Civil Rights Act of 1866
The original fair housing statute, the Civil Rights Act of 1866, prohibits discrimination in housing based on race. The prohibition relates to selling, renting, inheriting, and conveying real estate.
Executive Order 11063. While the Civil Rights Act of 1866 prohibited discrimination, it was only marginally enforced. In 1962, the President issued Executive Order 11063 to prevent discrimination in residential properties financed by FHA and VA loans. The order facilitated enforcement of fair housing where federal funding was involved.
Civil Rights Act of 1964
The Civil Rights Act of 1964 addressed segregation in schools, public accommodations, and the workplace. Title II prohibited discrimination on the basis of race, color, religion, and national origin in places of public accommodation engaged in interstate commerce. Title III prohibited state and local governments from denying access to public facilities based on the same protected classes.
Civil Rights Act of 1968
Title VIII (Fair Housing Act). Title VIII of the Civil Rights Act of 1968, known today as the Fair Housing Act, prohibits discrimination in housing based on race, color, religion, or national origin. The Office of Fair Housing and Equal
Opportunity (FHEO) administers and enforces Title VIII under the supervision
of the Department of Housing and Urban Development (HUD).
Forms of illegal discrimination
The Fair Housing Act specifically prohibits such activities in residential brokerage and financing as the following.
Discriminatory misrepresentation. An agent may not conceal available properties, represent that they are not for sale or rent, or change the sale terms for the purpose of discriminating. For example, an agent may not inform a minority buyer that the seller has recently decided not to carry back second mortgage financing when in fact the owner has made no such decision.
Providing unequal services. An agent may not alter the nature or quality of brokerage services to any party based on race, color, sex, national origin, or religion. For example, if it is customary for an agent to show a customer the latest MLS publication, the agent may not refuse to show it to any party. Similarly, if it is customary to show qualified buyers prospective properties immediately, an agent may not alter that practice for purposes of discrimination.
Steering. Steering is the practice of directly or indirectly channeling customers toward or away from homes and neighborhoods. Broadly interpreted, steering occurs if an agent describes an area in a subjective way for the purpose of encouraging or discouraging a buyer about the suitability of the area.
For example, an agent tells Buyer A that a neighborhood is extremely attractive, and that desirable families are moving in every week. The next day, the agent tells Buyer B that the same neighborhood is deteriorating, and that values are starting to fall. The agent has blatantly steered Buyer B away from the area and Buyer A into it.
Blockbusting. Blockbusting is the practice of inducing owners in an area to sell or rent to avoid an impending change in the ethnic or social makeup of the neighborhood that will cause values to go down.
For example, Agent Smith tells neighborhood owners that several minority families are moving in, and that they will be bringing their relatives next year. Smith informs homeowners that, in anticipation of a value decline, several families have already made plans to move.
Restricting MLS participation. It is discriminatory to restrict participation in any multiple listing service based on one’s race, religion, national origin, color, or sex.
Redlining. Redlining is the residential financing practice of refusing to make loans on properties in a certain neighborhood regardless of a mortgagor’s qualifications. In effect, the lender draws a red line around an area on the map and denies all financing to applicants within the encircled area.
- a privately owned single-family home where no broker is used and no discriminatory advertising is used, with certain additional conditions
- rental of an apartment in a 1-4 unit building where the owner is also an occupant, provided the advertising is not discriminatory
- facilities owned by private clubs and leased non-commercially to members
- facilities owned by religious organizations and leased non-commercially to members, provided membership requirements are not discriminatory
Jones v. Mayer
In 1968, the Supreme Court ruled in Jones v. Mayer that all discrimination in selling or renting residential property based on race is prohibited under the provisions of the Civil Rights Act of 1866. Thus, while the Federal Fair Housing Act exempts certain kinds of discrimination, anyone who feels victimized by discrimination based on race may seek legal recourse under the 1866 law.
Equal Opportunity in Housing poster
In 1972, HUD instituted a requirement that brokers display a standard HUD poster. The poster affirms the broker’s compliance with fair housing laws in selling, renting, advertising, and financing residential properties. Failure to display the poster may be construed as discrimination.
Fair Housing Amendments Act of 1988
Amendments to federal fair housing laws prohibit discrimination based on sex and discrimination against handicapped persons and families with children.
- in government-designated retirement housing
- in a retirement community if all residents are 62 years of age or older
- in a retirement community if 80 % of the dwellings have one person who is 55 years of age or older, provided there are amenities for elderly residents
- in residential dwellings of four units or less, and single family houses if sold or rented by owners who have no more than three houses
Discrimination by the client
Fair housing laws apply to home sellers as well as to agents, with the exception of the exemptions previously cited. If an agent goes along with a client’s discriminatory act, the agent is equally liable for violation of fair housing laws. It is thus imperative to avoid complicity with client discrimination. Further, an agent should withdraw from any relationship where client discrimination occurs.
Examples of potential client discrimination are:
- refusing a full-price offer from a party
- removing the property from the market to sidestep a potential purchase by a party
- accepting an offer from one party that is lower than one from
Violations and enforcement
Persons who feel they have been discriminated against under federal fair housing laws may file a complaint with the Office of Fair Housing and Equal Opportunity (FHEO) within HUD, or they may file suit in a federal or state court.
Filing an FHEO complaint. Complaints alleging fair housing violations must be filed with the Office of Fair Housing and Equal Opportunity within one year of the violation. HUD then initiates an investigation in conjunction with federal or local enforcement authorities.
If HUD decides that the complaint merits further action, it will attempt to resolve the matter out of court. If efforts to resolve the problem fail, the aggrieved party may file suit in state or federal court.
Filing suit. In addition to or instead of filing a complaint with HUD, a party may file suit in state or federal court within two years of the alleged violation.
Penalties. If discrimination is confirmed in court, the respondent may be enjoined to cease practicing his or her business. For example, a discriminating home builder may be restrained from selling available properties to buyers. Also, the plaintiff may be compensated for damages including humiliation, suffering, and pain. In addition, the injured party may seek equitable relief, including forcing the guilty party to complete a denied action such as selling or renting the property. Finally, the courts may impose civil penalties for first-time or repeat offenders.
Equal Credit Opportunity Act (ECOA). Enacted in 1974, the Equal Credit Opportunity Act requires lenders to be fair and impartial in determining who qualifies for a loan. A lender may not discriminate on the basis of race, color, religion, national origin, sex, marital status, or age. The act also requires lenders to inform prospective borrowers who are being denied credit of the reasons for the denial.
Home Mortgage Disclosure Act. This statute requires lenders involved with federally guaranteed or insured loans to exercise impartiality and nondiscrimination in the geographical distribution of their loan portfolio. In other words, the act is designed to prohibit redlining. It is enforced in part by requiring lenders to report to authorities where they have placed their loans.
Americans with Disabilities Act of 1990
Purpose. The Americans with Disabilities Act (ADA), which became law in 1990, is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including employment, education, transportation, and facilities that are open to the general public. The purpose of the law is to make sure that people with disabilities have the same rights and opportunities as everyone else.
The Americans with Disabilities Act Amendments Act (ADAAA) became effective on January 1, 2009. Among other things, the ADAAA clarified that a disability is “a physical or mental impairment that substantially limits one or more major life activities.” This definition applies to all titles of the ADA and covers private employers with 15 or more employees, state and local governments, employment agencies, labor unions, agents of the employer, joint management labor committees, and private entities considered places of public accommodation. Examples of the latter include hotels, restaurants, retail stores, doctor’s offices, golf courses, private schools, day care centers, health clubs, sports stadiums, and movie theaters.
- Title I (Employment) concerns equal employment opportunity. It is enforced by the U.S. Equal Employment Opportunity Commission.
- Title II (State and Local government) concerns nondiscrimination in state and local government services. It is enforced by the U.S. Department of Justice.
- Title III (Public Accommodations) concerns nondiscrimination in public accommodations and commercial facilities. It is enforced by the U.S. Department of Justice.
- Title IV (Telecommunications) concerns accommodations in telecommunications and public service messaging. It is enforced by the Federal Communications Commission.
- Title V (Miscellaneous) concerns a variety of general situations including how the ADA affects other laws, insurance providers, and lawyers.
Real estate practitioners are most likely to encounter Titles I and III and should acquire familiarity with these. In advising clients, licensees are well-advised to seek qualified legal counsel.
Requirements. The act requires landlords in certain circumstances to modify housing and facilities so that disabled persons can access them without hindrance.
The ADA also requires that disabled employees and members of the public be provided access that is equivalent to that provided to those who are not disabled.
- Employers with at least fifteen employees must follow nondiscriminatory employment and hiring practices.
- Reasonable accommodations must be made to enable disabled employees to perform essential functions of their jobs.
- Modifications to the physical components of a building may be necessary to provide the required access to tenants and their customers, such as widening doorways, changing door hardware, changing how doors open, installing ramps, lowering wall-mounted telephones and keypads, supplying Braille signage, and providing auditory signals.
- Existing barriers must be removed when the removal is “readily achievable,” that is, when cost is not prohibitive. New construction and remodeling must meet a higher standard.
- If a building or facility does not meet requirements, the landlord must determine whether restructuring or retrofitting or some other kind of accommodation is most practical.
Penalties. Violations of ADA requirements can result in citations, business license restrictions, fines, and injunctions requiring remediation of the offending conditions. Business owners may also be held liable for personal injury damages to an injured plaintiff.
Interstate Land Sales Full Disclosure Act
The Interstate Land Sales Full Disclosure Act (ILSA) is a federal law passed by Congress in 1968. The purpose of the Act is to protect consumers from a developer’s misrepresentation of material facts about a property being purchased sight unseen through means of interstate commerce or the mail.
The Act prohibits fraud and misrepresentation. It also requires specific provisions in purchase and lease agreements. One such provision is the buyer’s right to cancel. Further, it requires the developer of a subdivision containing 100 or more lots to register the property by submitting a Statement of Record with HUD and to provide a property disclosure report to a buyer prior to the contract being signed. The Statement and the disclosure report include the state of the property’s title, physical characteristics of the property, availability of roads and utilities, and current ownership information.
The Act specifically prohibits a developer or agent from using interstate commerce or mail to lease or sell any lot without meeting these requirements. Antifraud provisions applicable to subdivisions with 25 or more lots are included in the Act.
Once the buyer receives the report, he or she may cancel the contract any time before midnight on the seventh day after signing the contract. If the buyer does not receive the report prior to signing the contract, he or she may bring legal action within 2 years of contract signing to have the contract revoked.
If the subdivision contains fewer than 25 lots, it is exempt from provisions of the Act. If the land is already developed, it is exempt from the Act. Transactions that do not involve a developer or agent in the sale or lease of a lot in a subdivision are also exempt.
Other exemptions include cemetery lots, sales to builders, land being sold by any government agency, and land zoned for industrial or commercial development.
ILSA is administered by the Consumer Financial Protection Bureau and enforced by HUD. Violations of ILSA are subject to criminal penalties, civil damages and monetary penalties, and/or suspension of the developer’s registration.