Palo Alto Weekly

Real Estate - May 28, 2010

RentWatch

Can a landlord ask about citizenship status?

by Martin Eichner

Q I have been managing an apartment complex for about 20 years. We have been using the same rental application all that time. The rental application asks if the applicant is a U.S. citizen, and if they are not, it asks for verification of immigration status. This is the standard we've been using for years, and so far we haven't had any complaints about it.

I was recently told by a friend, however, that there's a California law against asking about an applicant's citizenship status. Is it discriminatory to ask these questions in the application process?

A It was a good decision to ask about your application process because your friend was correct. Since 2008, California Civil Code Section 1940.3 has precluded questions about immigration status, and has precluded requiring verification of citizenship in the application process for residential tenants. You are allowed to require all applicants to provide proof of financial stability, as long as your financial criteria are applied to all applicants regardless of citizenship status.

If you continue using your old application, you would be leaving yourself vulnerable for discrimination complaints. Since housing laws in California do change over time, you should consider it a sound business practice to periodically review your application forms and process to make sure they comply with current legal requirements. Your local fair housing or landlord/tenant counseling service can help, and if you belong to an apartment owners association, they probably offer updates.

Q My elderly aunt has rented the same apartment for more than 15 years. Recently she received a "warning notice" from the manager requiring her to remove her accumulated belongings from the unit because they "constitute a safety hazard."

When I called the resident manager about the warning notice, she said my aunt was a "hoarder." I know that my aunt has difficult discarding possessions, even old newspapers. I don't think she can control this behavior, and I am worried that she may have some kind of mental illness. Is there anything that can be done to protect her?

A The first step for you or your aunt is probably to talk with her health care provider. The provider should be asked whether your aunt has an identifiable medical disability that interferes with a basic life activity such as her ability to maintain the order in her living situation.

If so, your aunt may be entitled to request a reasonable accommodation, if the medical provider is willing to put this opinion in writing. The provider does not have to provide specific details such as the exact diagnosis or include any medical records. The resulting written opinion should be given to the apartment management with a request that your aunt be provided a reasonable accommodation.

Once you take these steps, management is supposed to work with you to explore options for the accommodation. In cases where hoarding has resulted in a request for a reasonable accommodation, various solutions have been explored such as having building maintenance help remove some items or finding a local volunteer organization to help organize the property. However, it is not reasonable to insist that your aunt be allowed to continue to accumulate items if that activity is resulting in a health or safety hazard in the rental community.

Q I rent a house that is owned by someone who is apparently having trouble paying the mortgage. The overall quality of service from the owner has deteriorated in recent months and now I am getting copies of notices from the utility company threatening to shut off the power due to non-payment. I have been continuing to pay the rent due under our rental agreement. It certainly is not fair for me to lose my electricity and other utilities while continuing to pay rent. What are my choices here?

A Until recently, tenants whose landlords failed to provide utilities that were supposed to be included in the rent had very limited remedies. However, in 2009, California passed a group of amendments to the California Civil Code and to the Public Utilities Code that in summary allow tenants to bypass errant landlords.

Assuming that there is a separate meter for the house you rent, the laws require the utility to send you notice 10 days before a utility shutoff, with an opportunity for you to qualify to open your own separate account. Most important of all, Civil Code Section 942.2 allows you to deduct the subsequent utility payments from the monthly rent you would otherwise owe the landlord once you establish your own account.

Q I just moved to a relatively large apartment complex a few months ago, which has four separate buildings. As a Guatemalan immigrant, I was happy when I noticed that most of my neighbors in my building were Latino. But then, when I have walked near the other buildings, I noticed that I wasn't seeing anyone who appeared to be a Latino tenant, just whites and Asians.

Now that I think back about the tour given to me by the leasing agent, I remember that she emphasized that I would like to rent here because I would feel comfortable with my neighbors. I like living in a building with people who speak my native language, but it doesn't seem right to limit where I can live within this community. Can this be considered discrimination?

A Under fair housing law, what you have described may be a discriminatory practice known as "steering." This practice occurs when a housing provider shows an applicant only certain vacant units and not all available units, as a means of segregating certain types of applicants to limited sections of the rental community. If a housing provider steers applicants based on any protected category, such as race, national origin, familial status or disability, it is viewed as a discriminatory practice.

A housing provider needs to offer applicants every unit that is available for rent, leaving the decision of choosing the unit up to the prospective tenant. Every applicant touring a property should ask to see all available units, to decrease the possibility of steering. If a housing provider shows an applicant all available units and the tenant chooses a particular area that is occupied by tenants from a similar background, that would not be considered steering, because the applicant is making the choice, not the housing provider.

A fair housing agency can "test" this property's rental practices, by sending both Latino and non-Latino applicants to the leasing agent, to see if both applicants are shown the same units.

Martin Eichner edits RentWatch for Project Sentinel, an organization founded in 1974 that provides landlord tenant dispute resolution and fair housing services in Northern California and administers rental-housing mediation programs in Palo Alto, Los Altos and Mountain View. Call 650-856-4062 for dispute resolution or 650-321-6291 for fair housing or e-mail mediate4us@projsen.org.

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