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Prepare to Defend
by Charles Brown

Is your apartment community ready to respond to a fair housing complaint? Sure, you would be able to reply with my six-year-old's favorite "liar, liar, pants on fire" defense. Or maybe you could use my four-year-old's favorite - a forceful "did not!" accompanied by a stern look. But do you wonder whether you can you back up these defenses? If a fair housing investigator inspected your property today, would they have an overwhelming impression that your community complies with the spirit and letter of the fair housing laws?

Never mind that the burden of proof is on the person making the discrimination complaint. Never mind that the claim may be frivolous. You need to be able to respond convincingly. That means you do not want anything about your community to give the appearance that a discrimination claim could be true.

Here are some things you can do now to make your defense more persuasive, or better yet, avoid a discrimination claim altogether:

1. Educate Your Staff. Your staff should know that they cannot choose tenants based on: race, religion, ethnic background, national origin, sex, the fact that the prospective tenant has children, or mental or physical disability. These are the "protected classes". Your staff should also know how the characteristics of those protected classes differ from the characteristics you can legally discriminate against based on business reasons such as bad credit, poor rental history or a criminal record. Require your management staff to read Federal Fair Housing Compliance by Larry Niemann found in the current Texas Apartment Association Red Book.

2. Review Your Written Materials and Advertising. Get rid of anything that would be ammunition for a complainer. Your advertisements and community newsletter should portray a community that is accessible to the protected classes. It is much more convincing when you claim that you do not unlawfully discriminate if your written stuff tells that same story.

3. Review Your Community Policies. Do your community policies reflect a bias against any of the protected classes or residents? Having rules that apply to children is not discrimination. I recommend them; particularly the rules that provide for their safety. But, your community policies should not contain anything that leaves the impression that you are unlawfully recognizing a difference in your residents who are in the protected classes.

4. Review Your Leasing Procedures. Anyone should be allowed to apply to be a resident at your community. That does not mean that you have to lease to anyone. You can deny an applicant based on your established criteria. But, be consistent in applying those criteria. Your file should have some documentation that the basis for your denial was in accordance with your written policy, which outlines your admission criteria. You might want to send all disapproved applicants a respectful letter confirming their disapproval and keep a copy in your files. You do not have to state the reason for the disapproval in the letter if you send one unless the denial is based on credit issues.

5. Rents and Security Deposits. Are rents and security deposits consistent among all tenants? Your rents and security deposits may go up and down with the market. However, the rents should not be different for any class of person. For example, you may not have higher rents and security deposits for residents with children than those without children.

6. Steering. Your staff may not "steer" people away from your community by making negative comments about the suitability of the community. Also, you staff may not 'steer" people away or toward a particular part of your apartment community. For example, do not try to "encourage" all of the residents with kids to live in the same section of your property.

7. Applying Rules and Regulations. Be consistent. Enforce the rules with the same level of zeal or lenience on all residents. Do not wait until it happens to be prepared to respond to a fair housing complaint. After a complaint is made, it looks pathetic to start doing these things during the middle of the investigation. Do them now.

Bio:

Charles Brown is an attorney who invests in real estate in the Austin, Texas area. He is Board Certified in Residential and Commercial Real Estate Law by the Texas Board of Legal Specialization. He can be reached at 512-476-8942.