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Military homeowners have dozens of tasks to consider if they’re planning to either sell or rent a home. The list is lengthy and filled with to-do's such as market research, cleaning and prepping for advertising photos, as well as interviewing real estate agents.
One thing to add to the list, especially those selling or renting for the first time, is to "understand the Fair Housing Act.” The Fair Housing Act is a federal law that protects buyers and renters from discriminatory practices during real estate transactions, including securing financing.
What to Know Before Listing Your Property for Sale or Rent
Despite a homeowner's or landlord's best intentions to avoid discrimination, inadvertent prejudiced language can result in a complaint filed with the Department of Housing and Urban Development (HUD).
For example, even if the neighborhood is best suited for adults, using the phrase “child-free families only” in the advertisement discriminates against families with kids.
As well, advertising a rental property as “seeking military members to rent” in an effort to support the troops actually violates the Fair Housing Act, as landlords cannot convey a preference for one group over another. For more information about restricted uses of words, phrases, symbols, and visual aids in advertising, see HUD’s guidance for Fair Housing Advertising.
If all of this sounds a little confusing, learning why and how the Fair Housing Act was created can be helpful.
The History of the Fair Housing Act
As part of the 1968 Civil Rights Act, the Fair Housing Act (FHA) was written to fight against the rampant racial segregation within collections of housing. In simple terms, the FHA forbids housing discrimination based on race, color, religion, national origin, sex, disability, and familial status. The initial 1968 legislation did not include protections for the qualifiers of sex, disability, or familial status. These stipulations were later added in 1974 and 1988.
Local governments may also insert protected classes of people into the federally protected group already established. It's common to see states or cities legislate discrimination against people with certain income levels, military history, marital status, sexual orientation, or gender identity.
Recent Fair Housing Act Updates and Clarification
Because of a few gaps in previous fair housing legislation, HUD created additional guidance to address discrimination tactics used against buyers and renters. These are related to criminal history, maximum occupancy in rental homes, and limited English proficiency.
Criminal History
In 2016, HUD issued guidance clarifying that blanket bans on renting to people with criminal records could violate the Fair Housing Act if they disproportionately impact protected groups, particularly minorities. The guidance emphasized that:
- Arrest records alone can't justify the denial of housing.
- Individualized assessments should be used instead of automatic exclusions.
- Landlords must prove that their policies are necessary and not discriminatory.
The goal was to reduce unfair barriers to housing for those with a criminal history.
English Proficiency
Because national origin is protected under the Fair Housing Act (FHA), renters can't be disqualified for having limited English proficiency or for speaking English as a second language.
Maximum Occupancy
The FHA does not explicitly prohibit occupancy limits, but creating advertising that sets a maximum occupancy could lead to discriminatory accusations from potential renters. This is especially true when considering limiting the number of children allowed to live in the rental home.
Determining the lawful number of occupants is challenging, as it must take into account the FHA, state and local regulations, and the physical qualities of the rental home, including square footage, size of the bedrooms, and unit layout.
Keating Memorandum
The Keating Memorandum is HUD guidance that suggests a general standard of two people per bedroom as a reasonable occupancy limit. However, this is not a strict rule. It’s a flexible guideline. It depends on factors like the unit’s size, configuration, and any state or local occupancy laws.
In some cases, HUD allows additional occupants, such as infants, to be excluded from the count when determining occupancy limits. Landlords should ensure their policies and language don’t unfairly impact families or risk violating the Fair Housing Act’s protections against familial status discrimination.
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What Homeowners Need to Know Before Renting or Selling
Homeowners must comply with the Fair Housing Act (FHA), which prohibits discrimination based on protected classes like race, color, national origin, religion, sex (including gender identity and sexual orientation), familial status, and disability.
All applicants must be treated equally. A landlord cannot apply different standards or requirements to individuals in protected classes. One example would be requiring a higher security deposit from a family with children but not from single applicants.
Discrimination and False Claims
Discriminatory advertising or language, whether spoken or written, is also illegal. It’s unlawful to make false claims about a property's availability to avoid renting to a specific applicant. For example, if a family with young children applies, a landlord may not falsely state the home is already rented and then lease it to someone else later.
According to a survey of 2,300 members of the National Association of REALTORS®, 11% reported that a rental agreement failed due to a fair housing concern, such as an agent refusing to work with someone they perceived as being discriminatory.
The Fair Housing Act and Disabilities
Understanding what the Fair Housing Act (FHA) requires regarding disabilities can be challenging without firsthand experience. However, the law is clear: housing providers must offer accommodations that allow individuals with disabilities to enjoy the home as fully as those without disabilities.
This includes the right to have service animals or emotional support animals, even in rentals with a "no pets" policy. These animals are not considered pets under the law and must be allowed as reasonable accommodation.
If someone files a complaint about discrimination based on disability, HUD may investigate by collecting evidence, issuing subpoenas, and interviewing witnesses. Both parties may enter a voluntary process called conciliation to resolve the issue. However, any agreement must serve the public interest for the case to close.
Learn more in the section on the FHA and renters with service animals.
Homeowners and landlords who fail to comply with the Fair Housing Act (FHA) may face costly litigation and significant civil penalties.
The maximum fines for FHA violations are:
- First offense: Up to $25,597
- Second offense within five years: Up to $63,991
- Two or more offenses within seven years: Up to $127,983
(Note: These amounts are subject to annual adjustments for inflation.)
Certain housing situations are exempt from the FHA, including:
- Owner-occupied buildings with four or fewer units
- Single-family homes rented or sold without the use of a broker
- Housing operated by religious organizations or private clubs that limit occupancy to members
However, even when an exemption applies, discriminatory advertising is still prohibited. For instance, you may see legally compliant phrases like “Active 55+ Community,” but to qualify for that designation, at least 80% of the units must be occupied by someone 55 or older.
Property owners may legally deny applications, evict tenants, or enforce lease terms as long as their actions are not based on a renter’s protected characteristics under the FHA. For example, a landlord may reject an applicant due to poor credit or insufficient income if these criteria are applied equally to all applicants, regardless of their race, religion, or other protected status.
Landlords Who Use Consumer Reports for Rental Property
For those who choose to run a background check for renters or credit checks on prospective tenants, it's important to comply with the Fair Credit Reporting Act (FCRA). This federal law requires landlords to obtain the applicant’s written permission before requesting a consumer report and that they notify them (along with a copy of the report and their rights) if the landlord decides to take adverse action based on the information provided.
Common sources for credit checks include TransUnion, Experian, and Equifax. Many landlords also use tenant screening services that include background checks for renters, eviction history, and references from previous landlords.
RentRisk is a trusted MilitaryByOwner partner and comprehensive tenant screening tool to help both landlords and real estate professionals manage their rental properties.
Remember FHA protections and local fair housing laws when reviewing consumer reports. For example, while landlords may consider an applicant’s criminal history, HUD advises against blanket policies that exclude applicants with criminal records, as such policies may disproportionately affect protected groups and violate fair housing laws.
Landlords must apply screening policies consistently, avoiding targeting characteristics protected under the FHA, such as race, national origin, or disability.
After reviewing a consumer report, landlords may take adverse action against an applicant. Adverse actions are any decisions that negatively affect the applicant’s rental outcome and can include:
- Denying the application
- Requiring a co-signer on the lease
- Requesting a higher security deposit than would be required of other applicants
- Charging a higher rent than typically offered to other tenants
If a landlord takes any of these actions based on information in a consumer report, the FCRA requires the landlord to give the tenant an adverse action notice. The notice must be given in writing or compliant electronic form and include:
- The name, address, and phone number of the credit reporting agency
- A statement that the agency did not make the decision and cannot explain it
- Notification of the applicant’s right to obtain a free copy of the report within 60 days
- The right to dispute inaccurate or incomplete information in the report
Before accessing any consumer report, landlords must obtain the applicant’s written permission (typically included in the rental application). When requesting the report, landlords must also certify to the reporting agency that the report is for housing purposes only.
The FCRA’s Disposal Rule requires landlords to destroy the report. For paper records, this means shredding, burning, or pulverizing the documents. Electronic files should be permanently deleted.
The FTC enforces the FCRA and offers guidance on how landlords can legally use consumer reports. More information is available on the FTC’s official website.
The National Fair Housing Alliance
The National Fair Housing Alliance (NFHA) is a prominent civil rights organization that tracks and reports on housing discrimination in the United States. For over 25 years, NFHA has compiled complaint data from HUD, the Department of Justice, local agencies, and private fair housing groups.
According to its 2024 Fair Housing Trends Report, the number of housing discrimination complaints increased for three consecutive years: from 31,216 in 2021 to 33,007 in 2022 and 34,150 in 2023 (a record-high 3.5% increase over the previous year).
Disability-related complaints made up over half (52.6%) of the total in 2023. That same year, harassment reports increased by 66%, with especially sharp rises in race and color-based harassment. For the first time, the NFHA also reported 87 complaints related to appraisal bias.
Although these statistics show increasing awareness and reporting, the NFHA estimates that over 4 million cases of housing discrimination occur yearly, with most going unreported. The Fair Housing Act protects against discrimination, yet many affected remain unaware of their rights or even that they are being discriminated against.
The Fair Housing Act and Military Life
The Fair Housing Act also protects service members residing in off-base housing, so landlords should understand some of their unique needs. Military families often need rental homes that allow children and support animals.
Photo by af.mil/MSgt Philip Speck. Public domain image.
Renting to Military Families with Children
About half of service members have children, so the odds are that a landlord will encounter a military renter who needs housing for their family with kids. Regardless of personal preferences, the FHA does not allow a homeowner to advertise their rental as “child-free” or “only older children allowed,” for example. This is discrimination against the potential tenant’s familial status.
Landlords also may not redirect families to other rental openings they own or in the area based solely on the fact they have children. They also cannot dismiss their application because of an applicant's parental status or charge more in fees or rent per person because of the number of children who will live in the home.
Marketing Your Home for Rent to Military Families will help you find the best tenants for your property.
Tenants with Disabilities
Landlords cannot legally refuse to rent to someone with a physical or mental disability. Being a homeowner under FHA regulations means you may need to provide reasonable accommodations to tenants with disabilities if requested.
According to guidance from the Department of Justice and HUD, a “reasonable accommodation” is:
“A change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces.”
While accommodations like allowing a service animal or providing a reserved parking space are typically at the landlord’s expense, physical modifications to the unit (such as installing grab bars) are generally the tenant’s responsibility, unless the property receives federal financial assistance, in which case Section 504 of the Rehabilitation Act may also apply.
Landlords should encourage open communication with the tenant to find a reasonable solution. The law also limits what information a landlord can request about a person’s disability. Landlords are not entitled to full medical records, but they are allowed to request verification of the need for accommodation in certain situations.
Renters with Service Animals
A common accommodation requested by military families is the presence of a service animal. Under the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA), service animals (typically dogs) are allowed to live with tenants regardless of a property’s pet policy. Specialized training is required for these animals to help their handlers with their disabilities.
However, there is no legal requirement for certification, registration, or ID, despite widespread online misinformation.
In contrast, emotional support animals (ESAs) are protected under the FHA but not under the ADA. ESAs do not need special training, and they are not limited to dogs. A landlord is allowed to request a letter or form of verification from a licensed medical professional explaining the necessity of the animal if a tenant requests an ESA accommodation and their disability or the need for the animal is not obvious.
According to the American Bar Association, landlords can consider limited factors, such as financial burden, programmatic impact, or whether the animal disrupts other tenants. However, this is a high bar to meet, and in most cases, landlords must allow the ESA as long as the tenant meets documentation requirements and the animal behaves appropriately.
For additional guidance, the ADA’s FAQ on service animals and HUD offer detailed explanations for housing providers.
HUD does not consider an ESA a pet and forbids property owners to ask tenants for a pet fee or deposit.
How a Real Estate Agent Can Help
Whether you’re a landlord, renter, buyer, or seller, understanding the Fair Housing Act (FHA) is essential for ensuring a smooth, legal, and equitable real estate experience. While everyone involved in a transaction is responsible for following fair housing laws, real estate professionals are uniquely equipped to guide their clients with both confidence and compliance.
Agents are prohibited from discriminating against any of the FHA’s protected classes (race, color, religion, national origin, sex, disability, and familial status) and are held to a high standard through their training, licensure, and professional ethics. Many also undergo regular training that covers changing federal, state, and local fair housing requirements.
This training empowers agents to help clients avoid legal pitfalls, especially when navigating tricky or misunderstood scenarios. For example, when a buyer asks, “Is this neighborhood safe?” or “Are the schools good?” an experienced agent knows how to respond without unintentionally violating the law. Rather than offer subjective opinions, agents can provide neutral resources, such as links to crime statistics, school ratings, or local amenities, empowering clients to make their own informed decisions.
Beyond compliance, a skilled agent is your partner in inclusion and access. They understand how to:
- Market properties broadly and fairly to reach a wide range of qualified buyers or renters.
- Navigate reasonable accommodation requests related to service animals or disabilities.
- Advocate for clients’ rights if they suspect unfair treatment.
- Explain complex fair housing concepts in an approachable way.
Agents are legally and ethically bound to refuse any client request that could result in discrimination, even if unintentional. They may also need to report the issue to the appropriate authority. But more importantly, a trustworthy agent will use that opportunity to educate and redirect the conversation to lawful, productive solutions.
According to a REALTOR® Magazine survey, 64% of real estate professionals proactively discuss fair housing with their clients, even though only 26% of clients bring up the topic themselves—a strong reminder of how agents are not only facilitators of transactions but advocates for fairness, access, and opportunity.
Before advertising your property, understand your rights as an owner and ensure the lawfulness of your future transactions. It's also recommended that you consult with real estate attorneys specializing in fair housing acts.
By Dawn M. Smith
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