Section 8 Test – Are you prepared to pass?

By: Jeffrey C. Turk, Esq.

We all have seen the recent headline in the newspaper reading: “Housing watchdog files court complaint against 20 landlords and agents. Alleges defendants discriminated against prospective renters with Section 8 housing vouchers.” (for those of you that are not aware, a newspaper was the old fashion way we got the news, written on paper, and delivered to one’s home!).  These “housing watchdogs” are organizations who perform testing of landlords in hopes that they can find potential forms of discrimination, including the purported refusal to accept and rent to tenants with Section 8 vouchers.  While this is clearly an issue for some unscrupulous landlords, for most landlords the issue is not whether they accept Section 8 housing vouchers as required by law, but rather how the questions are being answered!

The Law: 
Massachusetts General Laws c. 151B clearly prohibits a landlord from discriminating against a person because they are the recipient of a public subsidy, such as Section 8.  In addition, the law was expanded many years ago to prohibit discrimination based on the requirements of the Section 8 program, including their requirement to have an inspection, use their lease addendum, or based on the other logistical or administrative challenges associated with the Section 8 Program.  Thus, a landlord cannot refuse an application simply because the applicant has a Section 8 voucher or because they do not like the restrictions associated with the Section 8 program.

The Challenge: 
While the above statement of the law is clear, there are often cases where a tenant with a Section 8 voucher is not qualified to lease an apartment.  In some cases, the apartment may already be subsidized through another program which prohibits the tenant from using a voucher.   A property with Project based Section 8 would be one such example.  Likewise, there are times when a landlord knows that the voucher will not cover the market rent for the unit.  Since the Section 8 Program is bound by payment standards based on the median rents in the area, if the rent for the apartment exceeds this amount, Section 8 prohibits the tenant from leasing such an apartment even if they offer to pay the difference.  This would be a situation in which a landlord may properly refuse to accept an applicant with a Section 8 voucher.
Every day, fair housing “testers” are on the phone calling landlords with a simple question…” Hi…do you take Section 8?”   The answer to that question can make all the difference.  Do we simply say “yes”, even though we may know the rent is more than Section 8 will pay or do we say “no” and risk a fair housing claim?  The simple answer is we should ALWAYS SAY YES!  While there may be situations such as the two outlined above (where the tenant may not need a voucher or may not qualify based on the rent exceeding the approved Section 8 payment standards), every staff member should be trained to confirm that we accept applications from any person regardless of their source of income.  This simple response is not only the response required by law (since the law is clear that we MUST accept Section 8 applicants) but is also the response which allows you to avoid the claims from these testers who often are not seeking a nuanced answer or listening for anything other than the word “no”.

Here are two real world examples of actual cases we have had:

1. The Tipton: The Tipton is an exclusive, luxury apartment building in Boston. Residents have access to the spa, pool, helicopter pad, and all the other fine amenities, including the 24-hour concierge. Want an expresso from the North End and a copy of the London Financial Times? The concierge is more than happy to take care of that and, of course, there is NO TIPPING at the Tipton. If you need to ask how much the rent is, you likely should not be applying as the rent for a one-bedroom apartment is $7,000 a month. One morning a person called the manager and said she wanted to rent an apartment but had a Section 8 Voucher. The manager had never had someone with a Section 8 voucher apply since the rents were so high but responded “I am glad to send you an application and we accept any applicant regardless of their source of income as long as they can pay the rent and meet our tenant selection criteria.” Even though the manager was sure Section 8 would not approve the rents, she did not opine or make any suggestions to the applicant about whether Section 8 would approve this. She merely confirmed that they are happy to accept any application regardless of the source of income. Ding Ding Ding! She gave the right answer!
2. The Assumer:  In another case, a manager had been flooded with applicants seeking to use their Section 8 vouchers to lease an apartment.  Each time, the manager, knowing the law, would tell the applicant that they were welcome to apply and that they accept applications from any applicant, regardless of their source of income.  In fact, the site had several residents with Section 8.  Unfortunately, the past 5 applicants had all been rejected by Section 8 based on the rents exceeding the Section 8 maximum rent.  Of course, each time one of these applicants applied, the manager left the apartment vacant for a month while the application and inspection were processed resulting in increasing vacancy loss.  The manager then received a call from another applicant asking, “Do you take Section 8”?  The manager replied, “We do but Section 8 does not pay our rents so there is no need to apply since we already know you will be rejected.”  Little did the manager know that this applicant had a Section 8 voucher from a different Housing Authority who would have paid the rent.  Of course, she filed a fair housing complaint asserting that this was illegal discrimination and steering.  In the end, the manager learned that the better response would have been to confirm that the site of course would accept any applications and accept Section 8 and to leave it to the applicant to seek information from the Housing Authority.  Frustrating?  Yes, it is!  But the result in that case could have been avoided by providing the simple “Yes” answer to the question.

In conclusion…when you get the call -” Do you take Section 8?…the answer is always “Yes!”.   We do not opine…we do not suggest…we do not steer!  We simply confirm that we accept all applications regardless of the source of income and are happy to process the request.  Not only is this the requirement of the law (and the use of a Section 8 voucher is a great way to ensure you get your rent paid on time!), but it will allow you to pass the test.

The foregoing article is intended for information purposes only and should not be considered or relied upon as legal advice. Please feel free to contact our office if you have specific questions or if you require legal assistance.