Fair Housing--or Is It?

Know Your Rights

By Jill Terry

A landlord shows two prospective couples the same apartment. Couple A is in their 20's, has been married for over a year, and the woman is obviously pregnant. Couple B consists of two gay men, also in their 20's, who make considerably less money than Couple A. The landlord selects Couple B to rent the apartment. Are there any potential problems with the landlord's decision?

No, a landlord is free to rent to anybody he chooses.

Possibly, he may have declined the married couple because he didn't want a crying baby to annoy his other tenants in a few months.

No, he turned away the pregnant woman but accepted the gay couple so no discrimination took place.

Before we decide, let's explore each possible answer using the requirements of the federal Fair Housing Act, which applies to property owners, brokers, and banks.

The Landlord Can Rent to Anybody He Chooses
In most cases, this is not true. The Fair Housing Act covers most housing, though it does exempt owner-occupied buildings with no more than four units. If you're shopping for a dwelling to buy or rent, the transaction is exempt if no broker is involved.

The Landlord Declined the Married Couple Because the Woman was Pregnant
Provided the property met the specifications outlined in the previous paragraph, and he does indeed have a problem with crying babies, the landlord is in violation of the Act. HUD (Department of Housing and Urban Development) would probably be interested in knowing about it. The Fair Housing Act prohibits discrimination in housing if that discrimination is based on:

Race or color
National origin
Religion
Sex
Family status
Handicap

Family status is the basis on which this landlord has discriminated. A property owner cannot refuse to rent or sell to families with children under 18. Pregnant women are included in this category, as they are carrying humans under the age of 18.

But what constitutes "discrimination" in the context of the Fair Housing Act? Using the bases listed above, nobody may:

Refuse to rent or sell housing.
Refuse to negotiate for housing.
Make housing unavailable.
Deny a dwelling.
Set different terms, conditions or privileges for sale or rental of a dwelling.
Falsely deny that housing is available for inspection, sale, or rental.

More prohibitions exist, and you can learn more on HUD's Web site.

The Landlord Turned Away the Pregnant Woman But Accepted the Gay Couple So No Discrimination Took Place

If you review the list of prohibited bases, you'll see that sexual orientation or preference is not among them. So, accepting a gay couple doesn't "erase" denying the pregnant woman. In fact, even if Couple B was an African American married couple, the landlord's selection of them over Couple A does not absolve him from the discrimination that Couple A could assert under the law.

Banks are Covered, Too
It may interest you to know that banks and mortgage lenders must also abide by the Fair Housing Act. Specifically, they must not take the following actions using the prohibited bases mentioned earlier:

Refuse to make a mortgage loan.
Refuse to provide information regarding a home.
Impose different terms or conditions on a loan, such as different interest rates, points, or fees.
Discriminate in appraising property.
Refuse to purchase a loan.
Set different terms or conditions for purchasing a loan.

Do You Have a Case?
Remember that landlords, property owners, banks, and mortgage companies generally consider a wide range of information before making a decision about renting or selling property or making a loan. What may appear to be discrimination on its face may actually be something else when all the facts are reviewed. Nevertheless, if you feel strongly that your family status (or any prohibited basis) is the reason behind your failure to get a mortgage loan or rent an apartment, file a complaint with HUD and they'll investigate.