2008-10-09, 11:31

Immigration Law and the Fair Housing Act: The Tensions in Rental Housing

By: Multifamily Real Estate Industry Team
As most owners and managers of multifamily communities are aware, the Fair Housing Act (“FHA”) prohibits discrimination in most housing related transactions based upon a person’s race, color, religion, sex, national origin, disability, or familial status. This means, among other things, that under the FHA, landlords are prohibited from requiring disclosure of national origin as a part of an application or lease for rental housing. At the same time federal immigration and state laws impose criminal penalties for anyone, including any landlord, who “knowingly or in reckless disregard” of an immigrant’s undocumented status “conceals, harbors or shields [the immigrant] from detection.” Penalties for noncompliance can include a fine, prison sentence of up to five years, or both.

How can owners and managers comply both with the FHA and avoid the draconian penalities associated with a violation of immigration law requirements? In other words, how can landlords best reconcile these seemingly conflicting legal requirements?

Owners and managers can take some comfort in the fact that there currently are no federal, state or local laws that expressly require verification of citizenship for renting or leasing purposes. This circumstance will likely change when the next presidential administration takes over, as both presidential candidates, who have very different opinions on immigration, have articulated their intentions to introduce legislation that will address that national concern about illegal immigration. “While McCain supports tightening the borders and sending undocumented immigrants "to the back of the line" for citizenship, he steers clear of the issue during campaign rallies and press events. Obama supports tightening the borders and sending undocumented immigrants "to the back of the line" for citizenship and addresses immigration at campaign rallies and press events.” http://www.diversityinc.com/public/4390.cfm Whichever approach is taken, the likelihood is that the multifamily industry will suffer either a direct impact or a trickle down effect from these new legal requirements.

In the interim, and based on the current state of the law, here are some general guidelines that landlords can follow to endeavor to walk the minefield of tension between the requirements imposed by the FHA and existing immigration laws:

Questions Concerning National Origin are Impermissible: Asking prospective residents to verify the country of their citizenship on rental housing applications/leases runs afoul of the FHA and exposes landlords to the risk of FHA enforcement action, fines, and other penalties.

Questions Concerning U.S. Citizenship or Legal Status are Permissible (But be Careful): Whether a person is a U.S. citizen or whether a non-citizen is legally present in the U.S. are not defined under the FHA as protected characteristics. Thus asking specifically whether a prospective resident is a U.S. citizen does not violate the FHA. However, since neither the FHA nor any existing immigration laws expressly require a landlord to ask this question, give thought to whether this question is essential and whether you might be better off not asking anything of prospective residents concerning this subject. If the response from prospective residents is that they are not legally present in the U.S., then you have been put on notice of their illegal status and leasing to them may expose you to civil and/or criminal liability.

Compliance with City/County Immigration Ordinances; Proceed with Caution: Be careful about blindly following city/county immigration ordinances. More than one hundred localities have considered enacting ordinances imposing bans on leasing or renting to undocumented aliens. These ordinances impose monetary penalties and in some cases, may revoke the business licenses of offenders. However, these ordinances either have been struck down by the courts as unconstitutional or have been placed on hold pending the outcome of ongoing litigation. If your local jurisdiction enacts an ordinance that effectively requires you, as a landlord, to also serve as an immigration officer, seek legal advice about the best means to employ to satisfy these requirements without concurrently violating the FHA.

Requirements for Government Documentation are Permissible. Landlords may impose a requirement for prospective residents to produce either a driver’s license or a government identification document with a photo without violating the FHA. However, if Landlords choose to do so, they must be sure to enforce these requirements in a nondiscriminatory and uniform fashion and should therefore apply the requirements consistently to all potential tenants. Failure to do so, could result in non-compliance with the FHA.

(This entry posted by Christina Thomas, a member of Womble's Real Estate Development group)

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