Do discrimination laws apply if I terminate a difficult or uncooperative tenant?

Mini- Storage Messenger - Do discrimination laws apply if I terminate a difficult or uncooperative tenant?

Question: This month’s question involves a manager wanting to terminate a specific tenant for being uncooperative and difficult to deal with, specifically for refusing to accept new rules or fees. The manager asks specifically, “If I terminate this particular tenant, do I have to terminate all of the tenants who dispute a change of policy like this tenant did, i.e., do the discrimination laws apply?”

In the world of housing there are federal, state, and even local ordinances that protect apartment tenants, homebuyers, those seeking mortgages, etc. from being discriminated against based on various criteria. Examples of the federal criteria include race, religion, national origin, disability, and familial status. Some local jurisdictions expand these protections for housing to the extreme, for example Madison, Wisconsin has at least 30 protected classifications of people who cannot be discriminated against in housing opportunities including those with body piercings and tattoos.

Self storage does not provide housing. As a matter of fact to live in a self storage facility is illegal under all self storage statutes, so federal and state fair housing laws would not apply. But does that mean that there is no potential claim for discrimination if you make an “unpopular” decision by an uncooperative tenant or a series of tenants or prospective tenants? Remember, discrimination is not illegal. Discrimination based upon certain criteria is illegal. We all discriminate to a certain extent every day. We decide that the person ahead of us on the road is not a good driver, we do not like the waiter or waitress at a restaurant, we choose to affiliate with people of our own religion at church or synagogue, etc.

The secret to avoiding any discrimination complaint in any field is to act consistently. That is, address the same situation as it presents itself each time in the same way. Thus you are not deciding how to handle the situation based on a race, national origin, or a religion, but on a predetermined set of other factors.

So, does discrimination apply?
While I am aware of no case where someone has charged a self storage facility with discrimination for its rental policies, refusal to rent, etc., I think it is within the realm of possibilities that a civil rights agency could make a discrimination case based on state civil rights law. This obviously varies by state, however, every state has its own set of civil rights laws beyond those including and in addition to the federal laws. Thus, while I cannot point to a situation where someone or an agency has charged a facility with refusing to rent to, for example, all Muslims or terminating all of its African American tenants after one month of rental, it is not beyond the realm of possibility that states civil rights laws could protect and cover this sort of behavior if that type of trend can be shown.
In answer to the manager’s question, no you do not have to terminate every tenant who opposes a change in a fee or a policy just because you terminated one who was especially difficult. I assume the facts in each case are different and that you can make a distinction between tenants. However, I would suggest that there is some threshold that makes a tenant especially difficult and you probably should terminate all of those who meet that threshold.

The best way to avoid problems is to have written policies and procedures that govern these types of events. How do you raise rent? Is it raised on a going forward basis for everyone who rents after a certain date or do you also retroactively go back and raise everyone else who is at the same size unit so that everyone pays market rent? On what grounds would you refuse to renew a tenancy? On what grounds do you raise a late fee or another fee prescribed in the Rental Agreement, etc.? As long as these items are spelled out and you follow these policies, it would be difficult, if not impossible, for a civil rights agency to claim that your behavior is discrimination based on a particular class of people. It is when you act “off the cuff” handling the same type of situation differently on a case-by-case basis that someone may want to come back and look to see whether there was “other motivation” or why that situation was handled in that way.

There is an interesting poster at the office of the civil rights commission , in my home town, it says “It is okay to discriminate based on color, as long as that color is green.” So the short answer to the question is yes, it is possible that discrimination laws apply to the operation of your facility in your state. However, by simply acting consistently, in a straight forward manner and making decisions based on financial reasons and not other emotional reasons, you should be able to steer far clear of discrimination complaints.

You can send your questions, comments, or suggestions for future topics to Jeffrey Greenberger at info@selfstoragelegal.com or mail them to Jeffrey Greenberger c/o Katz Greenberger & Norton LLP, 105 E. Fourth Street, Suite 400, Cincinnati, Ohio 45202 or you can reach Mr. Greenberger at (513) 721-5151, or visit his website at www.selfstoragelegal.com.