The Fair Employment and Housing Act (“FEHA”) is California’s counterpart to the Federal Fair Housing Act, and prevents discrimination in housing accommodations due to race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability or genetic information. (California Government Code 12900 et seq). The term “disability” is broadly defined under FEHA to include any physical or mental impairment that substantially limits a major life activity. All landlords, property managers and Homeowners Associations in California are required to comply with FEHA regulations in the renting of residential properties. A landlord, HOA or property manager’s failure to comply with FEHA could result in severe consequences under both federal and state laws. The general rules for compliance and the ramifications for a landlord, HOA or property manager for a discriminatory violation are discussed below.
In the initial selection process for renting a property to a prospective tenant, Landlords and property managers must be careful not to refuse to rent to a potential tenant on the basis of discriminatory grounds. Landlords cannot implement discriminatory rental terms and conditions, or make discriminatory statements in advertising regarding the availability of housing. It is recommended that landlords establish a uniform, objective screening procedure in assessing a potential tenant’s qualifications to meet their essential obligations under the lease. Such factors may include checking the credit standing of a tenant, checking the tenant’s employment history (but providing for equal treatment of applicants who have other sources of income, or who cannot work because of a disability), inquiring as to the tenant’s available income (but not requesting the source of the income), asking for personal references, or requiring all tenants to fill out a standard rental application with the above mentioned items, rental history, or past bad conduct of the tenant relevant to the health and safety of others. Uniformly applied screening procedures will make it less likely that the landlord will be subject to FEHA violations and complaints from a tenant who was not chosen to lease the property.
Under both federal and state fair housing law, a landlord cannot refuse to make reasonable accommodations in rules, policies, practices, or service when those accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling. (Govt Code 12927). The tenant has the right, in its discretion, to request a reasonable accommodation (meaning a change, exception or adjustment to a rule, policy, practice or service), or they may request a reasonable modification (which is a structural change to the premises to accommodate the disability). If an existing tenant makes a reasonable accommodation or modification request, the landlord may (i) request reliable disability information necessary to verify that the person meets the Act’s definition of a disability, (ii) request a description of the necessary modification, and (iii) request a description of the relationship between the disability and the need for the requested modification. A letter from a medical professional is generally sufficient to verify the person’s disability.
Landlords should be cautious in making rules, policies, or services which may appear to be facially acceptable, but may have the unintended effect of being discriminatory. Common issues that landlords may encounter could involve a tenant’s request for a reasonable accommodation to allow a service animal in the rental property despite the fact the landlord or HOA may have a “no pets” policy. A landlord’s refusal to allow a service animal in the home of a disabled person as a reasonable accommodation has been deemed to be a violation under FEHA as a discriminatory act. (Auburn Woods I Homeowners Assn. v. Fair Employment and Housing Commission (2004) 121 CA 4th 1578). Additionally refusing to install a ramp, grab bars, or provide accessible parking spaces would likely be found to be discriminatory. The caveat for a landlord granting a reasonable accommodation or modification is that the tenant is responsible for paying the cost of the modifications which must be made according to applicable building codes and permits, or restoring the premises to the same condition that existed prior to the accommodation upon vacating the rental property. However, a landlord cannot request a higher security deposit, evict the tenant, or take any retaliatory action against the tenant for making a reasonable accommodation request.
FEHA is liberally construed in favor of the protected class of persons. A landlord’s violation of FEHA may result in damages including (i) actual damages, (ii) emotional distress damages, (iii) injunctive relief, (iv) punitive damages, and (v) attorneys fees. Moreover, a FEHA violation constitutes an affirmative defense to an unlawful detainer action if the landlord initiates eviction procedures. Landlords should review the Joint Statement of the Department of Housing and Urban Development of Justice – Reasonable Modifications Under the Fair Housing Act (March 5, 2008) to better understand what types of modifications have been deemed to be reasonable.
If you as a landlord have encountered a reasonable accommodation request, it is strongly advised that you contact our office to speak with an attorney before rendering a decision on the requested accommodation or modification.
This article is intended for informational purposes only and does not constitute legal advice. This article discusses issues applicable under California law only and is not intended to apply to laws in other states.