Refusals That Are Unlawful
Housing discrimination against older applicants is rarely announced. It appears as a unit that has just been taken, a rule applied to one applicant and not another, or a polite suggestion that a development might not suit somebody with mobility difficulties.
The rule in short
Fair housing law prohibits refusing to rent or sell, imposing different terms, or providing different services because of protected characteristics including disability, which covers most age-related functional limitations. Refusing a reasonable accommodation or modification is itself unlawful. Steering, discouraging applicants and applying rules selectively all count. Complaints may be made to federal and state agencies within defined periods, and the process is free to use.
Almost nobody in this position is told they are being refused because of a disability. What they are told is that the unit has gone, that the terms are different for this application, or that the development might not really suit them.
What the law prohibits
Refusing to rent or sell. Because of a protected characteristic, which includes disability and therefore most of the functional limitations associated with age.
Different terms or conditions. A higher deposit, a shorter tenancy, additional guarantees or restrictions applied to one applicant and not to comparable others.
Different services or facilities. Once a tenancy has begun, including slower repairs, restricted access to amenities or different treatment in the application of rules.
Discouraging or steering. Directing somebody toward or away from particular units or developments, however helpfully the suggestion is framed.
And refusing reasonable requests. For accommodations or modifications, which is itself a violation, on the framework in modifications a landlord must allow.
How it usually appears in practice
The unit has just been taken. Which is the commonest form, and is testable by having somebody else inquire about the same unit shortly afterward.
Additional requirements appear. A guarantor, a larger deposit or income evidence not asked of other applicants, applied without any stated basis.
Helpful redirection. A suggestion that a different development would suit better, which is steering however kindly it is intended.
Questions about capability. Whether somebody could manage the stairs, live independently, or cope alone, which are frequently asked of nobody else.
And rules applied selectively. Where a policy on visitors, on animals or on communal spaces is enforced against one resident and not against others.
| What was said | Likely characterization |
|---|---|
| The unit has just gone | Testable; a common form of refusal |
| We would need a guarantor in this case | Different terms, if not applied generally |
| That development might suit somebody better | Steering |
| Could somebody really manage those stairs? | Capability inquiry, usually improper |
| We need proof of income from everybody | Lawful if genuinely applied to all |
What a complainant needs
A record of what happened. Dates, names, what was said and by whom, written down as soon as possible rather than reconstructed later.
The advertisement or listing. Which establishes what was available and on what terms at the time the inquiry was made.
Any written communication. Emails, texts and letters, which are frequently more revealing than anybody intended and are the strongest evidence available.
Comparative information. Whether the unit was in fact re-advertised, or let to somebody else shortly afterward on different terms.
And any witness. Somebody who attended a viewing or heard a conversation, whose account corroborates what would otherwise be one person's word, including on any refusal of the requests in modifications a landlord must allow.
These complaints turn on what was said, by whom, and when, and almost none of it is recorded by anybody at the time. A short note made the same afternoon — the name of the agent, the words used, the unit discussed, the time of the call — is worth more than a detailed recollection given six months later, and it takes five minutes. Most people who decide months afterward to complain have nothing beyond their own memory.
The complaint routes
The federal agency. Which investigates, attempts conciliation and can pursue enforcement, at no cost to the complainant.
State and local agencies. Which frequently cover more characteristics than federal law, including age itself and the association conduct in notice and the right to object.
Private proceedings. In court, within the applicable period, which may produce damages and injunctive relief and is the route with the widest remedies.
Fair housing organizations. Which provide advice, sometimes conduct testing, and are frequently the most practical first call for somebody unsure where to begin.
And none of them requiring a lawyer to start. Since the administrative processes are designed to be used directly by complainants.
What is not unlawful
Ordinary financial requirements. Applied consistently to everybody, since a landlord may lawfully require evidence of ability to pay from all applicants alike.
Genuine occupancy limits. Reasonable and consistently applied, rather than used as a proxy for excluding particular applicants.
Age-restricted communities. Where the statutory conditions are met, which is examined in communities that may exclude children and is narrower than most residents assume.
Refusing an unreasonable request. Where an accommodation would impose an undue burden or fundamentally alter the housing provided.
And ordinary tenancy enforcement. Since these protections do not displace a landlord's ability to enforce terms consistently against everybody.
Discrimination against older applicants in housing is common, quiet, and frequently well intentioned in the mind of the person doing it, which is part of why it goes unchallenged.
The legal route usually runs through disability rather than age, because the reasons given almost always concern functional capability, and that route is available in every jurisdiction.
Steering is the form most often not recognized as anything at all. A helpful suggestion that a different development would suit better is a limitation on what housing is being offered.
The evidence that decides these complaints is created in the first day, not in the first month. Names, words and times, written down while they are exact.
Testing — having somebody else inquire about the same unit shortly afterward — is a standard technique and is what fair housing organizations exist to do.
The complaint routes are free, are designed for people to use directly, and do not require a lawyer to begin, which is worth saying because the assumption otherwise stops a great many people.
Time limits are real and shorter for the administrative routes than most people expect, so the decision to complain is better made in the first fortnight than after several months of hesitation.
And where a refusal turns out to have been perfectly lawful, nothing has been lost by asking. These processes are used to receiving complaints that do not succeed, and there is no penalty for having raised one honestly.
It is worth saying something about why so few of these complaints are ever made. Somebody looking for housing in their late seventies is usually tired, is frequently doing it under time pressure after a life change, and has very little appetite for a fight with an agent about something they cannot prove.
That is entirely understandable and it is what makes this kind of discrimination durable. It costs the person doing it almost nothing, because the applicants it affects are the least likely of anybody to pursue it.
The response that requires least energy is also the most useful: write down what happened, and telephone a fair housing organization. They will say whether it sounds like anything, they conduct the testing that establishes it, and the call takes ten minutes.
Points to carry away
- Refusing to rent because of a disability is unlawful.
- So is imposing different terms or providing different services.
- Refusing a reasonable accommodation is itself a violation.
- Steering and discouraging applicants are covered.
- Complaints are free and subject to defined time limits.
Questions readers ask
Is age itself a protected characteristic in housing?
Age is not among the characteristics protected by federal fair housing law in the way that disability, race and familial status are, and several states add it. In practice most discrimination against older applicants operates through disability, because the reasons given — concerns about mobility, about whether somebody could manage stairs, about assistance animals — relate to functional limitations that fall within the disability protections. That route is usually available even where age itself is not protected in a particular jurisdiction.
What does steering look like?
Directing applicants toward or away from particular buildings, floors or developments on the basis of a protected characteristic. It is usually presented helpfully: suggesting that a ground-floor building elsewhere might suit better, that a development is very lively for somebody at this stage of life, or that another community has more residents of a similar age. The intention may be genuinely kind. It is nonetheless unlawful where it limits the housing actually offered to somebody because of a protected characteristic.
How long is there to complain?
Defined periods apply and they vary between the federal route, state agencies and court proceedings, with the administrative routes generally shorter. The periods run from the discriminatory act, which for a refusal is the refusal itself. Because the limits are real and because evidence deteriorates, a complaint is worth raising promptly rather than after a period of deciding whether to bother. The administrative routes are free, do not require a lawyer, and can be started with a telephone call.
Sources
- 42 U.S.C. § 3604 — Discrimination in the sale or rental of housinglaw.cornell.edu
- 42 U.S.C. § 3610 — Administrative enforcementlaw.cornell.edu
- 42 U.S.C. § 3613 — Enforcement by private personslaw.cornell.edu
- Legal Information Institute — Fair Housing Actlaw.cornell.edu
- Legal Information Institute — Discriminationlaw.cornell.edu
- Legal Information Institute — Disparate Treatmentlaw.cornell.edu
Silverline Legal Notes is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
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