"Reasonable Modifications:" What A Landlord Needs To Know About This Important Topic

The term "reasonable modifications" is used throughout the federal Fair Housing Act as well as Wisconsin's Open Housing law (which for the most part adopts federal law). Requests for reasonable modifications by tenant are on the rise.

The Basics:

Wisconsin's Open Housing law, which can be found at sec. 106.50, Wis. Stats., states that a landlord cannot refuse to permit, at the expense of a person with a disability, reasonable modifications to the housing by a tenant, if the modifications are necessary to afford the disabled tenant the full enjoyment of the housing. Sec. 106.50(2r)(3), Wis. Stats.

Reasonable modifications can include structural changes to the interior of the property or the exterior of the property. Reasonable modifications can be made to common areas and public use areas of the property as well.

The tenant is responsible for paying for the reasonable modifications to the property. It is also the responsibility of the tenant to maintain the modification if it is used exclusively by the tenant. If the modification is in a common area and other tenants also use the modification, the upkeep would be the responsibility of the landlord

Requesting A Reasonable Modification

A tenant is not entitled to a reasonable modification unless the modification is requested. The request can be verbal or written.

A tenant must obtain the landlord's approval before the tenant can move forward with the modification.

A landlord cannot condition the approval of the modification on the tenant obtaining special liability insurance.

There Must Be A Nexus Between the Disability and the Reasonable Modification

There must be an identifiable relationship or "nexus" between the requested modification and the tenant's disability. For instance an identifiable nexus would exist if a tenant using a wheelchair requests that a ramp be installed leading up to the apartment's front door. There would not be an identifiable relationship if a tenant that is mobility impaired requests that the landlord permit him to change the roofing from shaker shingles to clay tiles and fiberglass shingles becasue he believes the original shingles are less fireproof.

Examples of Reasonable Modifications:

- Installation of a ramp for a person using a wheelchair.

- Widening of the doorways in an apartment so that a tenant's wheelchair can pass through.

- Installing grab bars in a shower for a person with with mobility/balance issues.

- Allowing a tenant with a hearing disability to install a peephole and an extra loud doorbell.

- Replacing doorknobs with levers for a tenant with severe arthritis who has difficulty turning a doorknob.

What Is Reasonable?

There is not a clear "black and white" definition of what is reasonable in terms of a tenant's request for a reasonable modification. What is "reasonable" is a very fact intensive question and depends on the specific situation. Asking a landlord to tear down a wall dividing the two lower rental units in a 4-family so that the tenant using a wheelchair would have additional space, would most likely not be found to be reasonable as such a modification would greatly affect the landlord's rental property by changing it from a 4 family to a 3 family. But asking a landlord to lower the light switches throughout a unit as well as the counter tops in the kitchen, to allow a person using a wheelchair to enjoy full enjoyment of their apartment, would more than likely be found to be reasonable.

In the end, what is "reasonable" will be determined on a case by case basis by a Circuit Court Judge or an Administrative Law Judge, should a tenant file a discrimination complaint against a landlord for denying a request for reasonable modifications.

What Information May A Landlord Request From A Tenant To Support A Request For Reasonable Modifications?

A landlord can request that a tenant provide him/her with reliable disability-related information that: (a) is necessary to verify that the person meets the Act's definition of a "disability," (b) describes the needed modification; and (c) shows the relationship between the person's disability and the need for the requested modification.

I hope it goes without saying -- but I will say it anyway -- that a landlord must keep any requested information confidential.

Additionally, if a person's disability is open and obvious or otherwise known, and the need for the requested modification is also readily apparent or known, the landlord may not request any information from the tenant. An example of such a situation would be a tenant that has cerebral palsy who uses braces to walk, makes a request that the landlord replace the doorknobs with levers to assist the tenant with opening the doors.

The Tenant Must Pay For The Reasonable Modifications

In case you missed this very important point in the definition above, I wanted to reiterate it. The number one comment/question I receive from landlord's on the topic of reasonable modifications is "This is not fair. I can't afford to pay for these modifications. Why do I need to pay for this?" You don't have to pay for it. The law clearly states that it is the tenant's responsibility to pay for any reasonable modification that is requested.

Restoration Agreements

A landlord may condition permission for a reasonable modification -- to the inside of the property -- on the tenant entering into an agreement to restore the interior back to the condition that it was in before the modifications were made. Sec. 106.50(2r)(3), Wis. Stats.

Restoration Agreements cannot apply to the outside of the property. So a landlord cannot require a tenant to pay to uninstall a wheelchair ramp that leads to the front door, for instance.

It is improper for a landlord to require a larger security deposit from a person with a disability to cover the cost to return a unit to its original condition, but it is perfectly legal to require a tenant to place the monies to return a unit to its original condition under a restoration agreement.

A Practical Matter

I would strongly reccomend that a landlord be involved in the process of determining who is hored to make the reasonable modifications. It is the landlord's property after all and s/he needs to protect it from damage and protect the tenant from shoddy workmanship.

While it is probably not reasonable for a landlord to require a tenant to use a specified contractor to make the modifications, I would argue that it is also not reasonable for a tenant to require a landlord to allow the tenant's little brother's best friend, who is not insured or bonded, and has failed to pull the required permits, to do the work. The landlord and tenant should work together to find a contractor that is qualified and reliable and meets both the tenant's and the landlord's needs.

A Great Resource:

The U.S. Department of Justice and the U.S. Department of Housing and Urban Development have issued a Joint Statement on Reasonable Mondifications Under The Fair Housing Act. This March 2008 publication is a great resource to turn to on the topic of reasonable modifications.

Housing Discrimination: What Actions Are Covered?

There are federal, state and municipal laws that make discrimination in the area of housing illegal. The breadth of fair housing laws is vast and landlords should educate themselves on just what actions may be discriminatory before they get themselves into trouble.

I have previously blogged about what the various protected classes are but this post will focus on what actions may be considered to be discriminatory if they are solely based on a person's membership in a protected classes.

The key federal law that sets forth what actions can be discriminatory within the housing context is the Fair Housing Act, which is Title VIII of the Civil Rights Act of 1968. Wisconsin, for the most part has adopted the federal laws related to housing discrimination (and has even added a few additional protected classes) and codified those laws in sec. 106.50(2), Wis. Stats. The city of Milwaukee has its own fair housing laws which can be found in subchapter 3 of Chapter 109 of the Milwaukee Code of Ordinances.

Essentially if an individual engages in one of the following actions and does so solely based on an individuals membership in a protected class, it may constitute housing discrimination:

1. Refuse to rent

2. Refuse to discuss the terms of a rental

3. Refuse to allow the inspection of rental housing

4. Refuse to renew a lease or cause the eviction of a tenant

5. Misrepresent the availability of housing for rent or inspection

6. Apply different terms or conditions for the rental of housing

7. Refuse to allow reasonable accomodations or reasonable modifications for persons with disabilities

8. Printing, publishing or displaying advertising or notices that state or indicate a preference based on a protected class

9. Engage in harassment, coercion, or intimidation

10. Engage in blockbusting - which consists of efforts to induce or attempt to induce a person to rent housing by representation regarding the presence or entry of a person/s of a protected class or economic status

11. Steering - which includes restricting of or attempt to restrict, by word or action, an individual's housing choices

12. Segregation by floor, building, development, or community, based on membership in a protected class.

There are additional discriminatory actions within the housing context (i.e. selling of real estate) that are also addressed in the aforementioned laws that are not listed above, but I have attempted to limit my discussion to a rental housing context.

I will spend some time in future blogs providing additional explanations for some of the above -- especially "reasonable accomodations" and "reasonable modification" which I have been meaning to blog about for several months now.

It is important to remember that a landlord or manager does not need to possess the intent to discriminate in order to be found to have engaged in discriminatory behavior. Whether a landlord or manager meant to do something is not relevant; if the action was discriminatory, it will still be considered a violation of fair housing laws.

Fair Housing Update: Review of 2010 Fair Housing Trends Report

A large segment of my work involves advising landlords and property managers about fair housing laws and counseling them what they can and cannot do in the rental industry with regard to the federal and state fair housing laws and discrimination in general. As such, I recently took the time to read the National Fair Housing Alliance's (NFHA) 2010 Fair Housing Trends Report which was published May 26, 2010.

To provide you with some background on the protected classes and fair housing law in general you may wish to review my July 10th post which discusses the various protected classes or visit Atty. Ron Leshnower's Fair Housing Blog.

Some of the relevant highlights of the report are below.

- In 2009 there were a total of 30,213 fair housing complaints filed. This is a significantly higher number of complaint than in past years. It should be noted that all of these complaints do not arise in the context of rental housing -- many involve mortgage lending, hosing construction etc.

- NFHA conservatively estimates that there are over 4 million fair housing violations each year although most of them are never reported.

- In 2009 H.U.D. (U.S. Dep't of Housing and Urban Development) and D.O.J. (Department of Justice) charged more fair housing cases than in past years.

- Private fair housing groups continue to process the highest number of complaints -- 19,924 (or 66%) of the total complaint load even though there are fewer private fair housing groups than in prior years.

- Since 1999, private non-profit fair housing organizations have processed 186,308 (66%) of the complaints. By comparison, Fair Housing Assistance Program (FHAP) agencies processed 69,358 complaints (25%), and HUD processed 25,881 (9%) of the cases.

- People with disabilities continued to be the protected class that is most discriminated against (or at least the most reported) in 2009. This was also true in 2008. The report explains that disability complaints remain high for several reasons: (1) HUD has an office devoted solely to disability issues, (2) many apartment owners make direct comments refusing to make reasonable accomodations or modifications for people with disabilities so the discrimination is easier to detect, (3) builders, developers, and architects still continue to design and construct apartment complexes that violate the Accesibility Guidelines, (4) every state has a Protection and Advocacy System and every city has one or more non-profit agencies dedicated to assisting people with cognitive, mental, sensory, and physical disabilities.

ASIDE: In a recent article from Milwaukee Magazine's newsbuzz, disability related discrimination leads the way in Milwaukee also.

- In 2009, private fair housing groups reported 15, 624 complaints of housing discrimination in the rental market. FHAP agencies reported 6,464 and HUD reported 1,656. The report goes on to explain that one reason for the increase in the number of rental market complaints from prior years may be the foreclosure crises -- i.e. many tenants were evicted when the owner defaulted on his/her mortgage and many others lost their homes and needed to enter the rental market where they faced discrimination.

- In 2009, several representatives in Washington introduced bills to extend the protection of the Fair Housing Act to create 2 additional federally protected classes: (1) gender identity, and (2) sexual orientation.

Obviously, more work needs to be done to ensure that landlords are aware of the protected classes and do not engage in discrimination, but as the title of the report says - 2009 was a "step in the right direction."

ASIDE: There is a portion of the report that addresses fair housing implications of the foreclosure crisis that is very interesting and worth a read.

I Discovered A Really Informative Blog Devoted To Fair Housing Issues

This past weekend I was trying to think of some ways to add some variety and fun to Tristan's Landlord-Tenant Law Blog. While I feel that my blog is informative and helpful I wish that I could make it more fun. Toward that end I decided that I would spend some time trying some new types of blog posts in the future -- a list post (i.e. Top Ten Reasons To Not Allow Cats in Your Rental Unit, Top Ten Excuses for Paying Rent Late), a video post, a book review post.

Those of you that are regular readers of my blog or those of you that have met me personally may know that I really enjoy learning knew things relating to Landlord-Tenant law. Because of this, I was really excited this past weekend to discover a blog devoted totally to discrimination/Fair Housing issues.

The Fair Housing Blog is published by Attorney Ron Leshnower. He started his blog in 2008 to coincide with the 40th anniversary of the Fair Housing Act. The purpose of his blog, according to his bio, is to explore housing discrimination issues that are important and interesting but do not always get much press.

This blog covers all issues that could possible arise in the Fair Housing context. He talks about all of the protected classes, reasonable modifications and reasonable accomodations for individuals with disabilities, testing, voice profiling, steering, and many more issues. What I like most about this blog is that the author provides links to the actual legal documents that the federal or state government filed against the landlord, property manager, or owner who allegedly violated the law. This allows you to read the actual factual allegations. While many of these lawsuits are resolved without a need for a hearing and therefore there is no written decision necessary, it is still very enlightening to read about what specific situations are egregious enough to cause the government file a lawsuit.

What better way to learn then from other's mistakes. Some of the author's blog posts include links to fair housing studies performed by various municipalities as well as media reports.

If you are interested in Fair Housing issues as I am or just want to learn what type of actions can land you in trouble I would encourage you to spend some time at the Fair Housing Blog.

I have previously posted a three-part series about Fair Housing law that will give you some useful basic information to better understand the Fair Housing Blog. You can read those posts here, here and here.

Housing Choice Vouchers (Section 8 Rent Assistance) Are Not A "Lawful Source of Income" In Wisconsin

I am often asked whether or not a landlord is able to legally decline to rent to a tenant that is receiving "rent assistance." I believe that the primary reason that landlords are unsure of the answer to this question is because Wisconsin's Open Housing Act (Sec. 106.50, Wis. Stats.) prohibits a landlord from discriminating against a tenant or a prospective tennat based on their "lawful source of income." For more information on Wisconsin's protected classes you should read my prior post entitled "FAIR HOUSING - Part 1: What Are The Protected Classes?"

The Housing Choice Vouchers Program (previously referred to as Section 8 Rent Assistance) is a voluntary federal program that assists very low-income families, the elderly, and the disabled to locate housing in the private market. Housing Choice Vouchers are administered locally by public housing agencies (PHA's). The PHA's receive federal funds from the U.S. Department of Housing and Urban Development (HUD) to administer the voucher program. If a landlord accepts a tenant who is enrolled in the Housing Choice Voucher Program then the local PHA will pay a housing subsidy (to cover a portion of the tenant's rent) directly to the landlord. The tenant then pays the difference between the actual rent charged by the landlord and the amount subsidized by the program. For more information on the program please go to the Housing Choice Vouchers Fact Sheet which is located on HUD's website. The federal regulations that cover this program can be found at 24 CFR Part 982.

An earlier version of the Wisconsin Administrative Code defined "lawful source of income" as including "lawful compensation or lawful remuneration in exchange for goods or services provided, profit from financial investments, any negotiable draft, coupon, or voucher representing monetary value such as food stamps, social security, public assistance or unemployment compensation benefits. Sec. IND 89.01(8), Wisc. Admin. Code. (Please Note that this section of the Code is no longer available). Lawful source of income would also include child support payments, family support payments (i.e. alimony).

Under the above definition it would seem that "rent assistance" would be considered to be a lawful source of income, however the Seventh Circuit Court of Appeals -- which includes Wisconsin -- held otherwise in the 1995 case of Knapp v. Eagle Property Management Corp., 54 F.3d 1272, 63 USLW 2750 (1995).

The court in Knapp specifically held that rent assistance vouchers are NOT considered to be a lawful source of income under Wisconsin's Open Housing Act. The court reasoned that the Section 8 voucher "does not equate" to the other forms of aid mentioned above. The Court explained that of the types of income enumerated in the regulation, that rent assistance vouchers would be the most like food stamps -- but yet they are still very different. Unlike food stamps, rent assistance vouchers do not have a montary value independant of the voucher holder and the apartment sought. Additionally, unlike other forms of support, the local housing authority that administers the federal program makes the rent assistance payments directly to the landlord, rather than to the voucher holder.

The Knapp Court did acknowledge that while rent assistance vouchers could arguably be included within the definition of "lawful source of income" under the Wisconsin Statutes, that they would "decline to ascribe such an intent to the state legislature because of the potential problems in doing so."

The primary problem that the Court was referring to is that if section 8 vouchers were to be considered a "lawful source of income" then Wisconsin would in essence be making the Section 8 program mandatory for all Wisconsin landlords. As mentioned above the federal program is voluntary. The court felt that it would be wrong to allow a state to make a voluntary federal program mandatory without the legislature clearly stating that that was its intent.

Thus, it is because of the Seventh Circuit Court of Appeal's holding in Knapp that landlords in Wisconsin are legally allowed to refuse to rent to a prospective tenant that is on "rent assistance."

ADDED after reviewing comment: PLEASE NOTE THAT SOME MUNICIPALITIES HAVE DECIDED TO MAKE RECIPIENTS OF HOUSING CHOICE VOUCHERS PROTECTED --- So it is always important to check the local ordinances in which you hold property as local municipalities are allowed to create additional protected classes. Dane County and the City of Madison are notable for doing this.

Fair Housing - Part 3: Legal Reasons To Deny A Rental Applicant

From reviewing the analytics program that works in conjunction with my blog, I have learned that my two prior posts on fair housing/discrimination issues peaked a lot of interest which resulted in them being two of my most read posts to date. My prior posts can be read here and here. As a result I have decided to add another post related to Fair Housing issues.

When I give seminars on the topic of screening and accepting tenants, especially after I have just discussed the 12 protected classes, the attendees often feel as if they are not allowed to reject any applicant that is a member of a protected class. The important thing to remember is that you are legally allowed to deny rental to a member of a protected class as long as the reason you are denying them rental is not because they are a member of a protected class. This is a subtle distinction but a very important one. If you keep this distinction in mind during your screening process I think you will feel less "hamstrung" in general and hopefully more confident that you are not running afoul of the law.

Here are some examples of acceptable reasons to deny an applicant rental, which do not violate fair housing laws at the federal, state or local level (at least not in the city of Milwaukee):

1. The person smokes.

2. The person wants to keep a pet (not to be confused with a service animal or a comfort animal, both of which are not pets).

3. The applicant has insufficient income (income is defined broadly and includes more than just a salary from a job)

- Note: The City of Madison does have a local ordinance preventing landlords from denying a rental applicant based on minimum income standards.

4. The person's income cannot be verified.

5. The applicant has been arrested and/or charged with a crime.

- Note: Dane County and the City of Madison have made persons with arrest records or criminal convictions protected classes in some instances.

6. The person has been convicted of a crime.

- Note: Dane County and the City of Madison have made persons with arrest records or criminal convictions protected classes in some instances.

7. The individual has been sued for owing someone money.

8. The applicant has a money judgment against them.

9. The person does not have a prior rental history (1st time renters are not protected).

10. The applicant has a poor rental history.

11. They do not provide complete answers on the application.

12. The applicant provided false information on the application.

13. Prior landlords had negative comments about the applicant and would not rent to them again.

14. The person has poor or no credit history.

15. They have only been employed for a short period of time at their current job ( I prefer to see at least 6 months - 1 year of employment at their current job so that I know there is some stability in their source of income).

16. The individual has filed bankruptcy in the past.

17. They have a foreclosure on their record.

These are just 17 of the many legal reasons that a landlord may deny a person's rental application even if the applicant is a member of a protected class. As long as you are rejecting an applicant for a reason other than the person being a member of a protected class -- such as for the reasons set forth above -- you are not violating the fair housing laws.

To protect yourself further, I strongly suggest that rental property owners and management companies utilize written screening criteria which sets forth the minimum standards that must be met for an applicant to be accepted, or to put it another way, what will cause you to deny an applicant.

FAIR HOUSING - PART 2: Interesting Statistics from HUD's 2008 Annual Report

I was recently reviewing the U.S. Department of Housing and Urban Development’s (HUD) Fiscal Year 2008 Annual Report on Fair Housing. Not exactly beach reading but then the weather here in Milwaukee isn’t exactly conducive to going to the beach.

HUD and its various Fair Housing Assistance Programs (FHAP) agencies handle all complaints regarding discrimination related to the federal protected classes. To see a list if the 7 federal protected classes please refer to my earlier post here. The report contained some very interesting statistics. You can review the entire Annual Report here. (Be patient as it is a large document and takes awhile to download)

In 2008, HUD and its FHAP agencies received a record-breaking number of housing discrimination complaints – 10,552. That is a huge number when you realize that only a small portion of complaints are ever reported. Added to that is the fact that most states also receive and investigate fair housing complaints with regard to alleged discrimination of the state’s protected classes (which often overlap with the federal classes). And many large cities also have a municipal agency that investigates complaints as well. In Wisconsin, for instance, the State’s Equal Rights Division (ERD) investigates complaints of Wisconsin’s Open Housing law. For a list of Wisconsin’s protected classes see my earlier posts here.

This is the third year in a row in which HUD and its FHAP agencies received more than 10,000 complaints.

The most common basis of housing discrimination complaints was involving a "disability" (4,675 complaints or 44%) with "race" coming in second place (3,669 complaints or 35%). The most common type of complaint was discrimination in the terms, conditions, privileges, services or facilities for the sale or rental of housing (5,862 complaints or 56%) – typically this means treating a person differently such as having different requirements or rules for a person based on their protected class status. In second place was the refusal to rent to members of a protected class (2,697 or 26%).

In 2008 HUD and its FHAP agencies closed 11,189 housing discrimination complaints - an all-time record. 54% of those complaints resulted in a determination on the merits by HUD (they made a determination as to whether or not their was discrimination in the specific case), while 29% of the complaints were resolved in a voluntary resolution by the parties prior to HUD making a decision as to whether or not there was discrimination. The remaining cases were closed for administrative reasons, the report states.

Over the last 4 years, apparently the number and the type of complaints have remained relatively stable. There was a slight increase in the number of complaints of disability-related discrimination and a slight decrease in complaints related to a person’s race over the past 4 years.

Fair Housing claims are not inexpensive. Housing discrimination charges that continue to the point that a hearing is held before an Administrative Law Judge (ALJ) carry a maximum civil penalty of $16,000 for a 1^st offense. That does not include the actual damages that can be awarded to the aggrieved person, nor do they include the attorney’s fees (of the complainant) or the costs that can be awarded. Even if there is a finding of no discrimination, the cost to pay your own attorney is often quite high because of the length of time it takes for HUD to complete its investigation. Once a complaint has been issued HUD has up to 100 days to conduct its investigation. According to the report, over 800 investigations involved investigations lasting beyond the 100 days. In the several fair housing cases that I have been involved with, the investigation process always lasted longer than 100 days and was very intrusive for my clients and their current and past tenants.

2008 was the first year in which HUD issued its first charge of discrimination in a case that alleged same-sex sexual harassment (two male roommates alleged that the property owner and a maintenance worker subjected one of the roommates to verbal and physical advances that were sexual in nature).

Other key cases in which HUD issued discrimination charges in 2008 included a complaint against a retirement community that refused to allow the use of motorized scooters in the units, and a complaint that a property owner refused to allow the keeping of an emotional support animal by a young boy with a form of autism (Asperger’s Syndrome).

If there is one key point to remember after reviewing HUD’s 2008 Annual Report it is that it is better to be very well-versed in the law of Fair Housing issues so that you can operate in a proactive manner by implementing legal screening and management policies, than it is to have to defend against a charge of discrimination after the damage has already occurred.

FAIR HOUSING - PART 1: What Are The Protected Classes?

A large part of my law practice is meeting with and consulting with landlords and management companies with regard to how to avoid trouble. This would include assisting them with the drafting of rental documents and guiding them on the proper notice to use when terminating a tenancy. It also includes consulting with clients with regard to fair housing / discrimination issues.

I enjoy this consulting work as it typically occurs before the landlord is embroiled in a dispute or litigation – thus my client tends to be in a better mood at the consulting stage which puts me in a better mood also.

Recently I have had a lot of calls on topics related to discrimination and fair housing and so I thought that I would devote several posts in the future to topics related to fair housing issues.

The easiest place to start would be to identify the various protected classes under Federal and Wisconsin law.

Federal law (which starts at 42 U.S.C. 3601 et. seq.) has 7 protected classes which are:

1. Race

2. Color

3. National Origin

4. Sex

5. Religion

6. Familial Status

7. Handicap

Wisconsin law (which is found at §106.50(1), Wis. Stats) also includes the above 7 protected classes plus adds an additional 5 more, which include:

1. Marital Status

2. Sexual Orientation

3. Lawful Source of Income

4. Ancestry

5. Age (18 years and older)

It is important for managers and owners to also check their local municipal ordinances as well as because there are some municipalities that have added additional protected classes. The city of Madison for instance also treats convicted criminals, students, and a person’s physical appearance as additional protected classes. You can read more about the City of Madison municipal code - Ch. 32 entitled Landlord and Tenant here.

So if you make a housing decision based on a person’s membership in a protected class you may have discriminated against them. Discrimination in housing covers a wide range of activities such as: refusing to rent to, refusing to discuss rental terms with, refusing to allow the inspection of rental housing, refusing to renew a lease, causing the eviction of, misrepresenting the availability of rental housing, applying different terms or standards, and engaging in harassment, intimidation, or coercion of. There are many more but you get the general idea.

It is important to remember that a landlord does not need to have the intent to discriminate in order to be found to have engaged in discrimination. Also be aware that most insurance policies do not cover an owner’s or manager's discriminatory acts.

Remember that just because someone is a member of a protected class does not mean that you cannot deny them rental or evict them. It only becomes discrimination if you do the above because they are members of a protected class. So if you are denying a person rental or filing an eviction action against an individual for reasons other then their protected class status then you are not discriminating against them. For example, if a person does not meet your screening criteria because they have been evicted in the past, have no prior rental history, or their gross monthly income is not 3 times the monthly rent (or some other legal screening criteria that you have in place) then it is not discrimination to deny that person rental even though they may also be a member of a protected class.

NEW LEGISLATION TO MAKE VICTIMS OF ABUSE A NEW PROTECTED CLASS

On May 14, 2009, Wisconsin Senator Spencer Coggs along with 7 other state senators introduced 2009 Senate Bill 204 entitled the "Victim Fair Housing Act."

This bill will prohibit discrimination in housing on the basis of a person's status as a victim of domestic abuse, sexual assault, or stalking. The bill also prohibits the owner of housing from requiring that a rental applicant supply information concerning the person's status as a victim of domestic abuse, sexual assault, or stalking.

If passed (and there appears to be a great many co-sponsors to date) this bill will create an additional protected class in Wisconsin for victims of domestic abuse, sexual assault, and/or stalking with regard to housing. Discrimination in housing includes such actions as rejecting a person who applies to rent your property or causing the eviction of a current tenant solely because they are a member of a protected class. Wisconsin currently prohibits discrimination in housing based on a person's sex, race, color, sexual orientation, disability, religion, national origin, marital status, family status, lawful source of income, age, or ancestry. Some municipalities like the City of Madison and Dane County have even more protected classes then the twelve mentioned above.

While I am not aware of any landlord that would refuse to rent to a victim of abuse in theory it is when that theory is dropped into the "real world" that sticky situations may arise. One concern I have is the fact that the abuser often follows his/her victim. This could pose noise and safety issues for the other tenants that reside in the same building with the abuse victim. What happens if the abuser shows up at the victim's apartment banging on doors and disturbing the quiet enjoyment of the other tenants? Is a landlord allowed to evict the abuse victim/tenant in this situation? Or worse, what if the abuser shows up at the property and engages in criminal acts such as destroying the landlord's property or assaulting other tenants who get in his/her way? Will the landlord be prohibited under this new law from evicting the abuse victim/tenant under this scenario? While I don't think it is fair to evict the abuse victim in these situations I also don't think it is fair that the other tenants and neighbors should have to endure such situations either. What is the landlord who is providing housing to that abuse victim to do? The landlord also owes his/her other tenants the right to quiet use and enjoyment of the property and to be free from criminal activity and harm.

Another concern is the fact that under the City of Milwaukee's nuisance ordinances a landlord can be fined for having repeated calls to the police from the same property within a certain period of time. If the abuser should try to contact the abuse victim/tenant there is a strong probability that the victim will call the police (and they should). But under the nuisance laws, even if the police calls are legitimate, if there are too many of them the owner of that property may be fined. If the landlord doesn't pay the fine it will be added to his/her property tax bill. While I have no supporting data, I think it stands to reason that a victim of abuse may need to contact the police more often than a non-victim of abuse

I don't know what the answer is or should be. I certainly don't think that victims of abuse should be discriminated against in housing but I also hope that the legislators, the police, the city and others that will be drawn into this dialogue will understand that there needs to be some protections or accommodations made to a landlord who may be stuck between the proverbial "rock and a hard place."

Tell me what you think about this new legislation and how it might affect your rental properties.

Here is a link to view the press conference regarding the Victim Fair Housing Act.