It could happen to even the most careful landlord or any property manager: everything’s going along just fine, and then, BOOM, you receive a summons to court as a result of a housing discrimination-related lawsuit or enforcement action.
If the complainant is a tenant or someone you know, your first instinct may be to go give them a piece of your mind (over email, phone, or even in person). But that’s the last thing you should do.
It’s fair to be angry and scared—the direct federal fines for violations of the Fair Housing Act are usually $17,000 per violation; total settlements on race, familial status, age and sex discrimination cases often reach well into the six figures—but those overwhelming emotions are why you should go straight to your lawyer.
At this point in the process, there is no way to avoid how time-consuming, costly, and stressful it’s going to be. But, there are some things you can do to make yourself a less tempting target for lawsuits, maximize the likelihood that a judge will drop the case, or set yourself up for a more favorable settlement.
Here are a few do’s and don’ts that may ease the process:
- Contact the plaintiff or plaintiff’s attorney yourself (in person, over the phone, or via text or email) without your attorney present.
- Discuss any factual matters related to the case with anyone other than your attorney.
- Speak to the media, even if there is interest, unless your attorney has a chance to review any statements.
- Waste time crafting your public statement. If the case attracts media attention, you want your message to be a part of the media cycle from the beginning, otherwise your only representation in the media is “No comment.”
- Attempt to justify your actions to housing investigators, except through your attorney. If you are justified under the law, you’ll still be justified when your attorney makes your points for you.
- Retaliate. If you take negative action of any kind against a tenant who filed a housing discrimination complaint against you, you’ll open yourself up to more fines and penalties.
- Shut off the tenant’s utilities, except as specifically provided for in your jurisdiction’s eviction laws.
- Invest time and effort into training on federal and state housing discrimination laws for you and your staff.
- Train your staff on what “steering” is, and how to avoid it.
- Train your staff on source of income laws, if you are in a “source of income” jurisdiction.
- Take discrimination and equal housing obligations seriously, especially if you’re in a leadership position. The rest of the staff will follow suit.
- Make sure your errors and omissions insurance is paid up.
- Put your leasing/renting criteria in writing.
- Develop a written tenant selection plan and stick to it. Include:
- Income requirements
- Minimum credit score
- Criminal background requirements (i.e., no convictions in 3 years, no domestic violence convictions ever)
- Occupancy restrictions/maximum number of individuals in a unit
- Solid references from last two landlords, if applicable
- Provide each applicant with a written notice explaining that you intend to comply with all applicable fair housing laws, that you do not discriminate against anyone on the basis of race, religion, sex, age, family status, national origin, disability or any other protected category in your jurisdiction.
- Give applicants a copy of your written tenant selection plan. If you have a website, make it available online.
- Record the reason for rejecting each applicant. Keep records for the length of the statute of limitations in your jurisdiction (generally three to seven years).
- Look carefully at the summons if you receive one. There is normally a deadline by which you must respond, or the plaintiff’s attorney may be able to enter a request for a default judgment against you.
- Forward all correspondence with the complainants to your attorney
- Limit personal contact with plaintiffs as much as practicable.
- Keep careful records of any problematic behaviors exhibited by all tenants. Take photos if necessary. If you later have to evict because of these issues, and your former tenants accuse you of unlawful discrimination, you’ll be glad you kept these records.
- Promptly alert your errors and omissions insurance or landlord’s insurance carrier at the first sign of trouble. In many cases, they will be obligated to help you mount a defense. Their attorneys will probably be much more experienced in defending landlords in discrimination-related lawsuits than anyone you’re likely to stumble upon in the Yellow Pages. When in doubt, use their attorney.