Q: I am a landlord in a Southern border state. I’ve just learned that a family on my property is in the United States illegally. On the one hand, I really don’t care — these are good tenants who pay the rent and cause no problems. But I remember that some churches in our state were charged with illegally "harboring" illegal immigrants many years ago, and I’m wondering if I am at risk for being charged with harboring this family. –William P.
A: "Harboring" a person who is illegally in the United States has been a federal crime since 1917. It’s been used against human trafficking rings and, in the 1980s, against the Sanctuary Movement that involved churches and individuals giving shelter to Central American asylum seekers. The current law is in the Immigration Reform and Control Act of 1986, which made it a crime to "conceal, harbor, or shield from detection" an illegal immigrant. If you’ve acted "knowingly or in reckless disregard of the fact that an alien has come to, entered or remains in the United States in violation of law," you come within the law’s reach. Unfortunately, Congress never defined the term "harboring." And although Congress has explicitly said that employers who knowingly hire undocumented immigrants are not guilty of harboring, they’ve never given rules for landlords.
As is common when there’s a legislative vacuum, the courts step in with its ideas of what’s what. In the case of harboring, federal courts haven’t agreed. Some (covering Connecticut, New York and Vermont) have defined the term to mean housing undocumented immigrants in an effort to hide them from law enforcement; others (in Texas, Louisiana and Mississippi) have understood it to mean simply housing immigrants whom the landlord knows to be illegal, and an even looser definition (used in Arizona, California and other Western states) defines harboring as merely being part of the transportation of illegal immigrants without necessarily knowing that they’re here illegally, let alone attempting to shield them from detection.
If you live in a state whose harboring definition covers your situation, you aren’t necessarily without a defense. First, prosecuting landlords for harboring illegal immigrants would place them in the untenable position of having to ascertain their tenants’ immigration status. Immigration law and documents are arcane and difficult to understand, and it’s a task that the federal government has reserved for itself. For this reason, many of the "anti-immigrant" ordinances that have sprung up since 2005, making it illegal to rent to or employ illegal immigrants, have been struck down as impermissible infringements on the federal government’s right to regulate immigration. If you’re in California, you have a really good defense: By law, you’re forbidden from asking tenants or prospects about their immigration status.
Second, a risk of harboring charges would invariably lead to more fair-housing complaints based on discrimination on the basis of "national origin," which is illegal under the federal Fair Housing Act. Again, because immigration papers are so difficult to interpret, a landlord could unwittingly deny housing by misreading the documents — but the disappointed applicant may interpret the denial as based on his national origin. Regardless of the outcome of the complaint, it will ensnare the landlord, a fair-housing agency, and perhaps a court until it is settled or resolved.
Finally, consider that being in the U.S. illegally is a civil wrong that’s punishable by deportation; but harboring is a crime, with a possible sentence of prison and a fine. Sending a landlord to prison and the tenant to the bus station is a result that won’t sit well with many judges.
The best answer you’ll get on whether you’re at risk for harboring will come from a savvy assessment of the political interests of those who could bring charges — the local federal prosecuting attorney and immigration authorities. Not that you should give them a call and ask if they have any plans to arrest landlords for harboring — that might plant an idea that otherwise wouldn’t have sprouted. Instead, try to find an attorney in your area who represents people charged with federal crimes, and hopefully has an immigration practice, too. That person ought to know, or be able to discretely find out, what interest, if any, federal officials have in going after those who rent to illegal immigrants.
Q: My wife and I live next to a rental unit, and until recently we’ve had no problems with them. The kids are now teenagers, and were caught going through our mailbox by another neighbor. We don’t know if anything was taken because we were on vacation at the time, but still, it is against the law. We contacted the Postal Service, but should we also let the landlord know what is going on with his tenants? –name withheld
A: You might want to start with the kids’ parents. Because you’ve had no problems with them, you may find that a neighborly talk, without harsh language or threats, will produce results. Many parents appreciate the chance to intervene when their kids go astray, and will do their best to correct their children’s behavior. When you have your conversation, begin by acknowledging that you understand how it is with teenagers; that they experiment, push boundaries and sometimes go too far. I doubt you’ll find too many law-abiding adults who didn’t, in a moment or two of adolescent waywardness, get into or at least court trouble. Casting your conversation in this light will hopefully diffuse any defensiveness your neighbors might feel. Hopefully, you’ll come away with assurances that the kids will be talked to (and any purloined mail returned) and it won’t happen again. If I were you, however, I’d take the preventative step of purchasing a locking mailbox, just in case.
If you don’t get the reception and assurances you need — if the parents become angry and deny that their little angels would ever do such a thing — you might consider contacting the landlord. Once the landlord has been told, he is on notice that illegal activity is occurring on or near his property, perpetrated by his tenants. In many states, he is legally required to deal with it effectively or evict his tenants. When the landlord confronts his tenants, he may get better results than you, because he has an ultimate threat — eviction — that you don’t have.
Finally, if you get no results from the landlord, you could contact the police. As you note, this is a crime, and you’re likely to at least get an officer to come out, interview you, and interview the teenagers. People in uniforms with guns might make the impression that’s necessary to keep your mail where it belongs.
Q: We own a cabin in the mountains that we have decided to rent out during the summer. We’ll be offering the cabin for two-week periods. It’s an old structure and pretty rough, in a remote spot. We’ve been advised that we’ll have to make it "accessible" if a prospective renter is disabled and requests some modifications. I know that a regular landlord would have to do this, but do these rules apply to a vacation situation like ours? –Dave M.
A: As humble and remote as it is, as soon as you begin advertising your cabin, it becomes subject to the federal Fair Housing Act, which not only prohibits discriminatory advertising and practices, but requires you to work with a tenant who has a disability and asks for a modification (of the structure) or an accommodation (of your rental practices). Normally (except in Massachusetts and federally subsidized buildings), tenants pay for structural modifications. Landlords can require that the structure be returned to its original condition at the end of the tenant’s stay.
In practical terms, your ability to require the tenant to pay for the changes (and undo them before moving out) will result in many tenants saying "this won’t work" when viewing your property. Few tenants are interested in living with construction during their vacation and arranging to have modifications reversed when they leave, let alone paying for all of it. Of course, it will depend on what’s being asked. A prospect who requests only grab bars in the bathroom may happily welcome the contractor for a morning’s worth of work, but someone who needs lowered cabinets and a ramp probably won’t want that level of disruption or expense.
Note that the law requires you to "work with" a tenant who asks for an accommodation or modification. The law doesn’t require you to grant every request, even one that’s precisely what the tenant needs in order to live safely and comfortably in the rental. You may refuse if granting the request would place an undue burden on your ability to run your business. For example, structural changes that would necessarily result in a permanent change might destroy a feature of the cabin that you consider a main attraction (once you rip out those ancient but artsy counters and cabinets to make room for a tenant’s wheelchair, for example, you may not be able to put them back). Be sure to evaluate each request separately, honestly assessing the impact on your business if you grant the request.
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 [email protected].
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