Fair Housing vs. Unfair Housing

Do you know the difference?

Knowing the difference between fair housing and unfair housing isn't as obvious as you might think. This blog aims to present a variety of important and interesting fair housing issues.

If you're an apartment professional, avoid costly mistakes by reading the stories of others who — even with good intentions — learned compliance lessons the hard way. (For the easy way, click here.)

If you live in an apartment, get familiar with your rights when it comes to housing discrimination, as well as your options for seeking justice.


Monday, December 15, 2014

Standing to Sue Under the Fair Housing Act: What's an 'Aggrieved Person'?

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The Fair Housing Act (FHA) bars landlords, property managers, and other housing professionals across the United States from engaging in certain discriminatory acts against prospects and tenants. But when a violation has allegedly occurred, who, exactly, is entitled to file a complaint under the FHA?

Clearly, a tenant in the middle of her lease term would have standing to sue her landlord for alleged discrimination under the FHA. But consider the situation of a stranger who sits next to this tenant on a plane, hears her story, and sympathizes. Would this stranger be able to sue the landlord for what the tenant claims the landlord did to her?

You probably won't be surprised to learn that the answer is no. After all, the stranger has nothing to do with the case.

So, a tenant under a written lease may sue her landlord, but someone who has no connection to an alleged discriminatory act cannot.

While these examples may seem obvious or sensible, what about all the situations in between?

The FHA is broad when it comes to a person's rights under the law and standing to bring a fair housing claim. The requirement is that the complainant be an "aggrieved person," which the FHA (in Section 3602) defines as someone who "(1) claims to have been injured by a discriminatory housing practice; or (2) believes that such person will be injured by a discriminatory housing practice that is about to occur." (As for the term "discriminatory housing practice," the same section defines it as "an act that is unlawful under section 3604, 3605, 3606, or 3617 of this title.") You can check out these definitions by visiting this Fair Housing Helper link.

This means that you don't have to be the actual person who is being discriminated against in order to be able to bring a claim. Say that two roommates go to look for an apartment and they're turned away because one of them has a disability or is black or Muslim. Both that person's rights and the other roommate's rights are infringed under the FHA, and either one or both may sue. The roommate who was not actually discriminated against has standing because such a person is clearly harmed by the alleged act of discrimination against the other roommate (unlike the example of the stranger on the plane).

In one famous early case, Trafficante v. Metropolitan Life Insurance, 409 U.S. 205 (1972), the connection was even less direct. The court held that the plaintiffs had standing even though they had not themselves been the direct victims of discrimination. In that case, the plaintiffs were white yet they claimed that the landlord's alleged racial discrimination against nonwhites caused them harm because they "lost the benefits of living in an integrated community."

So, the key to being able to bring a complaint under the FHA is that you have to have suffered harm (or believe you're about to suffer harm). There is no requirement that an aggrieved person have a written lease or even be a current tenant. Tenants who live on a month-to-month basis with no written lease, roommates who aren't listed on a lease, applicants for an apartment (whether to a new or existing lease), and even prospective tenants who haven't yet applied for an apartment (but perhaps saw an allegedly discriminatory advertisement) all have standing.

That said, be sure to keep in mind that having standing to sue under the FHA doesn't mean you'll automatically succeed with a fair housing claim. A judge may still rule against you for a number of reasons, such as that your filing isn't timely, that there's insufficient evidence of illegal discrimination, or that the alleged discriminatory act actually isn't a violation of the FHA. But, if you don't have standing, you don't have a chance.

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