Housing

HOUSING RIGHTS

Student housing contracts are often written to avoid creating a landlord-tenant relationship subject to the full range of tenant protections, especially if housing is on campus; it is common for the contract to be described as a “license” (permission to use the property) rather than as a “lease.”

Nonetheless, certain legal protections probably still apply under California law. Sections 1940-1954.05 of the California Civil Code codify certain tenant rights that apply to “all persons who hire dwelling units located within this state including tenants, lessees, boarders, lodgers, and others, however denominated.” The only exceptions are stays of less than 30 days, and occupancy in places with the types of services and amenities that would be expected in a hotel [1]. These statutes appear to apply to on-campus student housing; student dormitories generally do not fall within either of the exceptions, and the language of Section 1940 clearly shows intent to protect residents who do not have traditional leases. Although the applicability of these statutory protections to student housing has never been litigated and therefore no definitive ruling exists [2], a California appellate court has suggested that waivers of certain tenant rights in student housing agreements may be invalid [3].

As a result, students can most likely rely on two sets of protections: rights guaranteed in the housing policy and housing contract, and statutory protections listed in Sections 1940-1954.05 of the California Civil Code. These statutory protections include, among other things [4]:

protection of political signs during the time around elections [5];
minimum standards for habitability, security, and utility services [6];
a requirement to change locks upon the request of any tenant protected by a restraining order [7];
limitations on when a landlord can enter a unit [8].

Students in on-campus student housing are protected from discrimination by the Fair Housing Act (Title VIII of the Civil Rights Act of 1968). The Fair Housing Act prohibits discrimination on the basis of a number of protected classes in the sale or rental of housing, and prohibits retaliation against any person who takes action to exercise fair housing rights [9]. The Fair Housing Act, the Americans with Disabilities Act, and the Rehabilitation Act all require reasonable accommodation for disabilities in student housing, including exceptions to no-pets policies for assistance animals [10].

When can staff enter my room without my consent?

Entry into student rooms without the student's consent is limited by the housing contract (which includes the terms of any published housing policy) and by Section 1954 of the California Civil Code.

Regardless of what is stated in the housing contract, Institute employees cannot enter student housing units in any circumstance that would violate Section 1954. Section 1954 is a floor for resident protections; contracts may offer more protection to residents, but not less. Contractual provisions that waive any rights granted by Section 1954 are void [11].

Section 1954 allows landlords to enter rental properties without the tenant's consent only for the purposes listed in the statute. Landlords may enter:

to respond to an emergency,
to make necessary or agreed repairs and improvements,
to show the unit to prospective purchasers or tenants, or workers conducting repairs or improvements,
to inspect the premises at the tenant's request at the end of a lease, or
when the tenant has abandoned or surrendered the premises.

Notably, Section 1954 does not authorize a landlord to conduct routine inspections or to inspect for suspected policy violations.

Under most circumstances, Section 1954 even prohibits landlords from entering to check for evidence of a crime, though an active criminal investigation may constitute an emergency if there is a high likelihood of loss of evidence. One case involving student housing has upheld school officials' right to both enter a student room to search for stolen goods and consent to a police search. This was based on the right to enter in an emergency, in the context of an active felony investigation in which the student was a prime suspect and police claimed an urgent need to conduct the search [12].

Except in emergencies, entries without the tenant's consent are only permitted during “normal business hours.” However, this does not mean school employees may only enter 8am-5pm on weekdays. “Normal business hours” has been defined as “objectively reasonable hours” under the circumstances, accounting for both the tenant's interests and the landlord's [13]. Early evening hours, or daytime on weekends, would likely be deemed reasonable.

A landlord who commits a “significant and intentional violation” of Section 1954 may be held liable for a civil penalty of up to $2,000 per violation [14].

What kind of notice is required before entry into a student room?

If the housing policy does not expressly state that entry for a particular purpose may be without notice, then notice is presumably required for that purpose [15].

Section 1954 protects the right to notice in most situations. With exceptions, “reasonable advance notice” is required. “Reasonable” is not precisely defined and may depend on the circumstances. 24 hours' written notice, either personally delivered to the tenant or posted at the entry door in an easily visible place, is presumed reasonable [16]. Notice may also be mailed; mailed notice postmarked at least six days in advance of entry is presumed reasonable [17]. These presumptions may be rebutted by evidence that the notice was insufficient under the circumstances.

The main exception to the notice requirement is the emergency exception. Emergency situations that allow landlord entry without notice are not limited to risk of death or serious bodily injury; landlords may also enter on an emergency basis to remedy situations that risk severe damage to the property, such as a fire or a broken pipe. One California court has deemed an active felony investigation by the police to constitute an emergency allowing for entry into a student room [18].

Notice is not necessary if the tenant is present and consents to the entry at the time of entry, or if the tenant has abandoned or surrendered the premises.

What forms of discrimination are prohibited by fair housing laws?

The Fair Housing Act prohibits discrimination in sale or rental of dwellings on the basis of race, color, disability, religion, sex, familial status, or national origin [19]. Although the Fair Housing Act does not expressly mention sexual orientation or gender identity, some federal courts have recently held that discrimination based on sexual orientation or gender identity is a form of sex discrimination. Outright refusal to sell or rent is not the only thing that constitutes unlawful discrimination [20]. Discrimination in the terms of sale or rental is prohibited, as is advertising any preference or limitation based on the protected characteristics [21]. The Fair Housing Act prohibits “steering,” which means trying to influence a prospective renter toward or away from a particular location based on a protected characteristic [22]. Housing providers are prohibited from retaliating or threatening retaliation against a person who attempts to enforce his or her fair housing rights [23].

The Seventh Circuit recently held in Wetzel v. Glen St. Andrew Living Community, LLC that housing providers may be held liable under the FHA for failure to take reasonable steps to stop discriminatory harassment by other tenants [24].

Failure to provide reasonable accommodation for disabilities constitutes disability discrimination under the Fair Housing Act, as well as under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. A requested accommodation is presumed reasonable and must be provided as long as it is related to the disability and does not impose an undue financial or administrative burden on the housing provider or require a fundamental alteration in the nature of the program [25].

An unreasonable delay in responding to a request for disability accommodation is deemed a failure to provide a reasonable accommodation [26].

What rights do students with service animals or emotional support animals have?

Housing providers are required to accommodate both service animals and emotional support animals. Emotional support animals do not have all the same protections as service animals. Service animals, currently defined as dogs trained to perform specific tasks to assist people with disabilities, must be permitted throughout the campus with only limited exceptions (e.g. in places where they may compromise a sterile environment) [27]. Under current law, only dogs are recognized as service animals, but miniature horses trained to perform tasks for people with disabilities must be accommodated where reasonable. Emotional support animals are only protected in the contexts of housing and air travel [28], and as such, may be prohibited from areas of the campus other than student housing.

All assistance animals – an umbrella term that covers both service animals and emotional support animals – must be allowed in any unit in which humans are allowed to live [29]. The only exception is if the assistance animal would pose a “direct threat” to the health or safety of another person that “cannot be eliminated or reduced by reasonable accommodation.” The direct threat create a high probability of substantial harm, not a “speculative or remote risk,” and must be determined on a case-by-case basis [30]. For example, a school may refuse to allow students with assistance animals to live near a specific student known to have a severe animal allergy, but cannot have a policy of restricting assistance animals to a certain area because of a general concern about animal allergies.

If your need for an assistance animal is not immediately apparent, a housing provider may ask for documentation of your need for a service animal or an emotional support animal. A housing provider cannot ask what type of disability you have; a letter from a physician establishing that you have a disability whose effects are alleviated by having an assistance animal is sufficient [31]. In order to have an animal recognized as a service animal, you may be asked to describe the tasks the animal is trained to perform [32].

Service animals and emotional support animals do not need to be certified or registered as such, and housing providers may not ask whether an assistance animal is certified or registered [33]. The “certification” or “registration” offered by various individuals and organizations has no legal effect.