Recently, I spoke about discrimination in screening tenants and in the landlord-tenant relationship. Any prohibited rental discrimination practice normally may be effectively redressed under California state law – the California Fair Employment and Housing Act, and/or the California Unruh Civil Rights Act. A discrimination claim can usually only be upheld when the discrimination is against a protected class.
The audience that I was speaking to had the most interest in the situation of renting to registered sex offenders. I can confidently say that in discrimination cases using Federal law, sex offenders are not a protected class. But things get strange on the California level.
California Penal Code section 290.46 prohibits the unauthorized use of registered sex offender identifying information obtained from the California “Megan’s Law” website for purposes relating to “housing accommodations.” However, that prohibition does not itself make registered sex offenders a “protected class” under Unruh or the Fair Employment and Housing Act. Sex offenders may be denied housing to protect a person at risk according to Penal Code section 290.46.
I know that any landlord who finds out that a prospective tenant is a registered sex offender will not want to accept the individual as a tenant. That is because sex offenders present a risk to the landlords tenants, no landlord wants to take that risk, especially if children are in the building. The law is on the landlord’s side in this case.
But what if the registered sex offender is already a tenant and the landlord later learns of this status. Well, a registered sex offender cannot be evicted simply on the basis of his status. This is a tricky situation because the sex offender could certainly present a risk to other tenants, and a landlord has a duty to make his premises safe for his tenants. Other tenants may also threaten to leave if the landlord doesn’t evict a known registered sex offender.
The landlord in this situation must stick to the law. One way to terminate the tenancy is simply by notice. A periodic tenancy (i.e. month-to-month) may be terminated for any reason by giving notice – usually a 30 day notice. This type of notice is subject to discrimination, retaliation and other rent control limitations. A tenant’s breach of a material term in the lease also gives the landlord the right to terminate. Finally, mutual consent is an option for termination. The parties may mutually agree to a termination by “surrender”.
Be careful about denying a prospective tenant or terminating a tenancy based solely on the status of a registered sex offender. The penalties could include actual damages, treble damages with a minimum of $250, attorney's fees, exemplary damages or a civil penalty not exceeding $25,000. Remember, in any action, it is the individual claiming discrimination who has the burden of proving the discrimination took place.
As a final note to landlords: Every lease or rental agreement entered into on or after July 1, 1999 for residential property must contain a prescribed statutory notice, in minimum eight point type, advising that law enforcement maintains for public access a statewide data base of locations of registered sex offenders.
Landlords are not required to provide any further information regarding the proximity of registered sex offenders in the neighborhood.