In a recent post, Evicted because you changed religions? Welcome to BYU, home of the International Center for Religious Freedom Pharisees, I concluded that an LDS BYU student can be evicted, under the lease, for disaffiliating (or being excommunicated) from the LDS church.
There is, however, more to the story. From a thread on the subject, one law student noted, in part:
"I decided to take this hypothetical to the
office hours of both my contracts professor and my property professor. Very
interesting discussion. The legality of the honor code itself is
semi-irrelevant because BYU is a private university and the only party with
standing to challenge their tax exemption or student access to federal
financial aid is the Secretary of Education. It's a fairly safe bet that that
will never happen.
Your housing, on the other hand, is highly suspect. It might not be worth it to
you to challenge it, but I'm guessing the reason you don't see this case
frequently is actually because complexes will cave if pressed. The Federal Fair
Housing Act (and I'm assuming even Utah has a similar statute though the
federal one is sufficient for your purposes) forbids housing discrimination on
various grounds including religious affiliation. An exception might be found if
you were renting a room in someone's house, but if you're at a complex run by a
management company it certainly applies.
Here's the important part: the average tenant is incredibly uneducated about
their rights and simply takes the notion of 'legally binding contract' at face
value. A legally valid contract, especially a residential housing lease, can
contain terms which are unenforceable for various reasons. The sorry state of
affairs is that it is not illegal for a landlord to include terms which they
know are unenforceable in a lease, thereby leading the uninformed tenant to
cave when there is a dispute because "it's in this contract that you
signed and understood!" The fact is, a term which would force you to
forfeit possession while remaining responsible for the rent when your only act
was to change beliefs or affiliations is not legally enforceable. This doesn't
mean a hefty award coming your way or anything, but it does mean that you
should go to the management company and state plainly that if they are asking
you to leave for these reasons (and they can't say that it's not because you
changed beliefs, but rather because you broke the honor code or lost your
endorsement: a court would look to the precedent act and find those provisions
of the honor code discriminatory when applied to housing) then you most
certainly will not continue to pay the rent, any cancellation fee, or worry
about trying to sell your contract...
The more likely outcome is that the complex drops it
because 1. $800 isn't worth the effort, 2. They know they would lose anyway and
be stuck paying attorney's fees, and 3. a prolonged court battle on the subject
could produce some very negative publicity for both the management company and
BYU."
I responded:
"*Jamie is right on. I saw the
original post and worked myself into a huff about what I was going to say, but
Jamie hit most of it. Yes, under the contract the landlord has a ground to
terminate the contract and subsequently evict Matthew based on his upcoming
disaffiliation. I detail that legal analysis here (http://bradcarmack.blogspot.com/...), based on a general off campus
housing contract since "Matthew" has unfortunately not shared his
own.
HOWEVER, as Jamie points out, that contract term is unenforceable because it is
overcome by the federal prohibition against religious discrimination by private
landlords like Matthew's. Under both the federal Fair Housing Act and the Utah
Fair Housing Act (Title 57, Chapter 21, Section 5 if anyone cares http://le.utah.gov/code/TITLE57/htm/57_21_000500.htm), such a term would be found
unenforceable when the act in question, as assumed here, is
disaffiliation.
A suit has been brought before on this issue, but was dismissed for lack of
standing: standing would not be lacking here though, as it is a case of
religion directly affecting housing ability and Matthew could fairly easily
evidence a prima facie case of religious discrimination. However, Matthew has to
let the hammer fall. If he chooses to kick himself out of his apartment by
selling his contract, then there's no legal harm to complain about. Similarly,
kicking oneself out by withdrawing from classes, rather than forcing the
institution to take action (discontinuance of enrollment), leaves fewer bruises
to demand justice for. Victims need to show harm to gain redress, and that can
mean waiting for the blow rather than escaping harm's way.
If Matthew wanted to vindicate his housing rights at all costs, he would have
disaffiliated, then waited for BYU to take action against him by removing his
active enrollment status. Then he would have (1) waited to receive an eviction
notice from his landlord, then (2) submitted the Housing Discrimination
Complaint (https://portal.hud.gov/FHEO903/Form903/Form903Start.action), (3) consulted with a fair housing
specialist through HUD (Department of Housing and Urban Development,
specifically FHEO, the Office of Federal Housing and Equal Opportunity,
enforces the Fair Housing Act, and their toll-free number for Utah is (800) 877-7353,
details at http://portal.hud.gov/hudportal/HUD...), and (4) contested the eviction
after consultation with a licensed attorney experienced at litigating fair
housing act cases.
For the reasons Jamie noted, it is unlikely that the landlord would successfully
complete an eviction under this
scenario.
Signed,
Your friendly neighborhood licensed attorney that disputing landlords and
tenants paid to protect their interests"
Conclusion
Federal law provides a religious freedom protection that BYU is unwilling to volunteer.
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