In an article last week in The Royal Gazette with the headline “Charity: single mothers facing discrimination from landlords”, spokeswomen for the Transformational Living Centre and Women's Resource Centre commented on the difficulties that Bermuda residents, specifically single mothers, encounter when seeking rental accommodation. The article reported that many single mothers feel they have been discriminated against by potential landlords who refuse their tenancy applications based on their family status.

This raises an interesting question about whether it is legal for a landlord to reject a tenancy application solely because the applicant is a single mother. Unfortunately, the answer to that question is not an unqualified “no”, but rather depends on the circumstances.

In Bermuda, the Human Rights Act serves as the legal cornerstone for promoting equality and safeguarding individuals’ rights to be free from unlawful discrimination. Since the Act first came into force in 1981, it has protected Bermuda residents against various forms of unlawful discrimination, including discrimination based on family status.

The Human Rights Act prohibits discrimination based on family status in several contexts, including the provision of rental accommodation. However, there is a “carveout” within the Human Rights Act that allows landlords with two or fewer units attached to their main house to refuse rental accommodation to those units, even if such a refusal would otherwise constitute unlawful discrimination. This means that a landlord who has one or two apartments connected to their main house can refuse to rent to a potential tenant for any reason, including whether that individual is a single mother, Black, gay or practises a religion that the landlord dislikes.

While the carveout appears to have been included as a compromise to allow certain landlords control over their tenant selection, it must be remembered that the Human Rights Act was first passed in 1981. As a society, we now need to ask ourselves whether the carveout remains good public policy for 2023. While the carveout allows some landlords to discriminate based on family status, the effect of that exception can have a negative impact on families that include the most vulnerable members of Bermudian society. Bermuda’s Human Rights Act exists to safeguard the freedoms of individuals, but there is an issue as to whether the carveout truly serves the ultimate aim of the Act, which is to remove discrimination and promote equality in Bermuda.

Human rights are established by legislation and, therefore, it is up to the legislature to address the issue of the carveout. While it is clear that all interests must be considered and fairly balanced when enacting human rights legislation, it is time to carefully reconsider the carveout and the effect it is having on some of the most vulnerable people in our society.

• Safia Gardener is an associate attorney in the dispute resolution team at MJM Ltd with experience in residential landlord and tenant matters