Mom and Pop Exemption law.
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Q1
Can someone explain to me the Mom and Pop Exemption, specifically why it was ever written to excuse landlords with three or less houses to fall under Fair Housing Law? I am curious as to why this exemption exists, and seemingly to protect landlords who do not have many houses in their name.
A1
The exemptions exists because they were required in order to get the necessary votes in Congress to pass Title VIII of the Civil Rights Act of 1968 (the Fair Housing Act), as amended by the Fair Housing Amendments Act of 1988. In other words, some Senators and/or Representatives felt it important to exempt landlords in certain categories from certain provisions of the Act. As you will see from the following discussion, the often-called “Mom & Pop” exemptions are very
narrowly defined and have significant restrictions. Accordingly, landlords must be extremely careful when utilizing them.
In review, Title VIII of the Civil Rights Act of 1968 (the Fair Housing Act), as amended by the Fair Housing
Amendments Act of 1988, (42 U.S.C. § 3601 et. seq) prohibits discrimination in housing and housing related transactions based on race, color, religion, sex, national origin, disability or familial status.
The Department of Housing and Urban Development (HUD) enforces the Federal Fair Housing Act. HUD’s regulations state that: “It shall be unlawful, because of race, color, religion, sex, handicap, familial status, or national origin, to restrict or attempt to restrict the choices of a person by word or conduct in connection with seeking, negotiating for, buying or renting a dwelling so as to perpetuate, or tend to perpetuate, segregated housing patterns, or to discourage or obstruct choices in a community, neighborhood or development. (24CFR Part 14, Section 100.70(a)).”
A protected class is a group of people who share common characteristics and are protected from discrimination and harassment. Federal Fair Housing laws prohibit discrimination on the basis of these protected classes:
- Race
- Religion
– personal beliefs, faiths, practices - National
origin – association of ancestry, culture, accent, spoken language or
surname - Sex
- Color
– characteristics associated with certain races and ethnic groups - Familial
status – having a child under age 18 in the household, whether living with
a parent, a legal custodian, or their designee. It also covers a woman who
is pregnant, and people in the process of adopting or gaining custody of a
child or children - Handicap
(Disability) – a physical or mental disability (including hearing,
mobility and visual impairments, chronic alcoholism, chronic mental illness,
AIDS, AIDS Related Complex and mental retardation) that substantially
limits one or more major life activities, having a record of such a
disability or are regarded as having such a disability
In the Sale and Rental of Housing, no one (including Mom & Pop) may take any of the following actions based on race, color, national origin, religion, sex, familial status, or handicap:
- Refuse
to rent or sell housing - Refuse
to negotiate for housing - Make
housing unavailable - Deny
a dwelling - Set
different terms, conditions or privileges for sale or rental of a dwelling - Provide
different housing services or facilities - Falsely
deny that housing is available for inspection, sale, or rental - For
profit, persuade owners to sell or rent (blockbusting) or - Deny
anyone access to or membership in a facility or service (such as a
multiple listing service) related to the sale or rental of housing.
The Fair Housing Act covers most housing. In some circumstances (note underlined words in the 4 exemptions that might be included within the “Mom & Pop” exemptions), the
Act exempts:
- Single-family housing sold or rented without the use of a real estate broker or without the use of discriminatory advertising.
- Housing that is intended for and solely occupied by persons 62 years or older or a household with at least one person 55 years or older. To qualify, at least 80% of the units must be occupied by at least one person 55 years or
older. Qualified senior housing is exempt only from the Familial Status. - The rental of a unit in a multi-family dwelling with four or fewer units where the owner (or a member of the owner’s family) lives in one of the units.
- The rental of a room or rooms in a private house where the owner (or a member of the owner’s family) lives in the house.
- Lodging owned or operated by private clubs which give preference to their members.
Religious, charitable, or educational institutions or organizations which are operated, supervised, or controlled by religious institutions or
organizations that give preference in real estate transactions to their members, provided the organization does not exclude members of a
protected category.
Also, some other Federal Fair Housing laws, most state and local fair housing laws, and other civil rights statutes still apply to “Mom & Pop” landlords. None of the above housing is exempt from Section 804(c) of the Act which states that you cannot make, print, or publish a discriminatory statement. Any exempt housing that violates 804(c) has lost that exemption and can be held liable under the Act.
Furthermore, even if the federal exemptions are properly used, a landlord is not immune against lawsuits by either tenants or government agencies who think that there has been discrimination. Even those who meet all terms of the exemption and may win in a court or agency action, can end up spending a lot of money in defending themselves. In other words, the costs of defending against discrimination claims on the basis of the exemptions could be extremely costly even if the landlord eventually wins in court.
Finally, the Mom & Pop Exemptions discussed above apply only to Federal Fair Housing law. Fair housing laws of some states and some local jurisdictions define additional protected classes – such as sexual preference, gender identity, occupation, source of income, educational status, medical status, marital status, military background, political affiliation, or any other arbitrary reason – and provide even broader coverage of certain federally protected classes.
I would advise landlords against depending on the exemptions even if they are certain they qualify for the exemptions.
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Q2
My rental house is in CA. I have evicted the tenant and a lock-out by Sheriff was done on the 10th. The tenant left the house empty but left items in backyard and in the storage shed. Do I have to do a Belief of Abandonment or just store his property for 18 days? Not sure what is next?
A2
As for many states, CA has specific guidelines regarding “abandoned” property. The procedures a landlord must follow to avoid the possibility of being held liable for unlawfully taking or converting the tenant’s property depends on the situation.
There is a good discussion of the issue on the California Department of Consumer Affairs web site which is at http://www.dca.ca.gov/publications/legal_guides/lt-5.shtml. The fact that you followed through on an eviction simplifies things a bit. From the information you provided, I think it highly likely that your situation is as discussed in “Situation 2” on the listed web page.
From my reading of the law, a landlord need not serve notice on any former tenant who was evicted under a writ of possession, as I understand to be your case. In this case the former tenant has 15 days after the landlord takes possession of the rental unit to pay reasonable costs of storage and to take possession of items left in the rental unit.
However, notice must be given to any other party who the landlord has reason to believe might have an ownership interest in some or all of the property. As examples, this would be the case if you suspect that certain furniture was rented from a leasing company or if you know that someone else lived in the house, even though having not having signed the lease, and this person was not named as a party being evicted.
I won’t further discuss the details of the law, as I think the listed web page is well written and covers the matter in greater detail than any discussion I would provide. I will mention, however, that you should document everything you do. If the former tenant claims the property, paying for the storage thereof, be sure to require his signature on a document stating that all property has been returned to him and is in the condition that it was when abandoned. I also recommend that you take photos of the property and that all documentation be retained for at least several years.
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Q3
I have a new tenant that has lied on their application. Can I move to evict faster because they put false information about their employment and eviction history?
A3
Although it is possible that your particular state has a different specific procedure related to this particular reason for an eviction, I’d be very surprised if such were so. However, as long as the false information was material to selection of the tenant – i.e., not something the judge would consider too minor for an eviction penalty or something that the judge might accept was a mistake if so claimed by the tenant – there can be an advantage of an eviction for lying on the application compared to many other possible causes. This is that it is unlikely (though not impossible) that the tenant would have a defense acceptable to a judge except as mentioned above. However, I will mention that a judge might question why you did not discover that the information was false prior to selecting them as a tenant and this could be another problem that might require a reason acceptable to the judge if the tenant, an attorney, or the judge think of raising this issue.
Whether or not you will need to serve a notice or can simply file for eviction with the court may depend on the law of your state, perhaps even with the specific court of jurisdiction. You may be able to get an answer by phoning the court clerk. Assuming you do not consider this issue to be curable by the tenant providing correcting information, if a notice is required you would want to use a “notice to quit” (if allowed by your state) rather than a “notice to cure or quit.”
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