Can landlord refuse to house Section 8 tenant?

Rent it Right

Q: We own and manage a small apartment building, and we have never participated in the federally subsidized “Section 8″ program (we don’t want the administrative hassles of dealing with the local housing agency). We recently rejected a disabled applicant who otherwise qualified for an apartment because she wanted to use a Section 8 voucher (she can’t pay the full rent without it). She claimed that because her participation in the program is a result of her disability (she has a serious illness and can’t work), we were required under fair-housing laws to change our policy and participate in the program. We refused, but we’re nervous — is the law on our side? –Ruth and Bob C.

A: Under fair-housing laws, you do indeed have a duty to make “reasonable accommodations” so that disabled tenants may live safely and comfortably at your property. Most of the time, those accommodations involve making physical alterations, such as installing ramps, or changing internal policies, such as varying your first-come, first-served parking policy so that a disabled person may get a spot right away. But whether landlords must vary their “no Section 8″ policies due to an applicant’s disability-driven inability to pay the full rent is another matter, and the answer is not simple.

When Congress enacted the Fair Housing Amendments Act, it’s not clear that they thought about this question. The House of Representatives report on the law gave various examples of situations that would be reasonable accommodations, such as grab bars, flashing doorbells for hearing-impaired tenants, lever doorknobs for tenants with severe arthritis, and ramps and fold-back hinging doors for tenants in wheelchairs. None of the examples included steps that would alleviate a nonphysical byproduct of a person’s disability, such as financial circumstances that necessitate participation in a government-sponsored program. However, it’s also possible that rather than consciously excluding situations like your applicant’s, Congress simply never even considered the issue of “financial accommodations.”

So where does this leave us? Fortunately, you aren’t the first to raise the question. Back in 1994, a federal appellate court ruled in favor of your position (Salute v. Stratford Greens Garden Apartments, 136 F.3d 293 (2d Cir. 1998)). Technically speaking, that ruling covers only Connecticut, New York and Vermont landlords, though Connecticut landlords can’t take advantage of it (in Connecticut, by state law landlords cannot refuse to rent to new or existing tenants with Section 8 vouchers, no matter why they have them). In practice, many courts in other states will choose to follow the Salute lead. Judges might also point to Congress’ failure to amend the fair-housing law over the many years since the Salute decision came down — if Congress felt the court had misinterpreted the law, they’ve had ample time to amend it and set the record straight. It’s reasonable to assume that Congress’ silence bespeaks agreement.

One last word of caution: Your state or municipality may have something to say about your ability to refuse to participate in Section 8. As mentioned, Connecticut landlords must accept Section 8 tenants; and in New Jersey, if an existing tenant becomes eligible for Section 8 assistance, landlords must participate at least as to this tenant. To find out whether your decision as to your applicant is supported by law, check with your local HUD office. Go to www.hud.gov and choose the “information by state” link, then call your nearest Fair Housing Agency (FHA) office.

Q: As I prepared to move out of my rental, I looked again at the clause in my lease concerning the move-out inspection. It says that management won’t be bound by what the agent writes on the form during our walk-through. This seems preposterous — what’s the point of the inspection and the agent’s signature if it can be changed later? –Oscar N.

A: This owner is trying to pull a fast one. The whole point of a walk-through is to record what the place looks like at the end of your tenancy, just before you walk out the door for the last time. After you leave, any subsequent damage can’t legally be attributed to you. Damage that’s “discovered” after you depart is most likely the result of sloppy workers readying the place for the next tenant, but that’s the landlord’s problem, not yours. After-the-inspection “damage” may also not even exist — it may be simply the landlord’s way of hanging on to more of your deposit.

Next time you see a provision like this in a lease, cross it out and if the landlord objects, proceed at your peril. You’ve had a good look at how this person intends to treat you, and it’s not legal or fair.

Q: My landlord refuses to repair our hot water heater, which on occasion delivers scalding water. I know about our state’s repair-and-deduct remedy, and I’ve told him that unless he takes care of it, I’ll get it fixed and deduct the cost from the rent. He just laughed and told me I’d regret it, because he’d file an eviction lawsuit against me and even if I won, I’d never get another rental. What’s he talking about? –Daniel P.

A: This landlord is taking advantage of a disturbing development in tenant screening. Here’s what’s going on: Tenant screening companies (these aren’t the same as credit agencies) collect data on tenants, which they gather from court records, other sources and directly from landlords themselves (although the companies dispute this). An eviction lawsuit, even one that the tenant wins or the landlord dismisses, will normally show up on a screening report, typically without any indication as to how the case was resolved. Many landlords order screening reports on potential tenants, and they automatically reject applicants whose reports note that they have been involved in an eviction. Your landlord is threatening you with nothing short of blacklisting, and is pressuring you out of exercising the rights that your state gave you — the right to a fit and habitable rental, and the ability to achieve it when your landlord won’t step up.

Now, suppose the landlord follows through and files an eviction lawsuit against you after you’ve lawfully used your state’s repair-and-deduct remedy. Let’s further suppose that you win or the landlord dismisses the case. A screening report ordered by a subsequent landlord will probably simply note the eviction filing, and nothing more. What can you do? The Fair Credit Reporting Act applies to tenant screening agencies, but it doesn’t give you the tools you need to force the screening agency to accurately describe the outcome of an eviction lawsuit (your only recourse is to write a 100-word statement giving your side of the story). Only California gives tenants some real protections — it permanently seals the court records of tenants who win their cases within 60 days of filing, so that frivolous or abusive evictions, like your landlord’s announced plan, aren’t available to the screening agency.

California-like protections may start to benefit tenants in other states by virtue of lawsuits, not legislation. Tenants in New York filed a class-action lawsuit against the country’s largest screening agency, First Advantage SafeRent, alleging that they were effectively being blacklisted when evictions were included in their screening reports and described as simply “case filed.” To settle the case, SafeRent agreed to make its database more complete and up-to-date, and to implement procedures to review and, if appropriate and reasonable, address any potential problems that may arise. They also agreed to implement a new procedure whereby tenants can potentially get their court record completely deleted from the report when the case didn’t have merit, was brought in error, or for similar reasons. Unfortunately, only First Advantage is bound by this settlement, and other screening companies do not have to follow it.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of “Every Landlord’s Legal Guide” and “Every Tenant’s Legal Guide.” She can be reached at janet@inman.com.


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