1. Fair Housing
Information in this presentation is a summary of federal and state law regarding fair housing.
If your individual firm has additional requirements beyond those spelled out in this presentation, you should include those.
References: Va. Code § et seq.; 42 U.S.C et seq.; 42 U.S.C. 3631;

2. Code of Ethics (Article 10)
Federal Law
Virginia Law
Regulations
Local Ordinances
Code of Ethics (Article 10)
The sources of law covering fair housing include the Fair Housing Act (federal), the Virginia Fair Housing Act, state regulations, local ordinances (which may be more inclusive than state law and regulations), and Article 10 of the Code of Ethics.
Sources of Law

3. Enforcement Testers Complaints to Fair Housing Board
Civil Actions in Circuit Court
Monetary Penalties, including Attorneys’ Fees & Costs
Suspension/Revocation of License
The state Fair Housing Board enforces fair housing law, except with respect to real estate licensees, who are the responsibility of the Real Estate Board.
Fair Housing Testers are persons who pose as prospective buyers or renters for the purpose of gathering information on whether a housing provider is complying with fair housing laws. The Department of Justice contracts with private fair housing organizations and individuals. Additionally, because of the potential for large monetary judgments in Fair Housing cases, there are organizations that train and pay people to be testers who go out in search of people potentially violating Fair Housing laws.
Anyone who perceives they have been discriminated against, including testers, can file a complaint. Employers may be liable too – for example, brokers and property management companies - they don’t need to have known or participated. The complaint must be filed within 1 year after the discriminatory practice occurred or terminated. Once the complaint is filed there is a 100 day limit for an investigation to determine whether reasonable causes exists to believe that a discriminatory housing practice occurred. During the investigation all parties should be actively working toward a conciliation agreement. If no agreement is reached by the end of the investigation, and there is reasonable cause to believe a violation occurred, the person will be charged. Otherwise, the complaint is dismissed.
A person may also file a civil action in the appropriate district or state court within 2 years after the occurrence or termination of the discriminatory practice or breach of conciliation agreement. If there is a conciliation agreement already in place, the person cannot file, unless the agreement is breached and they are suing to enforce the agreement.
The penalties for violating fair housing law are very severe. You can be assessed a maximum civil penalty of $20,521 for a first violation. But persons who have violated fair housing before within the previous 5 years could be fined up to $51,302. Two or more violations in seven years time could result in a fine of up to $102,606.* Other penalties include actual damages to the aggrieved party, attorneys fees and costs, and the potential suspension or revocation of your real estate salesperson license.
*2018 amounts – periodically adjusted for inflation by federal Department of Housing and Urban Development (HUD)

4. TEN Protected Classes for all Virginia REALTORS®
Race
Color
Religion
Sex
Familial Status
National Origin
Handicap/Disability
Elderliness
Sexual Orientation
Gender Identity
TEN Protected Classes for all Virginia REALTORS®
Realtors® licensed in Virginia must follow fair housing laws with regard to 10 protected classes. The first 7 are required by federal law, elderliness is included under Virginia law, and sexual orientation and gender identity are required by the Code of Ethics. Local ordinances may include additional classes, like source of income (e.g. alimony, social security, etc.), marital status, and sexual orientation.

5. Federal Fair Housing Act
“It shall be unlawful to (a) 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; (b) Discriminate against any person in the terms, conditions, or privileges of sale or rental, or provision of services or facilities in connection therewith; (c) Make, print, or publish Any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination Or intention to make any such preference; [and] (d) Represent to any person That any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available, because of race, color, religion, sex, familial status, or national origin.
Federal Fair Housing law (42 U.S.C (a)-(e)) states: [read slide].
These are the four primary categories for what is considered discrimination under the law. Virginia Fair Housing Law follows federal law, with one additional protected class and some additional language we will discuss in a moment.
Note the protected classes listed in green. They are
Race (a group of people united based on a common history, nationality, or geography),
Color (the color of one’s skin),
Religion,
Sex,
Familial status (individuals under the age of 18 who live with a parent or guardian, pregnant women, and anyone about to obtain custody of someone under the age of 18), and
National origin (a person’s or their ancestor’s country of birth).

6. Includes same four discrimination categories, but also applies them to others residing in the dwelling and those “associated” with the person attempting to buy or rent.
Covers “reasonable modifications” and “reasonable accommodations.”
Virginia law allows for Assistance Animals.
Disability is the 7th federally protected class. It is interchangeable with the word handicap.
Defined under federal and Virginia law as “handicap:” “(1) a physical or mental impairment which substantially limits one or more of such person’s major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment.”
This definition of disability includes recovering alcoholics and drug addicts, but does not include current, illegal use of or addiction to a controlled substance. Discrimination includes “a refusal to permit reasonable modifications of existing premises If such modifications may be necessary to afford such person full enjoyment of the premises” and “a refusal 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.” A landlord, when it is reasonable to do so, may condition any such modification on restoring the premises to the original condition, minus reasonable wear and tear.
An Assistance Animal is defined under Virginia law as “an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or performs emotional support that alleviates one or more identified symptoms or effects of a person’s disability.” It is not the same as a Service Dog, though a Service Dog may be considered an Assistance Animal, and may include animals that are not dogs. A person who requests a reasonable accommodation to maintain an Assistance Animal in the dwelling cannot be discriminated against just because the dwelling unit has a no pets policy.
Handicap/Disability

7. Who must follow fair housing laws?
Property managers
Owners
Landlords
Real estate agents
Banks, savings institutions, credit unions
Insurance companies
Mortgage lenders
Appraisers
It’s not just you, as licensees, that are required to follow fair housing laws. Your clients (owners and landlords) are also required to follow the law, as well as other professionals involved in the real estate process.

8. What is discrimination? The Basics.
Refusal to sell or rent after receiving a bona fide offer
Refusal to negotiate
Making dwelling unavailable
Implying an available dwelling is not
Misrepresenting availability of a real estate- related transaction or terms/condition
Refusing a reasonable modification or accommodation
Different terms, conditions, price, services, facilities, etc. for different people
Discriminatory advertising
Blockbusting
Steering
Coercion, intimidation, threats, or interference with rights protected by fair housing laws
Denying access or membership participation (e.g. in MLS) in service or organization related to business of renting/selling
Restrictive covenants (Virginia)
Federal fair housing law covers many different types of discriminatory behaviors toward members of the protected classes including: [Read slide]
Blockbusting is inducing or attempt to induce a person to sell or rent a dwelling by representations regarding the entry or prospective entry into the neighborhood.
Restrictive covenants is Virginia specific - The law states that a covenant such as this is declared to be void and contrary to the public policy of the Commonwealth. Anyone asked to accept such a document may decline until the covenant has been removed and this will not be a breach of contract. Also, no person can ask for or accept compensation of any kind for the release or removal of the restrictive covenant.

9. “What is discrimination
“What is discrimination?” Going further… Virginia Regulations provide substantive guidance.
Failed or delayed maintenance
Discouragement or communicating comfort or compatibility
Assigning based on protected class
Tenant selection criteria
Delaying application
Refusing applicants, showings, listings, agents, etc.
Retaliation
Virginia Fair Housing Regulations (18VAC et seq.) state that “No person shall be subject to discriminatory housing practices in the sale, rental, advertising of dwellings, inspection of dwellings or entry into a neighborhood, in the provision of brokerage services, financing, the availability of residential real estate-related transactions, or any other discriminatory conduct prohibited by the Virginia Fair Housing Law because of race, color, religion, sex, handicap, elderliness, familial status, or national origin.”
The Regulations go beyond federal and state laws, providing additional examples and detail of unlawful and prohibited practices:
Discouragement can include discouraging from inspecting, purchasing, or renting a dwelling. Further, the regulations describe as unlawful “Communicating to any prospective purchaser that he would not be comfortable or compatible with existing residents” of a neighborhood or community, and “assigning any person to a particular section” of a community or development (steering inside community).
Retaliation can include - threatening, intimidating or interfering with persons in their enjoyment of a dwelling; Intimidating or threatening any person because that person is engaged in activities designed to make other persons aware of their rights; and Retaliating against any person because that person has made a complaint, testified, assisted, or participated in any manner in a proceeding under the fair housing law.

10. Code of Ethics – Article 10
REALTORS® shall not deny equal professional services to -
REALTORS®, in their real estate employment practices, shall not discriminate against -
REALTORS® shall not be parties to any plan or agreement to discriminate against -
any person or persons on the basis of race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity.
Article Article 10 states: [read slide]
Note we now have two additional protected classes of sexual orientation and gender identity. So, if a REALTOR® is involved in the sale or lease of a property, they cannot volunteer information regarding the racial, religious or ethnic composition of any neighborhood and they are prohibited from engaging in any activity which may result in panic selling. They are allowed to provide other demographic information.
“Real estate employment practices” means employees and independent contractors providing real estate-related services and the administrative and clerical staff directly supporting those individuals. In other words, you may not discriminate in who you hire.
Finally, you may not be a party to any plan or agreement to discriminate – if you have a team or your own brokerage firm, all of your staff, licensed or not, must follow the same Fair housing rules under the Code of Ethics.

11. Common Issues and Applications
Disparate Impact
Assistance Animals
Criminal Background Checks
Hoarding
Disparate Impact: The Supreme Court has found that an otherwise neutral policy (non-discriminatory) can be found to violate Fair Housing law if it has a disproportionate adverse impact against a protected class. For example, a policy where you only rent to active military may seem fine on its face, but it could result in discrimination against persons with disabilities, national origin, elderliness, even familial status, since people in those protected classes may not be able to serve in the active military.
Assistance Animals: If the disability or need for the Assistance Animal is not apparent on its face, the landlord or property manager may request supporting documentation to evaluate the need. That documentation may be requested from someone who has a “therapeutic relationship” with the person. That person must be a mental health service provider, a person or group licensed to serve those with disabilities, or a person or entity who is not licensed or a mental health service provider, but whom has actual knowledge of the person’s disability and need for the Assistance Animal. There is no legal requirement that this person be licensed in or living in Virginia; however, if a license is required where the service is provided, then they would need to be licensed. For example, a medical doctor providing medical services to the tenant in Texas would need to have a medical license in Texas. Assistance Animals do not have to be licensed and there is no legal limit to the number of animals an individual may have.
Criminal Background Checks: This again goes back to disparate impact. HUD released a guidance document indicating that a straight ban on renting to persons with past criminal convictions could have a disparate impact against people based on race. The guidance document stated that each person’s criminal history should be evaluated for type of crime, how long ago it occurred, threat to health or safety, etc.
Hoarding: In Virginia, the Fair Housing Board has been very vocal about including hoarding as a disability. There is a lot of misunderstanding here with people thinking that hoarding is a protected class. That is not true. However, under certain circumstances hoarding can qualify as a disability and therefore come under Fair Housing law.

12. Become familiar with the protected classes and other aspects of fair housing law. Educate your clients.
Allow buyers to make own choices in housing search, but do not accommodate requests that violate fair housing law.
Develop and follow standard procedures.
Use the Equal Housing Opportunity logo in all advertisements.
Best Practices
Develop and Follow Standard Procedures: Have a standard policy regarding things like Assistance Animals, and train your staff or office. Document all notices and communications in writing.
Fair Housing Logo: There is no legal requirement to use the Equal Housing Opportunity (fair housing) logo in your advertisements. However, using it creates a rebuttable presumption that you are complying with fair housing laws. And if you’re using it – you want to be sure you use it everywhere. Selective use of the logo could be seen as intentionally discriminatory. You can use the image (available for download at HUD’s website), and be sure it’s large enough to view, or the phrase “Equal Housing Opportunity.”

13. Questions and Answers

14. Q. A sales associate shows the parents of a blind toddler a house for sale at the end of a quiet cul-de-sac. One block away, on a busy corner, the parents notice another house for sale that meets their specifications and ask why the sales associate didn't show them that one. Did the sales associate violate fair housing laws?
A. Potentially. Even if the sales associate has the family's best interests in mind, she can be said to be acting discriminatorily on the basis of the toddler's handicap.
First question: [ask for answers]
[click for answer]

15. Q. A property manager shows a young, single woman a top-floor apartment when there is a first-floor unit available. Did he violate fair housing laws?
A. Potentially. A perfectly sincere concern for this woman’s safety may have led the manager to steer the tenant to the top-floor unit he perceives as safer. However, he can be said to be acting discriminatorily based on the tenant’s sex.
Second question: [ask for answers]
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16. Q. Can a landlord refuse to rent to five college students without worrying about discrimination? 
A. College students are not a protected class.  However, be careful that the refusal to rent does not disproportionately affect a protected class (disparate impact).  An example would be refusing to rent to college students in an area adjacent to a Historically Black College and University, a male or female-only school, or a religiously affiliated college.  Regardless of intent, the landlord’s action could have a disproportionate effect on a protected class (race, sex, or religion).  
Third question: [ask for answers] 
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17. Q. I have a tenant applicant who has indicated she has a cat that provides emotional support. We have a “no pets” policy. Can I reject her application on this basis?
A. No. Assistance animals are not considered pets, under the law. If the tenant’s disability is not apparent on its face, you may ask for supporting documentation from someone with whom the tenant has a “therapeutic relationship” to verify the disability and need for the assistance animal. Be sure to enter into this interactive process in good faith.
Q. If we rent to the tenant, can we charge a pet deposit for the assistance animal?
Fourth question: [ask for answers]
[click for bonus question] [ask for answers]
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The Virginia REALTORS® Assistance Animal Addendum has explicit language that requires the tenant to assume liability for all damages caused by an Assistance Animal.
A. No. Assistance animals are not pets. The tenant is responsible for any damage beyond reasonable wear and tear, but you may not charge any additional deposits or increased rent based on the presence of the assistance animal.

18. QUESTIONS?