§ 6.1 Landlord-tenant Issues

• Library: Rights of Foreign Nationals (OSBar) (2020 Ed.)

§ 6.1 LANDLORD-TENANT ISSUES

§ 6.1-1 Introduction

A variety of issues arise in the landlord-tenant context when confronted with immigrants legally or illegally residing in the United States. Cultural differences, language barriers, and customs can all impact the landlord-tenant relationship. The issues facing a landlord with immigrant tenants begin before screening applications, continue through the tenancy, and last long after the tenancy terminates. The federal Fair Housing Act of 1968 (FHA) (42 USC §§ 3601-3631), comprising Title VIII of the Civil Rights Act of 1968 (Pub L 90-284, 82 Stat 73) and the Fair Housing Amendments Act of 1988 (Pub L 100430, 102 Stat 1619), along with Oregon fair housing laws (ORS 90.390, ORS 659A.145, ORS 659A.421, and ORS 659A.425) control the majority of issues arising from renting to immigrant tenants.

QUERY: Should a landlord rent to a noncitizen? Yes. Legal noncitizens have the same rights under the law as any legal citizen. Failure to rent to legal noncitizens could result in a charge of discrimination.

§ 6.1-2 Renting to Immigrants

§ 6.1-2(a) Advertising Rental Property

The FHA prohibits discrimination based on race, color, religion, sex, disability, familial status, and national origin in most housing-related transactions, including by indicating a preference or limitation on any of these bases when advertising the rental or sale of a dwelling. 42 USC § 3604. Specifically, the FHA does not allow a landlord to

make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.

42 USC § 3604(c). Advertising includes flyers, brochures, billboards, mailings, radio ads, TV ads, newspaper ads, magazine ads, online postings and ads, signs, business cards, and oral or written statements made by the landlord or the landlord's agent. It is particularly important when advertising on social media to ensure the placement and content of the advertisement does not discriminate against a protected class. See Nat'l Fair Hous All, Advertising Guidelines, < https://nationalfairhousing.org/responsibleadvertising >.

Even though a landlord may be considered exempt from the FHA (see § 6.2-1(a)(4)), the landlord is still bound by the need to create an advertisement that complies with the FHA, meaning that the landlord is forbidden from indicating preference, limitation, or discrimination against people within the protected classes. U.S. Dep't of Hous and Urban Dev, Advertising and Marketing, < www.hud.gov/program_offices/fair_housing_equal_opp/advertising_and_marketing >. For more information on prohibited content in advertisements, see Memorandum from Roberta Achtenberg, Assistant Secretary for Fair Housing and Equal Opportunity, on Guidance Regarding Advertisements under section 804(c) of the Fair Housing Act, available at < www.hud.gov/sites/documents/DOC_7784.PDF >.

PRACTICE TIP: When advertising, the property being rented should be described, not the tenant or type of person desired as a tenant. The physical features and amenities should be listed, but no opinions or thoughts as to the type of ideal tenant should be expressed. Always include the fair housing logo or the "Equal Housing Opportunity" slogan in your advertising. See U.S. Dep't of Hous and Urban Dev, Equal Housing Opportunity Graphics for Printing, < www.hud.gov/library/bookshelf11/hudgraphics >.

§ 6.1-2(b) Applicant Screening Issues

Screening criteria or procedures that discriminate based on race, color, religion, sex, disability, familial status, and national origin are prohibited under the FHA. 42 USC § 3604. While the FHA does not prohibit discrimination based solely on a person's citizenship status, it is closely tied to prohibited discrimination based on national origin. See Espinoza v. Hillwood Square Mut. Ass'n, 522 F Supp 559, 567-68 (ED Va 1981) (it is a factual issue whether denial of housing due to citizenship is a pretext for national-origin discrimination). Nonetheless, asking applicants to provide documentation of their citizenship would not violate the FHA. Such measures have been in place for many years now for purposes of screening federally assisted housing.

With regard to federally assisted housing, the Department of Housing and Urban Development (HUD) regulations define what kinds of documents are considered acceptable evidence of citizenship or eligible immigration status. Acceptable documents for United States citizens or nationals would include a United States passport. 24 CFR § 5.508(b)(1). Acceptable documents for noncitizens who are 62 years of age or older consist of (1) a...