The Fair Housing Act Was first passed in 1968, after the assassination of Dr. Martin Luther King. Was significantly strengthened when it was amended in 1968. o Two new coverages—disability and familial status—were added. o Enforcement rights were added to provide government representation when an investigation finds a violation. o Punitive damages are allowed without a cap, and civil penalties can be awarded in an administrative hear.
Introduction The Fair Housing Act applies to virtually all types of housing, public and private, and virtually all types of housing-related transactions. Through regulations that have the force of law, HUD has further defined the general provisions of the Fair Housing Act. The Fair Housing Act is properly referred to as the federal Fair Housing Act as amended, or Title VIII.
Illegal versus Unfair There are many ways to discriminate— not all forms of discrimination or unfair treatment are illegal.
Jurisdiction A complaint must be filed within certain time frames. o Administrative complaints must be filed with HUD within one year from the last date of discrimination 42 USC 3610 (a). o A lawsuit must be filed within two years from the last date of discrimination 42 USC 3613 (a)(1)(A). o State and local agencies may have shorter time frames for filing complaints. Any “aggrieved person” may file a complaint 42 USC 3601(i). Virtually all housing-related transactions are covered. Virtually all person and entities engaged in housing- related transactions can be respondents/defendants.
Housing Covered Dwellings o Any building, structure or portion thereof which is occupied as, or designated or intended for occupancy as a residence by one or more families, and any vacant land for the sale or lease of a dwelling. 42 USC 3602 (b).
The Code Exempts Some Entities and Some Transactions
Exempt Entities Housing which contains 4 or fewer units where the owner maintains and occupies one of the units. 42 USC 3603 (b)(2). Single family housing when the owner sells or rents it, where there’s only one sale within 24 months, there’s three or fewer houses owned, and if it is sold or rented without sales or rental services of a real estate broker and without a discriminatory ad or notice. 42 USC 3603 (b)(1). Note that the prohibition against discriminatory advertising or statements still applies to these properties. 42 USC 3603 (b). Note that other statutes, 42 USC 1981 and 1982, still apply to discrimination based on race, national origin and some forms of religious discrimination.
Exempt Transactions Housing for Older Persons permits discrimination based on familial status. o All residents are 62 or older. o 55 or older housing, if 80% of occupied units occupied by at least one person who is 55 or older and where the property holds itself out to be housing for older persons, where there are significant facilities and services for older persons and engages in age verification procedures. 42 USC 3607(b).
Actions Permitted Conduct against a person because he or she has been convicted of illegal manufacture or distribution of a controlled substance. 42 USC 3607 (b)(4). Denial or limitation of rental to persons whose tenancy poses a clear and present threat of substantial harm to others or to the dwelling itself. 42 USC 3604 (f)(9).
It is unlawful… For any person (one or more individuals, partnerships, associations, corporations, joint-stock companies, labor organizations, mutual companies, joint stock companies, trusts, unincorporated organizations, trustees, trustees in case under Title 11, receivers and fiduciaries. 42 USC 3602(d).
To Discriminate Because of: Race o Black/White, African-American/Caucasian. Color o Skin tone. Religion o Religious beliefs or membership in a religious group.
OR Discriminate Because of: Sex o Gender. National Origin o Country of origin of a person or his/her ancestors. Disability o Physical or mental impairment which substantially limits one or more major life activities. o Having a record of having such an impairment. o Being regarding as having such an impairment.
OR Discriminate Because of: Familial Status o Having one or more individuals who are under 18 being domiciled with: A parent or another with legal custody. A parent’s designee or other person having custody with the written permission of a parent. Being pregnant. In the process of securing custody of an individual under 18. 42 USC 3602(k).
The Fair Housing Act covers many different types of transactions It is illegal: o To refuse to sell or rent to a person who has made a bona fide offer, because of race, color, religion, sex, familial status, or national origin, or to discriminate against any person in the sale or rental of a dwelling because of handicap. 24 CFR 100.60 (a).
Specific Prohibitions Specifically, it violates the law, in a sale or rental transaction to: o Fail or refuse to accept a bona fide offer. o Refuse to sell or rent or to negotiate for sale or rental. o Impose different prices or charges for sale or rental. o Use different qualification standards or procedures. o Evict tenants because of their race, etc. or the race, etc. of their guests. 24 CFR 100.60.
Other Specific Provisions It is also illegal to: o Discriminate in the terms or conditions of housing or in the provision of services or facilities in connection with housing. o Engage in conduct which makes dwelling unavailable or denies dwellings. o Represent to a person that a dwelling is not available when it is available. o Fail to provide or deny maintenance or repairs. o And there are others. 24 CFR 100.65, 100.70.
It is Unlawful to Engage in Other Discriminatory Practices To deny any person access to membership in, or participation in, or other benefit of any multiple listing service or any other housing related service.
It is Unlawful to Make Discriminatory Statements of Acts To make, print, or publish or cause to be made, printed or published. Any notice, statement or advertisement. In connection with the sale or rental of a dwelling. That indicates a preference, limitation or discrimination or an intention to engage in discrimination. 24 CFR 100.75.
Other Forms of Discrimination To induce or attempt to induce to sell or rent any dwelling by representations regarding the entry or prospective entry into a neighborhood of persons of a particular race, etc. Segregation and Blockbusting are Prohibited. To restrict, by word or deed, the housing choices of an individual and to perpetuate segregated housing patterns. To induce, or attempt to induce, a person to sale or rent a dwelling based on representations regarding the entry or prospective entry into a neighborhood of persons of a particular race, etc.
Lending Discrimination is Prohibited The Fair Housing Act prohibits discrimination in residential real estate—related transactions: A residential real estate—related transaction in the making or purchasing of loans or in the terms or conditions of loans. o Where the loan is to purchase, construct, repair or improve a dwelling, is secured by real estate. o This practice includes discrimination in the selling, brokering, insuring or appraising of real property. o 24 CFR 100.115.
Prohibited Lending Practices It is illegal to: o Discriminate in the making of loans or other financial assistance. o Refuse to give a person information about loans or application requirements or to provide incorrect information about loans. o Discriminate in the terms or conditions of loans. o Discriminate in the purchase of loans. 24 CFR 100.120, 100.125.
Insurance Discrimination It is illegal to: o Refuse to provide…property or hazard insurance…or to provide such…insurance differently. 24 CFR 100.70(d)(4).
Discriminatory Practices Based on Disability To refuse to sell or rent or refuse to negotiate for the sale or rental of a dwelling or to make a dwelling unavailable, or to discriminate in the terms or conditions of a sale or rental or in the provision of services or facilities: o Based on the disability of buyer or renter. o Based on the disability of a person residing in or intending to reside in the dwelling. o Based on association with a person with a disability.
Denial of Reasonable Accommodations A refusal to make reasonable accommodations in rules, practices, policies or services when the accommodations are necessary to allow the person an equal opportunity to use the dwelling.
Denial of Reasonable Modifications A refusal to permit, at the expense of the disabled person, reasonable modifications of existing premises. o If the person is to live in the unit. o The landlord may reasonably condition approval on the renter’s agreeing to restore the interior of the unit to the pre- modification condition, reasonable wear and tear excepted.
Design and Construct Accessible Housing Fail to design and construct buildings with four or more units to be accessible to people with disabilities. o All units if the building has an elevator. o The ground floor units if the building does not have an elevator.
There are Seven Key Elements: Accessible route to every covered unit. Accessible public and common use areas. Accessible doors. Accessible routes inside units. Light switches and other environmental controls must be reachable. There must be reinforcements in walls for grab bars. Usable kitchens and bathrooms.
Illegal Inquiries It is illegal to inquire about the nature or severity of a disability except: o To determine if a person is eligible for a priority. o To determine if a person is qualified for a dwelling that is only available to people with disabilities. o To make the usual non-discriminatory inquiries about qualifications. o To ask if someone is a current illegal drug user or if the person has been convicted of the illegal manufacture or distribution of a controlled substance. 24 CFR 100.202 (c).
Harassment in Housing is Illegal One common form of harassment is sexual harassment in housing. o It can occur by physical conduct or through words. o It can be done by property employees or residents. o It can occur when there’s a trade-off proposed, or where the harassment is so pervasive and severe that it becomes a term or condition of housing.
Racial Harassment is Illegal Racial harassment can occur in housing as well. o It is generally experienced as being pervasive and severe so that it amounts to either a term or condition of housing, or as an interference with the right to live free from discrimination in housing.
Landlord Liability in Harassment Cases In order to hold the landlord liable when harassment occurs between residents, you may have to show that the landlord knew of the harassment or that the landlord should have known of the harassment and failed to take action to show liability.
Coercion, Intimidation and Retaliation are Prohibited It is unlawful for any person: o To coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed any right under the law or because the person has aided or encouraged any person in the exercise of his rights. 42 USC 3617. May also amount to a criminal violation, 42 USC 3631.
Steering is Illegal Steering is the restriction of a person’s choices in housing by words or conduct. o It includes discouraging a person from looking at, buying, or renting a house because of their race, etc. or because of the race, etc. of people in a community or a neighborhood. o It is also described as directing a person to or away from a particular area or neighborhood based on that person’s race, etc., or based on the racial or ethnic composition of a neighborhood. 24 CFR 100.70 (c).
Special Issues Zoning and planning decisions. o Race and national origin issues in siting housing. o Disability issues in citing and operating housing. Occupancy Standards.
Proof Overt discrimination. Unequal treatment. Denial of reasonable accommodations, reasonable modifications, or failure to design and construct accessible housing. Neutral policies that operate to discriminate.
Intent While some cases allow proof that the wrongdoer INTENDED to discriminate, most cases don’t require such proof. Intent is shown through what happened. Even well-intentioned acts can be discriminatory.
Remedies HUD ALJ administrative hearing or DOJ lawsuit for administrative complaints or private lawsuit, no exhaustion requirement. o Injunctive relief to completely correct violations. o Compensatory damages: Out of Pocket expenses, including lost profits. Damages for mental distress. o Punitive damages/civil penalties.
Purpose of the Fair Housing Act One country, one community.