Q: During an interview with a potential landlord, we were asked some odd questions that, on reflection, seemed designed to find out if we are religious. She asked me where we got married (not just the city, but the site), and how we liked to spend Sundays. We replied honestly — we got married at a hotel, and spend Sundays on our bikes or hiking — no mention of attending religious services. Though we have excellent credit and references, we were turned down, and later learned from someone in the building that the owner is practically a religious fanatic. Was this an instance of illegal discrimination? –Marcia S.

A: Let’s assume for the moment that this landlord was in fact trying to figure out whether you were religious. Under the federal Fair Housing Act (and similar laws of many states), landlords may not "… make … any … statement … with respect to the … rental of a dwelling that indicates any preference, limitation, or discrimination based on … religion,"  per 42 U.S.C.A. Section 3604(c).

When discrimination based on religion comes up in the rental application process, it’s usually in the form of a landlord wanting to avoid renting to prospects of a certain religion, or wanting to attract those of specific religions.

For example, a landlord’s remark during an interview that few Catholics live on the property could be evidence of that landlord’s preference for non-Catholics. Conversely, a landlord’s repeated references to a nearby synagogue and the house rule for quiet hours between sundown on Friday to sundown on Saturday could be taken to convey a preference for religious Jews.

What you encountered, however, was not a preference for or against people in specific religions, but evidence of the landlord’s preference for religious persons in general. The question is, did Congress intend to protect people who are not religious from discrimination to the same extent that members of mainstream religions are protected?

This question has been answered with a resounding "yes" in the employment context. Simply put, religious freedom includes the freedom to reject religion: For the purposes of anti-discrimination law, not believing in God (or a particular religion’s version of same) is a protected religious belief. If employers refuse to hire or otherwise discriminate against humanists, agnostics or atheists, employees can sue for religious discrimination. As odd as it may seem (particularly to atheists), these laws treat atheism as a form of religion.

To my knowledge, no state or federal court has addressed the question in a rental context, however. If you were to take your case to court, you’d be asking the judge to take a cue from the employment cases and give you the protection of the anti-discrimination laws. …CONTINUED

But then you’d face two more significant hurdles. First, you’d have to prove that the landlord’s questions were intended to ferret out nonreligious applicants (or had the effect of discouraging nonreligious applicants). Though the questions seem pointed, they could simply be an inept attempt at small talk by someone who is trying to get to know you.

And if you couldn’t prove discriminatory intent, you’d have the burden of proving that others like you thought that the landlord was discriminating and felt discriminated against. That is a tall order. Second, you’d need to convince the judge that your answers were more likely than not the cause of your not getting the rental. Again, not an easy task.

For example, if the successful applicant had a better credit score, more enthusiastic references, or an expressed desire to remain in the rental for a longer period of time, the landlord could reasonably point to these legally legitimate factors as the reason you didn’t get the rental.

Q: I have a durable power of attorney for finances for my sister. She is ill and in the hospital, and will go to a convalescent center after that. I need to get into her apartment to get her safe deposit box key and other important things. But her landlord won’t let me in, even after I’ve explained who I am. What can I do? –Kathy B.

A: As the holder of your sister’s durable power of attorney for finances, you have the right to act on her behalf when it comes to managing her finances if she becomes incapacitated. This includes paying bills, making bank deposits, watching over investments, collecting insurance or government benefits, and handling other money matters on your sister’s behalf.

A "durable" power takes effect as soon as you both sign it (though of course you wouldn’t use it until you need to). Sometimes people prefer to make the power of attorney take effect only when a doctor certifies that the person making the document is incapacitated; these are called "springing" durable powers of attorney because they spring into effect once the maker is incapacitated.

Check your document to see if it requires a doctor to certify that your sister is in fact incapacitated. If so, you are dealing with a springing document, which means you’ll need to give it to her doctor and request written certification of incapacity. Take the document itself (plus the certification, if you’re dealing with a springing power) to the landlord. The document should look rather formal (it will have a notary’s seal).

Also bring a copy of the document to leave with the landlord. (The landlord may want to show it to a lawyer.) You might also bring some explanatory material that will help the landlord understand the purpose of the document and feel comfortable honoring it. (You can get state-specific explanations of powers of attorney from this site.) Hopefully, this will convince the landlord that you have the legal right to enter.

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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