Landloard/Tenant Q&A: LURLINE R. JOHNSON (R), ABR, CRB, CRS, GRI, RMP

Q. What is the difference in law between renting out a room in your personal residence as opposed to renting a normal rental property? If it is a rental in my home, can I advertise in a way that will restrict who I will allow to rent the property? I feel that I should have control over who I rent to – being an older female, I don’t want a single male to be on the property where I live.

A. Let’s go over a few basic points before I answer your question. There are laws that have been enacted to protect renters from discrimination. The one we are going to concentrate on is the Fair Housing Act. This is a federal act that is intended to protect the buyer or renter of a dwelling from seller or landlord discrimination.

Its primary prohibition makes it unlawful to refuse to sell, rent to, or negotiate with any person because of that person being part of a protected class. The goal is to have a housing market in which a person’s background (as opposed to financial resources) does not prevent them from securing housing.

When the Fair Housing Act was enacted as Title VIII of the Civil Rights Act of 1968, it prohibited discrimination on the basis of race, color, religion, sex, and national origin.

In 1988, disability and familial status (the presence or anticipated presence of children under 18 in a household) were added. In certain circumstances, the law allows limited exceptions for discrimination based on sex, religion, or familial status

One of these exemptions is known as the Mrs. Murphy’s Exemption. This is an exemption for transactions involving apartments located within a private home or buildings which have four or fewer living units where the owner lives in one of the units. The law is quite clear that the owner must live on the property and that there are no more than four dwelling units. So if the property has five or more units, then the exemption does not apply. Furthermore, if a tenant makes the statement that their rights are violated and claims a violation of the Fair Housing Act because they weren’t selected for the property by the owner who lives at the property, then the owner can use this exemption as a defense.

Your question is specific to advertising, and there are prohibitions against making discriminatory statements in your ads. This means that discriminatory advertising, statements or notices related to the real estate transaction may be prohibited even where the rental situation is allowed under this Mrs. Murphy exemption. With this in mind you should always write your ads to describe the physical property itself, not the type of individual you are looking to rent to. This is good advice across the board – whether an exemption is being applied or not.

There are a number of other exemptions allowed under the Federal Fair Housing Act. They are: • Religious organizations and nonprofit institutions associated with religious organizations. These groups are permitted to limit the sale, rental and occupancy of dwellings they own and operate for non-commercial reasons to persons of the same religion. This exemption is only valid, however, if membership in the religion is not restricted on the basis of race, color, or national origin. • Private clubs which provide housing for other than commercial purposes as long as the provision of housing is incidental to its primary purpose. • Housing for older persons as defined under the act. • Homes sold or rented by the owner without the services of a real estate agent or broker as long as the owner has no interest in the proceeds, has most recently lived in the property and owns no more than three single family homes.

Please note that although the situations listed above are exempt from the Federal Fair Housing Act, there is no single family home exemption or private club exemption under the Hawaii state fair housing laws. This means that if a landlord falls under one of these exemptions under federal law, they may still be in violation under state fair housing laws.

Locations Hawaii
Michael Marks
Sandwich Isles Realty
Kimo Smigielski, Broker-in-Charge
R, ABR, CRS, GRI, e-PRO
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Emily Garcia
Agent, REALTOR(A), RS-77391
Coldwell Banker
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George Madden VII, RS-73958
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Edith Crabb, RB-8195
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Gwendolyn K. DeCoito, RS-32241
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Glenn Takase, RB-18547
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Misti R. Tyrin, RS-75836
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David L. Skeele, RB-12882