Introduction

There are numerous fair housing laws, both federal and state, that define the rights and responsibilities of all tenants and landlords, homebuyers and housing sellers, lenders and those seeking a mortgage, property managers and real estate agents.

The primary federal laws that protect people from housing discrimination are:

  • The Federal Fair Housing Act
  • Title VI of the Civil Rights Act
  • Section 504 of the Rehabilitation Act
  • The Rehabilitation Act of 1973
  • and the protections found under the Americans with Disabilities Act and the Violence Against Women Act.

Massachusetts fair housing laws can be found in Chapter 151B of the Massachusetts General Laws and are like the federal laws, though wider in scope.  Note that there are many other state laws, such as those dealing with lead paint, that join with the federal laws to shape the whole of what we think of as fair housing laws.  Actions that may appear to be permissible under one set of laws may be restricted under another.

Federal Fair Housing Regulations State Fair Housing Regulations

For more information on your rights under the Fair Housing Laws, contact the Fair Housing Information Program at Way Finders.

Fair Housing Information Program
Way Finders
1780 Main Street
Springfield, MA 01103

Phone: 413-233-1609
Email: fairhousing@wayfinders.org

Fair Housing Overview

Here is a synopsis of key points from both the federal and state fair housing laws. It should not be taken as legal advice, or as a substitute for consulting with a lawyer, but should serve as a guide to your rights and responsibilities under both. It is freely adapted from an outline prepared under the Fair Housing Initiatives Program, a joint project of Way Finders and the Massachusetts Fair Housing Center.

Protected Classes

Under federal and state fair housing laws, it can be illegal to discriminate against someone in the sale or rental of housing, or in getting a mortgage or loan, because of that person’s membership in one or more of the following protected classes.

  • Race
  • Color
  • National Origin
  • Religion
  • Sex
  • Families with Children
  • Disability (referred to as “handicap” in some laws)
  • Marital Status
  • Age
  • Sexual Orientation
  • Gender Identity and Expression
  • Military or Veteran Status
  • Ancestry
  • Public Assistance
  • Housing Subsidies or Rental Assistance
  • Genetic Information

Discriminatory acts can include any of the following:

  • Refusing to rent, sell, or offer a loan or mortgage to someone because the applicant is a member of one or more categories.
  • Making discriminatory statements or placing an ad that indicates intent to discriminate.
  • Enquiring about a person’s membership in a protected class.
  • Imposing different terms on someone because they are a member of a protected category.
  • “Steering” an applicant by choosing to only show them places to live in areas where other members of that protected category live.
  • Failing to grant an appropriate reasonable accommodation or modification to someone with a disability.
  • Retaliation, which is threatening, coercing, or intimidating someone seeking to assert their fair housing rights.
  • Differential treatment in a mortgage or insurance appraisal based on one or more protected categories.
  • “Race,” as applied to a prohibition on discrimination based on race, which also includes traits historically associated with race, including, but not limited to, hair texture, hair type, hair length and protective hairstyles under state law.

Properties Covered

All residential properties are covered by state and federal fair housing laws. While a few exceptions may be allowed under those laws, there are no exemptions for race, national origin, or receipt of housing assistance.

There are no exemptions for discriminatory statements and advertisements. In certain situations, there also may be no exemptions for sex and disability.

There are exemptions for owner-occupied duplexes that are rented without the use of a broker, although this exemption will only apply for families with children under six if the property was built after 1968 or is otherwise lead-safety compliant.

There may be exemptions for two- or three-family buildings where the presence of young children would present a significant hardship for residents who are infirm and/or 65+.

If you believe you meet these narrowly defined exemptions, it is still recommended that you consult a fair housing center or attorney before you take an action that may result in a claim of housing discrimination. It costs time and money to defend against a claim; time and money that is likely better spent elsewhere.

Examples of potential fair housing violations

We are likely familiar with the blunt racial discrimination that existed before the passage of fair housing protections. This kind of discrimination still occurs today, along with subtler types of housing discrimination. Here are some examples.

Rental Assistance and Public Assistance

It is illegal to refuse to rent to someone because they receive rental assistance or public assistance or to otherwise discourage them from applying for the rental unit. The law does not require that the landlord must rent to them, but the decision must be based on legitimate, nondiscriminatory reasons that are applied uniformly and fairly to all applicants.

It is illegal to state a discriminatory preference against someone participating in a housing subsidy program – e.g. “Section 8 not accepted.”

Families with Children and Lead Paint

The state’s prohibition against refusing to rent to families with children means that it’s illegal to refuse to rent to a family with a child under the age of six based on the presence of lead paint in the rental unit. This includes assuming there is lead paint – but avoiding testing that would confirm its presence.

Massachusetts Lead Paint Law requires removal/covering of lead paint hazards, including loose lead paint and lead paint on windows, in homes built before 1978 where children under the age of six live. Owners are responsible for complying with the law.

The Federal Renovation, Repair and Painting law requires the use of workers trained in lead-safe practices if they disturb more than 6 sq. ft. interior surface – or 20 sq. ft. exterior surface – with lead paint.  This includes any work that might be done by homeowners or rental property owners themselves.

State Occupancy Standards

Landlords may be tempted to set arbitrary limits on the number of people in a household, which can have a disparate impact on family size and other protected categories. The limit should only be determined by the Massachusetts State Sanitary Code, which provides that every dwelling unit should have 150 square feet of living space for the first occupant; 100 square feet for each additional occupant. (Kitchens, bathrooms, hallways, closets, and common areas in multifamily buildings are not included when calculating living space.)

Rooms used for sleeping purposes shall contain at least 70 square feet for the first occupant and 50 square feet per person for two or more occupants.

Municipalities can establish limits on the number of unrelated people who share a dwelling unit. This is not considered housing discrimination.

Senior or Retirement Housing

Owners of housing intended for persons 55 and over or 62 and over must meet specific requirements and register once every two years with the Executive Office of Housing and Livable Communities (EOHLC).

Housing intended for persons 55 and over or 62 and over must comply with Federal requirements.  A rental property owner cannot arbitrarily decide to designate their property as being for “seniors only.”

Disabilities and Reasonable Accommodations

People are considered disabled (termed “handicapped” in some regulations) if they have a physical or mental impairment that substantially limits one or more major life activities (i.e. caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, etc.).

Reasonable Accommodations are either changes in rules or policies made to accommodate an individual’s disabilities, or physical changes to the property to accommodate the disabled person’s special needs (called reasonable modifications).    Housing providers must make appropriate accommodations for disabled individuals – so long as the reasonable accommodations do not place an “undue financial or administrative burden” on the provider.

Reasonable Modifications include structural modifications to accommodate disabilities, such as adding a ramp or grab bars.

Housing providers must provide (or allow persons with disabilities to make) reasonable modifications to their property so long as the modifications do not materially alter the value of the property or otherwise represent an undue financial or administrative burden.  Who pays for the reasonable modification depends upon the cost of the modification and the resources of the parties involved.

Way Finders operates a Home Modification Loan Program that provides help paying for reasonable accommodations in certain situations. Assistance may also be available from municipalities through Community Development Block Grants.

If the property owner rejects a request for a reasonable accommodation, they need to enter into a good-faith Interactive Process with the person requesting the accommodation in order to clarify what the actual difficulties might have been in granting their request and what alternative accommodations might be made to meet those needs.

Domestic Violence

Under federal law, the Violence Against Women Act (VAWA) protects victims who are residing in housing that is federally funded.  This act makes it illegal for a landlord to evict an individual based on domestic violence, stalking, or dating violence. It does allow landlords to evict the abuser.

Individuals claiming protection under VAWA must provide documentation of occurrence of domestic violence if requested by the Public Housing Authority or landlord within 14 days.

Under Massachusetts fair housing law, protections are provided to individuals who are victims of domestic violence, rape, sexual assault, and stalking, including right to break a lease or have locks changed with proper documentation; and to not be evicted or refused as an applicant to an apartment based on the actions of their abusers or the use of their rights under the law.

Other state Federal fair housing laws and state anti-discrimination laws can grant some protection to victims of domestic violence, stalking, dating violence, or sexual assault.

Other important fair housing requirements

Disparate treatment and Disparate Impact

The guiding principle behind the fair housing laws is that everyone should be treated fairly and uniformly.  But inequities can sometimes arise from what might seem to be fair behavior.  The impact of actions  – not just the intent – must be taken into consideration when considering whether an action is in violation of the fair housing laws.

A housing practice motivated by considerations that discriminate against members of a protected category is an example of Disparate Treatment – such as a refusal to rent or sell to someone based upon their, race, religion, or some other protected category.  It’s an obvious violation of the fair housing laws.

But a seemingly neutral decision that has a disproportionately negative effect on members of a protected category can be said to have a Disparate Impact on those individuals.  It is also a violation of the fair housing laws – even if the intent behind the decision was not intended to be discriminatory.

Examples of Disparate Impact

Here’s another example of disparate impact, from The Alliance for Housing Justice:

A landlord institutes a new rule that any tenant who calls 911 for emergency services more than twice in 6 months can be evicted. As a result, several women and their children are evicted from their homes after calling the police or an ambulance because of domestic violence. This policy has had a “disparate impact” on women, since 95% of domestic violence victims are women—although anyone can be a victim of domestic violence. While the landlord’s policy doesn’t explicitly state they will evict women, the impact of the policy puts up barriers to women renting.

These examples can help you understand the concept of disparate impact: it’s not what you say or intend, it’s what are the results of your actions.

Disparate Impact implications of an applicant’s criminal history

Because the enforcement of certain laws has historically fallen more heavily on the shoulders of certain protected categories, the use of across-the board “neutral” policies that disqualify applicants based on criminal history may have a disparate effect upon members of that group.

To address this, the U.S Department of Housing and Urban Development has issued special guidance stating that the use of criminal history to automatically disqualify applicants can be a violation of the Fair Housing Act if it has a disparate impact on a group of persons because of their race or national origin.

If you have implemented or have plans to implement a criminal history policy like this you may wish to consult an attorney experienced in fair housing law.

Criminal Offender Record Information (CORI)

Applicants for housing have a right to:

  • Obtain a copy of their own CORI.
  • Attempt to correct mistakes on their CORI.
  • Seek to have one or more of their records sealed (after 10 years for felonies and 5 years for misdemeanors).

An applicant should never be asked to provide a copy of their CORI to a housing provider. Housing providers must get a release signed by applicant to pull the CORI.

Any housing provider can go online to get a CORI to evaluate an applicant for rental or lease of housing. The housing provider will be able to see felony convictions for 10 years and misdemeanor convictions for 5 years following incarceration/custody or disposition of the case, and pending criminal charges, including cases continued without a finding.

Under Federal public housing regulations, a Housing Authority may deny applicants “whose habits and practices reasonably may be expected to have a detrimental effect on the residents or the project environment.”  A Housing Authority must deny an application if it finds that:

  • A household member is currently engaged in illegal use of drugs.
    • Note that, unlike state law, federal law considers marijuana to be a dangerous drug. Under federal regulations, use of marijuana can be reason for eviction, termination of a rental subsidy or denial of a rental application whenever federal monies, such as rental subsidies under the Section 8 Housing Choice Voucher Program, are involved.  This even applies to the use of medical marijuana.
  • There is reasonable cause to believe a household member’s abuse of alcohol may threaten the health and safety of other residents.
  • A household member is subject to a lifetime registration requirement under a state sex offender registration program, was convicted of methamphetamine production in federally assisted housing, or was evicted from federally-assisted housing for drug-related criminal activity.

Applications for state public housing may be denied for various reasons. State aided programs must screen out all those whose past behavior, if repeated, would violate the lease (e.g. threatening others, criminal activity affecting housing or illegal drug use).

An applicant’s CORI should only be checked when the housing authority decides that individual is otherwise qualified to be a tenant. Applicants have a right to a hearing if denied.

Individuals with a negative CORI report arising from a disability, such as former substance abusers, may be entitled to have their CORI report be overlooked as a reasonable accommodation to their disability.

Fair Housing Initiatives Program

Way Finders is a participant in the Fair Housing Initiatives Program (FHIP), funded under a grant from the United states Department of Housing and Urban development. FHIP works to educate everyone about their rights and responsibilities under the fair housing laws and to bring communities together to strengthen the fight against discrimination by:

  • Conducting educational workshops on fair housing issues.
  • Working closely with city governments and housing providers on fair housing issues.
  • Educating everyone about their rights and responsibilities.
  • Referrals to possible legal assistance for victims of discrimination.
  • Information on investigation of claims of housing discrimination.