DOT-TO-DOT. “IS IT A DOG?” “NO, IT’S HOUSING DISCRIMINATION”

Do you remember when you were a kid and you played dot-to-dot? You’d start connecting all the dots and you’d start to have some idea of what the figure was going to be. Eventually, after you connected enough dots, you could see the figure: “Oh, it’s a dog!”

Figuring out whether you have been discriminated against under the Fair Housing Act or California’s Fair Employment and Housing Act is a lot like dot-to-dot. So, let’s see if any of the “dots” below look familiar. Under the Fair Housing Act, it is against the law:

• For a landlord to refuse to rent to a person because of that person’s race, color, religion, national origin, sex, familial status, or disability;
• For a landlord to tell you an apartment or a house is not available for rent when it actually is available for rent;
• For a real estate agent to intentionally show you homes only in certain neighborhoods, basically because they don’t want you to buy a home in another neighborhood;
• For a landlord to have different terms, conditions, or privileges for renting an apartment or a home;
• For a landlord to advertise housing to preferred groups of people only;
• For a landlord to refuse to make reasonable accommodations for persons with a disability if the accommodation may be necessary to afford such
person a reasonable and equal opportunity to use and enjoy a
dwelling;
• For a landlord to harass, coerce, intimidate, or interfere with anyone
exercising or assisting someone else with his/her fair housing
rights.

In the end, if you see some of these “dots” starting to connect together, then realize that you may be a victim of housing discrimination. Know also, however, that one “dot” can be enough to prove housing discrimination, so you don’t have to wait until all the dots are connected before calling for help.

DOT-TO-DOT. “oH, IS IT A DOG?” nO, IT’S HOUSING discrimination!

Do you remember when you were a kid and you played dot-to-dot? You’d start connecting all the dots and you’d start to have some idea of what the figure was going to be. Eventually, after you connected enough dots, you could see the figure: “Oh, it’s a dog!”

Figuring out whether you have been discriminated against under the Fair Housing Act or California’s Fair Employment and Housing Act is a lot like dot-to-dot. So, let’s see if any of the “dots” below look familiar. Under the Fair Housing Act, it is against the law:

• For a landlord to refuse to rent to a person because of that person’s race, color, religion, national origin, sex, familial status, or disability;
• For a landlord to tell you an apartment or a house is not available for rent when it actually is available for rent;
• For a real estate agent to intentionally show you homes only in certain neighborhoods, basically because they don’t want you to buy a home in another neighborhood;
• For a landlord to have different terms, conditions, or privileges for renting an apartment or a home;
• For a landlord to advertise housing to preferred groups of people only;
• For a landlord to refuse to make reasonable accommodations for persons with a disability if the accommodation may be necessary to afford such
person a reasonable and equal opportunity to use and enjoy a
dwelling;
• For a landlord to harass, coerce, intimidate, or interfere with anyone
exercising or assisting someone else with his/her fair housing
rights.

In the end, if you see some of these “dots” starting to connect together, then realize that you may be a victim of housing discrimination. Know also, however, that one “dot” can be enough to prove housing discrimination, so you don’t have to wait until all the dots are connected before calling for help.

When Does 5 Days Equal 60 Days? Coronavirus, Rent Payments, and Executive Order N-37-20, Part 2 (Sort of)

23 days after issuing his first executive order proclaiming a State of Emergency in the State of California, Governor Newsom issued a second executive order that brought further relief to California tenants. Below we will take a look at the significance of his order.

5 = 60?

Normally, when a landlord personally serves an unlawful detainer action (i.e., an eviction) on a tenant, the tenant has a mere five days to file a response to it. (A tenant gets 15 days to respond, if they are served by mail.) As such, tenants often scramble to find a lawyer for help. Sometimes, sadly, tenants simply don’t know what to do and just let the five days pass without doing anything. This puts the eviction in the fast lane.

Governor Newsom has done something significant for tenants in executing this latest executive order. What he has done is to give tenants 60 days to file a response to an unlawful detainer. Why is that significant? Because it means that the landlord cannot finish the eviction process in short order. As a result, the tenant cannot be evicted for at least 60 days, regardless if the tenant is paying rent or not. In fact, the tenant will not be evicted for quite some time because once a tenant files a response to an unlawful detainer action, then the matter is set for trial. The landlord then has a number of hurdles to jump through before being able to lawfully evict a tenant.

In the normal process of things, an unlawful detainer is set for trial a week or two after the tenant files a response. Trial is then conducted. It doesn’t last weeks or days. It usually lasts but a few minutes. If the landlord proves its case (it usually has no problem proving its case), then judgment is entered in favor of the landlord. The landlord then gives the necessary paperwork (a writ of possession) to the marshal, and the marshal serves the paperwork on the tenants informing the tenants that they will be physically removed from the property if they have not moved out by a certain date. This date is usually very sudden.

Governor Newsom’s order, however, forbids the enforcement of any writs while the Governor’s executive order is in effect (for qualified evictions). So when does the Governor’s order end? Right now, it ends on May 31, 2020. That’s obviously subject to change. Regardless, what this means is that a landlord cannot ask a marshal to enforce an eviction until at least June 1, 2020.

But can a landlord begin an eviction before that time? Yes, but then the landlord has to wait for the 60 days to pass from the service of the unlawful detainer on the tenant before having the matter set for trial. Practically speaking, however, 60 days from April 1st is May 31, 2020, so that is not going to be a real issue.

What’s the Catch?

While the Governor’s executive order is helpful, it does come with some prerequisites: 1) it only applies to evictions for non-payment of rent; 2) the tenant has to notify the landlord in writing (no later than 7 days from when rent is due) that the tenant needs to delay some or all of the rent because of an inability to pay due to reasons related to COVID-19; and 3) the tenant has to retain verifiable documentation explaining the tenant’s changed financial circumstances that resulted in the tenant not being able to pay the full rent. The verifiable documentation ultimately has to be turned over to the landlord. In other words, this is not a “take my word for it” type of defense.

What Qualifies as “Reasons Related to COVID-19″?

No, binge watching CNN or Fox News coverage of COVID-19 does not count! Obviously, if the tenant or one of the tenant’s children has contracted coronavirus (or suspected to have contracted the disease), then that counts. Income reduction caused by COVID-19 also counts. And a tenant whose children’s school was closed as a result of coronavirus will have a reason related to COVID-19, but only if the tenant needed to miss work to care for the child. So, if a tenant’s 17-year-old child’s school is closed, then it is going to be hard to convince a court that a tenant would need to miss work to care for that child. (Yes, litigation is looming regarding how old a child needs caring if home from school.)

When Should a Qualified Tenant File a Response to an Unlawful Detainer Action?

While a qualified tenant now has up to 60 days to file a response to the unlawful detainer action, the LAST THING IN THE WORLD that the tenant wants to do is to respond immediately. Why? Because the sooner the tenant files a response to the unlawful detainer lawsuit, the sooner the trial date is set. And the sooner the trial date is set, then sooner the tenant is going to lose. Yes, there is still some protection because the marshal will not be able to serve and enforce the writ of possession, but there is no reason for a tenant to put his or her eviction on the fast track. Some courts, in addition, have pushed back trial dates, but there is no reason for a tenant in distress to respond until the last possible date.

Evictions (During a State of Emergency) that were Already in the Process:

When the Governor’s two executive orders are read jointly, then a landlord who was in the process of evicting a tenant when the state of emergency was declared is allowed to finish up the eviction, and the marshal will be able to serve the writ of possession (effectively ending the tenants’ occupancy) because those tenants did not meet the prerequisites of the new law.

Does Anyone have to Pay their Rent?

Yes, people who don’t qualify have to pay their rent on time. If they don’t, then they will face eviction. Indeed, Governor Newsom’s executive order states expressly: “Nothing in this Order shall prevent a tenant who is able to pay all or some of the rent due from paying that rent in a timely manner or relieve a tenant of liability for unpaid rent.” Tenants who can–but don’t–pay rent will be subject to eviction, as normal. And they won’t get 60 days to respond.

Coronavirus, Rent Payments, and GOVERNOR NEWSOM’S Executive Order N-28-20

You may have recently heard that California Governor Gavin Newsom issued an executive order concerning evictions and foreclosures. But what exactly did it say with respect to evictions? (We’ll leave foreclosures for another day.) Let’s address the main issues.

The first item in the executive order states: “The time limitation set forth in Penal Code section 396, subdivision (f), concerning protections against residential eviction, is hereby waived.” (Cal. Penal Code section 396 will be discussed in depth below.)

What good is the first item of the order? It only seems to extend the time before a landlord can raise rents after evicting a prior tenant. The first order continues, “Those protections shall be in effect through May 31, 2020.” Put simply, this provides a disincentive for landlords to think about evicting tenants and raising rents. That practice is prohibited by the Governor’s executive order until May 31, 2020 (with possible extensions).

The second item of the order basically says that local government is allowed–but not required–to limit when a landlord cannot evict a tenant. Basically, the Governor is passing the ball to local government to let them make the unpopular decision (unpopular, that is, from the landlords’ perspective) to stop evictions. This way, the Governor can tell all the big donors, “Hey, I didn’t forbid you from evicting delinquent tenants; the local government did.”

All kidding aside, if the local government takes no action to delay evictions, then evictions can proceed as normal. This likely will come as a surprise to most California tenants.

But even if the local government decides to implement limitations on evictions, it is very limited in the kind of evictions that it can limit. For the executive order only permits local governments to limit evictions when two conditions are met: 1) the basis for the eviction is nonpayment of rent, which is basically caused by a substantial decrease in a household’s income; and 2) the decrease in household income was caused by the COVID-19 pandemic AND it is documented. Thus the only evictions that a local government could choose to stop would be those where the tenant was unable to pay rent because the tenant’s rent was substantially reduced as a direct result of the COVID-19 pandemic and there was documentation to support the claim.

While there will be many people who actually will fit the bill, it does not mean that the tenant who was already out of work, and thus unable to pay the rent, gets to just stay in place until the pandemic passes. That tenant can be rightly evicted, even if the local government gets around to implementing limitations on evictions. So, too, may the tenant who lost a part-time job be evicted if the tenant did not have a substantial decrease in household income. (Do you think that some lawyers and judges are going to have a fun time figuring out what that means?)

The Governor’s order expressly states that the only evictions that the local government can stop are the ones talked about above. So, the local government CANNOT ban all evictions at this time.

Next, the Governor’s order is very clear: “Nothing in this Order shall relieve a tenant of the obligation to pay rent, nor restrict a landlord’s ability to recover rent due.” What does this mean? First, even if the local government limits evictions, this is not a get-out-of-paying-rent-free card. Tenants who have not had a substantial decrease in their household income still have to pay rent. The Governor’s order is meant to protect certain people who have been substantially impacted by the coronavirus, and no one else. Next, as we have discussed, the executive order is not meant to restrict a landlord from being able to collect rent that is due. In other words, if a tenant did not lose a job and thus can pay rent, but chooses not to, then the landlord can seek to collect that rent, and even evict that tenant. In the end, the Governor’s executive order protects some tenants, but not all.

Cal. Penal Code §396

Rent Increases During a State of Emergency:

In the State of California, during a state of emergency, it is illegal for a landlord to increase a tenant’s rent by more than ten percent, except for in limited situations, for the first 30 days following the proclamation. Cal. Penal Code §396(f). That’s right, it’s a crime. It is perfectly fine, however, for a landlord during that 30-day period of the state of emergency to increase an existing tenant’s rent by up to ten percent. So, if a landlord increased the tenant’s rate from $1,000/month to $1,100/month, then that ten percent increase would not be unlawful under Cal. Penal Code §396(f). 31 days after the proclamation or declaration, all bets are off, and the rules go back to normal. Thus if two months after the state of emergency is declared a landlord increases the tenants rent from $1,000/month to $1,200, then such a rent increase would not violate Cal. Penal Code §396(f). It doesn’t mean that the rental increase wouldn’t violate any other law (e.g., perhaps a local rent control ordinance), but it would not violate Cal. Penal Code §396(f).

Evictions (During a State of Emergency) for the Purpose of Selling the Rental Property:

It is also illegal for a landlord to start an eviction during a state of emergency and rent or offer to rent to another person at a rental price greater than the evicted tenant could be charged. In other words, a landlord cannot evict a tenant who is paying $1,000 a month for rent, and then turn around and immediately rent the same place to another tenant for $1,200 a month, for that is a greater amount than the landlord could have been charged. Remember, it would be okay for a landlord to raise a tenant’s rent by up to ten percent.

Note, this does not mean that a landlord is forbidden from evicting a tenant who does not pay rent. It simply means that the landlord cannot evict a tenant for the purpose of immediately getting a new, higher-paying tenant. Cal. Penal Code §396(f). But 31 days after the proclamation or declaration of the state of emergency, all bets are off, and the rules go back to normal.

When might a situation arise where a landlord is trying to evict a tenant who is not late on rent? It might occur where a tenant is on a month-to-month tenancy. (Many tenants are on month-to-month tenancies without even realizing it, for if a term lease expires, then, in most cases, it automatically becomes a month-to-month tenancy if a new term lease is not signed.) The landlord could give the tenant the required notice to terminate the tenancy (30 or 60 days, depending on how long the tenant has been renting). If the tenant does not timely move out after receiving the notice to terminate the tenancy, then the landlord normally has the right to start the eviction process. But that is not true during a state of emergency, if the reason the landlord is terminating the tenancy is to get a new tenant to pay a rent that is more than ten percent higher than the old tenant’s rent.

Evictions (During a State of Emergency) for the Purpose of Selling the Rental Property:

If during a state of emergency, however, a landlord is terminating the tenancy because, for example, the landlord wants to put the house up for sale, then that is perfectly fine. That is not illegal. Of course, if the landlord says one thing and does another, then the landlord may be guilty of a crime, if the landlord raises the rent on the new tenant by more than ten percent within the 30 days following the proclamation or declaration of the state of emergency.

Let’s imagine a landlord who truly wants to sell the rental property. The landlord evicts the tenant. But then the landlord realizes two months later that the market has tanked, then there is nothing illegal about a landlord putting the house up for rent in excess of ten percent greater than the last tenant’s rent. By way of example, if the evicted tenant were paying $1,000/month for rent, and the landlord was now offering that same place for rent at $1,500/month, then there would be nothing illegal about that because it was more than 30 days following the proclamation or declaration of the state of emergency.

Evictions (During a State of Emergency) that were Already in the Process:

A landlord who was in the process of evicting a tenant when the state of emergency was declared is allowed to finish up the eviction and set the new rental rate. In that situation, the landlord is not limited to raising the rent by only ten percent. Cal. Penal Code §396(f).

“I Don’t Have to Give You a Reason.”

If there is one comment that I repeatedly hear from tenants, then it comes in the response to my asking them why the landlord gave them a 30-day notice (or a 60-day notice) to terminate their tenancy. “When I asked the landlord why he was terminating our tenancy, the landlord said, ‘I don’t have to give you a reason.'” Up until January 1, 2020, that was pretty much true in California.

But as of January 1, 2020, if a tenant has been living continuously in a rental property for at least 12 months, then a California landlord cannot terminate that tenant’s residency without just cause.

While it always has been illegal to terminate a person’s tenancy for an illegal reason, California landlords (for the most part) never had to state in the notice of termination of tenancy why they were evicting a tenant. Instead, they could just serve the tenant with a notice of termination of tenancy, and the clock would start running.

If the tenant were able to prove that the notice of termination of tenancy had been served on them for an unlawful reason (e.g., because of the tenants’ race), then they would be able to stop the eviction. But that always has been a tall order.

The beauty of the new law is that California landlords no longer will be able to hide their reasons for terminating residential tenancies for longer term tenants. Instead, they will have to state the reason (or at least their purported reason) for their terminating the tenancy in the actual notice of termination of tenancy.

California’s new law states what “just cause” means, but it does so a little vaguely. While this will leave the courts with some wiggle room to decide whether something amounts to “just cause” or not, what the new law definitely does is assure tenants that they will know why they are getting the boot (or, again, at least they will know the purported reason they are getting the boot). So if the landlord is evicting the tenants because they have repeatedly failed to timely pay the rent, then the notice will clearly state that reason.

Undoubtedly, some landlords will try to load up the reasons for why they are evicting a tenant. For example, the landlord may state that it served the notice because of the tenants’ noise violations, late payments of rent, etc. Without question, the new law is going to create lots of litigation over whether the landlord was being honest when it stated the reasons for a evicting a tenant. “Pretext” will adorn legal briefs throughout California courthouses.

What is a tenant to do if they are served a notice of termination that states obvious falsehoods? For example, imagine if the landlord serves a notice that list several false reasons for the service of the notice. In that situation, the tenant needs to contact a lawyer verse in the law ASAP.

Getting a landlord to confess why it served a notice of termination of tenancy always has been a tough thing to do. Now that California Tenant Law compels landlords to do so (in limited situations), one can only imagine the fights that will be fought over whether the landlord truly served the notice to retaliate against a tenant, etc.

Know When to Seek the Help of a Fair Housing Lawyer

The Fair Housing Act is a set of rules aimed at governing and eliminating discrimination in real estate transactions (i.e., leases, rentals, sales, advertisements). If you are a landlord or a tenant, chances are you already may have dealt with the law in one way or another. For example, fair housing laws give you the right to equal treatment when you are renting or buying. But the fair housing laws also impact what landlords can do when they are looking for new tenants, such as who they can refuse to consider and on what basis.

This post is aimed to put some light on the fair housing act and when to seek the help of a professional fair housing lawyer.

Property Advertisement      

Advertising is the usual first step to making a property available for rent, and tenants search ads, whether they are in print or online. Landlords want to promote their property on the best platforms, so that they gain access to the most potential tenants. These tenants can then check the specifications of the property to make informed decisions. The key for a landlord, however, is to ensure that its ads are lawful.

Here are some common statements that you must avoid.

• No families with young children;
• No Muslims;
• No pets (including emotional support animals).

A landlord who using any of these statements in its rental advertisement, may be violating the fair housing laws. If in doubt, then it is smart to connect with a fair housing lawyer, so that expensive litigation can be avoided.

Tenant Screening

Landlords want to be sure that they are choosing the best tenants for their property. Good tenants are good for everyone. However, landlords sometimes do it the wrong way and ask some screening questions that may be unlawful (or used as evidence of possible discrimination).

Questions to be avoided in the screening process include:

• Where is your accent from?
• Do you have a service dog?
• How old are your children?
• What religion are you?

It is important for landlords to be fair to everyone when choosing tenants. Landlords should follow the same process for screening every potential tenant, regardless of their race, color, religion, sex, etc. One potential tenant should not be required to come in for a personal interview, while other potential tenants are permitted to be interviewed over the phone.

Eviction Process

Not every disagreement between a landlord and a tenant justifies an eviction. Again, potential evictions must be handled uniformly. So if one white tenant blares his music at 1 a.m. on a Friday and is simply given a warning notice, then if a tenant of color does the same thing the following weekend, that tenant also should receive a warning notice. Different treatment with similar circumstances is often one of the biggest indicators of unlawful discrimination.

Whether you are a tenant or a landlord, it is important to be aware of fair housing laws. The best way to protect your rights as a tenant is to hire a fair housing lawyer.

How Does the Unruh Civil Rights Act Protect Renters?

The Unruh Civil Rights Act (“Unruh Act”) stands as a bulwark protecting each person’s inherent right to “full and equal” access to “all business establishments.” The Unruh Act, like the common law principles upon which it was partially based, imposes a compulsory duty upon business establishments (including apartment complexes) to serve all persons without arbitrary discrimination. The Unruh Act thus serves as a preventive measure, without which it is recognized that businesses might fall into discriminatory practices.

The Unruh Act provides in pertinent portion at Cal. Civ. Code §51:

“All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments or every kind whatsoever.” Although not specifically enumerated in Cal. Civ. Code §51, the Unruh Act also protects from discrimination on the basis of age and familial status. Cal. Civ. Code §51.2(a) (age); Marina Point, Ltd. v. Wolfson, 640 P.2d 115, 124 (Cal. 1982) (familial status).

The Unruh Act makes it unlawful for a business establishment to deny, discriminate, or make a distinction contrary to the Unruh Civil Rights Act. The law is rather straightforward: if a business opens its doors to the public, then it cannot unlawfully discriminate against its potential customers. Thus an apartment complex which forbids children from playing outside denies families with children the full and equal advantages, facilities, or privileges of living in that apartment complex in violation of the Unruh Civil Rights Act.

Of note, Cal. Civil Code §52 does not focus on the reason for the prohibited behavior. Rather, it simply bans the denial, aiding or inciting a denial, or making of any discrimination or distinction contrary to the Unruh Civil Rights Act. The key word–“contrary” means that Civil Code §52 is violated if the defendant engaged in “willful, affirmative misconduct” that is contrary to a person’s rights to the full and complete access to the business. Consequently, the California Supreme Court has declared that only intentional discrimination–in contradistinction from discriminatory effect discrimination–is actionable under the Unruh Act:

“[T]he [Unruh] Act was passed in 1959 and its predecessor in 1897, long before the disparate impact theory was recognized by the federal courts. On the contrary, the language of the Act suggests that intentional acts of discrimination, not disparate impact, was the object of the legislation.”

The California Supreme Court continued:

“Section 52 states: ‘Whoever denies, or who aids, or incites such denial, or whoever makes any discrimination, distinction, or restriction on account of sex, color, race . . . contrary to the provisions of section 51 . . . , is liable for each and every such offense . . . .’”

It concluded:

“In summary, we hold that a plaintiff seeking to establish a case under the Unruh Act must plead and prove intentional discrimination in public accommodations in violation of the terms of the Act. A disparate impact analysis or test does not apply to Unruh Act claims.”

Thus “intentional discrimination” in the context of the Unruh Act means: “Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51, 51.5, or 51.6, . . .”

At the end of the day, if your landlord is forbidding your children to play outside at your apartment complex because of the fact that they are children, then your landlord is likely violating the Unruh Act. Renters have rights. The Unruh Act contains some of those rights. If you’d like to discuss your rights as a renter, then give us a call, whether you are in San Diego, Los Angeles, Sacramento, or anywhere in the State of California, we are here to help.

Why Does She Get to Have a Dog?

What’s up with all the dogs everywhere these days? You see them in the malls (that’s where people shopped before Amazon), in stores (that’s where people shop who don’t shop on Amazon), and even on planes. Don’t get me wrong, I like dogs. In fact, we even entered our dog in the Wienershcnitzel Wiener Nationals one year in San Diego. Our dog ran in one of the two heats for wiener dogs named “Oscar.” I’ll admit, up until they announced that there were two heats for dogs named “Oscar,” I thought the name was original. But once our Oscar started to run the wrong way in the race, I was actually content to leave the venue as quickly as possible. I would say that I crossed that off of my bucket list, but it was never on the bucket list in the first place. But it was a rather unique event, and if you are in San Diego when it is run, it is probably worth the time. But don’t put it on your bucket list . . . at least not if your dog is named “Oscar.”

One of the problems with the prevalence of dogs everywhere is that it gives a bad name to true service dogs and emotional support animals. As one disgruntled homeowner once put it, “Pay a few $’s on the internet and ‘Presto’ a service dog is born . . . I could ‘certify’ my ceramic toy with THAT process.” I get it. In fact, it kind of makes you wonder if Tom Hanks would have been able to certify Wilson and take it with him on a plane (not that there is some prohibition against volleyballs on planes, but I’m just saying).

Speaking of planes, passengers on planes have tried to take on board with them “service” peacocks, pigs, cats, monkeys, horses, and even a turkey! (It is unclear if the turkey was flying around Thanksgiving.) The point is that service animals have gotten out of hand. But the problem with trying to solve the problem is that people who genuinely need service dogs and emotional support animals are likely to be discarded with all the phonies. And therein lies the problem: how do you tell a genuine need from a phony need?

The answer is a doctor’s note, right? Genuine claims surely would be recognized by doctors, right? Yet one website announces, “ESA [emotional support animal] letters only $22 each. Same day delivery included.” The website guarantees “official medical signed.” It then touts, “An Emotional Support Animal (ESA) letter from a licensed therapist is all you need to gain legal access to airline cabins and pet restricted housing without extra fees and deposits.” What? You’re not satisfied with a licensed therapist signing the ESA? Then pay a little more and get a medical doctor to sign the ESA. Hey, what’s a few bucks? Think of all the money you will be saving when your dog is flying free of charge! Pet fees at your apartment complex? Forget about it; you’ve got an ESA!

In the end, the system is being abused. And when it is abused, people with a genuine need for an emotional support animal or a service dog are sadly lumped in with all the people who want to bring “service” animals on board an airplane or those who want to live an apartment complex with their “service” monkeys. In a future post I’ll talk about what you should do if you have a genuine need for a service dog or an emotional support animal. Until then, please, remember that not everyone who has a service animal or an emotional support animal is abusing the system.

Renters’ Rights: What are They?

Yes, renters have rights under the law to protect them from their landlords. Renters’ rights against housing discrimination from landlords are derived from both the State of California and the federal government. As renters, families with children are entitled to be treated in the same way that adult-only renters are treated. For example, if a single adult is allowed to be in the common areas of an apartment complex reading a book, then a child also should be permitted to read a book in the common areas of an apartment complex. Apartment managers cannot treat tenants differently because of the fact that one is an adult and another is under 18 years of age. In other words, there cannot be two sets of rules: one set of rules for adult tenants and another set of rules for children or families with children. One rule that often brings confusion is an apartment rule that permits adults to swim in the pool, but limits which children can swim and when. Many apartment complexes insist that children may only swim with adult supervision. These swimming pool rules have been found to be illegal in many cases. In the end, if you believe that your landlord is discriminating against you or your children, then it may be time that you find a lawyer to fight for your renters’ rights.

How to Prove Housing Discrimination Against Families with Children

“We know through painful experience that freedom is never voluntarily given by the oppressor, it must be demanded by the oppressed.” ~Martin Luther King Jr.

Most rarely give much thought to families with children being oppressed in this country. But families with children are all too often oppressed by their landlords. When Congress added familial status as a protected class in 1988 to the Fair Housing Act, it did so after HUD studies showed that 25% of apartment complexes banned children altogether. Another 50% of apartments imposed other limitations on families with children, such as compelling them to live in certain portions of the apartment complex or limiting the number or age of children allowed. Not surprisingly, after familial status was added as a protected class, discrimination against families with children continued, and it has become more and more subtle as the years have gone by. Put simply, discrimination against families with children in the housing arena is an ongoing concern.

How is a family with children supposed to know if it is being discriminated against by its landlord? Let’s look at some of the potential indicators from the time a person first inquires about the rental up through the end of the tenancy. Some of these indicators will be obvious, while some are surprising.

Available Units

When potential tenants visit an apartment complex for a first time, they typically are told about all the available units. But when families with children visit an apartment complex, they sometimes are intentionally shown only some of the available units, and some are told that they can only have a downstairs unit because of the noise concerns. That’s illegal. Families with children can live in any available unit: upstairs or downstairs. The choice is theirs; not management’s.

“Who is Going to be Living with You?”

Speaking of visiting an apartment complex for the first time, managers occasionally like to inquire about how many children will be living at the apartment and what are the ages of those children. It seems reasonable, right? But these questions can be disguised attempts to discriminate against families with children, for some apartment complexes want nothing to do with young children. Briefly stated, the topics of discussion between a manager and prospective tenants speak volumes about what management deems as preferred tenants. Conversations initiated by management about children should be viewed with a grain of suspicion.

Occupancy Restrictions

Occupancy restrictions also are often used as smokescreens to discriminate against families with children. If there is an occupancy restriction, then you want to see if it is actually in writing. Or is it only mentioned when families with children show up? I handled a case where the landlord only mentioned his occupancy restrictions when families with children were interested in his rental units. Such treatment is discriminatory. Next, are the occupancy restrictions enforced uniformly and fairly. This can take some work to find out, but it is obviously a gold mine of evidence. For example, if there are four college students in a one-bedroom unit, but a mother and father and their two children are not allowed to rent a one-bedroom unit because it violates the landlord’s occupancy restrictions, then there is a problem. Occupancy restrictions have to be enforced uniformly, not only against families with children.

Leases, Rules, and Regulations

Rental documentation, along with the rules and regulations for apartment complexes, often contains provisions dealing with supervision of children. In a recent case that my firm handled, Roman v. MSL Capital, LLC, Case No. EDCV-17-2066-JGP (SPx) (C.D. Cal. Nov. 5, 2018), the district court ruled that the landlord’s publishing of an adult supervision rule violated two different sections of the Fair Housing Act, in addition to two sections of California’s Fair Employment and Housing Act. The district court stated, “The [adult supervsion] rule explicitly burdened families that included children, requiring parents to be present and supervising children in areas outside of their apartment, a burden not placed on families without children or on single adults living in the Complex.” Put simply, if a lease or rules and regulations contain an adult supervision rule, then discrimination is in the air.

Repair Requests

Another indicator of potential discrimination against families with children can be found in the response time to repair requests. If a landlord takes a week or so to fix a family with children’s repair requests, but does same day or next day repairs for adult-only households, then this can be an indicator of discriminatory treatment. Obviously, it can be difficult to find out how long it takes management to respond to repair requests, but with a little asking around, one can typically get a sense for the presence of discriminatory treatment.

Late Rental Payments

In a typical apartment complex, rent is due on the 1st of the month and late a few days later. But how that is enforced is typically indicative of whether management discriminates against certain protected classes. For example, I recently was investigating a case and in the process I was talking with adults from several different households who lived at the complex without any children. Time and again they told me that the manager was completely understandable if you had to be late. “Don’t worry about it; just pay when you can,” the manager told them. None of them was ever charged a late fee for being late. But when I talked to adults who had children, I immediately heard a different story. “Oh, if you’re late, then they always charge you a late fee.” Put simply, the way management treats people who are late on their rent can reveal proof of discrimination against families with children.

Bikes, Scooters, and Toys

One former client of mine once told me about buying her eight-year old son a bike for Christmas when they lived at an apartment complex. Her son was so excited when he got the bike on Christmas morning that they promptly went out into the common area of the complex so he could ride his new bike on Christmas morning. Before long, the manager came out and told the young boy that he was not allowed to ride his bike at the complex.

Was that discrimination? While the rules and regulations of the apartment complex stated that there was no bike riding (or scooter riding or playing with toys, for that matter), adults customarily rode their bikes on and off the property without any warnings. Put simply, sometimes rules that on their face apply to everybody simply are not enforced fairly. This is often the case with rules about bike riding. In a nutshell, unfair enforcement of neutral rules results in unlawful discrimination.

Visits to Check the Condition of the Apartment

California law is specific as to when a landlord may enter into a tenant’s apartment. Going into a tenant’s apartment for an “annual lender inspection” simply doesn’t make the list. Yet families with children are occasionally asked to give management access to their apartments for such inspections. In reality, management secretly wants to go into the tenants’ apartment to snoop around to see if families with children have caused any damage to the unit. Security deposits, quite frankly, are designed to protect landlords in the case of damage to the unit. Excess damage, moreover, can be recovered in civil lawsuits. But accessing apartments rented by families with children for such reasons may be an indicator that families with children are being subjected to discriminatory treatment in violation of the Fair Housing Act.

Noise Complaints

One of the most common ploys of landlords is to accuse families with children of being too noisy, so that they can evict them. All too often the manager knows where to go if he or she needs to find a tenant to complain about noise. Children often are noisy when they play, so it is not hard for a manager to find the habitual complainer at the complex and simply ask that person to file a written complaint about the noise. The manager then serves a warning notice (or two or three) on the family with children about the noise complaints that the manager has received. Before you know it, the family with children is receiving a Three-Day Notice to Quit.

How do you prove discrimination in that situation? First, you want to look at how other people creating noise have been treated. This takes some effort. But as you ask around, you often will learn that certain tenants have had loud music blaring with regularity, and management has done nothing but ask the tenants to turn down the music. You may learn of tenants who have thrown loud parties to which the police were summoned, yet seemingly there were no consequences for the loud party. How management responds to those noise complaints is often indicative of whether all noise deemed excessive is prohibited, or only noise by children. Next, look at the timing of the service of the warning notices. Did the warning notice come shortly after the parents complained about their children not being able to ride their bikes, etc.? Put simply, managers often retaliate against tenants who complain about unfair treatment.

At the end of the day, proving familial status discrimination can be laborious. But when my firm has been able to bring about change that liberates families with children, it is a joyous event. For over 20 years, I have been fighting on behalf of tenants whose rights have been violated under the Fair Housing Act and related state laws, including the Fair Employment and Housing Act. So If I can answer any questions, please, do not hesitate to contact me at (858) 220-9601.