Writing a Vacancy Ad: Be Careful What You Say!

The summer rental season is in full swing and if you’ve received a notice of intent to vacate from a tenant, the time to start marketing is now. During last week’s member education session, “Fair Housing and Reasonable Accommodations for Rental Housing Providers”, attorney Steve Williams reminded rental housing providers to be careful of what they say in their listings. He explained that under federal, state, and local law, there are twenty-six currently protected “characteristics” (previously referred to as “classes”), and the list is growing every year.  Using discriminatory language against any one of these protected characteristics could open you up to a discrimination lawsuit, so how do you write an ad that doesn’t open you up to potential litigation? You choose your wording carefully.

Here is a sample ad. Can you spot the problems?

$2600/mo. Spacious two-bedroom, one-bath second-floor walk-up apartment in North Berkeley

1234 Fictitious Street, Unit #5 is a large two-bedroom, one-bathroom apartment in a safe, quiet, upper-class, white neighborhood with excellent neighbors. The apartment is within walking distance to UC and First Congregational Church of Berkeley: perfect for female Christian students. Hardwood floors in the living area and both bedrooms, linoleum in the kitchen and bathroom. Each bedroom is 10’x10’ and has a small closet. Bathroom has a shower stall. Kitchen has a gas range and a dishwasher.

The second is this: ‘Love your neighbor as yourself.’ There is no commandment greater than these.

Mark 12:31

Female Christian students will be given priority and will receive a $500/mo. discounted rent for the first six months.

No pets, ESA, or Service Animals

No Section 8

No marijuana use

No young children

No wheelchairs

No applicants with a criminal record

Maximum occupancy of two

Did you spot the problematic language?

• Declaring a location is “safe” or “quiet” or asserting that the neighbors are “excellent”: Your assessment of safe, quiet, or excellent may not be the same as someone else. In addition, these are often used as coded language to describe predominately white, upscale, or child-free neighborhoods.
• “White, upper-class” discourages people of color, families, and working-class people from applying, which is discriminatory.
• References to religion, quoting religious texts, or noting the proximity to places of worship are discriminatory on so many levels. Just leave religion out of your listing.
• Banning of animals: Emotional Support Animals (ESA) and Service Animals are known as “Assistive Animals”; they are not considered “pets”. A best practice is to state “pets are negotiable” in your listing. That way, disabled people with ESA or Service Animals aren’t dissuaded from applying, and you can take individual pet requests into consideration. For more information about Assistive Animals, email us!
• Section 8: Berkeley’s Anti Income Discrimination Ordinance, which went into effect in 2017, made it illegal to deny an applicant based on source of income alone. This includes ALL housing vouchers or subsidies.  Leave references to vouchers or subsidies out of your listing.
• Marijuana: Because marijuana can be medically prescribed, you cannot ban its medicinal use on your property. Instead of saying, “No marijuana use,” say. “No Smoking per Berkeley ordinance 7230 N.S.”
• Under the Fair Housing Act, you cannot ban families with children from your property, period.
• You probably noticed that I described this unit as a “second-floor walk-up”. Though you cannot discriminate based on a disability that requires a wheelchair (or ANY disability, for that matter), this description informs the reader that this unit is not easily accessible to persons who use wheelchairs. Leave ANY AND ALL references to disabilities out of your listing.   
• “Maximum Occupancy”: Uniform housing code sets occupancy limits. These are calculated at a rate of ‘two per bedroom, plus one’. Therefore, a two-bedroom apartment would have a maximum occupancy of five. It’s okay to say, “The posted rent is based on a two-person occupancy”, but you cannot set unlawful occupancy rates.
• Up for Debate: What is better, to say “walking distance to...” or use mileage, such as, “.2 miles from Trader Joe’s”? You won’t violate Fair Housing by declaring a location is walkable, but one person’s idea of walking distance may differ from another. I prefer to Google the location and use the mileage. Let the reader decide for themselves whether it’s close enough to travel to and from the locations they want to visit. I also like to post the Bike Score and Walk Score, which you can find at www.walkscore.com. 
• Can’t I state preferences? It is absolutely a violation of Fair Housing for a landlord to state a preference for any gender, gender orientation, race, ethnicity, religion, student status, work status, spoken language, etc. Unless you live in your property and share a kitchen and or bathroom with your tenants, don’t state gender preferences.
• The Fair Chance Housing Ordinance, which passed in March 2020, made it illegal to run background checks that include an applicant’s criminal history. You cannot refuse an applicant based on a prior criminal record and you can’t even Google their name to see if you find any criminal records. If your property is subject to the Ordinance, leave references to criminal history out of your listing. 
• Offering “specials”: For rent-controlled units, offering rent concessions is not as simple as it may sound. If you offer a discount of $500 a month for six months, that rent reduction will impact the rent ceiling! Using the sample ad as our point of reference, you have lowered the rent ceiling from $2600 to $2350 by doing this special. 
• Did you catch what is missing?  Your ad must include a reference to the Fair Chance Housing Ordinance and provide a link to the notice (example: “We Comply with the Fair Chance Housing Ordinance, which you can read here (insert link)”. The only exemptions to this rule are owner-occupied duplexes and triplexes.
• “On what basis can I lawfully deny an applicant?”: Since you can lawfully deny an applicant if they fail to meet your screening criteria,  it is crucial that you establish a screening protocol and apply it universally to all applicants. For example, you can require a minimum credit score, good landlord references, and state your income requirements (usually 3x the monthly rent). If the applicant fails to meet any one of your requirements, you have the basis to deny their application lawfully. It’s important that your screening criteria are made available to an applicant before they begin the application process! This will help to reduce the number of unqualified applications you receive, and you can refer to your policy if your denial is challenged.