Beware of renting in mixed-use building

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Q: I’m considering renting an apartment in a building that has commercial space on the ground floor. There’s a restaurant and a dance studio. Are there issues I should be aware of and raise with the landlord before I sign a lease? –Pam M.

A: Renting in a mixed-use building can have some real advantages to residential tenants. The commercial neighbors may have businesses that tenants will enjoy patronizing — how handy if you find that you enjoy eating at the restaurant right after your tango lessons! But there can be some real downsides, which you’ll want to discuss with the owner (and perhaps existing tenants) before you commit.

First, find out how the commercial tenants pay for building services, such as water, electricity, garbage and common-area maintenance. You’ll want to make sure that the commercial tenants pay their fair share, either because these services are separately metered or charged to the commercial renters, or because the costs are allocated between the businesses and the residents based on actual use.

For example, make sure that everyone doesn’t have to chip in for frequent garbage collection (which may be necessary for the restaurant tenant) when regular weekly garbage service would suit the residential tenants just fine. A similar issue arises regarding security — the restaurant may have a doorman or even a security patrol, but do you need that? If not, are you still going to be paying for part of it?

Second, consider the impact on the residents’ quality of living from the restaurant and the studio. Is the restaurant adequately ventilated? No matter how good the food, you’ll get tired of smelling veal picatta every night of the week. Ditto with the studio — are they offering demure ballet classes, or exercise classes with high-volume music? You’d be well advised to confirm any answers from management with existing tenants.

Next, consider some very practical issues. Unless you get a dedicated parking spot with your rental, you will be competing with business employees and patrons for space on the street. How difficult will it be to park? Find out also about access to your rental — will you share a common entryway? If so, will you end up paying for the maintenance of this lobby or hallway?

And will you feel OK about mingling with sweaty dancers or tipsy restaurant-goers on your way up or downstairs? In addition, if these establishments will be closed during part of the day or on specific days, will you be secure and safe as you leave and enter the building?

Finally, find out about the reputation of these businesses, and how long their leases will last. You may feel fine now about living upstairs from a nice Tuscan-style grill, but not so good when their lease ends in six months and a bar takes over the space. Though you can’t control who comes and goes in the commercial space, knowing that the current businesses have a long stretch left on their leases will make it less likely that unattractive businesses will soon become your neighbors. …CONTINUED

Q: While looking online for a rental for my family, I’ve noticed several ads that blatantly say "no kids," or "adults only." I even saw one that prohibited teenagers! Isn’t this flatly illegal? –Ron L.

A: In a word: yes. Refusing to rent to families with children, including a refusal to rent to children of a particular age, is absolutely against the federal fair housing law. These landlords have already broken the law just by posting these ads; if and when they actually turned down a prospective tenant because the tenant had children, that would be another legal violation.

If they were named in a complaint by the U.S. Housing and Urban Development Department or a state fair-housing enforcement agency, they’d be facing a hefty fine for that ad and a session or more of required fair housing training, to boot. If these ads appeared in print newspapers or magazines, those publishers would be just as liable because the law makes publication of discriminatory ads illegal, too.

But what about the Web site that posted their ads? These sites are not, under current law, liable for the ad, as long as the sites do nothing to filter or direct the ads.

They’re taking refuge (some say taking advantage of a loophole) in the Communications Decency Act, which protects Web sites from liability for the public’s postings as long as the postings are not reviewed or directed by the sites (as in, for example, allowing posters to choose from drop-down menus that include discriminatory choices). As soon as a Web site directs or actively reviews such ads, the sites become publishers and lose their immunity under the CDA.

The mischief done by online ads is significant. According to a report published by the Fair Housing Alliance, there simply are not enough legal resources to go after the posting landlords themselves. In the alliance’s study of recent ads, fewer than one in eight instances of online discrimination resulted in a complaint filed against the landlord who posted the ad. The consequence is that the ads remain up, giving viewers the impression that such discrimination is legal.

Renters will be discouraged from contacting those properties, and when a number of online ads show that certain neighborhoods are unfriendly to families, these families will be discouraged from living in whole areas of town. As the foreclosure crisis continues to claim single-family homes, families are increasingly entering the ranks of renters, making the impact of such ads even more pernicious.

The Fair Housing Alliance has sensibly proposed an amendment to the Communications Decency Act that would remove the shield currently enjoyed by passive Internet Web sites when the ad violates federal fair housing laws. It’s hard to imagine that we as a country put a higher value on allowing "no kids" ads on the Internet than on putting an end to rental discrimination.

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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