Chapter 4 - Housing

STATE HOUSING LAWS

In California, it is illegal to refuse to rent or sell a home to someone based on his/her race, color, religion, sex, sexual preference, age, marital status, national origin, ancestry, disability (physical or mental), familial status, or any other unreasonable or arbitrary category.⁽¹⁾ When you seek to rent or buy an apartment, condominium or house, the owner, or his/her agent, cannot refuse to deal with you solely because you are a woman, divorced or separated, living with someone to whom you are not married, or gay. A single person with children is entitled to be treated the same as a married couple with children, with respect to housing agreements. (Gov. Code, § 12955 et seq., and Civ. Code, § 51 et seq.)

It is also illegal for financial institutions, banks, or mortgage companies to set discriminatory policies in their terms, conditions or privileges related to their services on the basis of race, color, religion, sex, marital status, familial status, disability, national origin, and ancestry. (Gov. Code, § 12955(e); Health & Saf. Code, § 35800 et seq.)

What is Discrimination in Housing?

The California Legislature has passed laws that prohibit discrimination in any aspect of leasing, selling, transferring, or financing of residential accommodations. Discrimination based on any prohibited classification is outlawed. ⁽²⁾

Illegal Practices

In California, the Fair Employment and Housing Act (Gov. Code, § 12955 et seq., hereinafter, "the FEHA") makes the following practices illegal in California, if they are done to discriminate on the basis of race, color, religion, marital status, national origin, ancestry, familial status, disability of the person, sexual orientation, age, or other legally recognized prohibited classification:⁽³⁾

• Refusing to sell, rent or lease housing.
• Discriminating in terms, conditions, privileges, facilities or services in connection with such housing.
• Canceling or terminating a sale or rental agreement.
• Providing segregated or separate housing.
• Discriminating in terms, conditions or privileges relating to financial assistance for the purchase, organization or construction of housing.
• Harassing, evicting or otherwise discriminating against persons who have complained about discrimination to enforcement agencies, or other persons.⁽⁴⁾
• Making inquiries concerning the race, color, religion, sex, national origin, ancestry, familial status, sexual orientation, age, disability, or marital status of an applicant for housing.
• Printing, or publishing any notice, or making any statement with respect to the sale or rental of a residence that indicates a preference, limitation, or discrimination on the basis of race, color, religion, sex, national origin, ancestry, familial status, sexual orientation, age, disability, or marital status of an applicant for housing.
• Restrictions upon the transfer or use of realty because of race, color, religion, sex, ancestry, national origin, familial status, sexual orientation, age, disability, or marital status of an applicant for housing.
• Discrimination in the use of public land through the use of discriminatory practices, decisions, and authorizations. Discrimination includes, but is not limited to, restrictive covenants, zoning laws, denials of use permits, and other actions authorized under planning and zoning laws that make housing opportunities unavailable.
• Denying access to, or membership or participation in, a multiple listing service, real estate brokerage organization or other service because of race, color, religion, sex, ancestry, national origin, familial status, sexual orientation, age, disability, or marital status of an applicant for housing.
• Denying or otherwise making unavailable a dwelling place because of race, color, religion, sex, ancestry, national origin, familial status, sexual orientation, age, disability, or marital status of an applicant for housing.

Note: It is not unlawful for a person to discriminate when renting a room in his or her own home. However, the owner must live in the home and there may be only one boarder or renter in the home. In addition, the owner must still comply with Government Code section 12955(c), that prohibits discriminatory notices, statements, publications or advertisements in rental information. (Gov. Code, § 12927(c)(2).)

Religious organizations are also permitted to limit the sale, rental or occupancy of their dwellings, for other than commercial purposes, to persons of the same religion, unless membership in that religion is restricted on account of race, color, or national origin. (Gov. Code, § 12955.4.) ⁽⁵⁾

Sexual harassment in the rental, sale, or terms and conditions of housing is prohibited. It is illegal for a landlord or property manager to treat a woman less favorably in the rental or sale of housing, or to require that she submit to sexual comments or actions in order to maintain her residency.⁽⁶⁾ (Gov. Code, § 12955(d); Brown v. Smith (1997) 55 Cal.App.4th 767.) A landlord, or property anager maybe liable for sexually harassing a tenant. (Civ. Code, §§ 51.9 and 52; see also,Brown v. Smith, supra.)

Housing Discrimination Based on Your Marital Status

You have a right to equal housing opportunities regardless of your marital status. The fact that you are single, married, divorced or separated may not be used as a basis to refuse to provide you with housing, or to treat you unfairly or more harshly than other persons. (Civ. Code, § 51; Gov. Code, § 12955(a).) In a recent California case, a landlord argued that renting to an unmarried couple violated her right to the free exercise of her religion. The California Supreme Court held that the freedom of religion clauses of the U.S. Constitution and the California Constitution did not exempt a landlord from the proscription against discrimination based on marital status found in the FEHA. (Smith v. Fair Employment & Housing Com. (1996) 12 Cal.4th 1143.)

The law against marital status discrimination includes the right to equal housing opportunities for single parents. A person may not discriminate against you just because you have children and are separated, divorced, unmarried or living with someone. Single parents must be treated the same as married parents. (Civ. Code, § 12955; Gov. Code, § 51.) The protection afforded single parents is also available to pregnant women seeking housing, and parents in the process of securing custody of children under 18 years of age. (Gov. Code, § 12955.2.)

Persons with disabilities and persons who have disabled children may not be discriminated against on the basis of their disability when seeking housing. Government Code section 12955.1, provides for minimum building standards in multifamily dwellings, to provide disabled access to persons with disabilities. In addition, a prospective tenant has the right to, reasonable modifications of existing housing, at the renter's expense, in order to make use of the premises. (Gov. Code, § 12927(c)(1).)⁽⁷⁾

You may be asked about your marital status if such information is related to whether you are financially qualified to purchase, rent or lease a home. For example, if your income consists of alimony payments received from an ex-spouse, information about your alimony to determine your financial ability to buy or rent housing would be appropriate. However, this information may not be used to discriminate against you because you are divorced, separated, single, married, or living with someone to whom you are not married. (See Smith v. Fair Employment & Housing Com., supra, 12 Cal.4th 1143.)

Housing Discrimination and Children

Both the FEHA and the Unruh Civil Rights Act (Civ. Code § 51, et seq.) prohibit discrimination against persons with children in the rental, sale or terms and conditions of housing, including condominiums. (See also 75 Ops.Cal.Atty.Gen. 219 (1992).)

It is illegal for an owner or agent of a rental complex to refuse to rent housing to you because you have children under a certain age. (Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721.) It is not illegal, however, for owners to establish reasonable restrictions on children, based on the actual differences and needs of the users in the development.⁽⁸⁾ (Sunrise Country Club Assn. v. Proud (1987) 190 Cal.App.3d 377; DFEH v. The McWay Family Trust (1996) FEHC Dec. No. 96-07, at p. 25 [1996-1997 CEB 1.].)

Condominium owners' associations may not, however, discriminate against people who have children by including arbitrary and unreasonable covenants, conditions and restrictions in the homeowner association rules. (See O'Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790, where an association by-law that prohibited any residents under 18 years old was struck down as being arbitrary and unreasonable.)

Children may be excluded from specially created senior citizen housing. The provisions of the Unruh Civil Rights Act do not apply to housing designed to meet the physical and social needs of senior citizens, if the housing also meets the standards of Civil Code sections 51.2, 51.3, and 51.4. Mobile home parks for older persons, as defined in the Federal Fair Housing Amendments Act of 1988, (42 U.S.C. § 3601 et seq.) may also exclude children, and are not required to meet the standards of Civil Code sections 51.2, 51.3, and 51.4. (Gov. Code, § 12955.9; Civ. Code, § 51.3.) ⁽⁹⁾

Although California law does not prohibit mobile home parks for older persons from restricting children, Civil Code section 798.76, permits the management of such parks to require that prospective mobile home purchasers comply with federal laws and regulations for senior mobile home parks.⁽¹⁰⁾

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FEDERAL HOUSING LAWS

Federal law prohibits housing discrimination. According to the federal Fair Housing Act and the Fair Housing Amendments Act of 1988, it is unlawful to refuse to sell, rent, or to refuse to negotiate for the sale or rental of a dwelling to any person, or to discriminate against any person in the terms, conditions or privileges of a sale or rental of a dwelling because of race, color, religion, sex, familial status, handicap (physical or mental), or national origin. (42 U.S.C. § 3601 et seq.) The following are prohibited acts (if based upon one of the above-mentioned categories):

• to refuse to rent or sell a dwelling, or to negotiate for the sale or rental of a dwelling.
• to discriminate in the terms, conditions and privileges of the sale or rental of a dwelling, or in the provision of services or facilities of the dwelling.
• to print, make or publish any notice in the sale or rental of a dwelling, of a statement or advertising that indicates a preference, limitation or discrimination based on race, color, religion, sex, familial status (families with person under 18 or someone who is pregnant), handicap, or national origin in an advertisement with respect to the sale or rental of a dwelling.
• to represent to a person because of his/her race, color, religion, sex, familial status, handicap or national origin that any dwelling is not available for inspection, sale or rental when it is available.
• to induce or attempt to induce, for profit, any person to sell or rent any dwelling by making representations about the entry into the neighborhood of a person of a particular race, color, religion, sex, familial status, handicap, or national origin.
• to discriminate in the financing of, or use of brokerage services, in the area of housing.

Sexual harassment in rental housing is prohibited. The Fair Housing Act prohibits gender-based discrimination in the sale or rental of housing, or in the provision of services or facilities connected with such housing. (42 U.S.C. § 3604.) Discrimination may occur by treating women less favorably than men or by sexual harassment in the use or enjoyment of such housing. (Honce v. Vigil (10th Cir. 1993) 1 F.3d 1085.)⁽¹¹⁾

Religious organizations are permitted to limit the sale, rental or occupancy of their dwellings, for other than commercial uses, to persons of the same religion. However, membership in that religion must not be restricted on account of race, color, or national origin. (42 U.S.C. § 3607(a).)

Discrimination against persons with disabilities in the rental or sale of housing is prohibited. Discrimination against a person with disabilities includes the refusal by an owner to permit the disabled person to make reasonable modifications, at his/her expense, to the interior of the dwelling, or for the owner to refuse to establish reasonable accommodations in rules, policies, practices, or services where it might be necessary to allow the person to use the dwelling.⁽¹²⁾ For example, it may be necessary to widen doorways, or provide curb cuts or ramps for access to public places, such as pools, or community rooms. All multifamily dwellings (buildings with elevators and four or more units, or ground floor units in other buildings of four or more units) built for occupancy after March 12, 1989, must be built with certain handicapped accessibility features. (42 U.S.C. §§ 3604-3605.)

Residential real estate businesses may not discriminate against families with children. (42 U.S.C § 3605.)

The prohibition against discrimination because of familial status does not apply to housing for older persons, if the housing meets requirements of federal regulations. (42 U.S.C. § 3607(b).)⁽¹³⁾

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LEGAL RIGHTS AND REMEDIES

If you have a complaint about a landlord or homeowner who refuses to rent or sell to you, and you think you are being discriminated against, you should seek legal help.

If you are considering legal action related to a housing discrimination claim, you may file a complaint with the Department of Fair Employment and Housing (DFEH). You may seek a settlement, an administrative action leading to the possible award of compensatory damages, including damages for emotional distress, or permission from DFEH to file a complaint in civil court. (Gov. Code, § 12987.)⁽¹⁴⁾

Federal housing laws provide legal remedies if you are discriminated against. Complaints must be filed with the Secretary of Housing and Urban Development (HUD) no later than one year after the alleged discriminatory housing practice has occurred or terminated. Federal law further provides for investigation by the Secretary and issuance of charges, conciliation agreements, administrative hearings, and the filing of civil actions by the U.S. Attorney General, where appropriate. (42 U.S.C. §§ 3610 and 3612.) Private persons may also file civil actions not later than two years after the occurrence or the termination of the alleged discriminatory housing practice or the breach of a conciliation agreement, whichever occurs last. (42 U.S.C. § 3613.)

Any person who intimidates or interferes with the efforts of a person to sell or rent housing because of their race, color, religion, sex, familial status, handicap, or national origin can be fined or imprisoned. (42 U.S.C. § 3631.)

You may also want to contact a private attorney or local private fair housing organization. See Chapter Nine, Directory of Services, for addresses and telephone numbers of referral services. You may file an action directly in court under the Unruh Civil Rights Act. (Civ. Code, § 51.)

If you have a complaint about housing discrimination, you may contact:

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Footnotes

1. See footnote 66, for further explanation on the California Supreme Court's interpretation of arbitrary and unreasonable discrimination. Back to link 1
2. For additional information on housing discrimination, see the latest Attorney General handbooks on civil rights and the rights of persons with disabilities. Back to link 2
3. Government Code section 12955(d), also makes it unlawful to discriminate against any person covered by the housing provisions of the Unruh Civil Rights Act. (Civ. Code, § 51.) Back to link 3
4. It is also unlawful to coerce, threaten or intimidate anyone for exercising or for aiding in the exercise of any rights under sections 12955 and 12955.1 of the FEHA. (Gov. Code, § 12955.7.) Back to link 4
5. Historically, courts have not viewed the categories of persons set forth in the Unruh Civil Rights Act, as the complete list of protected persons. Courts have expanded protection to persons historically discriminated against for unreasonable, arbitrary purposes, such as homosexuals, families with minor children, or persons with unconventional lifestyles or political views. In 1991, however, the California Supreme Court held, in Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, that protection under the Unruh Act is limited to the classes of persons listed in the Act, classes of persons previously recognized in case law covered in the Act, and discrimination based on other personal characteristics. The court in Harris, supra, denied protection to a renter claiming discrimination based on her economic position. The court found that economics is not a personal characteristic, and not protected under the Act. (See also King v. Hofer (1996) 42 Cal.App.4th 678, where the court denied protection to a nonsmoker, indicating that nonsmokers were not a group that historically has suffered discrimination.) Back to link 5
6. It is also illegal for the owner of a housing accommodation to harass you, evict you or refuse to do business with you because you have opposed discriminatory actions. For example, a landlord may not evict you just because you have testified against him in a discrimination case. (Gov. Code, § 12955(f).) Back to link 6
7. For further information on rights of persons with disabilities, see the California Attorney General's handbook entitled: Legal Rights of Persons with Disabilities (March 1997). Back to link 7
8. An example of unequal treatment of children is prohibiting a single parent with a child from occupying a one-bedroom apartment, but permitting two adults to share a one-bedroom apartment. (Glover v. Crestwood Lake Section 1 Holding Corp. (S.D.N.Y. 1990) 746 F.Supp. 301.) However, landlords may establish reasonable rules based on health and safety reasons. For example, landlords may reasonably require adult supervision for children under 14 years old when using a pool. Back to link 8
9. The California Legislature recently enacted separate provisions relating to senior housing for the County of Riverside. (Civ. Code, §§ 51.11 and 51.12.) You are advised to discuss application of senior housing laws with local housing authorities if you live in the County of Riverside. Back to link 9
10. The Ninth Circuit Court of Appeals recently held that 1995 changes in the federal Fair Housing Act and HUD regulations that exempt senior housing from the provisions of the federal Fair Housing Act (and amendments) that prohibit housing discrimination based on familial status cannot be retroactively applied to cases filed before the amendments and regulations took effect. (Covey v. Hollydale Mobilehome Estates (9th Cir. 1997) 116 F.3d 830.) Back to link 10
11. A federal court summarily affirmed a lower court decision that awarded damages for sexual harassment to a woman who was evicted after she refused to pose nude for her landlord. (Shellhammer v. Lewallen (6th Cir. 1985) 770 F.2d 167.) In addition, a landlord's policy of not renting to women without cars was found to be sexual discrimination, despite the fact that the landlord argued that his policy protected women from possible rape and was not intended to discriminate against women. (United States v. Reece (D. Mont. 1978) 457 F.Supp. 43.) Back to link 11
12. All covered multi-family housing constructed for first occupancy after March 1993 must be designed in such a manner that the common and public use areas are readily accessible to persons with disabilities. (42 U.S.C. § 3604(f)(3)(C).) See footnote, 64, supra, for further information regarding disability rights. Back to link 12
13. In 1995, Congress passed the "Housing for Older Persons Act of 1995." That act amended the federal Fair Housing Act to eliminate the requirement that, in order to qualify for a senior housing exemption, the housing development have significant services and facilities specifically designed to meet the needs of seniors. (42 U.S.C. § 3607(b)(1).) HUD regulations were amended in 1996 to reflect this change in law. (24 C.F.R. § 100.304.) However, California law still requires that senior housing be designed to meet the "physical and social needs of seniors" in order to qualify for a senior housing exemption from familial status discrimination. (Civ. Code, § 51.3.) Because of this conflict, you are advised to discuss this issue with the Department of Fair Employment and Housing (DFEH) or Housing and Urban Development (HUD) if the housing complex where you seek housing is claiming to be "senior housing" and to be exempt from prohibitions against familial status discrimination. Back to link 13
14. Persons wishing to file cases in civil court under the FEHA must first obtain a right-to-sue letter from the DFEH. (Gov. Code, § 12980 (h).) Back to link 14

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