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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