlier in the month, led by Keith Barrett of Vesta Settlements.

Barrett noted that housing providers have to make individual decisions based on complex issues, creating questions about what qualifies as a protected class and complicating attempts to make those accommodations. Here are a few examples of emerging issues that Barrett cited as areas that housing providers should consider.

Service Animals and Assistance/Emotional Support Animals

As defined under The Act, an assistance animal is an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or that provides emotional support that alleviates one or more identified effects of a person’s disability. An assistance animal is not a pet and housing providers cannot refuse to make reasonable accommodations in “rules, policies, practices, or services when such accommodations may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling.” In short, rules such as a “No Pets” policy do not apply here.
Service animals are categorized as animals trained to do a specific task for their owner (such as a guide dog) and are allowed in public accommodations because of the owner’s need for the animal at all times. Assistance animals need not be trained to perform a service and the emotional and/or physical benefits from the animal living in the home are what qualify the animal as an assistance animal. A letter from a medical doctor or therapist is all that is needed to classify the animal as an assistance or emotional support animal.
Specific guidelines can be found here for DC, Maryland, Virginia, and West Virginia.
Barrett shared two cases that involved violations of reasonable accommodation for service and support animals. In 2016’s Arnal v. Aspen View Condo Association, et al., the condo owner plaintiff alleged that his Colorado condominium association improperly denied a reasonable accommodation to its “no dogs” policy to allow his tenant to keep a service dog that assisted with her epilepsy, and that the association retaliated against him for allowing his tenant to keep the dog by issuing fines. In 2019’s Calvillo, et al. v Baywood Equities, L.P., et al., the plaintiffs alleged that the managers of California’s Baywood Apartments complex discriminated against the tenants on the basis of disability when they denied a request for an emotional support animal while also making intimidating statements. The defendants were judged to pay $32,500 to the plaintiffs, while also requiring the defendants to implement new policies, training, and reporting practices.

Source of Funds

Under state Fair Housing laws in DC, Maryland, and Virginia, buyers or renters who receive assistance or subsidies for housing payments cannot be denied accommodations. This includes housing vouchers (sometimes referred to as Section 8 funds).

Housing providers can still require a minimum income threshold to qualify to rent, but when calculating the minimum requirements the fund amount should not be added to a person’s income but rather deducted from the rent being charged.
For example a prospective tenant wants to rent a property of $1,000, has an income of $800, and a housing choice voucher of $750. The landlord requires an income threshold of three times the rental amount to qualify to rent the property, or $3,000 (3 x $1,000). The correct calculation is to take the $750 amount and subtract it from the $1,000 rent, resulting in a $250 difference. Taking $250 x 3 = $750 as the minimum income threshold to qualify and the tenant meets that requirement with their income of $800.

Hoarding

Hoarding is the excessive accumulation of items along with the inability to discard them even if they appear useless. It was qualified as a disability in 2013 when it was added to the Diagnostic and Statistical Manual (DSM) psychiatric diagnosis, offering protection under the Fair Housing Act.
Housing providers must offer reasonable accommodation even if the resident doesn’t ask for an accommodation, admit to having a disability, or agree that the unit needs cleaning.
Housing providers should instead set goals, create a plan with a defined timeline, and schedule follow-ups with the resident.

Former/Recovering Addict

Addiction to alcohol and the illegal use of drugs are treated differently under the ADA. Alcohol addiction is generally considered a disability whether the use of alcohol is in the present or in the past. For people with an addiction to opioids and other drugs, the ADA only protects a person in recovery who is no longer engaging in the current illegal use of drugs.
If a person is prescribed medication to treat a substance use disorder, the ADA and/or the Fair Housing Act may require housing programs to admit the individual. The ADA also requires that state-funded housing provide “reasonable modifications” to individuals with disabilities, including those in recovery.

It’s important to note that Realtors® are bound by professional ethics and have a higher standard of service to the public than their clients regarding Fair Housing requirements and will advise their clients on federal, state, and local laws regarding housing. If a Realtor® finds that a client or customer is violating Fair Housing laws they can decline to work with the housing provider and report them to appropriate authorities. Those who believe they have been impacted by or wish to report housing discrimination can file a complaint to the US Department of Housing and Urban Development (HUD), the National Fair Housing Alliance, and local governing authorities (DC, MD, VA, WV).

Barrett’s final advice for anyone involved in providing housing or a dwelling to the public: “Treat everyone fairly and consistently.”

For guidance on Fair Housing Rights and Requirements, consult a McEnearney Associates | Middleburg Real Estate | Atoka Properties Realtor® to help navigate your individual housing situations. We’re here to help!