Revisiting the Fairness of the Fair Housing Act: Whose Consideration is Enough?

Tahnee Thantrong Monnin1Tahnee Thantrong Monnin is a Managing Editor of the University of Chicago Law Review and a J.D. Candidate in the University of Chicago Law School Class of 2023. She received her B.A. from Duke University in 2018. She thanks Professor Lee Fennell for her thoughtful advice and insight, as well as Jay Clayton, Matthew Makowski, Claire Rice, and Virginia Robinson for their comments on previous drafts. She also thanks the incredible editors of the Law Review for their continued support and guidance.

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In 1975, Lawrence Salisbury moved into his father’s mobile home, which was situated on rented land owned by the city of Santa Monica. Although Salisbury’s initials appeared on various rent invoices, “neither Salisbury nor [his older brother] ever paid rent on [their father’s] behalf.” Plagued with severe spinal conditions that made it painful to walk, Salisbury asked the city to accommodate his disability by permitting him to park his vehicle next to his mobile home. When the city ignored him, Salisbury filed suit, claiming that “the City discriminated against [him] based on disability by refusing to grant the requested parking accommodation.” The Ninth Circuit denied his request for relief because he had never paid rent.

On the same day, the D.C. Circuit reached a different conclusion in a similar case regarding a disabled veteran’s ability to sue the U.S. Veterans Initiative (U.S. VETS), which provides housing and other support to help veterans transition to civilian life. Stanley Webb met the requirements for a single-occupancy unit but was assigned to a multioccupancy unit. When he discovered that an unqualified female applicant had been assigned to a single-occupancy unit, Webb filed suit, claiming that U.S. VETS had discriminated against him based on his sex. The D.C. Circuit allowed his case to proceed even though, like Salisbury, Webb had never paid rent.

Both cases involved claims brought under Title VIII of the Civil Rights Act of 1968, or the Fair Housing Act (FHA), which under § 3604(a) protects against discrimination in housing based on “race, color, religion, sex, familial status, or national origin.” In 1988, Congress amended the statute to extend Title VIII coverage to individuals with disabilities under § 3604(f), which also proscribes other forms of discrimination against this newly protected class of individuals. Accordingly, Salisbury claimed protection under § 3604(f), and Webb claimed protection under § 3604(a).

In Part I of this Essay, I explain how the two decisions may be reconciled by distinguishing between the protections afforded by each of the subsections. Specifically, textual differences between the subsections suggest that Congress intended the protections afforded by § 3604(a) to be different from those afforded by § 3604(f)—a distinction that neither the Ninth Circuit nor the D.C. Circuit explicitly mentioned in their opinions. This Essay contends that such a distinction is not unambiguously supported by the text of the FHA when read in light of the FHA’s legislative history and that finding such a distinction would lead to absurd results for the law as a whole and for those most likely in need of its protections.

In Part II, I argue that the way in which district courts have previously reconciled the textual differences between §§ 3604(a) and (f) in the context of homeless individuals living in homeless shelters should extend more generally to contexts involving nonbuyers and nonrenters. District courts have held that homeless individuals living in homeless shelters qualify for protections under the FHA because, although they themselves do not pay rent, some entity is funding or paying the shelter in exchange for the shelter providing housing, making the housing “rented.” These courts have effectively expanded the FHA’s protections to nonbuyers and nonrenters by reading into the Act an expansive view of what may constitute “consideration.” Rather than making sense of the two decisions by resorting to differences in the statutory text, the logic of these district courts should be extended beyond the occupants of homeless shelters to cover an occupant who has been granted the right to stay in a dwelling in exchange for some consideration regardless of whether they personally paid that consideration. That is, the logic these district courts have used in determining where the FHA applies should similarly extend to determining whom it applies to.

I.  Do Protections Vary by Protected Class?

In Salisbury v. City of Santa Monica (2021), the Ninth Circuit concluded that the city of Santa Monica had no duty under § 3604(f) to accommodate Salisbury’s disability. Salisbury conceded that he neither entered into a lease to live on the mobile park nor paid rent to the city. The Ninth Circuit identified the threshold question of first impression as “[w]hether [§ 3604(f)] applies at all to claims by plaintiffs who never themselves or through an associate entered into a lease or paid rent to the defendant landlord.”

Section 3604(f) makes it unlawful:

[t]o discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of . . . (A) that buyer or renter; (B) a person residing in or intending to reside in that dwelling after it is sold, rented, or made available; or (C) any person associated with that buyer or renter (emphasis added).

Relying exclusively on the text, the court held that, “as to occupants requesting accommodation,” those provisions “apply only to cases involving a ‘sale’ or ‘rental’ for which the landlord accepted consideration in exchange for granting the right to occupy the premises.” Observing that the inclusion of “[t]he preposition ‘in’ limits the scope of the preceding term ‘[w]ithin the limits or bounds of’ the ‘place or thing’ that follows,” the Salisbury court narrowed the scope of § 3604(f) to only cases involving a “sale” or “rental.” Since Salisbury “never provided consideration in exchange for the right to occupy Spot 57, . . . the City was not obligated to provide, offer, or discuss an accommodation.”

In Webb v. U.S. Veterans Initiative & Community Partnership (2019), the D.C. Circuit read § 3604(a) to protect a disabled veteran who did not pay rent. Webb argued that he qualified for a single-bedroom unit because he was chronically homeless and disabled. U.S. VETS told him, however, that there was no such unit available and that he would be temporarily placed in a multioccupancy unit. A few months later, Webb learned that U.S. VETS had placed a female applicant in a single-occupancy unit even though she was not chronically homeless. When Webb sued U.S. VETS for violating § 3604(a), U.S. VETS urged the D.C. Circuit to conclude that “Webb [wa]s not an aggrieved person under the [FHA] because he paid no rent.”

Section 3604(a) makes it unlawful “[t]o refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin” (emphasis added). The court concluded that Webb “qualifie[d] as an aggrieved person who [could] bring suit under the Act, whether he paid rent or not.” The D.C. Circuit closely scrutinized the text of the statute and paid particular attention to the overall structure of § 3604. The court indicated that “the phrase ‘otherwise make unavailable, . . . following the phrase ‘to sell or rent[ ]’ clearly demonstrates that the section encompasses conduct beyond simply refusing to sell or rent.”

One way to reconcile Salisbury and Webb is by distinguishing § 3604(a) from § 3604(f). Because both §§ 3604(a) and (f)(1) protect against discrimination that prevents particular classes of individuals from acquiring a dwelling in the first instance, it is puzzling that § 3604(a) refers to “any person” and § 3604(f)(1) refers to “any buyer or renter.” Defenders of pure textualism posit that “[i]f the legislature amends or reenacts a provision other than by way of a consolidating statute or restyling project, a significant change in language is presumed to entail a change in meaning.” Courts that interpret a significant change in language as a change in meaning thus might interpret the protections afforded by § 3604(f) as being limited to buyers and renters. Under this interpretation, Salisbury was barred from pursuing a claim because he was not “any buyer or renter” within the meaning of the statute.

Reading §§ 3604(a) and (f)(1) alongside §§ 3604(b) and (f)(2) lends further support to this interpretation. Section 3604(b) specifically prohibits “discriminat[ion] against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.” Section 3604(f)(2) extends this prohibition to “any person . . . because of a handicap of . . . (A) that person; or (B) a person residing in or intending to reside in that dwelling . . . ; or (C) any person associated with that person.” Sections 3406(b) and (f)(2) are thus identical in the type of proscribed conduct. Importantly, both §§ 3604(b) and (f)(2) refer to “any person.” Accordingly, it might be significant that, in amending the FHA to include § 3604(f), Congress used “any buyer or renter” in § 3604(f)(1) rather than “any person” as was used in § 3604(a) but kept “any person” in § 3604(f)(2) as was used in § 3604(b). What these observations could suggest is that Congress’s use of “any buyer or renter” in § 3604(f)(1) intentionally meant to exclude nonrenters.

However, although Congress’s inclusion of the phrase “any buyer or renter” in § 3604(f) could be recognized as a choice to exclude individuals like Salisbury, reading the bare text alone misses critical context. Instead, reading the FHA in light of its overall structural design and the housing policy goals outlined in its legislative history makes this overly literal interpretation less persuasive.

When Congress amended the FHA in 1988 to extend its protections to families and individuals with disabilities, Congress could have simply added these new protected classes to § 3604(a). Congress chose, however, to amend § 3604(a) to include only familial status and to add an entirely new subsection—§ 3604(f)—to set out the unique protections afforded to those living with a disability. Congress’s introduction fifteen years earlier of a “reasonable accommodation” requirement for federal programs embodied an important recognition that the unique nature of disability-based discrimination requires that employers make accommodations to allow individuals with disabilities to participate in the workforce. Congress incorporated this requirement into § 3604(f)(3), which specifically makes it unlawful to “refus[e] to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” By 1988, Congress understood that individuals with disabilities were particularly vulnerable to discrimination and that it needed to protect these individuals from being excluded from the “full enjoyment of the premises.” One might argue, then, that the use of “any buyer or renter” in § 3604(f)(1) was Congress’s attempt to distinguish the pre-acquisition context from the post-acquisition context with the goal of highlighting the importance of the latter in ensuring the protection against discrimination of individuals with disabilities.

As discussed earlier in this Part, §§ 3604(b) and (f)(2) can be treated identically given their prohibition of the same type of conduct. Claims under § 3604(b) commonly involve “violations that arise during the post-acquisition phase when a housing provider, such as a landlord or condominium board, interferes with a dwelling or withholds services from the tenant or owner.” Therefore, § 3604(f)(2) could also be interpreted to apply primarily to the post-acquisition context—or when an individual with a disability has become a “tenant or owner.” Because the need to provide reasonable accommodations arises only in the post­-acquisition context—again, after a landlord has agreed to offer the dwelling—including “any buyer or renter” in § 3604(f) could have been Congress’s attempt to emphasize the kinds of discrimination that are prohibited both before and after the sale or rental of a dwelling. Under this interpretation, the use of “any buyer or renter” in § 3604(f)(1) serves merely to indicate that landlords may not refuse a prospective tenant housing because of their disability, while the use of “any person” in § 3604(f)(2) serves to highlight the especially important need to also protect an existing tenant from being discriminated against in the terms and conditions of housing after rental or sale. Accordingly, the only difference between §§ 3604(a) and (f) is that the latter considers the unique nature of disability-based discrimination.

Finding a distinction between §§ 3604(a) and (f) that does not broaden the scope of the FHA would effectively alter who is protected under each of the two subsections. Section 3604(a) gives the right to sue not only to renters and buyers but also to those who neither pay rent nor give any other consideration in exchange for the right to occupy their dwellings. For those advocating a distinction, § 3604(f) would cabin the scope of protection, permitting only buyers and renters to seek legal redress. Moreover, interpreting § 3604(f) to limit FHA protections for claims based on disability to only those who buy or rent a dwelling could lead to an absurd result—that is, a homeless individual with an FHA claim against a shelter would have standing to sue if the claim involved discrimination on the basis “of race, color, religion, sex, familial status, or national origin” but not on the basis of a disability. This would inevitably create adverse consequences for the law and how ordinary people are able to understand and access it. Without a lawyer, the average person could miss the distinction and read the law to cover all nonrenters. And with the supposed benefit of legal representation, clients would then hear the nearly incomprehensible counsel that “the FHA protects you if you are discriminated against, but you can’t bring a claim if you are disabled and don’t pay rent.” There is little reason for Congress to have expanded substantive protections while limiting the access of many to seek relief when such protections are violated without a clear and unambiguous indication of such an exception to the overall policy.

II.  A Compromise That Expands FHA Protection to Nonbuyers and Nonrenters

Because a holistic reading of the statute informed by housing policy goals renders a strictly textual argument less persuasive, I argue, based on the FHA’s express policy goals, that even if there is a distinction between §§ 3604(a) and (f), that distinction should serve to provide individuals with disabilities greater access to the FHA’s protections. Since neither the Ninth Circuit nor the D.C. Circuit relied on any textual distinction in their opinions, there is no binding authority that restrains this explanation for the differing outcomes in Salisbury and Webb.

Interestingly, there is a complementary line of cases that can shed light on the difference in outcomes between Salisbury and Webb. When applying the FHA in the context of homeless shelters, lower courts have expanded the Act’s protections to homeless individuals who, by virtue of their housing status, pay neither rent nor any other consideration in exchange for their residence at a shelter. These courts’ interpretations of §§ 3604(a) and (f) indicate that what effectively distinguishes the outcome of Salisbury from that of Webb is whether the plaintiffs in these two cases offered any consideration in exchange for occupying their dwellings. Neither Salisbury nor his father offered any consideration to the city in exchange for the former’s occupancy of the mobile home. In contrast, a separate entity had been providing funding to U.S. VETS in exchange for the latter’s provision of housing to homeless military veterans like Webb. With these cases as support, I argue that third-party consideration is and should be sufficient for purposes of applying §§ 3604(a) and (f).

Important to this discussion is § 3602(e), which does not explicitly mandate that consideration be monetary. It does not even indicate that it must come from the occupant. The Salisbury court held that consideration, though commonly received in the form of “periodic rent,” can be “somewhat broader, however, and may include other forms of renumeration.” Very few courts have considered what qualifies as consideration under the FHA because property owners seldom accept anything other than money in return for the right to occupy their property. Given that consideration need not be pecuniary, however, one might argue that consideration under the FHA need not be related at all to the payment of rent. If this were the case, then the terms “buyer” or “renter” would not need to be linked to any form of monetary payment in return for the right to occupy a premise; there need only be some value exchanged. In Salisbury, the father “signed a month-to-month lease that expressly prohibited subletting or assignment without the Park’s consent and stated that he was the only occupant of Spot 57.” There was no additional payment coming from anywhere that would have made Spot 57 “rented.” The FHA did not, therefore, apply to Salisbury because the city did not receive any consideration in exchange for its “renting” out of Spot 57 to Salisbury. While Salisbury offered nothing of value to the city in exchange for the right to enjoy Spot 57, the U.S. VETS shelter did receive something of value in exchange for providing housing to Webb (even though Webb himself was not the one to give up that value). This something of value need not come from the individual occupying the dwelling; it could come from a third party. With this in mind, I turn to how some courts have applied the FHA in the context of homeless individuals living in homeless shelters.

While legislators, courts, and administrative agencies continue to strive to promote the values of the FHA, the homeless population continues to be subject to frequent discrimination. This is partially due to their housing status. Homeless shelters routinely treat homeless individuals differently based on their membership in protected classes. Often, “[r]estrictive admissions policies instruct shelter staff to turn individuals away on the basis of their sex or familial status.” COVID-19 has heightened the need to address the growth of the homeless population in the United States, including those no longer protected by the national moratorium on evictions for nonpayment of rent. The most obvious impact of discriminatory policies is that some homeless individuals are denied shelter when they request it. The applicability of the FHA to homeless shelters, however, remains unclear.

Although some case law has addressed whether homeless shelters are protected under the FHA, only a few cases have examined whether homeless individuals may be protected on a separate basis. Specifically, those cases have asked whether the FHA protects residents of homeless shelters regardless of whether the shelter itself qualifies as a “dwelling.” Two courts have found that the FHA does protect homeless shelter residents by supporting an expansive view of what constitutes consideration.

In Woods v. Foster (N.D. Ill. 1995), three women resided at a shelter operated by New Life Outreach Ministries (NLOM) for homeless families in Chicago. Each of the women had more than two children. These women alleged, among other things, that the executive director of NLOM and the chairman of its board of directors “made it known to them that their ability to stay at the Shelter and receive the other assistance that the Shelter provided was dependent upon their willingness to provide sexual favors.” All three women brought suit against the shelter’s operators. The defendants argued for dismissal of the § 3604(a) claim because “they [did] not sell or rent the available space at the Shelter.” In response, the female residents argued “that the reach of [S]ection 3604(a) goes beyond sales and rentals because of the inclusion of the prohibition of ‘to otherwise make unavailable or deny a dwelling’ for improper reasons.” The Northern District of Illinois found this argument persuasive in light of “the language and purpose of the FHA.” Because “[t]he FHA was, in part, a response to widespread racial segregation,” the court found “no reason to conclude that the scope of the FHA should be limited to those who pay for their own housing, rather than extended to all victims of the types of discrimination prohibited by the Act.” The court also held that the FHA’s definition of “to rent” does not preclude a claim by an individual who does not herself provide the consideration. “’[T]o rent’ . . . is an act performed by the owner of the property, not the occupant.” The court concluded that defendants’ receipt of a $125,000 federal grant was “undoubtedly consideration.”

In a more recent case, another court addressed the question of what may qualify as consideration to gain the FHA’s protections. In Defiore v. City Rescue Mission of New Castle (W.D. Pa. 2013), a blind homeless man sought shelter at the Crossroads Shelter Program, which was operated by the City Rescue Mission of New Castle as part of its men’s ministry program. After informing the shelter of his service animal, the shelter denied the man entry. Like the Woods court, the Western District of Pennsylvania evaluated whether consideration given by a third party precludes a § 3604 claim. Relying on the rationale in Woods, the court refused to dismiss the case. The defendants conceded that the definition of “to rent” “does not require that the consideration be paid by the occupant.” Instead, they argued that the FHA was inapplicable because “the only consideration Crossroads demand[ed] and receive[d] from residents [was] an agreement that each resident receive Christian ministry throughout their stay.” Without addressing the merits of this argument, the court found that “[w]hat qualifies as consideration under the FHA . . . turns on whether [the defendant] receives consideration for a [plaintiff’s] stay—whether it be from federal or other funding directed to subsidizing the costs of providing housing to the homeless or whether shelter residents provide some form of consideration for their stay.” Accordingly, what constitutes consideration under the FHA was not limited to rent payments by those who sought shelter.

Without disturbing the requirement of consideration under the FHA, both district courts found a way to expand FHA protections to nonbuyers and nonrenters. Defiore involved a claim brought under § 3604(f), and Woods involved a claim brought under § 3604(a). Both cases, however, refused dismissal on nearly identical grounds. Neither the blind man in Defiore nor the women in Woods paid rent, but both were found to be protected by the FHA because protections need not be limited to the person who pays the rent. These cases demonstrate that consideration can not only come from a third party but also include nonmonetary consideration given by the residents themselves.

Extending the logic of these district courts to permit third-party consideration sets forth a middle-ground solution that splits the difference between Webb and Salisbury, expanding the group of people protected by the FHA beyond Salisbury but keeping with the Ninth Circuit’s emphasis on consideration being paid in exchange for occupancy rights. Given the legislative history of the FHA, this more expansive view would best serve the goals of those who fought for effective fair housing legislation. Although we have come a long way since 1968, many people remain housing insecure. The pandemic has only exacerbated the various housing challenges many people face, and housing will continue to be at the forefront of our agenda for generations to come. Allowing third-party consideration—monetary and nonmonetary—to be sufficient to trigger the FHA would afford at least some protection to those who have found themselves unable to pay rent, including our communities’ most marginalized and vulnerable populations. For example, low-income tenants receiving federal rental assistance through the U.S. Department of Treasury’s Emergency Rental Assistance program may have their rent paid directly by a local program. Permitting third-party consideration in this context has far-reaching implications because it would ensure that program recipients are protected by the FHA even though they themselves are unable to pay rent.

To better understand the impact of permitting third-party consideration, consider the Section 8 voucher program. The purpose of the Section 8 voucher program is to “aid[ ] low-income families in obtaining a decent place to live and [to] promot[e] economically mixed housing.” Those issued vouchers are “responsible for finding a suitable housing unit of [their] choice where the owner agrees to rent under the program.” The U.S. Department of Housing and Urban Development awards federal funds to public housing agencies (PHAs), which administer the vouchers locally. The program subsidizes the cost of rent by paying a portion to the landlord directly on behalf of the program participant. Congress designed Section 8 to “decrease the high levels of segregation associated with housing” by presenting program participants with the opportunity to choose where to live. This choice, however, does not preclude discrimination by landlords, who might decide not to accept the vouchers. Although program participants pay the portion of the rent unsubsidized by the vouchers, the federal government directly funds the other approximately 70% of the rent to the landlord. Assuming paying the remaining 30% of the rent does not constitute sufficient consideration under the FHA, few would argue that Section 8 vouchers bar program participants from seeking the FHA’s protections. The FHA does not protect tenants from discrimination based on income, so landlords are allowed to choose whether to accept housing choice vouchers. To open the door to other kinds of discrimination simply because a third party proffers more than half of the consideration would be detrimental to the goals of the housing subsidy program.

Finally, permitting third-party consideration would continue to protect landlords. Although some might sympathize with individuals who reside on property to which they have no legal claim, many landlords assert that their “biggest nightmare is finding a squatter in their property.” The idea is that one cannot unilaterally manufacture an obligation on the part of the landlord by squatting on their property. Requiring consideration from a third party in exchange for the right to occupy property would protect the landlord’s obligations under the FHA from being expanded to cover squatters.

In sum, reading third-party consideration into our fair housing legislation would shield a greater number of individuals from the effects of housing discrimination and ensure that we are keeping with the spirit of the FHA.


Faced with a severe housing shortage, the federal government in 1933 established a rather ambitious framework for a new regulatory state that strived to protect the interests of rich and poor Americans alike. Unfortunately for many Black Americans struggling to receive adequate relief from the crushing impact of unemployment and poverty, however, the government’s many New Deal programs failed to address the structural race inequalities that lay at the root of American society. Fair housing and civil rights activists understood that their battle toward fair housing went beyond securing housing for Black Americans. Social, political, and economic change in the 1940s resulted in a reinvigoration of the Civil Rights Movement that legislators could no longer ignore. Years of advocacy resulted in the enactment of the FHA in 1968. One of Congress’s central objectives at that time was to prohibit racial discrimination in sales and rentals of housing. Nevertheless, more than fifty years later, housing discrimination continues to be a major problem for protected classes in situations Congress might not have originally anticipated. For example, addressing the growing homeless population in the United States was not a direct goal in 1968. Now, however, people are becoming increasingly aware of the consequences of turning a blind eye, and the COVID-19 pandemic has further increased this awareness. Diverging circuit decisions interpreting § 3604 present a valuable opportunity to resolve the law in a way that benefits the vulnerable homeless population. As of yet, courts have not come to a meaningful resolution. A careful evaluation of how lower courts have resolved § 3604’s statutory ambiguity—coupled with an analysis of the FHA’s structural design and legislative history—demonstrates that third-party consideration is a compromise that effectuates the broad goals of the FHA.

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Tahnee Thantrong Monnin is a Managing Editor of the University of Chicago Law Review and a J.D. Candidate in the University of Chicago Law School Class of 2023. She received her B.A. from Duke University in 2018. She thanks Professor Lee Fennell for her thoughtful advice and insight, as well as Jay Clayton, Matthew Makowski, Claire Rice, and Virginia Robinson for their comments on previous drafts. She also thanks the incredible editors of the Law Review for their continued support and guidance.

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