With contributions from Tara Hall and Jonathon Schroeder
In light of COVID-19, landlords, property managers, homeowners’ associations, and others in the business of renting or selling residential properties are in uncharted territory. Landlords are asking what can and should be done in response to various questions that implicate privacy concerns for tenants/applicants, a landlord’s duty to protect its employees and tenants, and Fair Housing laws. Answers to common questions are listed below, but you should consult an attorney regarding your specific circumstances.
Does the Fair Housing Act or Iowa law cover individuals who have or had COVID-19?
There is no clear answer to this question, but COVID-19 and/or associated illnesses could be deemed a disability under the Fair Housing Act (FHA).
The FHA defines a disability to include an individual with a physical or mental impairment that substantially limits a major life activity. The FHA’s protections also extend to those who have a record of having a disability/impairment or who are regarded or perceived as having a disability/impairment.
Generally, COVID-19 is a temporary ailment, meaning it would fall outside of the purview of the FHA. On the other hand, individuals suffering from long-term effects of COVID-19 may be deemed a person with a disability. Moreover, individuals with COVID-19 may have other associated conditions such as diabetes or COPD, which are disabilities under the Fair Housing Act. Further, an individual with COVID-19 may have limitations in their ability to care for themselves or their mobility and/or may be regarded/perceived as having a disability, both of which could result in the individual receiving protection under the FHA.
Based on these factors, an individual who has or had COVID-19 could argue that the FHA and its protections apply. Landlords should therefore keep the FHA and its protections in mind when making housing decisions.
An approved applicant just told me he has COVID-19. Can I deny the applicant on that basis?
Generally speaking, a landlord should not deny an applicant because of a COVID-19 diagnosis and/or should not do so without first seeking counsel and obtaining a legal opinion that it would be proper to deny the applicant.
Note that while a landlord is permitted to deny an applicant who constitutes a direct threat to the health or safety of others, additional considerations exist. As noted above, COVID-19, or any associated health problem (e.g., COPD, diabetes, etc.), may qualify as a disability under the FHA, and if that is the case, then a landlord’s denial on such basis would be illegal discrimination.
I own a rental near a plant experiencing a COVID-19 outbreak. Can I ask applicants/tenants who work at that plant, or all applicants and tenants, if they have COVID-19?
While a landlord can ask applicants/tenants whether they have COVID-19, a landlord cannot demand that people answer that question. However, even though landlords can ask the question, it is often advisable for landlords not to ask applicants and/or tenants the question because: (1) the applicant/tenant may deem the question to be a demand, not a request; (2) such a policy may open a landlord up to a potential Fair Housing/disability discrimination claim; and (3) the obtained information generally cannot be used as a basis to deny an applicant or evict a tenant. Before implementing any policy of asking all applicants/tenants questions about COVID-19, landlords should first seek legal counsel.
Can I refuse to show a leased premise to an applicant who currently has COVID-19?
You should not outright refuse to show the unit, but you can and should ask the applicant if a virtual showing is acceptable, and, if not, tell the applicant that the showing will need to be postponed an appropriate amount of time, per the CDC’s recommendations for self-quarantining of people with COVID-19.
Are there any situations in which you do advise landlords to ask a tenant/applicant whether they have COVID-19?
Yes, there are a few situations. First, if an applicant has demanded an in-person showing of the unit instead of a virtual tour, then the landlord can and should ask the applicant appropriate COVID-19 screening questions. Second, if a tenant asks for a repair to be made within his or her unit, then a landlord can and should ask the tenant appropriate COVID-19 screening questions. Seek legal counsel for specifics on screening questions.
In both situations, the applicant or tenant is coming into direct contact with the landlord and/or its staff, so the screening questions are based upon the landlord’s general duty to keep its employees safe.
What proactive steps should landlords take to help slow the spread of COVID-19?
Iowa landlords should, among other things:
- Have all non-essential common areas closed off to all residents, including playgrounds, pools, recreational areas, community centers, and the like
- Frequently clean and sanitize common areas that cannot be closed, such as stairways, elevators, and laundry rooms
- Close their community offices to the residents/public
- Should only have in-person contact with residents by appointment and should screen their employees and residents/visitors before any in-person meetings
Finally, landlords may also want to keep their tenants up to date regarding recommendations from the CDC and the State of Iowa regarding recommended changes in daily living due to the COVID-19 pandemic. These actions can help mitigate the spread of COVID-19 in your communities.
I just found out that one of my tenants living within a community has COVID-19. Can I, as the landlord, mandate that the tenant and his family members quarantine themselves for 14 days?
In an ideal situation, the ill resident and family would voluntarily engage in a 14-day quarantine as recommended by the CDC. However, if that is not the case, the landlord should contact counsel before considering any landlord-imposed quarantine, as any landlord-imposed quarantine is likely not permissible.
I observed an ill tenant with COVID-19 not following the CDC-recommended 14-day quarantine; instead, the tenant is out and about and using common areas. What should I do?
First and foremost, under no circumstance should the landlord release the name of the ill tenant to others within the community. That said, under certain circumstances, a landlord may be able to properly send out a general notification to all tenants notifying them that a tenant within the community has tested positive for COVID-19, however, seek counsel before doing so.
Second, landlords should be taking all reasonable precautions to help mitigate the spread of COVID-19 in their communities, as described above.
Third, under certain circumstances, a landlord may choose to report that tenant to IDPH or other authorities but seek counsel before doing so.
What should I do if a tenant requests an accommodation or modification due to COVID-19?
While it is unclear whether COVID-19 alone would constitute a disability, a tenant may have a related or independent condition that is considered a disability under the FHA. Further, treating such a request as a request for a reasonable accommodation or modification under the FHA may lessen the exposure of the landlord to a potential Fair Housing/disability discrimination claim. Seek guidance from your attorney regarding any specific request, and now more than ever it is important for landlords to have well-written reasonable accommodation and modification policies.
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