FAIR HOUSING

THE FAIR HOUSING ACT

HISTORICAL OVERVIEW

1787U.S. Constitution

1791Bill of Rights

1857Dred Scott Decision

1865Thirteenth Amendment

1866Civil Rights Act of 1866

1868Fourteenth Amendment

HISTORICAL OVERVIEW

1896Plessy v. Ferguson

1948Shelly v. Kraemer

1954Brown v. Board of Education

1962Executive Order 11063

1964Civil Rights Act of 1964

1968Kerner Commission Report

HISTORICAL OVERVIEW 1968Civil Rights Act of 1968

1968Jones v. Mayer

1973Rehabilitation Act of 1973

1974Housing & Community

Development Act

1988The 1988 Fair Housing Amendments Act

HISTORICAL OVERVIEW

1990The Americans with Disabilities Act

1995Amendments to the Fair Housing Act

HISTORY OF RESIDENTIAL SEGREGATION

1920s

1930s

1940s-50s-60s

1960s

1980s

EVOLUTION OF THE PROTECTED CLASSES

Civil Rights Act of 1968 Race Color Religion National Origin

1974 Housing & Community Development Act Sex

1988 Fair Housing Amendments Act Familial Status Handicap

EXEMPTIONS

Religious organizations

Private clubs

Occupancy standards

Drug conviction

Familial status

Single family housing

Mrs. Murphy’s exemption

DISCRIMINATORY HOUSING PRACTICES

Refusing to rent, lease, or sell after an offer, or to make unavailable or deny a dwelling

To discriminate in the terms, conditions or privileges of sale or rental, in the provision of services, or in the use of facilities

Using advertisements, notices, or statements that indicate a preference, limitation, or discrimination

Misrepresenting the availability of a dwelling

DISCRIMINATORY HOUSING PRACTICES

Blockbusting

To discriminate in the provision of brokerage services

To discriminate in residential real estate -related transactions

The making or purchasing of loans

The selling, brokering, or appraising of residential real property

HUD REGULATIONS Failing to consider or accept an offer

Refusing to sell or rent a dwelling

Failing to negotiate with members of a protected class on an equal basis

Imposing different sales prices or rental charges for the sale or rental of a dwelling

HUD REGULATIONS

Using different qualification criteria or sale or rental procedures

Evicting tenants because of a protected class factor

Using different provisions in leases or contracts of sale

Failing or delaying maintenance or repairs based on illegal criteria

HUD REGULATIONS

Failing to process an offer for the sale or rental of a dwelling

Restricting the availability of privileges, services, or facilities

Requiring sexual favors as a condition of obtaining services or repairs

Employing codes or devices to segregate or reject applicants, purchasers, or renters

HUD REGULATIONS

Refusing to take or show listings of dwellings in certain areas because of protected class factors

Refusing to provide municipal services or property or hazard insurance to neighborhoods, or providing such services or insurance differently because of race or other protected class status

STEERING

To restrict or attempt to restrict the choices of a person by word or conduct

Discouraging any person from inspecting, purchasing, or renting a dwelling

Discouraging prospects by exaggerating drawbacks & failing to inform of desirable features

STEERING

Communicating to any person that he or she would not be comfortable or compatible with existing residents

Assigning any person to a particular section of a community, neighborhood or development, or to a particular floor of a building

MISREPRESENTATION

Indicating that a dwelling that is available has been sold or rented

Representing that covenants or other deed or lease provisions preclude the sale or rental of a dwelling

Enforcing or attempting to enforce a restrictive covenant

Limiting information about available dwellings

Providing false or inaccurate information to testers

BLOCKBUSTING

For profit, attempting to induce a person to sell or rent a dwelling by representations regarding the entry into the neighborhood of a particular protected group

Engaging in conduct that conveys to a person that a neighborhood is undergoing or is about to undergo a change to encourage the person to sell or rent

Encouraging any person to sell or rent by asserting that the neighborhood will experience undesirable consequences

DISCRIMINATION IN RESIDENTIAL REAL ESTATE-RELATED

TRANSACTIONS The making or purchasing of loans, or

providing other financial assistance for purchasing, constructing, improving, or maintaining a dwelling

Redlining

The selling, brokering, or appraising of residential real property

STATE AND LOCAL FAIR HOUSING LAWS

Independent source of housing discrimination law

Advantages of using a state procedure

Examples of additional protected groups

THE 1988 FAIR HOUSING AMENDMENTS ACT &

BEYOND

CHANGES MADE IN ENFORCEMENT

Statute of limitations extended

Cap on punitive damages removed

Serious sanctions and remedies available through HUD

Monetary awards and civil penalties available through the Department of Justice

APPLICATION OF THE FAIR HOUSING LAWS TO THE BANKING

INDUSTRY Unlawful practices under the Fair Housing Act

HUD’s fair lending studies

Sub prime lending

Predatory lending

APPLICATION OF THE FAIR HOUSING LAWS TO THE BANKING

INDUSTRY The Equal Credit Opportunity Act

Protected classes Unlawful practices Notice requirement for creditors How the ECOA applies to housing Enforcement,available relief and statute of limitations

New Mexico bank settles national origin claims with Justice Department

APPLICATION OF THE FAIR HOUSING LAWS TO THE INSURANCE INDUSTRY

The HUD Regulations

Debate over whether the Fair Housing Act applies to insurance and insurance redlining

American Family settles insurance bias lawsuit for record $16 million

FAMILIAL STATUS DEFINITION

Anyone under the age of 18 living with a parent or legal guardian

The written designee of such parent or legal guardian

Anyone about to obtain custody of someone under the age of 18

Pregnant women

HOUSING FOR OLDER PERSONS ACT OF 1995

Act repealed significant services and facilities requirement for housing to qualify for “Housing for Older Persons” exemption

Act retains the requirement of one person 55 or older in 80% of the units

Act provides for a “Good Faith Defense” for real estate agents

DEFINITION OF DISABILITY A physical or mental

impairment that substantially limits a major life activity;

A record of such an impairment;

Being regarded as having such an impairment

DEFINITION OF DISABILITY Definition excludes

persons who are currently using illegal drugs and transvestites

Individuals who pose a direct threat to health and safety of others

DISABILITY DISCRIMINATION

To 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 that buyer or renter a person residing in or intending to reside in

that dwelling any person associated with that buyer or

renter

DISABILITY DISCRIMINATION

To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling or in the provision of services or facilities because of a handicap of that buyer or renter a person residing in or intending to reside in

that dwelling any person associated with that buyer or renter

CASE LAW ON GROUP HOMES U.S. Supreme Court rules City’s occupancy limit

not exempt from the Fair Housing Act. City of Edmonds v. Oxford House

New Mexico Supreme Court rules enforcement of restrictive covenant violates the Fair Housing Act. Hill v. Community…

DESIGN AND CONSTRUCTION REQUIREMENTS - NEW HOUSING

Covered multifamily dwellings first occupied after March 13, 1991

Covered dwellings

ACCESSIBILITY FEATURES Public & common use areas must be readily

accessible to & usable by handicapped persons

All doors must be sufficiently wide to accommodate persons who use wheelchairs

There must be an accessible route into and through the dwelling

ACCESSIBILITY FEATURES Light switches, electrical outlets, thermostats,

and other environmental controls must be placed in accessible locations

Reinforcements must be installed in bathrooms to allow for the later installation of grab bars

Kitchens and bathrooms must be designed to allow people in wheelchairs to maneuver about the space

AIDS DISCLOSURE How AIDS is

transmitted

Fair housing concerns

THE AMERICANS WITH DISABILITIES ACT

ADA & the Fair Housing Act

Sales office in model home subject to ADA requirements. Sapp v. MHI P’ship

FAIR HOUSING IN PROPERTY MANAGEMENT

FAIR HOUSING LAW AND PROPERTY MANAGEMENT

Prohibited conduct

Disorganization or discrimination?

RENTAL TRANSACTION PROCEDURES

Needs and wants questionnaire The application process The selection process

APPLICANT SELECTION INQUIRIES To determine ability to meet financial

requirements

To determine if applicant is qualified for dwelling available only to persons with handicaps

To determine if applicant is qualified for priority status

APPLICANT SELECTION INQUIRIES

To determine if applicant is current illegal drug abuser

To determine if applicant has ever been convicted of a drug-related felony

SECTION 8 PROGRAMS Creation of the

Section 8 program

Participation voluntary

Case law - Salute v. Stratford Greens Garden Apartments

FAMILIAL STATUS DISCRIMINATION

Case law Fair Plaza Associates settles lawsuit with

Justice Department

DEVELOPING REASONABLE OCCUPANCY STANDARDS

HUD’s rule of thumb Purpose for occupancy standards

REASONABLE OCCUPANCY STANDARDS Fair Housing Laws

Size of unit

Age of the children

Number of bedrooms

Configuration of the unit

Physical limitations

State & local laws

Capacities of the building

BOCA GUIDELINES Minimum 150 square feet for first

occupant. Additional 100 square feet required for each additional person.

Sleeping area requirements.

BOCA includes living & dining rooms, kitchens & bedrooms.

FAMILIAL STATUS CASE LAW

$250,000 settlement reached in Virginia Family Status Lawsuit - Fair Housing Group of greater Washington v. Westagroup.

DEVELOPING REASONABLE HEALTH AND SAFETY RULES

Right of housing providers to develop and implement reasonable health and safety rules

Court rulings

Landlord’s rules discriminate against families with children - Fair Housing Congress v. Weber

DISABILITY DISCRIMINATION

Inquiring if a person has a disability

Reasonable modifications

Reasonable accommodations

Colorado landlord must attempt to accommodate mentally ill tenant prior to eviction - Roe v. Housing Authority of Boulder

FAIR HOUSING ADVERTISING

FAIR HOUSING ADVERTISING

The Fair Housing Act makes it unlawful to make, print, or publish, or cause to be made, printed, or published, any notice, statement, or advertisement, with respect to the sale or rental of a dwelling, that indicates any preference, limitation, or discrimination because of race, color, religion, sex, handicap, familial status, or national origin.

THE HUNTER DECISION The Fair Housing Act applies to

newspapers and other media

The provision does not violate the First Amendment’s guarantee of freedom of press

Established the “ordinary reader” concept

HUD ADVERTISING GUIDELINES Use of words, phrases, symbols, or visual

aids

Selective use of advertising media or content Selective geographic advertisements Selective use of equal opportunity slogan or

logo Selective use of human models

1995 HUD MEMORANDUM

Race, Color, National OriginMaster Bedroom; Rare Find; Desirable Neighborhood

ReligionMerry Christmas; Happy Easter

SexMother-in-law Suite; Bachelor Apartment

HandicapGreat View; Walk-in Closet; Walk to Bus Stop

Familial StatusNo Bicycles; Family Room; Quiet Streets

HUD ADVERTISING GUIDELINES The Equal Housing Opportunity Logotype

and Slogan

The Equal Housing Opportunity Statement

HUD’s Publishers Notice

Ragin v. The New York Times

CREATING PROTECTED CLASS SENSITIVE ADVERTISING

Describe the property, not appropriate buyers or tenants

Avoid describing the neighbors, neighborhood, or quality of schools

Avoid wording that would tend to exclude any person for any reason

$865,000 SETTLEMENT REACHED IN ADVERTISING LAWSUIT

Lawsuit against the Virginia Condo and apartment complex was based on their exclusive use of white human models in their ads

Plaintiffs included two fair housing groups & a black law professor

New advertising policy

MLS REMARKS MAY VIOLATE FAIR HOUSING

Portland Metropolitan MLS paid $30,000 to settle a fair housing complaint with HUD.

Complaint was based on a phrase in the “remarks” section of an MLS listing form.

Examples of wording to avoid include adult community, bachelor, board approval required, couple, empty nesters, and must be employed.

FAIR HOUSING ENFORCEMENT

U.S. SUPREME COURT RULINGS

City of Edmonds v. Oxford House

2003 Overruling in Ninth Circuit Holley decision.

ENFORCEMENT OPTIONS

HUD

Direct Court Actions

Department of Justice

STANDING TO SUE Direct victims of

housing discrimination

Testers

Fair Housing Groups

Real estate agents

U.S. Supreme Court decision - Havens Realty v. Coleman

THE USE OF TESTERS The Supreme Court

Ruling

Recovery of damages

HUD, Department of Justice, Fair Housing Organizations

OUTREACH PROGRAMS

2003 $17.6 million in fair housing grants

Types of grants Provide enforcement Provide education and outreach programs Projects that serve rural and immigrant

populations

THEORIES OF DISCRIMINATION

The Disparate Treatment Theory

The Disparate Impact Theory

THE HUD ENFORCEMENT PROCEDURE

The Complaint Process

Investigation and Conciliation

The Issuance of a Charge

The Hearing

The Decision

Judicial Review

ENFORCEMENT THROUGH HUD

Actual damages

Injunctive & equitable relief

Civil penalties of up to $10,000 for a first offense, $25,000 for prior offense within 5 years, $50,000 if 2 or more offenses in 7 years

ENFORCEMENT BY THE JUSTICE DEPARTMENT

Monetary awards and civil penalties

Pattern or practice and general public importance cases

Referrals from HUD involving zoning or land-use ordinances or breach of a Conciliation Agreement

Suit to enforce a subpoena issued in a HUD proceeding

The Attorney General must represent complainants in cases removed from HUD

DIRECT COURT ACTIONS

Statute of Limitations

Relief Available Actual damages

Punitive damages

Injunctive relief

Permanent or temporary injunctions

Temporary restraining orders

Fair Housing Complaint Process

Fair Housing Complaint Process

U.S. Attorneyhas 18 months

to file

Successfulconciliation

& case closes

Aggrieved partymaintains right tofile in federal courtfor up to 2 years

Complaintdismissed

Case heard infederal court

Case heardbefore HUD

ALJ

Charge issued

Investigationand

conciliation

Respondingparty may answer

within 10 days

HUD notifiesresponding

party

Aggrieved partyhas 1 year tofile with HUD

Aggrieved partyhas 2 years tofile in federal

court

Alleged act ofdiscrimination

occurs

CULTURAL DIVERSITY AND FAIR HOUSING

CULTURAL DIVERSITY DEFINED

America - a multicultural society

Defining diversity

Defining culture

THE CYCLE: BIAS, STEREOTYPE, PREJUDICE

Bias Stereotype Prejudice

Needs and wants questionnaire

BUILDING RAPPORT WITH PEOPLE FROM OTHER CULTURES

The role of culture in the homebuying process

Understanding cultural differences Recognizing issues that are important to

the multicultural client

BUILDING RAPPORT WITH PEOPLE FROM OTHER CULTURES

Meeting and greeting Decision making

General styles of decision making Contracts and Negotiating Time awareness

THE ROLE BELIEFS PLAY IN THE REAL ESTATE TRANSACTION

Determining what beliefs will affect the transaction

Feng Shui Numerology Death in the home - stigmatized property

STEERING

The practice of channeling minority home seekers to designated areas.

Not a total refusal to sell or rent, but makes certain housing unavailable.

Examples of steering. Supreme Court definition

of racial steering.

HUD REGULATIONS To restrict or attempt to restrict the choices

of a person by word or conduct. Four specific examples of steering:

Engaging in conduct that otherwise makes unavailable or denies a dwelling

Discouraging any person from inspecting, purchasing, or renting a dwelling

Communicating to any person that they would not be compatible with existing residents

Assigning any person to a particular section of a community, neighborhood, or dwelling

Responding To Questions Regarding Neighborhood Ethnicity

When a client states a housing preference based on race or other protected class factors- Zuch v. Hussey The Village of Bellwood v. Dwividi The HUD opinion The NAR training manual Directing buyers to cultural clubs and

organizations

Responding To Questions Regarding Neighborhood Ethnicity

Court asked to determine if agent had fiduciary duty to identify ethnic makeup of neighborhood Hannah v. Sibcy Cline Realtors®

NICHE MARKETING

Examples of groups not covered by the Fair Housing Act

Knowing your audience What the multicultural

client looks for in an agent

FAIR HOUSING CASE STUDIES

HUD V. BLACKWELL

Injunctive relief Blackwell ordered to honor sale & was

prohibited from damaging the property Enjoined from future discrimination

Compensatory relief Herrons - $44,590 Coopers - $20,595

Civil Penalties $10,000 to HUD

HUD V. DIBARI

Injunctive relief Injunction of future discrimination of Sara K. HUD supervision for 3 years

Compensatory relief $200 for inconvenience $200 for emotional distress

Civil Penalties $200 to HUD

HUD V. DENTON

Injunctive relief Injunction of future discrimination against Hoags or

anyone else because of children

Compensatory relief $3000 for inconvenience $10,000 for emotional distress $210 for out of pocket

Civil Penalties $2000 to HUD

HUD V. BAUMGARDNER

Injunctive relief Future discrimination toward Holley prohibited HUD supervision for 2 years

Compensatory relief Award for economic loss reduced from $2000 to

$1000 $500 for emotional distress affirmed

Civil Penalties $4000 reduced to $2500

HUD V. JANCIK

Injunctive relief Future discrimination against anyone based on race

or familial status Refrain from using discriminatory advertising

Compensatory relief Leadership Council $21,386 Marsha Allen $2,000 Attorney fees $23,842

Civil Penalties $10,000