WHAT IS ‘FAIR’ WHEN IT COMES TO FAIR HOUSING? April 2017

Why Do I Need to Know about Fair Housing law? Can violate even if there is no blatant act or wrongful intent Knowledge of law can help prevent inadvertent violations You can lose your license and/or face large fines

The Law The federal Fair Housing Act (the “Act”) is part of the 1968 Civil Rights Act Prohibits discrimination in the sale, rental or financing of dwellings or in the provision of brokerage services or facilities in connection with sale or rental of dwellings on the basis of race, color, religion, sex, national origin, familial status, or handicap Georgia’s state fair housing law generally mirrors the Act

Does the Act Protect Everyone? Only the seven (7) categories listed Not listed: sexual orientation, gender identity, military service members, income and Section 8 But: sexual orientation and gender identity may fall under sex discrimination NAR Code of Ethics New HUD guidance in 2016 Limited English Proficiency/national origin Criminal Records/race, national origin

Does the Act Apply to All Types of Housing? Yes, practically all types of housing – single-family and multi-family Very limited exceptions

What Actions are Illegal? Refusal to sell, rent or negotiate; deny or make housing unavailable Set different terms or conditions, provide different services or facilities (including mortgage loans) Falsely deny that housing is available Deny or discriminate in access or membership in a service (i.e., multiple listing service) or organization

“Illegal Actions” Are Not So Simple: Advertising Cannot make, print or publish any notice, statement or advertisement that indicates, causes or intends any preference, limitation or discrimination on the basis of any protected class Includes any type of advertising or written materials All advertising media Applies to ad agencies, newspapers, sales firms, realtors, management companies, internet web sites and services

Advertising Covers More Than Just Words Violations can arise from words, phrases, symbols, pictures, photographs, illustrations, logos, visual aids, or locations Also, from the selective placing of advertisements in media Also, by using human models in ads

“Illegal Actions” Are Not So Simple: Familial Status Protects all kinds of “families” with kids under 18 Cannot restrict occupancy or use on the basis of families with kids Can reasonably limit number of occupants in a unit Cannot specifically target or restrict kids in action or advertising

But When I Retire – I Don’t Want to Be Around Kids! The Act does not apply to two (2) types of “housing for older persons:” (1) all residents must be 62 or over; (2) At least 80% of units must have one occupant 55 or older; must publish and follow policies showing this intent

“Illegal Actions” Are Still Not So Simple: Disability Cannot show preference on basis of physical or mental impairment Cannot ask questions about a disability, except for 5 types of questions if asked of everyone

More on Disability Must allow disabled persons to make reasonable physical accommodations at their own expense, if necessary for full enjoyment Must make reasonable accommodations to rules, policies, practices

Even More on Disability: Reasonable Accommodation (RA) RA request – no specific manner or form With RA request: If disability not readily apparent or known, can ask for documentation If readily apparent or known, cannot ask Can deny RA if no disability, no related need, or not reasonable Discuss service animals and pet rules

Illegal Can be Downright Complicated: “Disparate Impact” Under disparate impact standard, can prove fair housing violations with statistics showing the class suffered disproportionate harm A violation even if no intentional discrimination, and even if an apparently neutral decision

Calling All Real Estate Agents: Beware of Steering! Steering is when someone, through actions, words or behaviors, encourages or directs a potential buyer in a protected class toward a particular neighborhood(s) and away from others Fails to provide certain information Can occur when initially deciding where to look, during or after showing, or in response to questions or requests

Steering and School Districts Discussions about school districts raise questions about steering Guide buyers to third-party, objective sources Do not make subjective assumptions Keep records about requests and searches

Force the Buyer to Steer You Don’t presume the kind of housing or location Let buyers narrow the field through answers to legitimate questions about their housing needs Keep questions handy Document info in the client’s file

And Then There is Blockbusting . . . Encourage Seller to sell because members of a protected class are moving into the neighborhood Indicators of blockbusting can prompt an investigation

Mortgage loans and homeowners insurance Don’t Forget Mortgage Loans, Business Organizations and Restrictive Covenants Mortgage loans and homeowners insurance Brokers’ services or organizations, MLS Deeds/Condo Declarations/ Covenants and Restrictions - Boards can be liable

Tips on Telephone ‘Testing’ Info from telephone call can be sufficient to make a case Tester need not be real housing seeker Don’t need an actual offer/application Principal liable for person who took the call Testers know how to elicit information to establish elements of discrimination

How Bad Can It Get? Complaints by private citizens or Attorney General Damages awarded to plaintiff Administrative penalties up to: $19,787 (1st offense) $49,467 (2nd within 5 years) $98,935 (3rd during 7 years) Civil court fines up to: $98,935 (1st offense) $197,869 (Subsequent offenses)

Morals of the Story Set internal red flags and alarm bells Respond correctly when put on the spot Contact your broker or a Weissman lawyer before missteps are made Keep E&O premiums paid!

suggestion At the outset of a client relationship, briefly introduce your client to the concept of Fair Housing and how you are bound by the law. Later, when they ask a question or make a request, you can gently remind them about your restrictions under Fair Housing and proceed to refer them to all the public sources they will need to get the information. This way, it doesn’t appear you are “hiding” information or are uncooperative in any way.

Please feel free to call your broker or Weissman PC attorney with any questions.