Gay marriage good for landlords

Q: I'd like to know if I'm risking a lawsuit if I refuse to rent an apartment to two men who say they are married. I have nothing against gays or lesbians, but I believe that marriage is not appropriate in this situation. These applicants tell me they are legally married (in Massachusetts), and that if I turn them away for this reason, I'm discriminating against married people. In my state, gay and lesbian couples are not allowed to marry, but I understand that in Massachusetts they can do so. What are my rights in this situation? --Anita B.

A: For the moment, let's just focus on the law. It's true that in Massachusetts (and in California, by the way) gay and lesbian couples can marry. This gives them, in these states, all the rights of married heterosexual couples. If you lived in Massachusetts or California, you would be violating those states' fair housing laws if you refused to rent to these men on the grounds that they are married (or because they are gay), no matter what your personal beliefs.

But you've told us that your state does not recognize gay marriage. Well, that most likely means that as far as your state is concerned, these guys are just not married! For example, if they wanted to end their marriage, they probably couldn't get a legal divorce in your state -- but a heterosexual couple from Massachusetts would have no trouble. If you truly have nothing against renting to two men who are a couple but not married, your state has done you a favor: Within the confines of your state's border, the marriage doesn't exist.

Your question seems to tell us that you'd have no problem renting to two people of the same gender, as long as they weren't married, but that marriage is the problem. Is it really? Think about what these men agreed to when they tied the knot in Massachusetts -- to care for each other, financially and otherwise, for life. How many unmarried cotenants have that kind of commitment? If anything, this level of commitment indicates that they will be stable tenants -- one's loss of a job, for example, will not likely result in the other booting him out, as might happen with mere roommates. In fact, that's why many landlords are reassured when they rent to a married couple. You might end up with better tenants if you focus on the qualities that make applicants good risks, rather than thinking about the theoretical effects of a marriage license.

Q: We're having a problem with one of the tenants in our apartment complex. This woman is verbally abusive towards my wife, who is a member of an ethnic minority. On several occasions, my wife has been yelled at and intimidated, to the point that she is afraid to use the laundry facilities. We've talked to management, but they say their hands are tied because they can't control what other tenants say. Is this correct? Can we sue the landlord? --James B.

A: Management's response is a bit meek, to say the least. By law in most states, and included in even the simplest stationery store leases, tenants are required to behave in a way that does not disturb other tenants' abilities to enjoy their rented homes. This is known as tenants' right to "quiet enjoyment," and when tenants cross the line (by having boisterous parties or failing to respect other tenants' rights to use common areas), landlords may evict them. When ethnically derisive harassment escalates to the level you describe, it's hard to imagine any judge not agreeing that your wife has been deprived of the opportunity to enjoy her rented home or its amenities.

Your landlord may be unaware of this legal option, or may be too disengaged to exercise it. Unfortunately, you cannot evict the harasser, nor can you force your landlord to act. Wanting to sue the landlord for failing to act is a natural next step, but here you may run into a roadblock.

The situation you describe is akin to a "hostile work environment," which can develop when employees harass others, either directly or indirectly, in violation of state or federal laws. Common examples include making sexually or racially derogatory remarks or posting sexually explicit pictures for all to see. When an employer knows about law-breaking activity but fails to stop it, the law often holds that employer as liable as the offender himself. Wouldn't it be convenient if, in a landlord-tenant matter, you could argue similarly that tenants are extensions of the landlords, making landlords liable for their bad behavior?

Alas, this argument has thin legal support behind it. Most judges will not task landlords with the same responsibility for harassment that they will apply to employers, unless the state's fair housing law explicitly authorizes it (Virginia is one such state). Plenty of cases will find the landlord responsible when the landlord, manager or other employee of the landlord is the harasser, but that's not what you're dealing with here. Management's blind eye to the offensive behavior of your fellow resident probably won't give you the involvement you'll need to sue management for the resident's conduct.

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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