Massachusetts Fair Housing Rights

A CRC staff member recently attended a presentation hosted by ABCD and given by the Fair Housing Center of Greater Boston on Fair Housing Rights.

The Problem

One of the services offered by the Fair Housing Center of Greater Boston (FHCGB) is “Testing”. Basically an audit of housing practices, specially trained volunteers apply for different types of housing and report on their experiences. Testing has been held by the courts to be the best way to identify discriminatory action. In six audits of the housing market in the area completed from 2001 to 2005 the FHCGB has found that African American and Latino home seekers experience discrimination in roughly half of their attempts to rent, purchase or finance homes in the Greater Boston region. Families with children and people with Section 8 vouchers are discriminated against two-thirds of the time.

Discrimination can take many forms including that African Americans and Latinos were shown fewer homes and told about fewer listings, they were asked more questions about their qualifications, steered to certain communities or lower priced homes, and were quoted higher loan rates and offered fewer discounts on closing costs. In contrast, white testers not only had the opposite experience of the experiences above, but were more likely to succeed in home buying.

Protections

Under federal and state anti-discrimination laws it is illegal to discriminate in housing sales or rentals or in housing lending and insurance on the basis of certain conditions. These are called “protected classes”.

Protected classes (updated 10/14)

Under federal law- the federal Fair Housing Act:

• Race
• National Origin
• Religion
• Gender
• Familial Status (such as families with children)
• Disability
• Age (protections start at age 40)

Under Massachusetts’ state law- the MGL Chapter 151b (in addition to above):

• Marital Status
• Sexual Orientation
• Gender identity (e.g., transgender)
• Source of Income/Receipt of Government Assistance (such as those with housing vouchers)
• Veteran History/Military Status (Dept of Defense offers additional protections for heads of households serving in war or conflict zone)
• Genetic Information

Prohibited Actions

The laws protect against more than just outright denial of housing. It also covers giving different terms and conditions for different people, discriminatory ads, misrepresenting availability, steering to certain properties, and intimidation and retaliation (among other practices).

Exceptions

Owner-occupied buildings with two or less rental units are exempt from some aspects of fair housing law. For example an owner-occupied building with two or less rental units where the owner is elderly or infirm and having children in the house would pose a hardship may refuse to rent to a family with children. These property owners are NOT exempt from requirements related to discrimination based on race, or source of income (i.e., Section 8) nor from lead paint abatement requirements (discussed further below). Also if a Real Estate Agent is involved then they must follow the law and they may not use discriminatory advertising.

An exception to the rule prohibiting discrimination against families with children excludes housing developments for the elderly or “senior life” communities that cater to those over 55 for example. These developments must go through a state approval process to receive this designation and must maintain 80% occupancy over age 55 to maintain this exemption.

Disability

The rules around disability discrimination are among the most frequently misunderstood and the most pertinent for our purposes.

The definition of disability for housing law:

• A physical or mental handicap that substantially limits one or more life activities, like walking, talking breathing.
• Having a history of such impairment or being perceived as having such an impairment.

Key Features of Disability-Related Fair Housing Protections

• Property owners are prohibited from asking about the disability or severity of the disability.
• New multifamily housing must be designed and constructed to be usable by people with disabilities.
• Reasonable ACCOMMODATIONS- a change or waiver to rules, policies, practices or services when such accommodations may be necessary to afford such person [person with a disability] equal opportunity for use and enjoyment of a dwelling. Common examples are allowing assistive animals, allowing an early termination of a lease for someone with a new disability who can no longer access dwelling, relocation to a more accessible unit, change of rent due date to accommodate date public benefits received. Requests may be denied if no direct connection between the disability and the request, the request would cause an undue administrative and financial burden or it would change the fundamental nature of the housing program.
  • Written and dated requests are suggested, but are not required under the law- can be requested verbally.
  • Health care provider documentation should only be requested by housing provider when the disability or need for accommodations is unknown or not apparent.
    • This documentation can be provided by any health care provider (social worker, PT, etc.)
    • Only include information necessary to document need for accommodation. Nature and severity of disability does not need to be disclosed.
    • Housing provider must keep disability info confidential and not to be shared with staff not directly involved in the request or other residents.
    • Can not require specific form.
    • Provider should not invite the housing provider to contact them directly.
  • Note on Service Animals in housing- under the federal Americans with Disabilities Act (ADA) the only animals that may be recognized as service animals are dogs and certain miniature horses (under the 2010 update to the law). The state's fair housing law has retained a broader definition of service animals. "Service animals can include many types of animals beyond dogs, including for example, cats, birds and rabbits. Tenants with disabilities who live or seek to live in (housing) with three or more units for rent or sale, may be allowed to live there with their service animal if they can show with sufficient documentation that the animal mitigates the disability. Residents cannot be charged a pet fee for their service animal." Also state fair housing and employment discrimination laws "allow animals other than dogs and miniature horses and animals that do not have training, such as “emotional support animals” if it is a reasonable accommodation for a disability.  If your business has a grant or contract funded by the federal government, you should check with your funding source for applicable rules." (-From http://www.mass.gov/ago/consumer-resources/your-rights/civil-rights/disability-rights/information-about-service-animals.html emphasis added.)
    
    
• Reasonable MODIFICATIONS - a physical alteration to allow greater accessibility and use of the premises by a person with a disability. Property owners are required to make changes to the property that would make it accessible to those with disabilities unless this would cause “undue hardship” to the property owner. Usually this “undue hardship” provision is a relatively high bar that would mainly exempt small property owners from very expensive renovations. Note that the accommodation does not have to exactly match the accommodation requested; the property owner can provide a different accommodation as long as it meets the disabled individual’s needs. The provider can require that modifications be done in a professional manner.
  • If the modification is to an individual unit the provider can require the unit be restored when the resident vacates the premises if it would otherwise negatively affect the marketability of the unit.
  • If the modification is to a common area or external to the unit the resident is NOT responsible for the restoration.
  • Responsibility for Costs (MA law):
    • If there are 10 or more units, OR if the building/development receives direct government assistance (not including vouchers or tax credits) the housing provider assumes all costs.
    • If there are less than 10 units and no direct government funding the tenant assumes modification costs.
    
    
    (Reasonable Accommodations and Modifications sections revised/additional material from Housing Civil Rights presentation, Barbara Chandler, MBHP 10-14)

Massachusetts’ Lead Law

It is illegal for a landlord or real estate agent to refuse to rent to (or to evict) a family with children under age six or a pregnant woman because of the presence of lead paint. The law requires property owners to de-lead any unit that has lead when children under age six live there. It is also the responsibility of the property owner to pay temporary shelter expenses for families who need to be relocated during the lead abatement process.(*More information about temporary housing for those displaced for lead abatement.) Financial help is available to property owners through tax credits, grants and loans. More information on these programs. Also see the Childhood Lead Poisoning Prevention Program http://www.mass.gov/dph/clppp 

There are NO Exemptions to the lead law. Owner-occupied homes are not exempt. They may under certain circumstances as describe above refuse to rent to a family with children, but if there are children under age 6 they must de-lead.

Is it worth reporting suspected discrimination?

Individuals report for a variety of reasons including gaining access to the desired housing, but also monetary relief, changing discriminatory practices for the benefit of future housing seekers and the satisfaction of challenging discrimination. Penalties for discrimination may include out-of-pocket expenses (e.g., moving costs, costs of continued housing search, the difference in rent or quality of housing), emotional damages, penalty payments, and attorney and litigation fees. Other outcomes might include required reporting and compliance monitoring, requirement to advertise in certain newspapers, the requirement to attend fair housing training (not an exhaustive list).

For Additional Information

Self-Help

• See the 2008 edition of Legal Tactics: Tenants' Rights in Massachusetts. This handbook provides practical information about tenants' rights in private housing (housing that is owned by an individual or a privately owned company): http://www.masslegalhelp.org/housing/legal-tactics1
• For those in public housing, go to the Public Housing section of Mass Legal Help’s website: http://www.masslegalhelp.org/housing/public-housing .

Advice and Advocacy

The Boston Fair Housing Commission works to eliminate discrimination and increase access to housing in Boston through investigation and enforcement, affirmative marketing, housing counseling, and interagency coordination.

City of Boston, Office of Civil Rights
1 City Hall Square , Room 966
Boston, MA 02201-2041
617.635.2500
617.635.4408

The Fair Housing Center of Greater Boston. Provides full case advocacy, including testing for proof of discrimination, representing complainants throughout HUD’s or Massachusetts Commission Against Discrimination’s (MCAD’s) processes, and securing pro bono legal counsel if litigation is required.

59 Temple Place #1105
Boston, MA 02111
617-399-0491
TTY users, please call the MA Relay Service at 1-800-439-2370
info@bostonfairhousing.org

The Massachusetts Commission Against Discrimination (MCAD) is the state's chief civil rights agency. A charge of discrimination must be filed in person at the Massachusetts Commission Against Discrimination (MCAD) offices. In all but a few exceptions, the MCAD cannot accept complaints based on incidents over 300 days old.

The John McCormack Building
One Ashburton Place
Room 601
Boston , MA 02108
(617) 994-6000
(Phone numbers for the Springfield, Worcester and New Bedford offices are on the website)

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*Temporary Housing for those Displaced by Lead Abatement

You and your landlord should try to agree on a plan for temporary housing while the deleading work is being done. If you choose to move in with family or friends, you do not have to pay any rent to your landlord while you are out of your home. 41

If you do not wish to live with family or friends, the landlord has the right, after giving you reasonable notice of his plans, to move you to temporary substitute housing. This temporary housing must be suitable and not cause you "undue economic or personal hardship." 42

If moving to the landlord's choice of a substitute apartment would cause real problems for your family (such as the apartment's being too small, lacking adequate cooking facilities, being located too far away from your job or not as near to public transportation as your original home was), you do not have to accept moving there. You can ask the landlord to provide you with another temporary dwelling unit that does not cause such hardships. 43

If you live in temporary housing provided by the landlord, you have only to continue to pay your normal rent to the landlord (or the new landlord, depending upon what arrangements you make). Your landlord must pay any additional cost for the temporary housing, and the landlord must pay for the cost of the temporary housing, even if it is more than your normal rent. The landlord must also reimburse you for any other expenses and costs that you have as a result of being required to move to this temporary substitute housing, as well as pay your reasonable moving costs, both to the temporary housing and back to your own home after it has been deleaded and passes re-inspection.

If the landlord does not provide you with suitable temporary housing, you can find your own temporary place to stay. In this situation, you do not have to pay any rent to the landlord during this period of time and the landlord will be responsible for reimbursing you a reasonable amount for that temporary housing, as well as reimbursing you for any other expenses or costs, including your reasonable moving expenses.

If the temporary housing chosen by the landlord is suitable and you refuse to accept it, then you will have to find temporary housing on your own and you will have to pay for that housing on your own. In this case, you do not have to pay any rent to the landlord until you are permitted back into your own home. In addition, your landlord does not have to reimburse you for any other expenses or costs, except your reasonable moving costs. The landlord must, however, pay you any difference between the cost of the suitable temporary housing that the landlord first chose for you (which you rejected) and the normal rent that you would have paid to the landlord for your apartment that is being deleaded. 44

No matter where you choose to stay, the landlord must pay your reasonable moving costs. If you and the landlord cannot agree on a plan for temporary substitute housing, you should consult an attorney to help you negotiate with the landlord.

-From: Legal Tactics: Tenants' Rights in Massachusetts, Seventh Edition, July 2008, Chapter 9: Lead Poisoning • 139 http://www.masslegalhelp.org/housing/legal-tactics1/chapter9-lead-poisoning.pdf

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