Domestic Violence, Nuisance Ordinances, and Fair Housing

In communities across the U.S., local governments have enacted nuisance and crime-free housing ordinances. These policies may have good intentions, but they can lead to dangerous situations for victims of domestic violence and can result in housing discrimination. These ordinances may call for fines or eviction of tenants for various infractions, including excessive noise, disruptive conduct, too many emergency calls, or an arrest within the housing unit. In some cases, ordinances allow landlords to create their own policies that penalize tenants for various nuisances.

The conduct that rises to the level of nuisance and how these ordinances are enforced vary greatly, and in some cases may rise to the level of housing discrimination. The U.S. Department of Housing and Urban Development (HUD) has offered guidance on when these ordinances violate the Fair Housing Act and are discriminatory.

Fair Housing Protected Classes

The Fair Housing Act makes it illegal to discriminate against people seeking to buy, rent or finance housing on the basis of race, color, religion, sex, disability, familial status, or national origin.

Nuisance and crime-free ordinances often give landlords more power to evict if there are repeated incidents deemed a nuisance or involve law enforcement. Unfortunately, these ordinances may be written in a way that punishes victims of domestic violence. For example, if a domestic violence victim calls the police on an abusive boyfriend, that could be considered a nuisance and put the victim’s housing at risk.

Nuisance ordinances that have a disproportionate, negative effect on victims of domestic violence may be constitute unlawful sex discrimination in violation of the FHA, as approximately 80% of all individuals who face domestic violence each year in the U.S. are women.

Although HUD’s guidance document focuses on domestic violence and discrimination based on sex, the reasoning also applies to nuisance ordinances that disproportionately burden other protected classes. For example, they could be discriminatory if a person faces eviction for frequent calls due to a disability or mental illness, or if these policies are disproportionately applied to people based on their race or national origin.

How Ordinances Can Lead to Discriminatory Practices

On its face, reducing nuisances and crime at an apartment complex seems like good public policy. However, these policies can also unintentionally have a silencing effect on victims of domestic violence.

Some ordinances define a nuisance as excessive calls for the police, ambulance, or other emergency services. A nuisance could be defined by the total number of calls allowed or a certain number allowed in a set time, such as a year. These ordinances can include calls by the tenant for help or by others, such as neighbors or a landlord calling about a specific tenant. In some cases, the ordinance does not differentiate between the victim and perpetrator and does not exclude calls made by victims of a crime in need of police or emergency medical assistance.

Punishment for these violations can vary and may fall upon the landlord or the tenant. For example, some landlords may face fines for too many police calls to a property. In other cases, the tenant might face penalties or eviction. Even when eviction is not required, landlords may evict someone to avoid a fine.

These policies end up discouraging victims of domestic violence from reporting the crime because they fear losing their housing.

When Is a Policy Discriminatory?

The first step in showing a nuisance ordinance is discriminatory is to prove the ordinance will, or likely will, have a larger negative impact on a person or a group of people because of a protected characteristic, such as sex or race. Because the vast majority of domestic violence victims are women, nuisance ordinances that disproportionately impact DV victims may be discriminatory based on sex, a protected class under the Fair Housing Act.

Once a challenge to the ordinance shows it has such an effect, the government entity that passed the ordinance must show why the ordinance is necessary. More specifically, the local government must provide evidence of what the government interest is, that its interest is legitimate, substantial, and nondiscriminatory, and that the challenged policy is necessary to  achieve that interest.

The guidance from HUD is clear on what local governments must prove. There must be evidence, not generalizations or stereotypes. Because these ordinances can tend to prevent people from calling for help for fear they might lose their home, local governments must make the case that there is a legitimate, nondiscriminatory reason for cutting off access to emergency services for those who need them, including victims of domestic violence or other crimes.

If the local government is successful, then the person challenging the policy has to show the goals the municipality is trying to achieve–such as reducing nuisance and disturbances–can be achieved through another policy that is less discriminatory.

Need Help?

If you are a victim of domestic violence and have been evicted or are worried about getting evicted, the NH Legal Assistance Fair Housing Project may be able to help. Contact us or call 1-800-921-1115 to get more information.