Q: I applied to rent an apartment in a small complex that has lots of families. The owners live there, too, and told me that they prefer to rent to families because, that way, everyone knows that there will be kids running around and a bit of noise, and they will be OK with it. I’m OK with it, too, but felt unwelcome. Can an owner discriminate against me, as a single person? –Janice D.
A: Most of the discrimination that involves families happens the other way around: Families are turned away, shunted to specific rental units, or charged higher rents because they have children. All of these landlord practices are illegal, and have been for many years under the federal Fair Housing Act and state counterparts.
"Familial discrimination" also includes negative treatment of elderly persons. For example, turning away an elderly applicant in order to preserve a "youthful tenant mix," or because the landlord assumes that an elderly person will be a liability, is illegal.
Interestingly, under federal standards, turning away a young applicant has not yet been considered a type of familial discrimination, but some states fill the breach by declaring that discrimination on the basis of age is illegal.
But now to your question: What about discrimination against a single applicant, regardless of that applicant’s age? You’d think this would have been addressed by Congress, and indeed it was — way back in 1937.
In the Housing Act of that year, which started the federal government’s assisted housing program, the law provided that "the term ‘families’ includes families consisting of a single person in the case of (i) an elderly person, (ii) a disabled person, (iii) a displaced person, (iv) the remaining member of a tenant family, and (v) any other single persons" (emphasis added), per 42 U.S.C. Section 1437a(3)(b)(3)(A).
As far as the U.S. Department of Housing and Urband Development is concerned, that definition applies to the Fair Housing Act’s provisions as well, as evidenced by HUD’s answer to your very question in its recent rule extending and clarifying protection to tenants regardless of their sexual orientation or gender identity (see: 24 CFR Parts 5, 200, and following).
Q: My lease says I can keep one dog, but when my daughter enlisted in the military, she asked me to take her dog. I did, and the landlord knew it. He lives on the property, but never objected. Now, he’s trying to evict me for violating the lease, but I think it’s a ruse, and that he wants me out so he can have the place for his son. Can he do this? –Maxie D.
A: Your landlord would have been clearly within his rights to demand that you find another home for your daughter’s dog had he done so when he realized that you were keeping two dogs, in violation of your lease. But it seems that he has let months go by, and now suddenly wants to enforce the lease.
Whether a judge would allow this depends on whether your state has specifically addressed such tardy attempts by landlords. If it hasn’t, the answer will be less clear.
Oregon is one state that has sensibly addressed this common problem. In Oregon, if a landlord has accepted rent during three or more rental problems with knowledge of the violation, or if he’s simply accepted what the tenant has been doing, he’s given up his right to terminate for that lease violation (see: Oregon Revised Statutes Section 90.412).
The landlord can avoid this result by refunding the rent within 10 days of accepting it; or by giving a written warning notice to the tenant, explaining the violation and demanding that it cease, and advising the tenant that a recurrence of the conduct may result in termination.
When the tenant’s conduct (or that of his pet) involves substantial property damage, violence or injury, these limitations don’t apply.
The drafters of the Oregon law probably intended to make landlords "fish or cut bait" — either enforce their rules or lose them. The advantage of such a system is that it prevents landlords from having a reason for termination and eviction in their back pockets, to use when it suits them and when no other valid reason for termination exists.
Such procrastination can be particularly unfair when tenants have come to rely on the landlord’s apparent dismissal of his own rule. This is what you suspect is going on now.
If your state has not specifically addressed this issue, all is not lost, however. Judges have the power to refuse to enforce a contract clause (that’s what you’d ask for if you end up in an eviction lawsuit for having two dogs) when they feel that one side has, by its conduct, waived the right to rely on that clause.
In your case, the landlord knew about the second dog for months but accepted its presence, which could lead you to reasonably expect that he really didn’t care about the one-dog limitation. It boils down to the legal version of "use it or lose it."
Your chances of prevailing on this defense will go up if you can point to evidence of his real motive — to get you out in order to make room for a family member. To do that, he may need to wait until your lease is up.
