In California there are strict laws prohibiting various types of discrimination in leasing which compel landlords to comply with prohibitions against such discrimination or face penalties that can be quite severe. The tenant can obtain damages, attorneys fees and, perhaps most importantly, access to the very home that was previously barred.
Such discrimination prohibitions go far beyond mere race or creed. The law also prohibits discrimination based on such varied characteristics as source of income, disability, sexual orientation or having children.
This article shall briefly describe the law and relief available and further provide additional resources for information should the reader wish additional information. The reader is also advised to read our article on Security Deposits on this web site.
What is Unlawful Discrimination?
The law is clear and applies to all rental housing in California. It is enforced both by the State and can be enforced by private action brought by the individual who claims such discrimination occurred.
It is unlawful for a landlord to refuse to rent to a tenant or to engage in any other type of discrimination on the basis of group characteristics specified by law (such as race or religion) that are not closely related to the business needs of the landlord. The landlord is allowed to utilize criteria that is appropriate for determining if the tenant is capable of performing but even those criteria may be strictly controlled.
For example, the landlord may properly require that a prospective tenant have an acceptable credit history and be able to pay the rent and security deposit, and have verifiable credit references and a good history of paying rent on time. However, even if the landlord believes that members of a certain race or ethnic background are more prone to default on leases than others, the landlord is strictly prohibited from using that criteria to refuse entry to the premises.
Indeed, the California Legislature has declared that the opportunity to seek, obtain and hold housing without unlawful discrimination is a civil right. See Government Code Section 12921(b). Under California law, it is unlawful for a landlord, managing agent, real estate broker, or salesperson to discriminate against a person or harass a person because of the person's race, color, religion, sex (including gender and perception of gender), sexual orientation, marital status, national origin, ancestry, familial status, source of income, or disability. See Government Code Sections 12926(p) (revised effective January 1, 2004), 12927(e), 12955(a),(d). See Fair Employment and Housing Act, Government Code Section 12900 and note that the federal government also prohibits such discrimination in many cases. See the Fair Housing Act, 42 United States Code Section 3601 and following.
California law also prohibits discrimination based on any of the following:
1. A person's medical condition or mental or physical disability;
2. Personal characteristics, such as a person's physical appearance or sexual orientation that are not related to the responsibilities of a tenant (See Civil Code Sections 51, 51.2, 53; Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142 [278 Cal.Rptr. 614].
3. A perception of a person's race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status,
4. Source of income,
5. Disability,
6. Or a perception that a person is associated with another person who may have any of these characteristics. Government Code Section 12955(m).
Under California law, a landlord cannot use a financial or income standard for persons who want to live together and aggregate (combine) their incomes that is different from the landlord's standard for married persons who aggregate their incomes. In the case of a government rent subsidy, a landlord who is assessing a potential tenant's eligibility for a rental unit must use a financial or income standard that is based on the portion of rent that the tenant would pay. Government Code Sections 12955(n),(o).
It is illegal for landlords to discriminate against families with children under 18. However, housing for senior citizens may exclude families with children. "Housing for senior citizens" includes housing that is occupied only by persons who are at least age 62, or housing that is operated for occupancy by persons who are at least age 55 and that meets other occupancy, policy and reporting requirements stated in the law. See 42 United States Code Section 3607(b), Civil Code Section 51.3(b)(1).
"Housing for senior citizens" also includes: Housing that is provided under any state or federal program that the Secretary of Housing and Urban Development has determined is specifically designed and operated to assist elderly persons (42 United States Code Section 3607(b)); or a housing development that is developed, substantially rehabilitated or substantially renovated for senior citizens and that has the minimum number of dwelling units required by law for the type of area where the
housing is located (for example, 150 dwelling units built after January, 1996 in large metropolitan areas) (Civil Code Sections 51.2, 51.3. See Marina Point Ltd. v. Wolfson (1982) 30 Cal.3d 72 [180 Cal.Rptr. 496]).
While the law prohibits unlawful age discrimination, housing for homeless youth is both permitted and encouraged. (Government Code Section 11139.3.)
Limited exceptions exist for single rooms and roommates. If the owner of an owner-occupied,
single-family home rents out a room in the home to a roomer or a boarder, and there are no other
roomers or boarders living in the household, the owner is not subject to the restrictions listed above.
However, the owner cannot make oral or written statements, or use notices or advertisements which indicate any preference, limitation, or discrimination based on race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, source of income, or disability. Government Code Sections 12927(c)(2)(A), 12955(c).
Further, the owner cannot discriminate on the basis of medical condition or age. Civil Code Sections 51, 51.2, Government Code Section 12948. It should be noted that a person in a single-family dwelling who advertises for a roommate may express a preference on the basis of gender, if living areas (such as the kitchen, living room, or bathroom) will be shared by the roommate. Government Code Section 12927(c)(2)(B).
Example of Discrimination to Consider:
It is when one enters the practical world that the above laws are clarified as to what are the rights of tenants in California and under Federal law. The following list gives concrete examples of what one can and can not do.
Examples of Unlawful Discrimination
1. Under California's Fair Employment and Housing Act and Unruh Civil Rights Act, it is unlawful for a landlord, managing agent, real estate broker, or salesperson to discriminate against any person because of the person's race, color, religion, sex (including gender and perception of gender), sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, medical condition or age in any of the following ways:
2. Refusing to sell, rent, or lease.
3. Refusing to negotiate for a sale, rental, or lease.
4. Representing that housing is not available for inspection, sale, or rental when it is, in fact, available.
5. Otherwise denying or withholding housing accommodations.
6. Providing inferior housing terms, conditions, privileges, facilities, or services.
7. Harassing a person in connection with housing accommodations.
8. Canceling or terminating a sale or rental agreement.
9. Providing segregated or separated housing accommodations.
10. Refusing to permit a disabled person, at the disabled person's own expense, to make
reasonable modifications to a rental unit that are necessary to allow the disabled person "full
enjoyment of the premises." As a condition of making the modifications, the landlord may
require the disabled person to enter into an agreement to restore the interior of the rental
unit to its previous condition at the end of the tenancy (excluding reasonable wear and tear).
11. Refusing to make reasonable accommodations in rules, policies, practices, or services when
necessary to allow a disabled person "equal opportunity to use and enjoy a dwelling."
The list above is not exclusive but merely examples.
For example, if a landlord has had a bad experience with attorneys in the past and refuses to rent to an attorney on the basis of those memories…the landlord has violated the law.
If an landlord’s religious beliefs claim that living together when unmarried is a sin or that being homosexual is a sin and bans a couple from renting on either of those two grounds…that landlord has violated the law.
It is useful for landlords who find the above intrusive into their business to consider their business a “public one” and not a private one. By offering these premises to the public at large, the landlord is engaging in the realm of public commercial effort and the law applies to any persons involved in the public realm. Just as a mall could not ban its premises to a gay couple, so landlords, seeking “customers” to rent their premises, must comply with the strict antidiscrimination laws above.
And mere grumbling can be cause for action. That would be considered, “harassment,” so that if a landlord uses such words as “The law requires me to rent to people such as you but I have to tell you I find you unwelcome, personally,” or such words, the landlord will find him or herself facing liability.
And note the above law applies not just to the owner of the property but to the managers and real estate agents perhaps used by the owner. If you have a racist or bigoted manager, you face liability and must take corrective steps.
Resolving Housing Discrimination Problems:
1. Damages Available
A victim of housing discrimination has a variety of relief available to consider including:
1. Compensation for the actual damages suffered.
2. Admission into the housing denied or equivalent housing.
3. Reimbursement for the expenses that incurred to find other housing.
4. Damages suffered and are provable, in addition to actual expenses.
5. Attorney's fees.
Further, the Court has the power to order a landlord to take specific action to stop unlawful discrimination. For example, the landlord may be ordered to advertise vacancies in newspapers published by ethnic minority groups, or to place fair housing posters in the rental office.
2. Forums Available to Resolve Disputes Aside From Court.
A number of resources are available to help resolve housing discrimination problems:
Local fair housing organizations (often known as fair housing councils). Look in the white
(business) and yellow pages of the phone book.
Local California apartment association chapters. Look in the white (business) and yellow pages of
the phone book.
Local government agencies. Look in the white pages of the phone book under City or County
government Offices, or call the offices of local elected officials (for example, a city council representative or a county supervisor).
The California Department of Fair Employment and Housing investigates housing discrimination
complaints (but not other kinds of landlord-tenant problems). The department's Housing Enforcement Unit can be reached at 1-800-233-3212 (TTY 1-800-700-2330). You can learn about the department's complaint process at www.dfeh.ca.gov.
The U.S. Department of Housing and Urban Development (HUD) enforces the federal fair housing law, which prohibits discrimination based on sex, race, religion, national or ethnic origin, familial status, or mental handicap. To contact HUD, look in the white pages of the phone book under United States Government
Offices.
Legal aid organizations provide free legal advice, representation, and other legal services
in non-criminal cases to economically disadvantaged persons. Legal aid organizations are located throughout the state. Look in the yellow pages of the phone book under Attorneys.
California Department of Consumer Affairs is an excellent resource for not only landlord tenant issues but for numerous other questions that a consumer may encounter. All the above information and more can be found on their website. They can be reached by the following contact information: CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS, 400 R Street, Sacramento, CA 95814, (800) 952-5210 (916) 445-1254 TDD: (916) 322-1700 email: dca@dca.ca.gov
Local Landlord Apartment Owner Associations. Landlords can normally contact local landlord and realtor associations in their area who can provide resources such as the San Francisco Apartment Owners Association and, again, the yellow pages, white pages, or web is an excellent method to locate these resources.
3. Legal Actions
Given the possible damages outlined above, it is quite often in Court that these matters are determined and legal action is available for any tenant alleging discrimination as outlined above. Such actions do have strict statute of limitations, however. The time limits for filing housing discrimination complaints are short (one year for complaints to the Department of Fair Employment and Housing). Government Code Section 12980(b).
Some Practical Advice:
Any person seeking to rent units who discriminates is not only acting in violation of the law but is in the wrong business and sooner or later will find various enforcement proceedings and legal actions brought against him or her. Both State and Federal law is strictly enforced in this area and the landlord MUST learn the law and comply with it or face dire consequences.
The problem, as with so much “good law” is that invariably there are those who seek to exploit it for monetary gain, both attorneys and plaintiffs. Here, the claim of discrimination is so loaded with emotion in our society that the mere threat can lead to great expense and anguish for the landlord. Granted the act of discrimination is both illegal and unethical and causes great pain to its victims. However this office has seen many well meaning landlords who failed to keep good records for rationale for turning down a tenant subjected to months of turmoil by tenants who were certainly not victims of real discrimination.
An example from five years ago perhaps illustrates this danger. An elderly woman inherited a ten unit apartment building in the East Bay and decided to handle the renting herself. While interviewing a tenant from Mexico, she happened to mention a criminal act she and her deceased husband suffered while visiting Mexico City and commented that the felt the Mexican police did not care to help them in the least. She was voluble in her description and when she rejected the tenants in favor of Caucasian renters a week later, suddenly found she was the respondent in a legal action claiming discrimination.
A conversation, taken out of context, without the original tones of voice, can sound remarkably racist in black and white. A comment, “Those Mexicans just didn’t seem to care about right or wrong or doing what should be done to help us against the thieves,” stated in open court sounded remarkably racist when combined with turning down the tenants a week later. What the landlady thought was a casual conversation became a weapon that was used against her, perhaps in all sincerity by the angry prospective tenants. Her real failure to document the fact that the prospective Mexican tenants had a bad credit history was a critical factor in the hearing. Put simply, she could not prove to the trier of fact that she had checked out the credit record before making up her mind. A mere notation in her records could have saved her tens of thousands of dollars.
It is vital for landlords to understand that each word and each action can be scrutinized for discrimination and that their conversations must be carefully limited to business. Or, as one of my favorites clients once commented, “ I don’t know if they’re checking out my apartments or me…while I’m checking them out. It’s a dance, it is, a dance where you have to be careful not to step on anyone’s toes.”
But perhaps another landlord client put it even better: “It’s business and the fact you have to master some skills in this area is merely one more skill required in business. It isn’t hard to handle this. When in doubt, shut up and look to the only color that matters: the green of their money.”
And if you are a victim of this type of discrimination, know that relief is available and you probably owe it to the entire community to make sure that truly racist landlords face the consequences of their actions.