LEGAL HOTLINE ARCHIVE
Fair Housing

Q. Can a landlord legitimately require a drug test of a prospective tenant?

A. This is a hard question, with fair housing implications. Our bottom line answer is that we would advise against requiring drug tests of prospective tenants unless the test is required of every prospective tenant (excluding minor children), regardless of race, color, religion, sex or national origin, and is based on sound, documented business reasons. This advice is based on the following considerations.

From a legal standpoint, housing-related discrimination based on a handicap is prohibited. A current drug-user does not fall within the definition of a "handicapped" person, and is therefore not entitled to the protection of state and federal fair housing statutes. In other words, discrimination based on current drug use is permissible. The same is not true of someone who has completed or is currently participating in a supervised drug rehabilitation program.

A practical question is then "How will I know if someone is a current drug user if he/she is not tested?" Based on our conversations with HUD officials in Fort Worth, Texas, there are a couple of problems even with this question. Initially, the test might identify lingering drug traces in someone who is currently participating in rehabilitation (i.e., a protected class under the statutes). Secondly, the administration of the fair housing statutes is "complaint-driven." It is almost certain that someone would file a complaint that the drug test is merely a pretext for discrimination based on another protected class.

There could be sound business reasons, such as first-hand experience and empirical studies which support the proposition that certain persons in certain locales are more likely to be involved in drug use and/or trafficking (and the attendant violence associated therewith), which could support testing certain persons rather than others. Moreover, persons who are a direct threat to the health or safety of others, or whose tenancy would result in substantial physical damage to the property of others, are also not protected by fair housing statutes. The problem again is a practical one -- the landlord would have to be prepared for a very costly challenge on the underlying basis for the drug test or the denial of the tenancy based on a refusal to submit to the drug test.

Q. 1. In a situation, where a judgment has been entered against a broker for a fair housing violation, and the broker files a voluntary chapter 7, can the judgment from the fair housing suit be discharged with the other obligations?

2. In preparing a manual for a board sponsored class, can various newspaper ads be used without liability to the board or instructor? RE: copies of real estate for sale ads from around the state complied in a manual for the class to review for compliance with the Fair Housing Law. If the ads are used, should the name and telephone number be deleted? Should the ad be re-written into another form or just copied onto transparencies?

A. Question 1: Yes, a judgment such as this is indeed dischargeable in a voluntary Chapter 7 proceeding unless the debtor is not an individual.

Question 2: If actual ads are compiled for purposes of review and critiquing vis-a-vis Fair Housing statutes, we would strongly advise that all matter therein which identifies the broker (name, telephone number, logo, etc.) be deleted. Without getting into hypothetical facts and various legal theories, we can certainly foresee potential liability if such identifying criteria are not removed. The ads don't necessarily have to be "re-written" into another form, unless it is impossible to delete all such criteria without so doing. In any event, the farther you can distance yourself from identification of the ad's author, the better.

Q. A property is offered for lease through a real estate agency. A prospective tenant completed a standard rental application form. References were checked and deemed acceptable by the agency. When the application was presented to the owner of property, the property was "arbitrarily" removed from the rental market, the rental agreement with the agency was canceled and this agency was asked to list this property for sale.

1. Is this act, in itself, a violation of the Fair Housing Law?
2. If this property owner is truly still interested in leasing this property but is deliberately trying to avoid leasing the property to a particular tenant, what is the legal procedure for offering this property for lease again? For example, what amount of time must lapse before this property is offered again for lease on the open market?

A. Question 1: The act described is not, in itself, a violation of Fair Housing Laws. It would, however, be a matter of proof regarding whether there was a hidden reason (i.e., discrimination based on race, color, religion, sex, handicap, familial status or national origin) for the owner’s refusal to rent or negotiate for rent. In the event of a challenge, the burden of proof is almost always on the owner and the broker.

Question 2: If this property owner is still interested in leasing the property, but is deliberately trying to avoid leasing the property to a particular tenant, there is no legal procedure or amount of time (before offering the property for lease again) which would legally "protect" the owner prospectively. In other words, the same anti-discrimination principles will apply. Perhaps you are referring to the applicable statute of limitations or prescriptive period. If so, see below.

As a practical matter, the sooner the owner offers the property for lease again, the more suspicious the circumstances would appear. As for the act which has already occurred, an aggrieved person has up to one year after the alleged discriminatory act to file a complaint with the appropriate state or federal regulatory authority, or, alternatively, up to two years after the alleged discriminatory act to file suit directly in a court of law.

Q. Is it considered to be discriminative to refuse to rent to someone base(d) on the fact that they are a smoker-or a user of tobacco products? I am the owner of the property, as well as a REALTOR®. Please advise.

A. The Fair Housing Act (FHA) makes it illegal to imply bias against certain protected classes of persons in the actual renting of, as well as rental advertisements. The FHA specifically prohibits the making, printing and publishing of advertisements that state a preference, limitation or discrimination of the basis of the following:

· Race, Color or National Origin
· Sex, Age or Marital Status
· Familial Status
· Religion
· Handicap

Smokers are not a protected class under the FHA. We know of no reported decisions finding refusals to rent to smokers or users of tobacco products to be discriminatory. However, we call your attention to a settlement entered into by the Portland MLS. The Fair Housing Council of Oregon and the U.S. Department of Housing and Urban Development filed a complaint against the Portland MLS charging that some of the phrases used in the remarks section of their listings were prohibited by the FHA. The MLS settled the complaint against it. Part of the settlement included biweekly computerized searches of the listings for 67 discriminatory words or phrases, including the following:

"smoker(s), no."

You should note that the settlement, including the list of 67 discriminatory words and phrases, was just that - a settlement. The list of discriminatory words and phrases has not been endorsed by any court or governmental entity.

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All responses featured in the Hotline Archive are time sensitive. They reflect the law, regulations and ethical considerations in effect at the time of the response. Responses to the legal questions should not be construed as specific legal advice, nor are they designed to cover every aspect of a legal situation.

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