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 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” is prohibited from discriminating against an individual, or anyone associated or residing with an individual, on the basis of religion, race, color, national origin, age, sex, sexual orientation, gender identity or expression, 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.

Conduct prohibited by the PWDCRA and the ELCRA includes in part:

•Any retaliation or discrimination against an individual due to the individual’s opposition to a violation of the PWDCRA or the ELCRA, or because the individual 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 an individual’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.

Under ELCRA and the Landlord-Tenant Relationship Act (LTRA), MCL 554.601 et seq., a person that is a landlord and owns five or more rental units in Michigan (including all related entities to that person) is prohibited from discriminating against an individual “based on the source of income of an otherwise eligible prospective or current tenant[.]” MCL 37.2502(3)-(4); MCL 554.601c(1)-(2). Specifically, landlords who own five or more rental units cannot, based on the source of income of an otherwise eligible prospective or current tenant, do any of the following:

•“Deny or terminate a tenancy to the prospective or current tenant.” MCL 37.2502(3)(a); MCL 554.601c(a).

•“Make any distinction, discrimination, or restriction against the prospective or current tenant in the price, terms, conditions, fees, or privileges relating to the rental, lease, or occupancy of a rental unit or in the furnishing of any facilities or services in connection with the rental, lease, or occupancy of the rental unit.” MCL 37.2502(3)(b); MCL 554.601c(b).

•“Otherwise make unavailable or deny any rental unit to the prospective or current tenant if the prospective or current tenant would be eligible to rent the rental unit but for the individual’s source of income.” MCL 37.2502(3)(c); MCL 554.601c(c).

•“Represent to the prospective tenant that a rental unit is not available for inspection, rental, or lease when in fact it is so available, or knowingly fail to bring a rental listing to the prospective tenant’s attention, or refuse to permit the prospective tenant to inspect a rental unit.” MCL 37.2502(3)(d); MCL 554.601c(d).

•“Make any distinction, discrimination, or restriction against the prospective or current tenant in the price, terms, conditions, fees, or privileges relating to the rental, lease, or occupancy of any rental unit on the basis of the prospective or current tenant’s use of emergency rental assistance.” MCL 37.2502(3)(e); MCL 554.601c(e).

•“If the landlord requires a prospective or current tenant to have a certain threshold level of income, exclude any source of income in the form of a rent voucher or subsidy when calculating whether the income criteria have been met.” MCL 37.2502(3)(f); MCL 554.601c(f).9

•“Attempt to discourage the rental or lease of any rental unit to the prospective or current tenant.” MCL 37.2502(3)(g); MCL 554.601c(g).

•“Publish, circulate, display, or cause to be published, circulated, or displayed any communication, notice, advertisement, or sign of any kind relating to the rental or lease of any rental unit that indicates a preference, limitation, or requirement based on any source of income.” MCL 37.2502(3)(f); MCL 554.601c(f).

•“Assist, induce, incite, or coerce another person to commit an act or engage in a practice that violates [MCL 37.2502(3) or MCL 554.601c(1)].” MCL 37.2502(3)(i); MCL 554.601c(i).

•“Coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of the person having exercised or enjoyed or having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected under [MCL 37.2502(3) or MCL 554.601c(1)].” MCL 37.2502(3)(j); MCL 554.601c(j).

ELCRA specifies that these prohibitions do not apply to:

•buildings containing accommodations for not more than two families to live independently where the owner or a member of the owner’s immediate family occupies one part of the property, or room(s) in a single-family dwelling if the lessor or a member of the lessor’s immediate family resides in the dwelling MCL 37.2503(1)(a); MCL 37.2502(5).

•dwellings for which the owner or lessor is leasing the home for not more than 12 months following the owner’s immediate prior occupancy of the premises for at least three months, and the dwelling is maintained as the owner’s or lessor’s legal residence. MCL 37.2503(1)(b); MCL 37.2502(5).

•with respect to age and familial status, senior citizens housing accommodations, or accommodations otherwise intended for the purpose of housing persons 50 years of age or older. MCL 37.2503(1)(c); MCL 37.2502(5).

“A person alleging a violation of [MCL 554.601c] may bring a civil action for appropriate injunctive relief or damages, or both.” MCL 554.601d(1). Under MCL 554.601d(1), “‘damages’ means actual damages for injury or loss caused by each violation of [MCL 554.601c], or up to 3 times the monthly rent for the rental unit or units at issue, whichever is less, together with court costs and reasonable attorney fees.” MCL 554.601d(1). “An action commenced under [554.601d(1)] may be brought in the circuit court for the county where the alleged violation occurred, or for the county where the person against whom the civil complaint is filed resides or where that person’s principal place of business is located.” MCL 554.601d(2).

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).

9   MCL 37.2502(3)(f) and MCL 554.601c(f) do “not apply to emergency rental assistance.” MCL 37.2502(3)(f); MCL 554.601c(f).