[RPPTL LandTen] UNDOCUMENTED PERSONS

[Harry Heist]

Hello Group,

 

The issue of renting or not to people with no SS number or people where it
is impossible to run a background check is constantly coming up.

 

Where do you draw the line? How do we avoid discrimination? I have clients
who love to rent to foreigners, example, the rich kids from Saudi Arabia
going to school here. Others are worried when they can't check anything out
and the applicant is not rich OR they know for a fact that the person is
illegal or has overstayed a visa.

 

Below are answers from 2 different attorneys I know in the business outside
of Florida.

 

Any guidance? Does HUD make this stuff vague on purpose?

 

Harry Heist

 

(1) Federal public and subsidized housing anticipates that there will be
situations where properties will rent to undocumented persons. Chapter 3 of
the HUD Occupancy Handbook for Subsidized Housing, for example, specifically
assumes that there will be situations where undocumented persons will live
in subsidized housing and permits it in many situations as long as at least
one or more documented persons are also living there AND no subsidy is
provided for the undocumented occupants.

 

(2) About a year ago the FHEO director of HUD made several speeches in which
he indicated that HUD would take a close look at any refusal to rent to
undocumented persons as potential discrimination based on national origin.
As of this date nothing has come of this, but see below.

 

(3) In 1991 HUD issued a memo post-911 stating that it was not a violation
of the FHA for a housing provider to refuse to rent to a person because of
the person's citizenship status or status as an undocumented person.
However, within the last couple weeks we have heard informal comments from
current HUD staff - including those at a fairly high level - indicating that
"today's HUD" would never have issued such a statement and that they would
probably consider a refusal to hire non-citizens as national origin
discrimination. So far no one has gone as far as saying that a refusal to
rent to undocumented persons is a violation of the FHA but we have yet to
see what the proposed HUD rules on disparate impact are going to say. They
were submitted for review a couple weeks ago and will probably be made
available for public comment within the next couple months. I expect that
they may deal, among other things, with issues involving non-citizens, use
of social security numbers for tenancy qualifications and quite possibly
arrest and conviction records. I suspect they won't go as far as saying that
it is a violation of the FHA to refuse to rent to undocumented persons, but
I would not put money on that. 

 

(4) As a minimum qualification, even under the post-911 memo, HUD made it
pretty clear that if a property is going to check for legal status they have
to ask the same questions of everyone, including people who "clearly appear"
to be legally in the US. In that memo HUD referenced back to the
documentation that subsidized properties are permitted to consider in
Chapter 3 of the HUD Occupancy Handbook for Subsidized Properties. So if a
property does choose not to rent to undocumented persons, it has to keep
very clear records showing that it required every resident to provide
documentation showing that he/she is legally entitled to live in the US.

 

(5) A lot of landlords are worried about being accused of "harboring" if
they do rent to undocumented persons. I think that fear is considerably
overblown - so far there are absolutely no cases where a landlord has been
convicted (and I don't even know of any where they have been charged) with
harboring simply on the basis of entering into a landlord tenant
relationship with an undocumented person. 

 ANOTHER ANSWER

 

HUD requires evidence of citizenship but massachusetts does not and has
suggested that it could be discriminatory based on national origin.  I
always ask clients why you need the info.   Some say it is to be sure the
person will be staying in the country through the end of the lease term.
Others say it is because they want to be sure the person is legally here
which I find questionable since it seems somewhat outside their area of
concern.  Do they check if college students have graduation dates before
less terms end?  I think the better policy is to require applicants to
provide a valid social security number.   In effect, it has the same result
since someone that is not here legally usually will not have one.  I also
think it is a legal requirement since without a ss number you can't run
credit etc.   Seems like a less problematic way of getting the same result.

 

 

 

LAW OFFICES OF 
HEIST, WEISSE, DAVIS & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website:  www.evict.com <http://www.evict.com/>  
Email: harry at evict.com

THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND
INTENDED FOR THE PERSONS NAMED ABOVE ONLY.  ALL OTHER USE, COPYING, OR
DISTRIBUTION IS STRICTLY PROHIBITED.

 

 

 
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://mailman.fsr.com/mailman/private/landten/attachments/20110706/ff000fe4/attachment.html