This article outlines the federal and California anti-discrimination laws and how the laws affect the rental of residential property.

Property rights cannot be based on status

All citizens of the United States have the right to rent real estate, regardless of race. [42 United States Code §1982]

Further, all persons within the United States, legally or illegally, have the same rights to make and enforce contracts (rental and lease agreements), sue, be sued, and enjoy the full benefits of the law. All are subject to the same punishments, penalties, taxes and licenses, regardless of race. [42 USC §1981]

The Civil Rights Act applies to racial discrimination on the rental of all types of real estate, both residential and nonresidential.

Thus, the right to lease real estate is protected by giving all persons the right to make and enforce contracts, regardless of race. Thus, racially motivated activities in any real estate leasing transaction are prohibited.

The Civil Rights Act protects against racial discrimination in all activities between persons, and is much broader than the protection under the Federal Fair Housing Act, which is limited to dwellings.

Anti-discrimination legislation for residential property

The Federal Fair Housing Act (FFHA) prohibits unlawful discrimination in the rental or advertisement of dwellings for rent. [42 USC §§3601 et seq.]

A dwelling includes any building or structure that is occupied, or designed to be occupied, as a residence by one or more families. Also included is any vacant land offered for lease for residential dwelling purposes, such as property that would hold a mobilehome unit. [42 USC §3602(b)]

Discriminatory actions of a landlord or property manager prohibited under FFHA are any actions they may take in the negotiations or handling of a residential rental, based on a person’s:

  • race or color;  

  • national origin;  

  • religion;  

  • sex;  

  • familial status; or  

  • handicap. [42 USC §3604]

Familial status refers to a residential occupancy that includes one or more individuals who are under the age of 18 years and live with:

  • a parent or person having legal custody; or  

  • a person having written permission of the parent or legal custodian to be the designee of the parent or custodian. [42 USC §3602(k)]

Handicapped persons refer to individuals who have:

  • a physical or mental impairment which substantially limits the person’s life activities; or  

  • a record of, or are regarded as having, a physical or mental impairment. [42 USC §3602(h)]

The term handicap does not include the current illegal use of a controlled substance. However, recovered alcoholics and individuals who are considered “recovering or recovered addicts” are protected as handicapped. [United States v. Southern Management Corporation (4th Cir. 1992) 955 F2d 914]

Qualifying and processing tenants

A landlord or property manager is prohibited under FFHA from discriminating unlawfully in the negotiations and handling of the rental of a dwelling. [42 USC §3604(a)]

Thus, a landlord or property manager may not:

  • refuse to rent a dwelling or refuse to negotiate for the rental of a dwelling for unlawful discriminatory reasons;  

  • impose different rental charges on a dwelling for unlawful discriminatory reasons;  

  • unlawfully discriminate by using different qualification criteria or different procedures for processing applications in the rental of a dwelling; or  

  • evict tenants or the tenant’s guests for unlawful discriminatory reasons. [24 Code of Federal Regulations §100.60(b)]

Different criteria for tenant qualification or processing of rental applications include a landlord or property manager using different credit standards and tenant screening approval procedures in the negotiations or handling of the rental of a dwelling. [24 CFR §100.60(b)(4)]

For example, a broker is hired by a residential apartment owner to perform property management activities. One of the broker’s duties as a property manager is to locate tenants to fill vacancies.

  

A landlord may not discriminate by using different qualification criteria for processing applications in the rental of a dwelling.

A tenant from an ethnic or religious minority group contacts the broker about the availability of an apartment.

The broker (or his agent) informs the prospective tenant of the monthly rent – a rate that is higher than the rent nonminority tenants are asked to pay for similar apartments.

When the prospective minority tenant asks the broker for an application, the broker informs the tenant a nonrefundable screening fee is charged to process the application. The creditworthy minority tenant fills out the application, pays the fee and is told the processing will take several days.

In the meantime, a nonminority tenant inquires about the rental of the same or a similar apartment. The monthly rental rate the broker quotes is lower than the rental rate quoted to the minority tenant.

Further, the nonminority tenant is not charged a screening fee with his application, and the apartment is immediately rented to the nonminority tenant, even though the nonminority tenant is not as creditworthy as the minority tenant.

Here, the broker’s actions, be they his own or his agent’s, are a violation of the FFHA. The representations made to the minority tenant are construed to be racially or religiously motivated. The broker misrepresented the availability of the apartment based on the tenant’s race or religion by using different procedures and qualification standards in accepting and processing the tenant’s application. [United States v. Balistrieri (7th Cir. 1992) 981 F2d 916]

Different terms, different privileges

A landlord or property manager may not unlawfully discriminate against a person by setting different terms, conditions or privileges for his rental of a dwelling, or by providing substandard services and facilities for the dwellings. [42 USC §3604(b)]

For example, a prospective tenant who is a member of a protected class (race/ethnicity/etc.) responds to an ad concerning the rental of a residence in a new housing development.

The property manager shows the residence to the prospective tenant. The tenant informs the broker he is interested in renting the property.

Steering involves the restriction of a person seeking to rent a dwelling in a manner that perpetuates segregated housing patterns.

   The tenant is then informed he cannot rent this particular unit. The property manager and the developer believe it would become more difficult to rent the remaining units in the development with this tenant occupying a unit, due to his minority status.The property manager offers to show the tenant a unit in another area of the development.

Here, the property manager has discriminated against the prospective tenant since the property manager has refused to rent the house to the tenant on account of the tenant’s status as a member of a protected class of people, such as race, religion, handicap, etc. [United States v. Pelzer Realty Company, Inc. (5th Cir. 1973) 484 F2d 438]

Prohibited activities by the selective reduction of tenant privileges, conditions, services and facilities for protected individuals in the rental of a dwelling include:

  • providing for different terms in a lease, such as the rental charge, security deposit and the term of the lease;  

  • delaying or failing to perform maintenance;  

  • limiting the use of privileges, services or facilities to different classes of individuals; or  

  • refusing or failing to provide services or facilities due to a person’s refusal to provide sexual favors. [24 CFR §100.65(b)]

Further, the landlord or property manager may not discriminate based on a person’s status by representing that a dwelling is not available for rent, in order to steer the individual to a particular Section 8 project or neighborhood, when in fact the dwelling is available.

Steering involves the restriction of a person seeking to rent a dwelling in a community, neighborhood or development, in a manner that perpetuates segregated housing patterns. [42 USC §3604(d); 24 CFR §100.70]

Discrimination in advertisement

A broker making a statement or posting a notice or advertisement in the process of renting a dwelling may not use any wording that indicates a discriminatory preference or prejudice against individuals of protected classes of people. [42 USC §3604(c)]

The prohibition against unlawful discriminatory advertisements applies to all oral and written statements.

Notices and statements includes any applications, flyers, brochures, deeds, signs, banners, posters and billboards used in the rental of a dwelling.

Blockbusting for exploitation

A residential landlord or property manager may not induce or attempt to induce a person to rent a dwelling to encourage or discourage the entry of certain classes of people into the neighborhood, called blockbusting. [42 USC §3604(e)]

Further, receipt of an actual profit is not necessary to prove discrimination occurred, provided profit was a motive for the blockbusting activity. [24 CFR §100.85(b)]

Examples of blockbusting activities by a broker or his agent include:

  • encouraging an owner-occupant to offer a dwelling for rent by conveying the notion a neighborhood is undergoing or is about to undergo a change in the race, color, religion, sex, handicap, familial status or national origin of its residents; or  

  • discouraging an owner-occupant from renting a dwelling by claiming the entry of persons of a particular race, color, religion, sex, familial status, handicap or national origin will result in undesirable consequences for the neighborhood or community, such as an increase in criminal activity or a decline in the quality of schools and other facilities. [24 CFR §100.85(c)]

Aiding in discriminatory activities

Landlords and their agents may not coerce, intimidate, threaten or interfere with any person from a protected class of people in their occupancy or enjoyment of a dwelling. [42 USC §3617]

For example, a mobilehome park is allowed to operate as a de facto “adults-only” park under local rent control ordinances. However, the park owner never declares the park exempt from the FFHA as a de jure senior citizens housing development.

Later, local rent control ordinances are amended, allowing the park to be rented to new residents without restrictions on rental amounts. The park owner then decides to rent the newly vacated units to families with children.

Tenants currently renting mobilehome spaces in the park file a complaint with the city, seeking a rent reduction, claiming families with children cause a reduction in available services. The city awards the tenants their reduction in rent.

The park owner claims the rent reductions for existing tenants constituted a prohibited discriminatory interference and was a violation of the FFHA by the city, since the action inhibited the owner’s decision to rent to families with children.

The city claims it did not violate the FFHA since the park met the requirements of a senior citizen housing project and thus was exempt from the FFHA.

  

Landlords may not interfere with any person from a protected class of people in their occupancy of a dwelling.

However, the city did interfere with the owner’s rental of mobilehomes to families with children in violation of the FFHA. The older tenants are not entitled to a reduction in rent based on the occupation of spaces by families.

The owner’s rental of mobilehome spaces to families with children cannot be the basis for reducing rent paid by tenants who do not have children. Further, only an owner, not a governmental agency, can claim the park is exempt from the FFHA under the senior housing exemption. [United States v. City of Hayward (9th Cir. 1994) 36 F3d 832]

Exemptions for some discrimination

FFHA-prohibited discrimination in the rental of a residential dwelling does not apply to a single-family house rented by a landlord who:

  • does not own more than three single-family homes;  

  • does not use a real estate licensee to negotiate or handle the tenant; and  

  • does not use a publication, posting or mailing for any discriminatory advertisement. [42 USC §3603(b)(1)]

Thus, the FFHA prohibitions apply to all notices, statements and advertisements in the rental of a dwelling by anyone, be they an owner or a broker, who is in the business of renting dwellings. [42 USC §3603]

A person is in the business of renting dwellings if the person:

  • has participated within the past 12 months as a principal in three or more transactions involving the rental of any dwelling or interest in a dwelling;  

  • has participated within the past 12 months as an agent, negotiating two or more transactions involving the rental of any dwelling or interest in a dwelling, excluding the agent’s personal residence; or  

  • is the owner of a dwelling structure intended to be occupied by five or more families (larger than a fourplex). [42 USC §3603(c)]

Thus, if a broker is the agent for either the landlord or the tenant in a residential rental transaction, the anti-discrimination rules of the FFHA apply.

However, attorneys, escrow agents, title companies and professionals other than brokers, who are employed by a landlord to complete a transaction, do not bring the transaction under the FFHA, unless they participate in negotiations with the tenant. [42 USC §3603(b)(1)(B)]

Also exempt from discrimination prohibition rules in the rental of a dwelling are:

  • a one-to-four unit residential property in which one of the units is occupied by the owner. [42 USC §3603(b)(2)]  

  • religious organizations that limit the rental or occupancy of dwellings to individuals of the same religion, provided the dwelling is owned for noncommercial reasons. No exemption exists if the religion is restricted to persons of a particular race, color or national origin. [42 USC §3607(a)]  

  • private clubs that are not open to the public and provide their members with residential dwelling space for noncommercial purposes, as they may limit rental or occupancy of the dwellings to members.

Finally, housing qualified for older citizens which excludes children is not considered unlawful discrimination against tenants with children based on familial status. However, the housing must first qualify as housing for older persons. [42 USC §3607(b)]

Failure to comply with the FFHA

An aggrieved person under FFHA is any individual who claims he has been injured by an unlawful discriminatory housing practice or believes he will be injured by a prohibited discriminatory housing practice. [42 USC §3602(i)]

The aggrieved individual may file a complaint with the Secretary of Housing and Urban Development alleging a discriminatory housing practice. The complaint must be filed within one year of the alleged discriminatory housing practice. [42 USC §3610(a)]

The Secretary will attempt to resolve the dispute by having the parties enter into an agreement after informal negotiations. [42 USC §3610(b)]

An aggrieved individual may file a complaint within one year of the alleged discriminatory housing practice.

   However, a judicial action may be required to resolve the issue of discrimination if the Secretary concludes judicial involvement is necessary. The dispute will then be resolved by an administrative law judge.Any party to the complaint may elect to have the claims decided in a civil action before a court of law. [42 USC §3612(a)]

If a real estate broker subject to a judicial action is ruled to have committed discriminatory housing practices, the Secretary is to notify the DRE and recommend disciplinary action. [42 USC §3612(g)(5)]

If, in a civil action, the court determines discriminatory housing practices have taken place, the court may award actual and punitive damages, as well as issue an order preventing the person from engaging in any future discriminatory housing practice. [42 USC §3613(c)(1)]

Further, if the Attorney General commences a civil action against a person for prohibited discriminatory housing practices, the court may award:

  • relief preventing further discriminatory housing practices such as an injunction or restraining order;  

  • money damages; and  

  • civil penalties of no more than $50,000 for the first violation and no more than $100,000 for any subsequent violation. [42 USC §3614(d)]

Unruh Civil Rights Act

California’s Unruh Civil Rights Act, the state’s anti-discrimination law, specifically prohibits discrimination by a business establishment because of a person’s sex, race, color, religion, ancestry, national origin, disability or medical condition. [Calif. Civil Code §§51; 51.2; 51.3]

However, age is a legitimate restriction in a project that qualifies as a senior citizen housing development.

  

A business establishment may not boycott, blacklist or refuse to rent for prohibited discriminatory reasons.

Anti-discrimination law applies to anyone in the business of providing housing. Brokers, developers, apartment owners, condominium owners and single-family residential owners are considered to be in the business of providing housing.

Further, a business establishment may not boycott, blacklist or refuse to lease or rent because of the race, creed, religion, color, national origin, sex, disability or medical condition of a person, or the person’s business partners, members, stockholders, directors, officers, managers, agents, employees, business associates or customers. Thus, a person or an organization may not be blacklisted or boycotted for prohibited discriminatory reasons. [CC §51.5]

Reasonable vs. arbitrary discrimination

Civil rights and fair housing laws prohibit a broker from practicing any prohibited discrimination when locating tenants for a rental property.

However, standards of conduct that are applied equally to individuals who do not discriminate against a protected group of individuals are often considered reasonable, and thus permitted.

When providing property management or leasing agent services, a broker should avoid distinguishing among tenants for reasons such as age (except in the case of qualified senior housing), sex, religion, foreign language, education, color or marital or familial status.

Full and equal access guaranteed

A blind tenant seeks to rent a unit in a multi-unit residential dwelling structure. The tenant has a guide dog.

The landlord refuses to rent a unit to the blind tenant, claiming the guide dog violates the building’s pet restriction in the CC&Rs.

The blind tenant claims the landlord is discriminating against him based on his disability, and the landlord may not deny him housing on account of the guide dog.

Here, a landlord may not refuse to rent residential property to a blind tenant because of the tenant’s guide dog. The rule controlling guide dogs in a rental unit also applies to dogs specially trained to assist deaf and other disabled persons. [CC §54.1(b)(6)]

Fair housing for disabled persons

Disabled persons are protected under California law from discrimination when renting or leasing residential real estate. A disabled person is defined as anyone who:

  • has a physical or mental impairment which significantly limits major life activities;  

  • has a record of a disability; or  

  • is regarded as disabled. [Calif. Government Code §12926(i)]

People with disabilities are entitled to full and equal access to housing accommodations offered for rent. [CC §54.1(b)(1)]

The only exception is the rental of no more than one room in a single-family residence. [CC §54.1(b)(2)]

The case of the blind tenant with the seeing-eye dog is one example of ways in which landlords might seek to evade the anti-discrimination laws. While the landlord attempts to justify his behavior based on the pet restriction equally applied to all who have pets (a non-protected class of people), the refusal to rent to a disabled tenant based on his reliance on a trained dog to conduct life activities is still unlawful discrimination.

People with disabilities are entitled to full and equal access to housing accommodations offered for rent.

   Now consider a disabled tenant who is dependent on his spouse for financial support. The disabled tenant and his spouse seek to rent an apartment. The tenant and his spouse will both sign the lease agreement. The spouse’s income meets the landlord’s minimum requirement to qualify to pay the rent.

However, the landlord refuses to rent an apartment to the couple, claiming the disabled tenant does not also meet minimum income requirements.

The landlord may not deny housing to the disabled tenant based on the tenant being financially dependent on his spouse since the combined income of the tenant and his spouse meets minimum income requirements.

The landlord’s refusal to rent an apartment to the disabled tenant based on the tenant’s dependency on his spouse’s income is unlawful discrimination. If one qualifies, the other need not. [CC §54.1(b)(7)]

Accommodating the disabled

A landlord is not required to structurally modify existing residential rental property to meet the special needs of disabled tenants. [CC §54.1(b)(4)]

Although he is not required to modify the structure for a disabled tenant, the landlord must allow the tenant to make reasonable modifications himself or pay the landlord to do so. The landlord may require the tenant to restore the property to its original condition when the tenancy is terminated. [Gov C §12927(c)(1)]

Also, anti-discrimination laws require new residential properties consisting of four or more units per building to be built to allow access for disabled persons. Required adaptations include wheelchair ramps and kitchens and bathrooms designed to allow access for disabled tenants.

Failure to provide the disabled with access to a newly constructed four-or-more-unit residential property is considered unlawful discrimination. [Gov C §12955.1]

Remedies

An individual’s primary remedy for discrimination based on his physical disability is to seek an injunction to stop the discriminatory activity. The injunction may be sought by the disabled person being discriminated against, or by the city attorney, district attorney or Attorney General. [CC §§55; 55.1]

Property owners who unlawfully discriminate against disabled persons are also liable for money damages. In addition to actual damages, treble damages may be awarded as punitive damages, along with attorney fees. The minimum award of money damages for discrimination against disabled persons is $1,000. [CC §54.3]

Discriminatory practices, exemptions and remedies

An ethnic or religious minority tenant seeks to rent an apartment. The landlord states he cannot rent the apartment to the tenant until a credit check has been completed. The landlord also declines to accept a deposit from the tenant.

Later the same day, a nonminority tenant seeks to rent the same apartment. The landlord agrees to rent the apartment to the nonminority tenant without first requiring a credit check, and he immediately accepts the tenant’s check for a deposit on the apartment.

The minority tenant is informed the apartment has been rented to another person.

The minority tenant files a complaint against the landlord, claiming the landlord discriminated against him based on his ethnicity or religion by refusing to rent him an apartment. The landlord claims no discrimination occurred since he was entitled to a credit check of prospective tenants.

However, requiring a credit check of minority tenants, but not of nonminority tenants, is clearly a discriminatory practice. Thus, the landlord discriminated against the minority tenant, allowing the minority tenant to recover his money losses. [Stearns v. Fair Employment Practice Commission (1971) 6 C3d 205]

Prohibited discrimination

California law prohibits discrimination based on race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, source of income or disability in the sale or rental of housing accommodations.

This list of protected persons is more extensive than all others.

Discriminatory practices include:

  • making a written or oral inquiry into the race, sex, disability, etc. of any person seeking to rent housing;  

  • ads or notices for rental of housing which state or infer preferences or limitations based on any of the prohibited factors;  

  • a broker refusing to represent an individual in a real estate transaction based on any prohibited factor; and  

  • any other practice that denies housing to a member of a protected class. [Gov C §12955]

The denial of housing, based on the landlord’s or broker’s perception that a prospective tenant (or any associates of the prospective tenant) has any of the protected characteristics, is absolutely prohibited. [Gov C §12955(m)]

Income standards for tenants

To qualify a tenant for occupancy, a landlord or property manager may establish income ratios or standards to determine a tenant’s ability to pay the rent. Once set, the standard must be applied equally to all tenants. The higher the standard or ratio of income to rent, the less the risk of loss of rent borne by the landlord. The lower the standard, the greater the risk of loss of rent.

  

The landlord must consider the total income of all tenants who seek to rent a unit.

However, when renting to two or more who desire to live together in the unit, whether related or unrelated, married or not, the total income of all tenants must be considered by the landlord to determine their collective eligibility to qualify to pay the rent amount sought.

Each may be unable to separately qualify by meeting the income standard. However, if aggregating the income of all who intend to occupy the unit results in total income sufficient under the ratio or standard applied to qualify a tenant or tenants for occupancy, the tenants qualify. [Gov C §12955(n)]

Also, under rent subsidy programs, such as Section 8 housing arrangements, the landlord or property manager must consider the tenant’s income when assessing whether the tenant qualifies to pay their portion of the rent that is not subsidized. [Gov C §12955(o)]

Also, the source of income for each occupant includes any income claimed to be the tenant’s which is lawfully received by the tenant and verifiable, whether it is directly received by the tenant or received by a representative of the tenant. [Gov C §12955(p)]

Familial status

Familial status in anti-discrimination laws refers to a situation in which children under the age of 18 live with a parent or guardian. [Gov C §12955.2]

Policies excluding children under the age of 18 are now classified as unlawful discrimination, unless the property qualifies as senior citizen housing. [Gov C §12955.9]

As with senior citizen housing, an exemption exists for religious groups. Religious organizations may give preference to other members of the same religious group when providing residential property for noncommercial purposes unless membership is restricted on account of race, color or national origin. [Gov C §12955.4]

Marital status

The Department of Fair Employment and Housing and the Fair Employment and Housing Commission are the agencies of the California state government which enforce the anti-discrimination laws. [Gov C §§12901; 12903; 12930; 12935]

The landlord’s refusal to rent to unmarried couples based on his religious beliefs violates the fair housing laws.

   Consider a landlord who refuses to rent an apartment to an unmarried couple based on the landlord’s religious beliefs.The couple files a complaint with the housing commission, and the commission rules the landlord violated fair housing laws which prohibit discrimination based on marital status.

The landlord claims renting to an unmarried couple opposes his religious beliefs regarding the cohabitation of unmarried couples.

However, the landlord’s refusal to rent to unmarried couples violates the fair housing laws since the landlord’s religious beliefs do not require him to participate in the business of renting property.

Thus, the fair housing laws prohibiting discrimination based on marital beliefs do not interfere with the practice of the landlord’s religion, since he can go into a business that does not violate his beliefs. [Smith v. Fair Employment and Housing Commission (1996) 12 C4th 1143]

Guidelines for broker conduct

The Department of Real Estate (DRE) has enacted regulations prohibiting discriminatory practices by real estate brokers. A broker engaging in discriminatory business practices may be disciplined by the DRE. [Department of Real Estate Regulations §2780]

  

A broker engaging in discriminatory business practices may be disciplined by the DRE.

Prohibited practices include any situation in which a broker, while acting as an agent, discriminates against anyone based on race, color, sex, religion, ancestry, disability, marital status or national origin. Examples of discriminatory practices include:

  • refusing to negotiate for the rental of real estate;  

  • refusing to show property or provide information, or steering clients away from specific properties;  

  • refusing to accept a rental listing;  

  • publishing or distributing advertisements that indicate a discriminatory preference;  

  • any discrimination in the course of providing property management services;  

  • agreeing with a client to discriminate when leasing the client’s property, such as agreeing not to show the property to members of particular minority groups;  

  • attempting to discourage the rental of real estate based on representations of the race, sex, disability, etc. of other inhabitants in an area; and  

  • encouraging or permitting employees to engage in discriminatory practices.

For example, a broker is aware a licensed care facility for disabled people is located in a single-family residence near a residence the prospective tenant is interested in renting.

The presence of the facility might influence the tenant’s decision to rent the property. However, for the broker or his agents to inform the tenant of the facility would be unlawful discrimination. Thus, the broker may not attempt to influence the tenant’s decision based on representations of the disability of other inhabitants in the area. [73 Ops. Cal. Atty. Gen. 58 (1990)]

Broker’s duty to manage employees

A broker has a duty to advise his agents and employees of anti-discrimination rules, including DRE regulations, the Unruh Civil Rights Act, the California Fair Employment and Housing Act, and federal Fair Housing laws. [DRE Reg. §2725(f)]

Thus, the broker is not only responsible for his own conduct, but must also ensure his employees follow anti-discrimination regulations when acting as agents on his behalf.

No disclosure of HIV/AIDS

A property manager locates a rental for a tenant. The prior occupant of the property was afflicted with the HIV virus or AIDS.

A broker is prohibited from a responsive disclosure of a prior occupant’s affliction with AIDS, even on the buyer’s inquiry.

   Neither the property manager nor the landlord discloses the prior occupant’s AIDS affliction, whether or not asked by the prospective tenant.The tenant rents the property and later discovers the prior occupant was afflicted with AIDS while residing on the property.

The tenant claims the property manager had a duty to disclose the prior occupant had AIDS.

However, the tenant has no cause of action against the property manager for the property manager’s failure to disclose any prior occupant was infected with the HIV virus or afflicted with AIDS. No duty exists to disclose the prior tenant’s affliction. [CC §1710.2(a)]

Further, California public policy prohibits a broker from a responsive disclosure of a prior occupant’s affliction with AIDS, even on the buyer’s inquiry. [CC §1710.2(d)]

Also, individuals with the HIV virus are considered handicapped and are protected by the Federal Fair Housing laws. [24 CFR §100.201]

Disclosing death from AIDS

Unless the tenant makes a direct inquiry, the landlord’s or property manager’s affirmative duty to voluntarily disclose material facts to the tenant in a lease transaction does not extend to the death of a prior occupant which occurred more than three years before the lease of the property.

Consider a tenant who asks the property manager if any AIDS-related deaths occurred on the property.

On direct inquiry, the property manager must disclose his knowledge of the facts concerning a death on the real estate. [CC §1710.2(d)]

If the property manager is aware an AIDS-related death occurred on the property, he has a duty to disclose:

  • the prior occupant’s death; and  

  • the death was AIDS-related.

If the property manager has no knowledge of any AIDS-related deaths occurring on the property, he must disclose:

  • his lack of knowledge; and  

  • whether or not he intends to undertake an investigation to determine if an AIDS-related death occurred on the property.

However, consider a property manager who is aware a death, from any cause including AIDS, occurred on the property within three years of the commencement of a tenant’s lease agreement. The tenant has not inquired if any deaths have occurred on the property.

Here, the property manager will need to determine if the death on the property is a material fact, one that might affect the tenant’s decision to lease and occupy the property.

The property manager should disclose any death occurring on the property within three years if he believes the fact might affect the tenant’s decision to lease. On inquiry, the property manager must disclose his knowledge of any death, including any AIDS-related death, that has occurred on the property within the last three years.