Recent HUD Guidance (Application of the Fair Housing Act to Advertising of Housing, Credit, and other Real Estate-Related Transactions through Digital Platforms) cites three types of tenant screenings that are particularly likely to result in indirect exclusion of groups the fair housing laws protect. The first is use of credit history, or credit scores that national credit bureaus assign to consumers based on data indicating how likely they are to default on a loan.

Q: A private—that is, non-federally funded—landlord in California, which has legalized both medical and recreational use marijuana, catches two tenants smoking pot in the clubhouse in violation of the community’s anti-drug use policy. Tenant A has a valid prescription from a physician to use marijuana to treat his PTSD; Tenant B is just a casual user. With both medical and recreational marijuana legal in the state, which, if any, tenant(s) can the landlord evict for violating the community’s anti-drug policy?

HUD recently issued guidance warning landlords of their fair housing liability risks when using digital advertising platforms that utilize artificial intelligence (AI). What’s the best strategy for a landlord who deems it highly beneficial to use an AI-based ad platform to manage the potential liability risks involved?

a.         Avoid digital advertising just to be safe

b.         Use due diligence to select an advertising platform that’s likely to comply with fair housing law