FAIR HOUSING

What is the Fair Housing Act?
The Fair Housing Act makes it illegal for an owner to refuse to rent to someone or to otherwise discriminate against a tenant on the basis of race, color, religion, sex, familial status, national origin, or handicap. 42 U.S.C. §3604. The Fair Housing Act applies to “dwellings,” including homes, apartments, condominiums, cooperatives, mobile homes, and other manufactured homes. See 54 Fed. Reg. 3232 (1989) (codified at 24 C.F.R. §§100.10 and 100.20 (1989)).

Under the Fair Housing Act, a landlord may not discriminate in the rental, or in the terms, conditions and privileges of rental, of a dwelling unit to any renter because of a handicap of that renter or of any person associated with that renter. 42 U.S.C. §3604(f)(1) & (2). Furthermore, the landlord must allow, at the expense of the handicapped person, reasonable modifications to the premises to be occupied by such person. The landlord must also make reasonable accommodations in rules, policies, practices or services when such accommodations are necessary to give the handicapped person the opportunity to use and enjoy the premises. 42 UCS §3604(f)(3).

Under the Fair Housing Act, a private person may file a civil lawsuit to obtain relief with respect to the discriminatory practice. 42 U.S.C. §3613. The court may award the plaintiff actual and punitive damages, as well as other relief deemed necessary by the court, such as an injunction. 42 U.S.C. §3613(c)(1).

What is the Human Rights Act?
Like its federal counterpart (the Fair Housing Act), the New Mexico Human Rights Act prohibits discrimination in the rental, assignment, lease, or sublease of housing. (The Human Rights Act exempts certain types of housing from its coverage. See §28-1-9.) In addition to prohibiting, as the federal law does, discrimination on the basis of race, religion, color, national origin, sex, and physical or mental handicap (provided that the handicap is unrelated to the person's ability to acquire or rent and maintain the housing), the Human Rights Act also prohibits discrimination on the basis of ancestry, sexual orientation, gender identity, and spousal affiliation. §28-1-7(G).

The state statute assigns to the Human Rights Commission and the District Courts jurisdiction to hear claims alleging violations of the Human Rights Act. See §§28-1-10(G) (authorizing injunctive relief) and -11(E) (authorizing damages). However, the Human Rights Act may arise in the magistrate and metropolitan courts as a defense in landlord-tenant cases. For example, when a landlord sues a tenant to enforce the landlord’s contractual rights, the tenant may claim, in defense, that the landlord is unlawfully discriminating against the tenant. If the tenant is successful in showing that the landlord is attempting to enforce his or her contractual rights as a means to—or in a manner that does—discriminate against the tenant in violation of the Human Rights Act, or that the contractual provision itself violates the Act, the tenant should prevail because the landlord cannot use the court to enforce a violation of the state’s public policy against discrimination.

An example of this might occur when a landlord selectively enforces a clause requiring the tenant to seek the landlord’s written consent to allow another person to stay on the premises for an extended period. If such a clause is enforced strictly when the tenant is a racial minority or gay, but is routinely overlooked as against white or heterosexual tenants, the tenant may state a discrimination claim against the landlord. If such allegations are proven, they may provide the tenant with a defense against the landlord’s suit.
Note: All provisions of the Human Rights Act sunset—meaning that they will remain effective only if readopted by the Legislature— effective July 1, 2006.

Proceed to next page >