Service Animals, Medical Marijuana and Other Fair Housing Issues

What is the Fair Housing Act?

The Fair Housing Act protects against discrimination based on seven protected classes.

1. Race.
2. Color.
3. Religion.
4. Sex.
5. Handicap.
6. Familial Status.
7. National Origin.

Disability is the #1 Fair Housing Complaint

According to the 2018 Fair Housing Trends Report, there were 28,843 complaints filed in 2017.  The three most common types of complaints were based on:

• Disability - 57%
• Race - 19%
• Familial Status - 9%

Housing discrimination can occur at various points in a transaction but they occur most often in the rental market (87.4%).

Five Things to Consider to Avoid Fair Housing Issues

Here’s five things to consider to avoid Fair Housing issues.

1. Pet Policies and Service Animals

It is legal for a landlord to have a “no pet policy” included in the lease. However, service animals are not pets and tenants may have multiple service animals. If a current or prospective tenant requests to waive the pet policy due to a disability, the landlord must make reasonable accommodations and may not charge a pet deposit or higher rent for the service animal(s).

2.  Marijuana and Medical Marijuana

Even though it is legal in California, a lease may have a “no smoking” clause which can also prohibit marijuana. As far a medical marijuana, if a landlord refuses medical marijuana, it is unlikely that it would be considered a violation of fair housing. Under federal law, marijuana is still considered an illegal drug with no acceptable medical use.

3. Documentation of Disability

For obvious disabilities, a landlord may not request written documentation for the disability. For non-obvious disabilities, a landlord may request a 3rd party verification of a disability (but cannot require the diagnosis) and the need for the reasonable accommodation.

4. Showings in Specific Neighborhoods

REALTORS may not steer clients towards or against certain neighborhoods based on a protected class.  In order to avoid a violation, the client should specify the neighborhoods or zip codes you are, or are not, interested in seeing.

5. Familial Status and Occupancy Limits

You are not allowed to ask an applicant how many children they have, whether they are pregnant, if they are married, etc because you cannot discriminate based on familial status. Familial status protects families with at least one child under the age of 18 and includes any person who is pregnant or is in the process of securing legal custody of a child.  This is a common mistake because inquiring about family in other contexts is simply part of making conversation and getting to know someone.

The general rule of thumb for occupancy limits is two persons per bedroom, plus one additional person.

Bottom Line

Fair Housing should not be taken lightly.  That's why you need a professional to guide you and protect you from Fair Housing Violations.  If you have any questions related to real estate sales, leasing or property management, feel free to contact me at 858-324-4045 or Karen@HomeOptionsSD.com.