This is the seventh episode in our new video series covering Implicit Bias principles, and provides a sneak peek into our new DRE-approved continuing education (CE)  requirements that apply to real estate agents and brokers with licenses expiring on or after January 1, 2023.

This episode covers fighting implicit bias in the screening of tenant applicants. The prior episode covers avoiding discrimination risks in advertising.

Ask the same standard questions of all tenants

A good rule of thumb is to simply not ask a potential or current tenant questions regarding their protected status.

For example, since landlords may not discriminate based on a tenant’s national origin, landlords may not ask prospective tenants what country they were born in as this can never be a factor in deciding the terms, conditions or privileges for their rental of a dwelling.

To avoid discrimination, landlords need to ask all potential tenants the same standard questions to ensure equal treatment. Landlords also ought to limit inquiries to matters that are directly applicable to the potential renters’ tenancy or the maintenance of the rental property.

For example, landlords may ask:

  • about the presence of pets;
  • how many tenants will occupy the property;
  • how many parking spaces will be required;
  • whether their present landlord will provide a favorable reference;
  • whether any of the tenants smoke; and
  • whether any of the tenants intend to use a waterbed in the premises.

This allows landlords to screen tenants effectively and limits vulnerability to a lawsuit from a potential tenant who believes they were treated unfairly. For example, a landlord may not ask questions about the tenant’s:

  • marital status;
  • religious practices;
  • intention to have children;
  • national origin;
  • disability status; or
  • any other protected status.

Some common fair housing violations more broadly include:

  • refusing to rent, lease or sell housing due to illegal discrimination;
  • sexual harassment, particularly demanding sexual favors in return for housing;
  • creating documents, such as covenants, conditions and restrictions (CC&Rs) that discriminate against a protected group;
  • denying a home loan or insurance for discriminatory reasons; and
  • failing to reasonably accommodate a disability.

When a landlord is on shaky ground with fair housing laws, it is best to err on the side of caution. The penalties for violating these laws are serious and can include loss of their license, and awarding money to the aggrieved individuals involved and paying attorney fees.

Removing discriminatory language from CC&Rs

A common interest development (CID) or homeowners’ association (HOA) may not be governed by covenants, conditions and restrictions (CC&Rs) which discriminate against any person due to an individual’s actual or perceived:

  • race;
  • color;
  • religion;
  • sex;
  • gender;
  • gender identity;
  • gender expression;
  • sexual orientation;
  • marital status;
  • national origin;
  • ancestry;
  • familial status;
  • source of income;
  • disability;
  • veteran or military status; or
  • genetic information. [Calif. Civil Code §4225(a); Calif. Government Code §12955(a); (m)]

When a discriminatory declaration is included, the board will amend and record the CC&Rs to remove the prohibited declaration regardless of membership approval. [CC §4225(b); (c)]

When a person provides the CID with written notice regarding the discriminatory language included in the CC&Rs, the board has 30 days to remove the prohibited language. When the language is not removed within 30 days, the Department of Fair Employment and Housing (DFEH), the local government in which the CID is located or any person may pursue legal action against the CID. [CC §4225(d)]

Editor’s note – firsttuesday was one of the first schools in California to obtain DRE-approval for the new implicit bias training and expanded Fair Housing course.

To enroll, visit the order page.