Q: I’m looking for a roommate, and I’m pretty picky. I want someone of my own age, and I’d just as soon not have to deal with a divorced parent who will be hosting kids on the weekends. When I wrote an ad with these specifications, my local newspaper wouldn’t print it — they said it was discriminatory! But I placed it on a well-known Web site just as is, with no objections. This makes no sense. Are there different discrimination rules for print and online ads? –Autumn C.
A: Your confusion is understandable, and shared by many. The Fair Housing Act, developed in a pre-online world, makes it illegal for newspapers to publish an ad that indicates your preference for someone of a specific race, religion, national origin, disability, sex or familial status. The ad you gave the newspaper was discriminatory because you specified age and familial status (no divorced parents). But why should a Web site escape liability simply because it publishes the ad in a different medium?
The answer lies in the Communications Decency Act, a 1996 federal law that promotes the unfettered and unregulated development of free speech on the Internet. To further this end, the law says that mere providers of interactive computer services — Web sites that just give you a place to post information — can’t be sued over content created by third parties, such as you. A newspaper, by contrast, isn’t passive — it will typically review and edit its ads. That may explain why your local paper said no, but your online ad went ahead without a glitch. But wait, there’s more.
Ironically, spiffy Web site design has lead to the dilution of what everyone considered an ironclad rule protecting interactive computer services. Sophisticated sites don’t simply give you a place to write — they provide drop-down and select-a-box menus. That’s how Roommates.com designed its questionnaire for roommate posters, and guess what — the site required users to disclose information about themselves and their roommate preferences based on characteristics like age, sex and whether children will live in the household. Users could then provide “Additional Comments” through an open-ended text box, which Roommates.com did not review or edit.
Roommates.com got sued. The federal appellate court ruled that because the Web site required users to give discriminatory information as printed in their menus, they were no longer merely passive publishers, but had become an Internet “content provider” (a host who is at least partly responsible for its Web site’s content). Roommates.com had to defend itself with respect to its drop-down questions, but it was immune from liability for the information users placed in the “Additional Comments” text box (with respect to this information, Roommates.com was just a passive site).
You might take a look at your ad to see if it’s still there. Open-ended essay boxes that contain discriminatory ads are often taken down once the passive provider learns, typically through a viewer’s complaint, that the content is illegal. If your ad has gone missing, perhaps that’s what happened.
Q: When I moved in, my landlord collected a security deposit of one month’s rent, plus last month’s rent. Now, three years and two rent hikes later, I’ve given notice and have no intention of writing a check for my last month. The landlord insists that I owe the difference between the current rent and the rent I paid when I moved in. Who’s right? –Harry O.
A: Here’s an example of a fight that could have been easily avoided. When your landlord raised your rent, she could have asked for the increase for the last month’s rent, too. It was up to your landlord to take that step, and since she didn’t, you could argue that she waived her right to top off the last month’s rent.
Unfortunately for you, it’s going to be very easy for the landlord to get that money anyway — she’ll deduct it from your security deposit, and you’ll have to challenge that deduction in small claims court to get it back. Expect your landlord to argue that “last month’s rent” should be understood as standing for the rent at the end of the tenancy, whatever that is. But if that’s so, it’s up to the landlord to make sure that the last month’s rent is current.
Q: We own a small apartment building and would like to have one of the residents be our manager. The resident suggests that we knock off a few hundred dollars from the rent each month, and leave it at that. We’d like to keep things simple, too, but wonder if this is the right approach. What do you advise? –Dennis C.
A: There’s nothing wrong with compensating your resident manager with a rent reduction, but it may be wiser to charge full rent and pay your manager an hourly wage. Here’s why: Suppose you decide that the manager isn’t doing a good job, and you decide to do the job yourself, ask another tenant, or use a management company. To return the manager’s rent to its full amount, you’ll need to re-do the lease or rental agreement, and if your former manager balks, you may have to comply with the notice period in your state (typically 30 days). That’s 30 days in which the manager isn’t doing the job but is still enjoying the reduced rent. If you pay by the hour, and as long as you’ve not promised, directly or indirectly, that the manager can have the job as long as he’s your renter, you can terminate the employment arrangement with no notice at all.
Paying by the hour has other advantages. First, it allows you to track more closely how much time various tasks are taking. With a flat fee (the rent reduction), you may have a hard time determining whether the reduction is appropriate to the job you’re expecting. Second, with a rent reduction, it will be tricky to determine whether you’re complying with your state’s minimum-wage laws (you may not be able to use the full amount of the rent reduction when determining whether you’re following minimum-wage laws). For more help, check out the IRS Circular E, Employer’s Tax Guide, which gives details about your tax and record-keeping obligations (on the IRS Web site at www.irs.gov, type “Circular E” in the search box on the home page).
Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of “Every Landlord’s Legal Guide” and “Every Tenant’s Legal Guide.” She can be reached at janet@inman.com.
