Law pg 11,12,73.qxp_Layout 1 3/18/22 2:21 PM Page 1
It’s the Law
By HOWARD BOOKSTAFF, Hoover Slovacek LLP , HAA General Counsel
WELCOME TO FAIR HOUSING MONTH! Resident screening after COVID-19.
PICTURE THIS: You are reviewing your rental criteria. You realize things have gotten out of hand the past two years. Closed businesses, millions unemployed, mass layoffs, substantial rent delinquencies, evictions, eviction abatements. You begin to think it will be hard to determine whether prospects can meet your future rent obligations given the last two years. You would like to get back to the good old days when you required six months of stable employment, no prior delinquencies, no evictions, a good credit score and verifiable income of at least three times the monthly rent. The problem is, you feel that you may lose some good residents by applying your pre-pandemic criteria. You may come across a number of potential good prospects who have had problems over the past two years. You would like to make exceptions to the rental, employment and income requirements of old, however, you have always been taught that making exceptions to standard criteria may raise fair housing issues. From a fair housing standpoint, we are taught to treat everyone the same under the same or similar circumstances. So, you might ask, can I make exceptions? How should the exceptions work? Is this a fair housing issue at all? Potential Limitations On Using Pandemic Eviction History Before addressing how fair housing might apply, any screening criteria must be evaluated in light of some limitations you might encounter with access to information. Over the past two years, there have been efforts made to assist those that have been adversely impacted by the financial effects of COVID-19.
www.haaonline.org
• Supreme Court of Texas From a fair housing standpoint, we are Emergency Order taught to treat everyone the same under The 48th Emergency Order promulgated by the Supreme Court of the same or similar circumstances. So, you Texas (which expires May 1, 2022) might ask, can I make exceptions? follows a number of previous orders How should the exceptions work? Is this that have addressed a justice court’s a fair housing issue at all? role in rental assistance during the eviction process. In the 48th order, a person because of an eviction case brought the court reiterates previous orders, which against the person during the pandemic. This state that if an owner has a pending applicawould have substantially restricted an tion for rental assistance or the owner and owner’s ability to find out about an eviction resident both express an interest in particihistory during the pandemic. Although this pating in an available rental assistance prodid not pass, this gives us an idea of what gram: (i) the case must be immediately some of our state leaders were thinking. abated for 60 days; (ii) the court is required to immediately make all court records, files, Fair Housing Considerations and information relating to the eviction acThe Fair Housing Act prohibits discrimination confidential to prohibit disclosure to the tion in housing and housing-related services public; and (iii) if the case is not reinstated because of race, color, religion, national oriwithin 60 days, the judge is required to disgin, sex, familial status and disability. Fair miss the case with prejudice. housing laws would prohibit a screening polThe court’s order will limit your ability to icy that treats applicants differently because know whether an eviction case was filed and of their protected class. whether it was disposed of because the Additionally, fair housing laws would prodelinquent resident received rental assishibit screening policies that, although neutance or if the case was dismissed with prejudice. Further, the availability of rental tral on their face, have the effect of assistance has assisted many residents in discriminating against someone in a proavoiding evictions all together despite signifitected class. The discriminatory effects (also cant delinquencies. referred to as disparate impact) doctrine is a tool for addressing policies that caused sys• 2021 Proposed Legislation tematic inequalities in housing. It can be The Texas legislature also proposed a bill used to challenge practices that unnecessarthat would affect eviction case information ily exclude people from housing opportunirelated to COVID-19. House Bill 4039, which ties, including zoning requirements, lending did not pass, proposed a new section in the and property insurance policies and criminal Texas Property Code that would have prohibrecords policies. ited an owner from refusing to rent, negotiatHUD’s discriminatory effects rule has ing for the rental of, or in any other manner, come under some recent scrutiny. In 2013, making unavailable or denying a dwelling to HUD adopted a rule which codified court April 2022
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