April 2020
California landlords are facing a host of issues caused by the Novel Coronavirus, two of which directly impact California’s robust fair housing framework:
California has significant protections against discrimination in housing under both its Fair Employment and Housing law (“FEHA”) and under the Unruh Civil Rights Act (“Unruh”).
Both FEHA and Unruh protect California residential tenants (or prospective tenants) from discrimination on the basis of a variety of protected categories like race and gender. The two protected categories relevant to this discussion are familial status (who is in your household) and medical conditions (illnesses, disabilities, etc.).
Discrimination can mean any type of “adverse action” as defined by the Department of Fair Employment and Housing (“DFEH”) including things such as evictions, raising the rent, refusing to add new household members, lockouts, harassment, or otherwise changing the terms or conditions of an existing lease.
The first thing to do – either for a landlord or a tenant – is to check your lease. Assuming you have a well-drafted lease (and you should have a lease), it likely has a clause discussing a landlord’s right to refuse to allow the tenant to add new household members without first getting the landlord’s permission. Even if your lease has no such provision a landlord can usually veto the addition of a new person to the household based on general theories of contract law.
While FEHA bars discrimination based on familial status that only protects parents and minor children (or pregnant women). If a tenant’s 19-year-old son comes home from college, a landlord is under no obligation to allow that son to become a permanent tenant (rather than a temporary guest). By contrast, if that child is 17 years old, the landlord cannot prevent the child from being added to the household.
All that said, the best thing to do for both landlords and tenants is to talk to each other and work out a solution acceptable to all involved. Among other things, it is to everyone’s benefit to formally add any new adult household member to the lease via a lease addendum.
As we have previously discussed, Santa Barbara county has implemented emergency orders to prevent the eviction of tenants who are unable to pay rent as a result of the outbreak and/or economic conditions related to it.
Those orders require tenants to provide proof to the landlord of the hardship they are claiming. This might include sensitive medical information.
If a landlord learns that their tenant has Covid-19, they may not take adverse action against that tenant as a result. Doing so would violate both the emergency ordinances and California’s Fair Housing laws barring discrimination based on a person’s medical condition.
The emergency ordinances also specifically require the landlord to protect any sensitive or confidential information provided to them by a tenant. While the ordinances do not have penalty provisions, it seems likely that a tenant who, for example, publishes a tenant’s medical records on the internet (or even discusses the records’ contents with a friend) could face a lawsuit for violating their tenant’s privacy.
A landlord might reasonably be concerned about the potential risks caused not warning other tenants about a known coronavirus case to other tenants who might be exposed as a result. This is a tricky issue, given the potentially contradictory duty not to disclose private health information about a tenant, and probably depends a great deal on the specifics of the living environment, such as the number of units and the amount of interior common area. Landlords should get out in front of this issue by providing general information about the pandemic, steps that the landlord is taking, resources (like information at cdc.gov) that tenants can use to learn how to take precautions, and warning that privacy laws prevent the landlord from disclosing infection information. A landlord considering providing non-private information that someone has tested positive without identifying that person. We urge caution and discretion, because such a warning could cause more problems than it solves and could lead to considerable liability and/or risk if the landlord’s anonymous warning resulted in the infected person being identified.
Finally, a landlord generally cannot demand that their tenants give them specific information about their medical status. Doing so would likely constitute discrimination under FEHA and Unruh. The only exception to this general rule would be if a tenant has claimed they cannot pay their rent due to illness but failed to provide proof for the landlord to verify that claim. The ordinances require the tenant to back up their claim with documentation.
As with the previous issue, the best thing for all involved is to communicate effectively. If a tenant is paying their rent, the landlord cannot and should not pry into their medical status. If a tenant cannot pay their rent, they need to provide a written explanation to their landlord, including (if relevant) their medical status.
As always, if you have any questions about your particular circumstances, the attorneys at Fauver, Large, Archbald & Spray are here to help!
DISCLAIMER: This Legal Alert is one of a series of business, real estate, employment and tax Legal Alerts prepared by the attorneys at Fauver, Large, Archbald & Spray, LLP. This Alert is not exhaustive, nor is it legal advice. You should discuss your particular situation with us or with your own attorney. Our legal representation is only undertaken through a written engagement letter and not by the distribution of this Legal Alert.
