When prospective tenants ask a real estate licensee if the landlord will take Section 8, they want to know if the landlord will accept part of their rent through the Housing Choice Voucher Program (commonly known as the Section 8 program). Before giving a response, it is important to determine whether there is a local law that bars the landlord from turning away a prospect for that reason.
The Fair Housing Act 42 U.S. Code § § 3601-3619 and 3631, (“FHA”) makes housing discrimination based upon race, color, religion, sex, disability, familial status, or national origin illegal. The FHA does not specifically bar landlords from discriminating based on Section 8. However, several Florida counties, including Broward, Miami-Dade and Hillsborough have adopted laws prohibiting housing discrimination based on source of income, and the number of counties following suit is likely to increase.
In Broward County, the law is set forth in Code of Ordinances, Chapter 16½ – HUMAN RIGHTS, ARTICLE III. – DISCRIMINATORY PRACTICES, DIVISION 3. – DISCRIMINATION, Sec. 16½-3. – Definitions, (hh): Lawful source of income means the origin or cause of a legal gain or recurrent benefit, often measured in money or currency, including, but not limited to, income derived from social security, supplemental security income, child support, alimony, veteran’s benefits, disability benefits, unemployment, pension and retirement benefits, ….., or any form of federal, state, or local public, food, or housing assistance or subsidy, including assistance from the Supplemental Nutrition Assistance Program (SNAP) and the Housing Choice Voucher Program or “Section 8” vouchers…….
The law in Miami-Dade County is set forth in Miami Dade County, Florida Code of Ordinances, Chapter 11A – DISCRIMINATION, ARTICLE II. – HOUSING, Sec. 11A-11. – Definitions, (12): Source of income shall mean the lawful, verifiable income paid directly to a tenant or paid to a representative of a tenant, including, but not limited to, Section 8 Housing Choice Vouchers, Supplemental Security Income, Social Security, pensions and other retirement benefits.
On March 3, 2021, the Hillsborough County Board of County Commissioners passed the Tenant’s Bill of Rights, Source of Income Anti-discrimination and Notice of Late Fee Ordinance, also known as Tenant’s Bill of Rights Ordinance. The Tenant’s Bill of Rights provides that a landlord cannot refuse to rent to a tenant because of the tenant’s lawful source of income. Lawful sources of income included “any government or private assistance, grant, loan or housing assistance program or subsidy, including but not limited to Housing Choice (Section 8) Vouchers……”
Although the language varies between the different laws, the bottom line of all three is that it is illegal for a housing provider to deny a rental applicant simply because that person is paying for housing with a subsidy or assistance like Section 8.
It is critical to note that it is an acceptable practice under federal case law for there to be “Testers.” A Tester is someone who has no actual intention to enter into a residential lease, but poses as a renter for the purpose of collecting evidence of unlawful practices. For example, a Tester may respond to a rental advertisement by sending a text or email to the broker who placed the advertisement to express his or her interest, and then asking whether Section 8 is accepted. If “no” is given as a response, it can result in liability in Miami-Dade, Broward, and Hillsborough counties – again, even if it is a Tester asking the question and not a true applicant. The text or email serves as his written proof that the exchange took place.
The chances of being sued or fined for source of income discrimination can be reduced if certain practices and procedures are put into place, including the following:
- Create an internal written policy that all employees or agents who are involved in the advertising and screening of applicants must understand and follow.
- Be consistent with the Section 8 policy. Make sure all agents and employees give the same answer each time a prospect calls or emails inquiring if Section 8 is accepted. Otherwise, it might give rise to claims of discrimination based on other protected classes.
- Seek out and pursue training opportunities. Attend presentations that may be available from a local realtors’ association or professional groups; or create in-house seminars on housing discrimination, that can encompass other areas as well, such as liability for discrimination because of race, color, religion, sex, disability, familial status, or national origin.
- Avoid “Steering” Section 8 applicants. Deciding to accept Section 8 applicants but only renting apartments to them in certain floors or areas of the building is still illegal because it involves “steering,” which limits applicants’ housing choices.
- Note that Section 8 applicants can still be turned away. While the law protects people who have Section 8 vouchers, it simply means that they can’t be turned away solely because they have Section 8 vouchers. Landlords may still apply neutral and non-discriminatory screening criteria to all tenants, including tenants who propose to pay rent using Section 8 vouchers.
- If asked by an applicant whether Section 8 is accepted, provide a neutral response along the lines of: “All applicants are evaluated on the basis of the same criteria, and we do not discriminate based upon your source of income – please feel free to fill out an application.”
- This means that the client homeowners’ association, condominium association or landlord needs to be educated on the law. No matter how great the desire on the landlord’s part may be to exclude Section 8 applicants, since it is illegal to do so in at least three Florida counties so far, it must be made clear that rejecting an applicant solely based on source of income cannot be done.
Be sure your business is protected with property manager errors and omissions insurance or real estate errors and omissions insurance with a property management endorsement.
Contributing Author:
James R. Myers
Chartwell Law
12486 Brantley Commons Court
Fort Myers FL 22307
jmyers@chartwelllaw.com
