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Sex Offenders

You can deny housing to sex offenders on the Registry, and not violate the Fair Housing laws, as long as you turn down ALL sex offenders on the Registry. If you are using the Registry as an excuse to turn down somebody who is Hispanic, for example, but White offenders are allowed housing, then you will be in trouble. My authority for this statement comes from the United States Department of Justice information page regarding Fair Housing Act at https://www.justice.gov/crt/fair-housing-act-1

You can also deny housing to anyone who has a criminal conviction for manufacture or distribution of illegal drugs, no matter when the conviction occurred. Same thing as the sex offenders–it can’t be an excuse to turn down some people and rent to others with the same history. My authority for this statement comes from 42 U.S.C. §3607(b)(4); See, also Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Activities, April 4, 2016, at pg 8.

Aside from that, you are not allowed to have a blanket prohibition against people with convictions within a certain time frame. HUD says you must take into account the type of crime, the age of the person at the time it was committed, how much time has passed, and rehabilitation evidence in the meantime. Wish I could be less vague, but HUD hasn’t provided any more guidance than that. My advice-continue to turn down people convicted of violent crimes or arson, or multiple property crimes such as theft, and don’t worry about drug use offenses more than a year old.

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Smells, Noise, Allergies

Landlords of multi-family properties have an obligation to ensure that all tenants have the quiet enjoyment of their premises.  This includes the right to be free from strong odors, allergens and noise.  We all understand the part about noise, and have for years enforced rules about tenants and excessive noise from parties, music and arguments. 

Why are we afraid to enforce rules about cooking odors and pet noise/odors/allergens?  Because someone always hits us back with some explanation that contains the words “Fair Housing.”

There is no need to be afraid of this, though.  Tenants are not allowed to interfere with the quiet enjoyment of other tenants. This includes the intrusion of offensive or dangerous sounds or substances into the space of the innocent tenant, or into the common areas. In other words, tenants are not allowed to “over-share.” 

Not only CAN the landlord do something about over-sharing, he SHOULD do something about it. That is because of two legal principles called “quiet enjoyment” and “constructive eviction.”  If the innocent tenant claims his quiet enjoyment rights have been violated, and the landlord did not remedy the situation, the innocent tenant can claim a “constructive eviction,” cancel its lease, and sue the landlord for damages.

Do not let the offending tenant frame the issue. It is not one of national origin discrimination. The issue is not about disabilities and Fair Housing. The issue is one of the quiet enjoyment rights of other tenants.

Which one trumps the other? Quiet enjoyment trumps Fair Housing.

The Fair Housing rule that requires you to accept an emotional support animal, or a service animal, is called a Reasonable Accommodation Request. It is a reasonable request to modify the rules in order to accommodate a tenant with a disability.  We all seem to forget the “reasonable” part of that phrase.  While it might be reasonable to allow the animal, that does not include the unlimited right to do whatever the tenant wants in connection with the animal. The tenant cannot be cruel to the animal, it cannot allow the animal to damage the rental unit, it is liable if the animal injures someone else, and its animal is not allowed to intrude into other people’s living spaces either with its physical presence or its noise, odors or allergens.

The Fair Housing rule that prevents discrimination on the basis of national origin means you cannot refuse to rent to Hispanics or persons from the Middle East, as examples. You do not have to allow culturally important activities that create excessive noise. You are allowed to put occupancy limits related to the number of bedrooms, even though some cultures might routinely allow 5 or 6 people to occupy each bedroom.  And, you are allowed to prohibit over-sharing of cooking odors that other tenants find objectionable.

The landlord’s response in these situations should be, “I am not restricting your right to cook the foods of your heritage.[Or, I am not restricting your right to have an emotional support or service animal.]  I am restricting your over-sharing. You rented Unit 123. You are allowed to use Unit 123. You are not allowed to use other units. You are not allowed to invade other units with odors, noise, or allergens that adversely affect tenants in other units. You are not allowed to invade the common areas with odors, noise or allergens, to such a degree that the common areas cannot be peaceably enjoyed by all tenants.  You must take steps to control these things, or you will be subject to eviction and suit for damages.”

Of course, this all depends on having the right lease language to allow landlord enforcement. If you are not sure, you might want to have your attorney review your lease documents. To learn more, check out some of our classes listed below.