FREQUENTLY ASKED QUESTIONS
Discrimination in Housing
The Utah Fair Housing Act does not limit the maximum number of occupants permitted to occupy a dwelling. When setting an occupancy policy, landlords should define the occupancy limit in terms of the number of occupants. Limitations on the number of children are in violation of the Fair Housing Act. Current federal fair housing regulations presume that an occupancy standard is acceptable if it is no more restrictive than two persons per bedroom. When assessing the “reasonable” standard elements that need to be considered are the size of the room, fire and health codes and any other applicable city regulations. For questions and clarification, contact the Fair Housing Section, Utah Antidiscrimination and Labor Division, Utah Labor Commission.
No. Any rules which limit the rights of families with children violate the Utah Fair Housing Act and are not enforceable. Due to the Fair Housing Act and its amendments, it is no longer lawful to enforce any rules which discriminate on the basis of familial status. This applies to individuals undergoing adoption procedures, foster families and single parents with children.
No. A property owner/manager cannot set a higher deposit for families with children. Any required deposits must be consistent with what would be imposed if the apartment were rented to persons without children.
No. A property owner cannot restrict a family with children from renting apartments based upon the location of that unit. Individuals should be given an equal opportunity to choose available housing regardless of their race, color, sex, national origin, disability, religion, familial status, or source of income.
No. Unless a complex has qualified as Housing for Older Persons, this statement would clearly indicate a preference for families without children. Statements that indicate a discriminatory limitation or preference based upon a person’s race, color, sex, national origin, disability, religion, familial status or source of income are in violation of the Utah Fair Housing Act. In addition to liability for the person who places the ad, the newspaper or other publication may also be held liable for placing the discriminatory advertisement.
Neither HUD nor the Division pre-certify housing as exempt under the Housing for Older Persons exemption. New construction projects may elect this designation and must fulfill the occupancy requirements. Existing complexes must meet all of the standards before they can be so designated.
No. A property owner must give an individual an opportunity to rent an available unit regardless of that person’s disability. A person should be able to seek housing and choose where they want to live without restrictions based upon that individual’s race, color, sex, national origin, disability, religion, familial status, or source of income.
No. Under the Utah Fair Housing Act, a companion animal is not considered a pet and therefore is not covered by typical rules that allow landlords to ask for pet deposits. Additionally, even in situations where the apartment complex or condo unit does not normally allow tenants to have pets, a companion animal must be allowed to remain with the qualified person with a disability as a required accommodation.
Yes. A property owner/manager may legitimately ask an applicant for verification of credit history, so long as this criterion is applied to all applicants regardless of race, color, sex, national origin, disability, religion, familial status or source of income.
Yes, so long as the criteria is applied consistently to all applicants regardless of race, color, sex, national origin, disability, religion, familial status, or source of income.
Good business practices, including record keeping and consistency in application of qualification criteria, community rules, and regulations are a good start to keeping people from filing complaints. Education, awareness, and commitment to abiding by the law are also an essential element of prevention. The purpose of the Fair Housing Act is to provide everyone an equal opportunity to obtain housing. The Fair Housing Laws require that all persons have a right to seek housing based upon their qualifications without regard to their race, color, sex, national origin, disability, religion, familial status (the presence of children under 18), and in Utah, based upon an individual being a recipient of state, local, or federal governmental assistance (source of income.)
Assistance animals are not pets. A person with a disability uses an assistance animal as an auxiliary aid – similar to the use of a cane, crutches or wheelchair. Fair housing laws require that assistance animals be permitted despite “no pet” rules.
Assistance animals may also be known as companion animals, therapy animals, comfort animals or service animals.
What do housing providers and HOA boards need to know about assistance animals?
When an applicant or resident who has a disability requests to live with an assistance animal, follow the usual accommodation process. It is a reasonable accommodation to allow residents to live with assistance animals that meet their disability-related needs.
Owners of assistance animals should not be charged pet deposits or fees. General cleaning or damage deposits can be charged, if all residents are similarly charged. A resident with an assistance animal is liable for any damage the animal causes.
While the most common assistance animals are dogs, they may be other species, such as cats, monkeys, birds or other animals.
Assistance animals may be any breed, size or weight. Do not apply pet size or weight limitations to assistance animals.
Assistance animals need no special licenses or visible identification. Some owners of assistance animals choose to put special collars or harnesses on their animals. If city or county laws require pet licenses for dogs and cats, rental management can require assistance dogs or cats to be licensed. In some cases, such licenses are free or discounted for assistance animals. [Note: If management does not require licenses for pet dogs and cats, then licenses cannot be required for dogs or cats that are assistance animals.]
Assistance animals need no “certification”. There are no state or national standards for certifying assistance animals, and no government agencies provide certification.
A person may train his or her own assistance animal.
Because assistance animals provide different types of assistance, in some cases a person with a disability may require more than one assistance animal.
The assistance animal’s owner is responsible for the animal’s care, should observe leash laws, properly dispose of animal waste, and ensure the animal behaves around others and does not break tenancy rules (such as noise rules). To the extent that the animal’s owner does not keep their animal under control, fails to clean up after them, or breaks other tenancy rules, the housing provider/HOA board may impose fines on them, so long as they would impose similar fines for similar violations by non-disabled tenants. [For example, do not impose a noise violation fine for a barking dog if you would not also impose a noise violation fine for a loud party.]
What about other residents or staff who are afraid of or allergic to animals?
If a staff member or another resident has a fear of or a minor allergy to dogs or other animals, this is not a disability, so they have no right to an accommodation.
In rare situations, a person’s allergy is so severe that contact with an animal may cause respiratory distress. That person may request an accommodation, which must be provided, if reasonable. [Example: It may be necessary to move the allergic person or the animal owner elsewhere.]
Can a housing provider ask for medical documentation of the need for an assistance animal?
Yes. Whether to request documentation and what documentation to request depends on how obvious the person’s disability is and whether there is a connection between the disability and the requested assistance animal.
If the person’s disability is obvious, or otherwise known, and the need for the accommodation is also clear, do not request information about the person’s disability or the need for the accommodation. [Example: An obviously blind applicant asks to keep a service animal – no verification of the disability or the need is necessary.]
If the disability is known, but the need for the accommodation is not readily apparent or known, request only information necessary to evaluate the disability-related need for the accommodation. [Example: Management knows a resident has seizures. The resident wants to get an assistance dog – request that he document the disability-related need for the dog.]
If neither the disability nor the need is clear, ask for proof of both. [Example: Someone with no obvious disability asks for an assistance cat to help cope with their clinical depression – request that he document both that he has a disability and his disability-related need for the cat.]
HUD and the U.S. Department of Justice have indicated that the documentation that can be requested is a letter of verification from a doctor or other health care provider who, in their professional capacity, has knowledge about the person’s disability and the need for reasonable accommodation. Do not ask for specific information about the disability or for medical records.
Resident parking for leased housing/apartments – If parking is provided for residents, it is a reasonable accommodation to provide reserved accessible spaces for disabled residents.
Use the standard accommodations process for accessible parking requests. If a resident has a state disabled parking permit, this is generally sufficient proof of the need for a reserved accessible parking space.
Many people who need an accessible parking space don’t need an extra-wide space with an access aisle – they often need only a regular-size parking space nearest to their front door or on the most accessible route to the front door. Discuss specific parking needs with the resident.
Even if parking spaces are not normally assigned, provide a reserved parking space to a resident with a disability.
Post a sign at the head of the parking space saying the spot is reserved, so that other people do not park there.
Strictly enforce a resident’s reserved accessible parking space, and be prompt in responding to complaints when others park there. Let vendors know these spaces are off limits.
Guest parking for leased housing/apartments – If parking is provided near the rental office or for guests, some of those spaces must be accessible.
Locate at least one accessible guest parking space near an on-site rental office, with an accessible route from the parking to the office.
Guest parking is subject to ADA Title III rules, which require that at least 2% of all guest spaces in each lot meet access requirements and be designated with appropriate signage. These spaces must be at least 96” wide and must have an adjacent access aisle at least 60” wide. An access aisle can be shared between two accessible parking spaces. At least one of these spaces must be van accessible, with a 96” access aisle.
Strictly enforce accessible guest parking spaces, and be prompt in responding to complaints when others park there. Let vendors know these spaces are off limits.
HOA’s – Sometimes a governing board or owners group has only limited control over parking spaces. Boards should assist within their means to the person seeking a parking accommodation. If another resident owns the desired space, the two owners can negotiate a swap. However, owners are not required to give up or swap a parking spot that has been deeded to them.
Fair housing laws require similar treatment for all applicants and residents. However, these laws also require reasonable accommodations and reasonable modifications for people with disabilities.
A reasonable accommodation is a change made to a policy, program or service that allows a person with a disability to use and enjoy a dwelling, including public and common use areas. Examples include:
- providing rental forms in large print
- providing a reserved accessible parking space near a resident’s rental
- allowing a resident to have an assistance animal in a “no pets” building
- permitting a resident who has developed mobility limitations to move to the ground floor.
A reasonable modification is a physical change made to a resident’s living space or to the common areas of a community, which is necessary to enable a resident with a disability to have full enjoyment of the housing. Examples include:
- adding bathroom grab bars
- lowering closet rods
- installation of a ramp
When does a housing provider know that an accommodation or modification is needed?
The duty to accommodate arises when the housing provider has knowledge that a disability exists and that an accommodation or modification may be required for the disabled person to use and enjoy the housing. Here are key points:
- The applicant or resident must make a request for an accommodation or modification.
- The request does not need to mention fair housing or use the words “reasonable accommodation” or “reasonable modification.”
- The request should describe the accommodation or modification, and explain the disability-related need for the requested action. [Example: A resident who becomes disabled may request a transfer to a ground floor apartment because climbing the stairs has become difficult.]
- The request does not need to be in writing. Although management may use a specific form, an accommodation or modification cannot be refused just because the person requesting it did not use the form. It is important for management to document these requests.
- Reasonable accommodations or modifications can be requested whenever they are needed. A person may make requests when applying for housing, when entering into a rental agreement, during tenancy, and even during an eviction process.
- An individual with a disability may make multiple requests for accommodations, as the need arises.
Housing providers should evaluate each request on a case-by-case basis, in a timely and professional manner, and document interactions with the resident. A housing provider has an obligation to provide prompt responses to reasonable accommodation requests. An undue delay in responding to a request may be considered to be a failure to provide a reasonable accommodation.
Can a housing provider require documentation of a disability or the need for a requested accommodation or modification?
Whether to request documentation and what documentation to request depends on how obvious the person’s disability is and whether there is a connection between the disability and the requested accommodation or modification.
- If the person’s disability is obvious, or otherwise known, and the need for the accommodation is also clear, do not request information about the person’s disability or the need for the accommodation. [Example: An obviously blind applicant asks for rental documents in large print – no verification of the disability or the need is necessary.]
- If the disability is known, but the need for the accommodation is not readily apparent or known, request only information necessary to evaluate the disability-related need for the accommodation. [Example: Management knows a resident has seizures. The resident wants to get an assistance dog – request that he document the disability-related need for the dog.]
- If neither the disability nor the need is clear, ask for proof of both. [Example: Someone with no obvious disability asks for an accessible parking space – request that he document both that he has a disability and his disability-related need for the parking.]
HUD and the U.S. Department of Justice have indicated that the documentation that can be requested is a letter of verification from a doctor or other medical professional, or other qualified third party who, in their professional capacity, has knowledge about the person’s disability and the need for reasonable accommodation. Do not ask for specific information about the disability or for medical records!
Interactive Process – The accommodation/modification process should be an interactive discussion between the housing provider and the applicant or resident. In most cases, the person with a disability knows best what accommodation or modification will meet his or her needs. If the person’s proposal is not feasible, the housing provider can suggest alternative accommodations that may meet the resident’s needs.
How does a housing provider know if an accommodation or modification request is “reasonable”? When can a housing provider refuse a request?
An accommodation or modification is reasonable if:
- it is related to the resident’s disability needs.
- is not an undue administrative and financial burden for the housing provider.
- does not fundamentally alter the nature of the provider’s operations.
Undue Burden – The request must not impose an undue financial and administrative burden on the housing provider. The determination of undue financial and administrative burden must be made on a case-by-case basis involving various factors, such as the cost of the requested accommodation, the financial resources of the provider, the benefits that the accommodation would provide to the requester, and the availability of alternative accommodations that would effectively meet the requester’s disability-related needs. [Example: An applicant who uses a walker prefers a third-story rental in a older walk-up building – the housing provider does not have to install an elevator if such a modification is cost-prohibitive.]
Fundamental Alteration – The requested accommodation or modification must not require the housing provider to make a fundamental alteration in the essential nature of the provider’s operations. [Example: A resident with a disability cannot do his own housekeeping and the housing provider does not supply housekeeping for residents. A request for such services is not reasonable.]
Refusing a request – When a housing provider refuses a requested accommodation because it is not reasonable, the provider should discuss with the requester whether an alternative accommodation would effectively address the person’s disability-related needs. If an alternative accommodation would effectively meet the person’s needs and is reasonable, the provider must grant it. A failure to reach an agreement on an accommodation request is in effect a decision by the housing provider not to grant the requested accommodation. Someone who was denied an accommodation may file a fair housing complaint to challenge that decision. Direct Threat – Fair housing laws do not provide protection for a person with a disability whose tenancy would constitute a direct threat to the health or safety of others, or would result in substantial physical damage to the property of others, unless the threat can be eliminated or significantly reduced by reasonable accommodation.
To establish direct threat, a housing provider needs recent, objective evidence of behavior that puts others at risk of harm. Even someone who is considered a direct threat or who has caused substantial property damage may request a reasonable accommodation during the eviction process by presenting information that he or she has taken steps to prevent future harm. The housing provider has a duty to consider the reasonable accommodation before taking action.
Can a housing provider have pool rules which include adult swim hours and require that swimmers under 18 have an adult present?
Pool rules should be reasonable for all residents to use and enjoy, including children. Fair housing laws do not permit “adult” swim hours.
You should check with your local municipality to see whether they have health and safety laws that set age restrictions. If so, you should follow those laws.
Do fair housing laws allow a housing provider to require that children have an adult present when using the hot tub or sauna?
Any rule excluding everyone under 18 years old without an adult present would likely be too strict. However, some areas might be dangerous for very young children, such as saunas or hot tubs. The Consumer Product Safety Commission and other safety organizations state that children under age six should not use spas or hot tubs, and children between 6-12 years should have an adult with them when using a hot tub or whirlpool, and should not stay for longer than 5-10 minutes at a time. Again, you should check with your local municipality to see whether they have health and safety laws that set age restrictions. If so, you should follow those laws.
Is it okay to set age limits for use of fitness room equipment?
Yes, because some fitness equipment may not be safe for small children. When setting age limits, it is helpful to look at industry standards, because there are no state or federal laws that state the age of people who can safely use weight training equipment. Fitness centers managed by local governments and private businesses allow some children under age 18 to use weight training equipment. Many fitness centers permit children aged 15-17 to use fitness equipment without adult supervision, some require adult supervision for 13-15 year old children, and few allow anyone under 13 to use their facilities. Equipment manufacturers’ height and weight recommendations may also provide reasonable guidance. If the community’s fitness room rules are in the range of these age guidelines, fair housing laws will likely consider them reasonable.
Remember, there is a difference between rules for equipment use and rules for who can enter the room. Children should be permitted to accompany their parents or a responsible adult, so long as they don’t touch the equipment or cause disturbances for others. [Examples: A dad works out while his 5 year old sits quietly to the side with a coloring book. A mom works out while her baby sleeps in a carrier nearby.]