Landlording in a World of Fair Housing Testing

Government and fair housing agencies across the United States have been using so-called "testers" for years to help craft compelling cases of housing discrimination.

Testers are people who call or visit properties to inquire about vacancies. They pretend to be genuinely interested in renting or buying them, but their true, secret purpose is to determine whether a property owner or manager is complying with fair housing laws.

Fair housing testing programs have proven effective at gathering evidence because their targets don't realize they're under investigation and therefore often have their guard down (and their mouth open).

For a good example of how much testers can help a case, you needn't look far into the past. A complaint filed November 23, 2009 by the Department of Justice (DOJ) against an Illinois landlord for discrimination based on race and color shows the type of useful evidence testers can obtain.

According to the complaint, the Illinois landlord allegedly refused to rent a single-family house in a Chicago suburb to a black couple because of their race. The couple suspected race as a factor because after they arrived to look at the property, the landlord was quick to tell them he just rented the house to a white prospect. The landlord also insisted that the couple wouldn't be interested in his other vacancy.

The next day, the wife decided to call the landlord to ask the status of the property they had just visited, without identifying herself. When the landlord told her it was available, this confirmed the couple's suspicions and led them to pursue a fair housing claim.

A local fair housing agency and the DOJ each dispatched testers to contact the landlord in the hope of gathering more evidence to bolster their discrimination case against him.

Here's what the testing produced, according to the complaint:

• The landlord didn't return a phone call from a black tester inquiring about the house.



• The landlord separately told two white testers that the house was available and invited them to see it. While showing the property to each of the white testers, the landlord: a) asked the tester if her husband was black (to which each one said no); b) told the tester about problems he had after unknowingly renting the house to an interracial couple; c) made various statements against renting to black tenants; and d) claimed to have rejected a black prospect's offer to rent the house at the advertised rent with paying a year's worth of rent upfront. The also landlord told one of the white testers that several black people inquired about the house, and he offered a discounted rent to the other tester because she was white.

If there's a landlording lesson to be learned or advice to be gleaned from this type of story, it's this:

Treat all prospects as if they're testers.

Sure, doing so is smart because it means not helping the government build a case against you. But, more importantly and proactively, if landlords require staff not only to get fair housing training but to keep fair housing concerns in mind when interacting with prospects, they'll be much less likely to say or do something that could lead — fairly or unfairly — to accusations of discrimination.

Interesting to note:

• The Department of Justice (DOJ) launched its testing program in 1992. Since then, the DOJ has recruited and trained over 1,000 employees to pose as testers.

Landlord May Take a Bath for Refusing to Allow Modification of One

After refusing to let a tenant modify her bathroom to make it more accessible, a Brooklyn, New York landlord has finally come clean. But the delay was costly, as the landlord now faces $80,000 in damages for the alleged harm he caused by taking nearly two years to grant the tenant's reasonable modification request under the Fair Housing Act.

The tenant, who suffered from emphysema, heart disease, sciatica, and rheumatoid arthritis, had requested a walk-in shower to replace the bathtub. She explained in numerous letters to the landlord that she needed the modification for her disability. As The New York Post reported, United Cerebral Palsy agreed to install the more accessible shower for free, and so the replacement would cost the landlord nothing.

As the landlord continued to ignore the tenant's requests, she reportedly often had to travel from her third-floor walk-up several blocks to bathe at her daughter's house. When finally reached for comment, the landlord pointed out that the tenant doesn't pay much for her rent-controlled apartment, and suggested she move to a nursing home.

An administrative law judge didn't buy it. On September 25, the judge ordered the landlord to pay a $50,000 penalty plus $30,000 to the tenant for her mental suffering, and to install the requested shower at the landlord's own expense.

When the tenant returned home from a hospital visit recently, she found the shower she had requested. Although this incident may one day become water under the bridge, this landlord isn't likely to forget that federal law requires landlords to consider requests that disabled tenants make for modifications to their apartments, and then grant them if they're reasonable.

LANDMARK: Landlords Agree to Largest-Ever DOJ Rental Housing Discrimination Settlement

The U.S. Department of Justice (DOJ) announced it filed a proposed consent order to obtain the largest-ever settlement in connection with a rental housing discrimination lawsuit.

Los Angeles Clippers owner and landlord Donald Sterling, his wife Rochelle Sterling, the Sterling Family Trust, and The Korean Land Company, L.L.C. have agreed, without admitting liability or wrongdoing, to pay $2.725 million to settle allegations that they violated the Fair Housing Act by discriminating based on race, national origin, and familial status at apartment buildings they own and manage in Los Angeles.

The complaint, filed in August 2006, alleged that the defendants discriminated against non-Korean prospects and tenants in connection with renting apartments in the Koreatown section of Los Angeles; discriminated against black prospects and tenants in connection with renting apartments in the Beverly Hills section of Los Angeles; and discriminated against families with children throughout the buildings they own or manage in Los Angeles.

In addition to the record monetary award and civil penalty, the consent order, if approved, would require the defendants to obtain fair housing training for employees and monitor their compliance, and maintain non-discriminatory practices and procedures.

The defendants own and manage approximately 119 apartment buildings comprising 5,706 apartments in Los Angeles County. This settlement would also resolve two related lawsuits filed by former tenants at one of their properties.