5.5Fair Housing Act and Civil Rights Violations

A.Federal Protection

In general, the federal Fair Housing Act (FHA)1 prohibits a landlord from discriminating against any person in the rental or sale of housing on the basis of that person’s race, color, religion, sex, disability, familial status, or national origin. 42 USC 3601 et seq.2 The FHA applies to all dwellings except

•single-family homes rented out by the owner without the use of a broker as long as the owner does not own more than three such houses at the same time, and

•dwellings with up to four independent units if the owner of the dwelling also occupies one of the units as his or her residence. 42 USC 3603(a)(2); 42 USC 3603(b)(1)-(2).

Under the FHA,3 a landlord must not, on the basis of any person’s race, color, religion, sex, disability,4 familial status,5 or national origin,

•refuse to rent housing to the person. 42 USC 3604(a).6

•discriminate against the person “in the terms, conditions, or privileges of [rental housing], or in the provision of services or facilities in connection [with the rental housing.]” 42 USC 3604(b).7

•make, print, or publish any material regarding rental housing that suggests “any preference, limitation, or discrimination” on a basis prohibited by the FHA, or intend to make such a preference, limitation, or discrimination. 42 USC 3604(c).

•indicate that any rental housing is unavailable for inspection or rental when it is actually available. 42 USC 3604(d).

In addition, a person must not, for profit, persuade or attempt to persuade any person to rent any dwelling by claims regarding “the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, sex, handicap, familial status, or national origin.” 42 USC 3604(e).

The FHA prohibits discrimination against a person because of that person’s disability, because of the disability of an individual living with or intending to live with that person, or because of the disability of an individual associated with that person. See 42 USC 3604(f)(1) (rental housing, in general), 42 USC 3604(f)(2) (terms, conditions, privileges, or the provision of services or facilities related to the rental housing), and 42 USC 3604(f)(3)(B) (“reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling”).

It is further prohibited under the FHA to “coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his [or her] having exercised or enjoyed, or on account of his [or her] having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by [the FHA].” 42 USC 3617.

“[T]he proponent[] of [an] FHA defense to [an] eviction action, [bears] the burden of proving that [the proponent has] a ‘handicap’ and require[s] accommodation ‘to use and enjoy [their] dwelling’ because of that handicap.” Riverbrook v Fabode, 333 Mich App 645, 657 (2020).8 A court is required to consider the validity of the evidence presented and determine if it actually supports the claim. Id. at 648, 657 (finding that the lower courts erred by abandoning “their roles as the gatekeepers of evidence under MRE 702” when they “rejected the landlord’s attempt to challenge the validity of the documents presented by the tenant to support his need for an [emotional support animal]”).

B.State Protection

Michigan’s civil rights acts also protect tenants from retaliatory evictions and other wrongful terminations or evictions based on the protected class status of a tenant. See the Persons With Disabilities Civil Rights Act (PWDCRA), MCL 37.1101 et seq., and the Elliott-Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq.

In general, a person “engaging in a real estate transaction” shall not discriminate against a person, or a person associated or residing with the person, on the basis of religion, race, color, national origin, age, sex, familial status, marital status, or disability. MCL 37.1502(1) (PWDCRA); MCL 37.2502(1) (ELCRA). A real estate transaction for purposes of both the PWDCRA and the ELCRA includes the rental or lease of real property or an interest in real property. MCL 37.1501(d) and MCL 37.2501(b), respectively. Real property for purposes of both the PWDCRA and the ELCRA “includes a building, structure, mobile home, real estate, land, mobile home park, trailer park, tenement, leasehold, or an interest in a real estate cooperative or condominium.” MCL 37.1501(e) and MCL 37.2501(a), respectively.

In general, the conduct prohibited by the PWDCRA and the ELCRA includes in part:

•Any retaliation or discrimination against a person due to his or her opposition to a violation of the PWDCRA or the ELCRA, or because he or she made a complaint under the PWDCRA or the ELCRA. MCL 37.1602(a) and MCL 37.2701(a), respectively.

•Any direct or indirect attempt to violate the PWDCRA or the ELCRA. MCL 37.1602(c) and MCL 37.2701(c), respectively.

•Any interference with a person’s exercise or enjoyment of rights granted or protected under the PWDCRA or the ELCRA. MCL 37.1602(f) and MCL 37.2701(f), respectively.

Local civil rights ordinances in some jurisdictions may provide tenants with additional protections.

1   See https://www.hud.gov/hudprograms/fheo for more information.

2   See the federal Rehabilitation Act for additional protection against discrimination based on disability in cases involving housing that receives federal assistance. 29 USC 794. See also the federal Age Discrimination Act which prohibits discrimination based on age in cases involving housing that receives federal assistance.

3    See 42 USC 3607 for limited exceptions granted to certain religious and nonprofit organizations, and governmental entities.

4   42 USC 3604(f) of the FHA specifically addresses handicap (disability). The term handicap appears in some, but not all, of the other provisions of 42 USC 3604 that prohibit specific conduct based on a person’s status. For purposes of this benchbook, the more contemporary term, disability, will be used instead of the term handicap.

5    Nothing in 42 USC 3604 “regarding familial status appl[ies] with respect to housing for older persons.” See 42 USC 3607(b)(1). See 42 USC 3607(b)(2) for what constitutes housing for older persons.

6   Disability does not appear in this provision. See 42 USC 3604(f)(1) for a similar provision regarding disability.

7   Disability does not appear in this provision. See 42 USC 3604(f)(2) for a similar provision regarding disability.

8   The Michigan Supreme Court vacated the Court of Appeals’ judgment “to the extent that it can be read to stand for the proposition that expert-witness testimony must be provided in all cases in which a person is seeking a reasonable accommodation[.]” Riverbrook v Fabode, ___ Mich ___, ___ (2022).