Selecting the right people to lease to is crucial to ensuring the safe, peaceful, and respectful housing environment that all tenants deserve. However, each time you sign a lease you essentially open your apartment community to not only the signing tenant but also any guests that the tenant chooses to invite into the apartment. That makes it crucial to establish community rules regulating guests’ behavior and holding tenants accountable for the guests they bring in. Regrettably, guest restrictions can also open the door to trouble under fair housing laws.  

This month’s lesson is dedicated to managing these discrimination risks. First, we’ll look at how fair housing laws apply to tenants’ guests and common situations where discrimination problems are most likely to arise. Then, we’ll lay out eight rules for avoiding liability when dealing with tenants’ guests. When we’re done with the lesson, you can take the Coach’s Quiz to apply the points to actual situations that you may face at your own community.

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) makes it illegal to discriminate on the basis of race, color, religion, sex, national origin, familial status, or disability. In addition, many states and municipalities have adopted their own fair housing laws extending those protections to other grounds, including marital status, age, ancestry, creed, source of income, military status, and sexual orientation and/or gender expression or identity.

Protection not limited to prospects and tenants. The vast majority of discrimination complaints are filed by or on behalf of rental prospects seeking or tenants leasing housing. However, certain other third parties have standing to sue for discrimination, including a tenant’s guest. Explanation: To achieve the FHA’s broad policy goal of rooting out racial segregation and other forms of discrimination, Congress included language in the law that allows any “aggrieved person” to pursue a fair housing complaint. The law defines aggrieved person as anyone who:

• Claims to have been injured by a discriminatory housing practice; or
• Believes that they will be injured by a discriminatory housing practice that’s about to occur.

The courts have interpreted “injured by” broadly, as extending beyond simply being a member of a protected class. To put it bluntly, you don’t have to be Black to be injured by racial discrimination. Thus, eight years after the FHA took effect, the U.S. Supreme Court issued a landmark ruling allowing two tenants—one white and one Black—to file a racial discrimination claim, alleging that they had been injured by the “loss of the social benefits of living in an integrated community” [Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972)]. 

Courts across the country have followed this principal that discrimination has the potential to harm any person who wants to live in an integrated, equal opportunity community regardless of whether they’re members of a protected class. The principal becomes crucial when landlords take adverse action against prospects and tenants who aren’t members of protected classes for associating with people who are. 

Example: HUD accused a Mississippi landlord of refusing to renew the lease of a white tenant because she associated with Blacks and had a biracial daughter. The landlord also allegedly told a prospect that she was trying to “weed out” all the Black people to make the apartment community a “better place” to live. The landlord ended up settling the case for $17,500 [U.S. v. Kelly, Civil Action No. 5:10-cv"186 DCB-JMR (2012)].

Talking against a tenant’s guests may also trigger another key provision of the FHA (§3617) that makes it illegal to “coerce, intimidate, threaten, or interfere with” anyone who has exercised their rights under fair housing law, as well as anyone who has helped or encouraged someone to do so.

Example: Section 3617 was the focus of a case by the U.S. Department of Justice (DOJ) against a South Dakota landlord for allowing its property manager to seek to evict two white families for befriending a Black family at the community. The manager and maintenance supervisor also used racial slurs and created a racially hostile housing environment for all three families. Under the eventual settlement agreement, the landlord agreed to pay $45,000 and admit that the allegations were true [U.S. v. T.K. Properties, LLC, (D. S.D.) 2011].

DEEP DIVE:

The Role of Third-Party Organizations

Most fair housing complaints (75.52 percent of all complaints processed in 2023, according to the National Fair Housing Alliance) are filed not by individuals or government agencies but by third-party nonprofit organizations claiming to have been injured by housing discrimination. While “standing,” or legal right of the organization to bring a fair housing complaint in court, is often a key issue in these cases, courts generally allow such claims if the results of the testing the organization performed demonstrate that the landlord excluded or otherwise discriminated against testers from the protected group.

8 RULES FOR AVOIDING GUEST-BASED DISCRIMINATION

Landlords are allowed (and in some federally assisted housing settings required) to establish policies imposing restrictions on guests. The key to compliance is to ensure that guest rules are reasonable, nondiscriminatory, and consistently applied. To be reasonable, guest rules must serve a legitimate and necessary purpose, such as ensuring a community’s security, health, sanitation, etc. You also must be prepared to make reasonable accommodations to your guest rules for persons with disabilities. Here are eight rules to follow for implementing these principals.   

Rule #1: Guest Rules May Not Be Based on Protected Characteristics 

Thus, a rule like “Christian visitors only” or “No black guests allowed” would be blatantly illegal. But guest rules may also be discriminatory in more subtle ways. Examples:  

• Allowing tenants to have adults but not children as visitors;
• Banning guests’ children from using the pool or other amenities; and
• Not allowing guests to bring their pets into the community.

Bottom Line: Guest rules and restrictions based on a person’s sex, religion, or other protected characteristic are discriminatory even if that’s not their intent. 

Rule #2: Evicting Tenants for Guests’ Criminal Activity May Be Discrimination

Many landlords insert a so-called “crime-free addendum,” (a.k.a., “zero tolerance” or “one strike rule”) into their lease that provides for eviction or other adverse housing consequences against tenants and households based on their own or a guest’s alleged criminal activity. While landlords have a legitimate interest in ensuring that guests don’t engage in criminal activity, such language is highly problematic under fair housing laws. This is true even if the addendum is actually required under state or local law. 

Explanation: Even though the FHA doesn’t mention criminal background, the U.S. Department of Housing and Urban Development (HUD) and courts take the position that exclusion based on criminal background potentially violates the law’s protections against racial and national origin discrimination to the extent that Blacks and Hispanics are arrested, convicted, and incarcerated at disproportionately higher rates than whites. This makes guest rules designed to prevent criminal activity a potential red flag for discrimination. 

Rule of thumb: Exclusion for criminal activity is permissible when the person who engages in it poses a substantial threat to safety or property. That’s a strict standard that applies only to the individuals who actually engage in or are a party to the criminal activity. Thus, while it may be fine to evict a tenant for a crime, what you may not do is hold an entire household accountable for the acts of just one member or guest. This is especially true when the tenant is the victim of the crime. “Housing providers should never evict a person or family because they have been victims of criminal activity,” according to HUD.

DEEP DIVE:

The DOJ Crime-Free Ordinance Letter

On Aug. 15, 2024, the DOJ issued a letter warning that municipal “crime-free” and “nuisance” property ordinances designed to prevent crime at rental housing may violate the FHA and other federal laws. The implication: Landlords that comply with these ordinances risk prosecution and liability for discrimination. It remains to be seen whether the incoming Trump administration leaves this directive intact. (For a full analysis of the DOJ letter and its implications for landlords, see “Complying with Local Crime-Free & Nuisance Laws May Violate Fair Housing Laws,” Fair Housing Coach, October 2024.)

Rule #3: Overly Broad Guest Restrictions Based on Criminal History May Discriminate

A related problem is seeking to exclude tenants and guests because of their criminal background. Cast too broadly, such rules may constitute racial and/or national origin discrimination against both tenants and guests. Rules to avoid include bans or restrictions based on: 

• Arrest rather than conviction—HUD has advised that a mere arrest isn’t a reliable basis for determining whether a particular individual poses a substantial threat to safety or property; and
• Being convicted of any crime—landlords must distinguish between misdemeanors and felonies, and then determine whether conviction for that felony makes the guest a substantial risk to safety or property, while also taking into account mitigating factors like how long ago the felony occurred, the person’s age at the time, and evidence of rehabilitation. 

Rule #4: Landlords May Be Liable for Discriminatory Harassment of Guests 

Landlords aren’t allowed to harass tenants or guests based on race, sex, religion, or other protected characteristics. While this should go without saying, not all landlords seem to have gotten the memo. 

Example: The owner of a Mississippi mobile home park shelled out $50,000 in damages for disrupting a Black family’s barbeque by hurling racial slurs at the tenant and their interracial guests [U.S. v. Indigo Investments, LLC, (S.D. Miss.) 2011].

Landlords may also be liable for harassment by third parties that they know or should know about but do nothing to stop. That includes not only the landlord’s own employees and agents but also other tenants that harass their neighbors and guests.

Example: The DOJ sued a West Virginia public housing authority for allowing a white tenant to racially harass a Black family in a neighboring apartment. The landlord was aware of what was going on but didn’t take steps to enforce its community anti-harassment policy and simply allowed the neighborly racial abuse to continue [U.S. v. Wheeling Housing Auth., (N.D. W.Va.), 2011].

Strategic Pointer: How tenants treat other tenants isn’t just a private matter between the parties involved. It also has significant legal ramifications for landlords, especially when it amounts to harassment based on race and other protected characteristics. At a minimum, landlords must have clear written policies banning such behavior along with mechanisms for reporting and investigating harassment complaints and holding tenants found to have engaged in discriminatory harassment accountable. 

Rule #5: You Must Make Reasonable Accommodations to Your Guest Rules

Fair housing laws require landlords to make reasonable accommodations for disabled prospects and tenants. As HUD explains, “a reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with disabilities to have an equal opportunity to use and enjoy a dwelling.” That includes being flexible in how you apply your normal guest rules to persons with disabilities. 

Example: Upon discovering bedbugs in his apartment, the site manager of a Maryland community gave the tenant a list of steps—strip the beds, pull furniture away from the walls, vacuum the floors, etc.—to prepare the unit for professional extermination. The problem is that the tenant was incapable of carrying out these instructions because he was a double amputee and legally blind. So, he called his support agency, which sent over two aides to carry out the preparation work. Unfortunately, the manager refused to let them in. As a result, the DOJ sued the landlord for failure to make a reasonable accommodations and prolonging the time he had to share his apartment with bedbugs. The price tag for settling the suit: $15,000 [U.S. v. Havre de Grace Associates LLLP, (D. Md.) 2022].

Rule #6: You Must Make Reasonable Accommodations for Pets of Disabled Guests

Reasonable accommodations include making exceptions to no-pets policies to allow tenants to keep assistance animals. The same principles apply to disabled guests. Thus, landlords with a no-pets policy can’t deny entry to or eject disabled guests because they have an assistance animal. Landlords might also have to bend other pet restrictions. 

Example: A woman who relies on a pit bull named Lil for her post-traumatic stress disorder temporarily moves in with her mom who lives in a Las Vegas mobile home park, which allows pets but bans certain dog breeds, including pit bulls. When the manager finds out about Lil, he orders the daughter to leave and evicts the mom. HUD sues the park for disability discrimination and failure to make reasonable accommodations, ultimately leading to a $100,000 settlement [U.S. v. Las Vegas Jaycees, (D. Nev.) 2021].  

Rule #7: You Must Make Reasonable Accommodations for Live-In Aides

Most landlords have policies to prevent tenants from allowing unauthorized occupants to live in their apartments. But as with pets, people restrictions must sometimes give way to reasonable accommodations. Specifically, landlords may have to make exceptions to guest restrictions for disabled tenants who require live-in aides. 

In the context of fair housing, a “live-in aide” is a person who lives with a disabled tenant for the primary purpose of providing caregiving services the tenant needs due to a disability. Rule: You must allow a live-in aide as a reasonable accommodation if tenants can show: 

• They have a disability; 
• The aide provides essential services that the tenant needs as a result of that disability; and
• The aide wouldn’t be living in the unit except to provide those necessary supportive services.

A live-in aide can be a family member as long as the above criteria are met. 

Example: A Pennsylvania retirement community that adopted a ban on external visitors during the COVID crisis shelled out $215,000 for failing to grant a reasonable accommodation of allowing a disabled tenant’s son to live with her as an aide [U.S. v. Albright Care Services, et al., (M.D. Pa.), 2023].

Coach’s Tip: While the duty to make reasonable accommodations for live-in aides stems from the FHA, the HUD Handbook also sets out specific rules for processing and verifying tenants’ requests for live-in aides that apply to federally assisted properties. Although not legally required, attorneys suggest that complying with HUD Handbook requirements may also be advisable for landlords and owners of private housing communities. 

Rule #8: You May Have to Make Reasonable Accommodations for Tenants’ Caregivers

Getting the greenlight to have a live-in aide isn’t the only issue. Disabled tenants may also make other kinds of reasonable accommodations requests related to their live-in aides or other caregivers who provide for them at their home. There’s been litigation over requests to waive rules governing guest fees, parking privileges, and other restrictions for family members or home health aides.

Example: A tenant with quadriplegia asked his Seattle landlord to provide an on-site parking space for the caregiver who delivered him groceries, medical supplies, and other services. The landlord said no, reasoning that the caregiver wasn’t disabled. So, the tenant sued. The DOJ intervened in the case, arguing that a parking space for a caregiver may be a reasonable accommodation required by the FHA [Roque v. Seattle Housing Authority, (W.D. Wash.) 2020].

Takeaway: As with just about all reasonable accommodation requests, the question of whether parking spaces or any other kinds of accommodations for tenants’ caregivers are reasonable is a case-by-case determination that depends on the facts of the particular situation. That’s why you should talk to an attorney when confronted with this situation. Still, while they’re no substitute for direct legal counsel, there are general guidelines to apply. According to HUD, a request for an accommodation is reasonable if it: 

• Doesn’t cause the landlord to incur an undue financial and administrative burden;
• Doesn’t cause a basic or fundamental change in the nature of the housing program available; 
• Won’t cause harm or damage to others; and
• Isn’t technologically possible. 

These criteria are critical, so let’s look at them more closely. 

Financial and administrative burden: You can’t deem a requested accommodation unreasonable simply because it costs time and money to provide. The burden must be “undue,” based on the accommodation’s costs, the landlord’s financial resources, the benefits to the requestor and the availability of cheaper, easier alternatives that would effectively meet the requestor’s needs. Examples of accommodations for disabilities that would impose undue financial or administrative burden would include building a special parking facility for one tenant’s caregiver.

Fundamental alteration: Accommodations require “fundamental alterations” when they alter the essential nature of a landlord’s operations, such as a request that you drive a caregiver to the tenant’s home when you don’t offer transportation services. 

Harm or damage to others: You don’t have to make accommodations that would endanger the health and safety of others or pose the risk of unreasonable damage to property, such as by making an exception from a no-pets policy to allow a live-in aide to keep a full-grown leopard in the unit. 

Detrimental to other disabled persons: Accommodations aren’t reasonable if they require you to deprive other disabled applicants or tenants an equal opportunity to use and enjoy their own apartments. For example, you don’t have to force the caregiver of one mobility-impaired tenant to give up a reserved accessible parking space in favor of the caregiver of another tenant who’s “more disabled.” 

Technologically impossible: Accommodations aren’t reasonable if they’re technologically impossible. 

Strategic Pointer: The accommodations process shouldn’t end simply because you conclude that a requested accommodation is unreasonable, notes HUD. Before rejecting the request, you should consider whether there are any alternative changes you could make or actions you could take that would meet the tenant’s needs.