The Fair Housing Act
Simply put, the Fair Housing Act is the policy, or law, of our country that protects against discrimination and offers remedies to the aggrieved parties.
In this article:
▸ What is Fair Housing and the Fair Housing Act?
▸ How do fair housing laws apply to landlords?
▸ How do fair housing laws apply to real estate brokers?
▸ How do fair housing laws apply to mortgage brokers?
What are some resources for more information?
The Fair Housing Act information provided in this article comes from HUD.gov, and a transcript of the Act can be found on the Department of Justice website can be found here:
https://www.justice.gov/crt/fair-housing-act
History of Fair Housing and the Fair Housing Act
In 1968, President Johnson signed the Civil Rights Act of 1968, which expanded protections from the Civil Rights Act of 1964.
The Civil Rights Act of 1968 prohibited discrimination with the sale, rental, and financing of housing based on the applicant’s race, religion, national origin, sex, handicap, and family status.
Title VIII of the Civil Rights Act of 1968 is known as the “Fair Housing Act.”
The Civil Rights Act of 1968 was signed into law after the assassination of Dr. Martin Luther King, Jr., and other social considerations were families of military members who could not obtain housing based on race.
Who and what is protected by the Fair Housing Act?
▸ The Fair Housing Act protects against discrimination for renters, home buyers and those securing financing for any housing.
▸ The Fair Housing Act specifically addresses discrimination because of race, color, national origin, religion, sex, disability and the presence of children.
▸ The Fair Housing Act covers most housing and most circumstances for licensed real estate brokers.
▸ The federal Fair Housing Act and the Fair Housing Amendment Acts, as well as several specific state and local laws, prohibit landlords from choosing tenants based on certain criteria, including race, color, national origin, disability or handicap, (physical or mental), religion, sex and familial status.
What specifically does the Fair Housing Act prohibit?
Regarding rental and sale of housing, the following actions are prohibited if based on race, color, religion, sex, handicap, familial status or national origin:
▸ Refusal to sell or rent housing.
▸ Refusal to negotiate for housing.
▸ Making housing unavailable to a person.
▸ Denying a dwelling.
▸ Creation of a different set of terms, conditions or privileges for renting or selling housing.
▸ Providing different services or facilities.
▸ False claims that housing is not available for rental, sale or to perform an inspection.
▸ Blockbusting, or profiting from persuading the owner of a home to rent or sell.
▸ Denial of access to a multiple listing service or similar memberships, services or facilities related to renting or selling housing.
How does the Fair Housing Act apply to mortgages?
Mortgage brokers cannot, based on race, color, national origin, religion, sex, familial status or handicap:
▸ Refuse to make a mortgage loan.
▸ Refuse to provide mortgage loan information.
▸ Impose different terms, such as different interest rates or fees.
▸ Discriminate with the appraisal procedure(s).
▸ Refuse to purchase a loan.
▸ Set different terms or conditions for the purchase of a loan.
How does the Fair Housing Act apply to real estate brokers?
The Fair Housing Act states that:
▸ A real estate broker cannot refuse to negotiate because of race, color, national origin, religion, sex, familial status or handicap.
▸ A real estate broker cannot make housing unavailable for applicants, when housing is available, based on race, color, naTIonal origin, religion, sex, familial status or handicap.
▸ A real estate broker cannot deny a dwelling or set different terms to applicants based on the applicant’s race, color, naTIonal origin, religion, sex, familial status or handicap.
Additional requirements for real estate brokers:
▸ A Real Estate Broker cannot provide a separate or different service or facility based on race, color, national origin, religion, sex, familial status or handicap.
▸ A Real Estate Broker cannot falsely deny that housing is available for inspection, sale, or rental.
More information can be found here:
http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/FHLaws/yourrights
Who is exempt from the Fair Housing Act?
Most housing is covered, but there are a few exemptions which include:
▸ Owner-occupied buildings with less than four (4) units.
▸ Single- family housing sold or rented without the use of a broker.
▸ Private clubs that limit membership.
No housing, even owner-occupied housing, is exempt from the prohibition against discriminatory advertising!
The Fair Housing Act: Disability
▸ A landlord may not refuse to allow the disabled (i.e. physical or mental disability) to make reasonable modifications to the dwelling area, or common use areas.
▸ A landlord must allow guide dogs.
▸ A landlord must allow a reserved spot if tenant is mobility-impaired.
What does it mean to be handicapped as referenced by the Fair Housing Act?
According to The Fair Housing Act (as found at Justice.gov), Handicap means:
▸ A physical or mental impairment which substantially limits one or more of such person’s major life activities,
▸ A record of having such an impairment, or
▸ Being regarded as having such an impairment, but such term does not include current, illegal use of or addiction to a controlled substance (as defined in sec4on 102 of the Controlled Substances Act (21 U.S.C. 802)).
A landlord may NOT:
▸ Deny you permission to make reasonable modifications to your dwelling and common areas to allow for the disabled person to use the housing. These modifications are at the expense of the resident, not the landlord, and the landlord may require you to restore the property to its original condition after you move out.
▸ Additionally, a landlord may not refuse to make reasonable changes and accommodations to the rules, policies, practices or services related to the housing if necessary for the disabled person to use the housing.
Requirements for new construction of buildings of four or more units and an elevator with first occupancy after March 13, 1991:
▸ It is required that common areas be accessible to the disabled
▸ All doorways and hallways must be wide enough to accommodate wheel chairs
▸ All dwelling units must have:
▸ Accessible units into and through the unit
▸ Accessible outlets, switches, thermostats and other environmental controls
▸ Bathrooms reinforced to support grab bars if installed at a later date
▸ Accessible kitchens and bathrooms for people in wheelchairs
▸ All of these required conditions apply to ground floor units of any building with first occupancy after March 13, 1991 that does not contain an elevator.
▸ All of these required conditions are superseded by any more stringent requirements of state or local laws.
The Fair Housing Act: Familial Status Protections
According to the Fair Housing Act:
▸ Discrimination based on familial status is prohibited unless the community or building has qualified specifically as housing for older persons.
▸ For buildings not designated as housing for older persons, a landlord may not discriminate against any family in which one or more children under the age of 18 live with a parent, legal guardian or designee of the parent or legal guardian (designated in writing).
▸ The familial protections afforded under the Fair Housing Act also extend to pregnant women and any person securing legal custody of a child under 18 years of age.
Exemptions to familial status protections:
Housing for older persons is exempt only if:
▸ No residents of the housing facility or complex are under 62 years of age.
▸ A minimum of 80 percent of occupied units house at least one person who is 55 years of age or older and follows policies that show an intent to houses persons 55 years of age or older.
▸ A determination by the HUD Secretary indicates the building or housing complex is designed for and occupied by elderly residents under the guidelines of a Federal, State or local government program.
Transition period:
▸ There is a transition period allowance that permits any resident living in housing on or before September 13, 1988 may continue living in their housing without interfering with the exemptions regardless of their age.
NOTE: If you are a landlord, always use a lease written by a qualified attorney and follow written screening policies that apply to all applicants!
An explanation of terms used in the Fair Housing Act
How is a “dwelling” defined?
▸ According to The Fair Housing Act (as found at justice.gov), Dwelling means any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof.
According to Justice.gov:
“Family” includes a single person. A single person is considered a “family” in accordance with justice.gov and The Fair Housing Act, so the same protections against discriminations apply to an individual, as it would for a family, looking to purchase a new home.
“Person” includes one person, or more than one person in a group, corporations, partnerships, associations, labor associations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees in a bankruptcy proceeding, receivers, and fiduciaries.
“Aggrieved Person” is defined as one who has been aggrieved, or discriminated against in a Fair Housing case, includes ANY person who:
▸ Someone who claims to have been injured by a discriminatory housing practice, or…
▸ Someone who believes that such person will be injured by a discriminatory housing practice that is about to occur.
“Complainant” under the guidelines of the Fair Housing Act, as stated at Justice.gov, “Complainant” means the person who files a complaint in accordance with the Fair Housing Act.
What is Blockbusting?
Brokers cannot participate in “blockbusting,” which is when real estate agents/brokers, or developers, encourage property owners to sell their houses at a loss by implying racial minorities were moving into their segregated neighborhood.
The Fair Housing Act further states:
You cannot deny access or membership in a facility or service (like MLS) based on race, color, national origin, religion, sex, familial status or handicap.
Other prohibitions as a result of the Fair Housing Act
What else is illegal?
▸ Threaten, coerce, intimidate or interfere with anyone exercising a fair housing right or assisting others who exercise their rights.
▸ Advertise or make statements that indicate preferences based on race, color, national origin, religion, sex, familial status or handicap.
The prohibition to advertising or making statements that indicate preferences based on race, color, national origin, religion, sex, familial status or handicap, also applies to single-family housing and owner-occupied housing. These are generally exempt from other provisions in the Fair Housing Act.
Penalties for violation of the Fair Housing Act
Penalties against discriminating person or persons, in Accordance with The Fair Housing Act, taken from justice.gov, or the US Department of Justice:
For the aggrieved party, the party who was discriminated against in accordance with The Fair Housing Act, and has been injured, or would have been injured by a discriminatory housing practice, if the Court believes the injury occurred, or would have occurred, or is about to occur, then the Court may award actual AND punitive damages.
Further relief for the aggrieved party:
The Court may grant an injunction (meaning it may allow for a change in the tenants situation, a Court-ordered change), temporary restraining order, or enjoining the Defendant from engaging in such practices that caused, or would cause, the discriminatory behavior.
The aggrieved party, if successful, may also be awarded Court fees and attorney’s fees.
If a complaint is filed:
If a complaint is filed with the U.S. Department of Housing and Urban Development (HUD.GOV), it is investigated by the Office of Fair Housing and Equal Opportunity (FHEO).
When reasonable cause is found, a HUD Administrative Law Judge oversees a hearing.
If any party involved so chooses, the matter can be litigated in Federal court instead.
In such cases the Department of Justice becomes the counsel on behalf of aggrieved persons and the case proceeds as a civil action. There is no cost to the complainant.
▸ In an administrative hearing, HUD attorneys will argue on behalf of the complainant, but they may also hire their own attorney if they wish.
▸ In a federal District Court, the Attorney General files suit and litigates on behalf of the complainant.
▸ A complainant may also file suit in Federal District Court or in State Court at their own expense or with a court appointed attorney within two years of the incident, but only if the complainant has not signed a conciliation agreement and an Administrative Law Judge has not being a hearing.
▸ Courts may award compensation for actual damages that include pain and suffering or humiliation, or may provide injunctive or equitable relief such as requiring the housing be made available to the person whose rights were violated. Courts may also impose penalties or require reasonable legal costs be paid for the aggrieved person.
▸ Maximum penalties are $16,000 for a first violation and $70,000 for a third violation within a seven year period, and are paid to the Federal Government as a civil penalty in the public interest.
▸ In a Federal District Court hearing, the court can also impose punitive damages in addition to compensatory damages.
▸ Courts may award compensation for actual damages that include pain and suffering or humiliation, or may provide injunctive or equitable relief such as requiring the housing be made available to the person whose rights were violated. Courts may also impose penalties or require reasonable legal costs be paid for the aggrieved person.
What if there is a pattern of behavior?
The US Attorney General may take action against any person or group of persons violating The Fair Housing Act, especially if a pattern of violating behavior is observed.
The Attorney General may seek justice for the aggrieved parties in a Civil Action with remedies for the aggrieved parties including preventive relief with a permanent or temporary Injunction
(meaning it may allow for a court-ordered change in the tenants situation).
Also, if there’s a pattern, the Attorney General may also place a restraining order against the person or persons causing the discrimination.
Also, if there’s a pattern, The Attorney General may seek monetary damages to be awarded to the aggrieved party.
Also, if there’s a pattern, The Attorney General may seek a steep civil penalty against the respondent, or discriminating person, or persons.
What to do if you think you have been a victim of discrimination under the Fair Housing Act
First write a letter to HUD or fill out this form on the HUD website to obtain assistance by HUD with any problem of housing discrimination:
http://portal.hud.gov/hudportal/HUD?src=/topics/housing_discrimination
You can also contact your nearest HUD office by telephone. Office contact information is located here:
http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/aboutfheo/fhhubs
Any violation must be submitted to HUD within one year after the incident occurs and it is best to submit it as soon as possible!
Information to tell HUD:
▸ Name
▸ Address
▸ Name and Address of person you are filing a complaint against
▸ Address and/or identification of the housing involved in the complaint
▸ The date or dates of the incident
▸ A brief description of the incident that caused you to believe your rights were violated
For the disabled, HUD provides the following:
▸ Assistance with reading and filling out forms
▸ Interpreters
▸ Braille and recorded materials
▸ A toll-free TTY phone number for hearing impaired persons (800-927-9275)
When HUD receives a complaint, you and the alleged violator will be notified of your complaint, and the alleged violator will be allowed to submit a response.
HUD will attempt to reach a conciliation agreement that protects you and the public interest. If this agreement is breached, HUD recommends that the Attorney General file suit.
HUD may refer your case to your state or local agency. If that agency does not begin work on your complaint within 30 days, HUD may take the case back.
In emergency cases, HUD may authorize the Attorney General to seek a temporary or preliminary relief in court if there is a risk of irreparable harm without HUD’s intervention or if there is substantial evidence that the Fair Housing Act was violated.
State and Local Laws
In addition to federal laws and regardless of any federal exemptions, local and state fair housing laws always apply. These laws often have additional protected classes and exemptions may vary.
In the case of California, for example, owner-occupied multifamily and single-family homes are not exempt from the California Fair Housing laws.
Regardless of whether or not you are exempt under the applicable laws, the goal of any Fair Housing law is to prevent discrimination in regard to housing. Therefore it is always important to take care to conduct your business in the spirit in which this law was created.
The Civil Rights Act of 1866 was a statement that all people born in the United States are American Citizens
Some history…
1933 – The “Homeowner’s Loan Corporation” rated neighborhoods. As a result, mortgage companies would not give loans to potential homebuyers certain neighborhoods or would make the loans prohibitively expensive. This practice was known as Redlining.
1964 – The Civil Rights Act was passed to prohibit discrimination on the basis of race, color, national origin, or HUD assisted programs.
1968 – In April, Martin Luther King Jr. was assassinated, and four days later Lyndon B. Johnson signed the Fair Housing Act.
April is Fair Housing Month
From Justice.gov/crt/fair-housing-act: “The Fair Housing Act, 42 U.S.C. 3601 et seq., prohibits discrimination by direct providers of housing, such as landlords and real estate companies as well as other entities, such as municipalities, banks or other lending institutions and homeowners insurance companies whose discriminatory practices make housing unavailable to persons because of:”
▸ Race or Color
▸ Religion
▸ Sex
▸ National Origin
▸ Familial Status
▸ Disability
Three agencies are involved in Fair Housing complaints:
▸ U.S. Department of Justice
▸ Housing and Urban Development
▸ State’s Civil Rights Commission
Tenants can also file a private lawsuit against a landlord.
▸ NOTE: Tenants are typically not going to be responsible for these legal fees because the Fair Housing Act allows for recovery of attorney’s fees.
What should you do if a complaint has been filed against you?
If you have a housing complaint filed against you, ALWAYS GET AN ATTORNEY even if you feel you have done nothing wrong!