Chapter 12
FAIR HOUSING LAWS
State and federal fair housing laws prohibit undesirable discrimination in practically all-residential housing transactions. The aim of the law is to provide an unbiased market in housing, so that all persons have an equal opportunity to buy or rent a home based upon their financial means, rather than their religious or ethnic background, sex, marital status, or physical and mental condition.
Real estate brokers and salespersons must thoroughly understand the fair housing laws and be able to recognize and to avoid discriminatory practices. Failure to comply with the fair housing laws will result in license suspension and criminal sanctions.
Fair housing (open housing, equal housing) laws have been established by the United States Congress over a period of years through-a series of Civil Rights Acts and amendments. Each state must comply with the federal law or enact its own law, which must be equivalent to or greater than the federal law. The federal laws and the Massachusetts Fair Housing laws are discussed and compared in this chapter.
FEDERAL FAIR HOUSING LAWS
THE CIVIL RIGHTS ACT OF 1866. The first civil rights law was passed in 1866 as an offshoot of the thirteenth amendment, which abolished slavery. The purpose of the act was to prohibit discrimination based upon race. In part, the act stated that, "All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real and personal property."
In 1968 The United State Supreme Court, in the case of Jones v. Alfred H. Mayer Company, 392 U.S. 409 (1968), ruled that the Civil Rights Act of 1866 barred all private or public racial discrimination in the sale or rental of housing. As a result of this case, discrimination on the basis of race is barred in all housing transactions regardless of any exemption granted by a state or federal fair housing law.
With the exception of a few court decisions, there was little action taken to enforce fair housing principles until 1962 when an executive order was issued barring discrimination in FHA and VA financed housing. In 1964 Congress passed a Civil Rights Act banning discrimination in any housing program, which was funded wholly or in part by the federal government.
THE CIVIL RIGHTS ACT or 1968, TITLE VIII.
This act, known as the Fair Housing Law, barred discrimination based upon race, color, religion, or national origin in connection with the sale or rental of most housing and vacant land offered for residential use. In 1974, the Act was amended to ban sex (gender) discrimination.
THE 1988 AMENDMENT TO THE CIVIL RIGHTS ACT.
In 1988 the Civil Rights Act of 1968 was amended to include among the protected classes, the physically and mentally handicapped, and families with children under 18.
PRACTICES PROHIBITED BY THE FEDERAL FAIR HOUSING LAW.
The following acts are prohibited in the sale or rental of residential property:
Refusing to sell or rent to, deal with or negotiate with any individual in the protected class.
Discriminating in terms, conditions or privileges for buying or renting.
Discriminating in advertising sales or rentals.
Falsely representing the availability of housing.
Inducing panic selling for profit by threatening that members of a protected class are entering the neighborhood, i.e. blockbusting.
Channeling prospective buyers or renters to selected neighborhoods on the basis of race or national origin, i.e. steering.
Denying persons membership in or limiting their participation in any multiple listing service, real estate broker's organization or other facilities related to the sale or rental of dwellings as a means of discrimination.
Refusing to make mortgage loans in certain geographical sections of a city, i.e. redlining. Note: The Sherman Antitrust Act prohibits "redlining" (the practice of limiting mortgage loans to certain areas of the community).
Refusing or denying mortgage loans or charging higher interest to applicants because of their protected class status.
Discriminating in appraising by assigning a lower value to a property because it is in a protected class neighborhood.
HOUSING TRANSACTIONS EXEMPTED FROM THE FEDERAL FAIR HOUSING LAW.
The following transactions are exempted from the federal fair housing law:
The non-broker assisted sale or rental by an owner-occupant of a single family home is exempt, provided discriminatory advertising is not used. This exemption is limited to one sale or rental in any two-year period. If the owner participates in three or more transactions in any twelve-month period, the owner is considered to be in the business of selling or renting real estate, and the exemption does not apply.
The non-broker assisted rental (not sale) of rooms or units in owner-occupied two, three or four family dwellings with no discriminatory advertising is exempt.
ORGANIZATIONS EXEMPTED FROM THE FEDERAL FAIR HOUSING LAW.
In certain situations, the following organizations are exempted from the federal fair housing law:
Religious organizations may limit the sale, rental or occupancy of dwellings owned or operated by them, except for commercial purposes, to members of the same religion, provided that membership in that religion is not based upon race, color, sex or national origin.
Private clubs may limit rental or occupancy of premises owned by them, except for commercial purposes, to club members.
NOTE: The above-listed exemptions in the 1968 Fair Housing Law are not allowed where they violate the 1866 Civil Rights Act which bars racial discrimination.
DISCRIMINATION AGAINST HANDICAPPED.
The 1988 amendment to the 1968 Civil Rights Act defines a handicapped person as one having a physical or mental impairment, which substantially limits one or more major life activities. A person having a record of such impairment or being regarded as having such impairment is considered to be handicapped.
Persons Not Considered Handicapped. The following persons are not considered handicapped and are not included in the protected class:
Current drug addicts. Alcoholics are considered handicapped.
Persons who have been convicted of a drug related felony.
Transvestites.
Any person whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others. AIDS victims are considered handicapped.
Modifications for the Handicapped.
Wheelchair handicapped must be permitted to modify their existing premises, at their own expense, to permit full enjoyment of the premises.
Handicapped Construction Requirements.
Effective March, 1991, newly constructed dwellings containing four or more units must be handicapped accessible. This includes appropriate designs of hallways, doorways, kitchens and baths, lowered light switches and thermostats, and raised electrical outlets.
DISCRIMINATION AGAINST FAMILIES WITH CHILDREN (FAMILIAL STATUS).
The 1988 amendment bars discrimination against adults living with children under age eighteen or against adults in the process of having children or adopting children.
Exemptions for Elderly Housing Projects.
Discrimination against adults with minor children is permissible in state and federally approved housing specifically designed and operated to assist elderly persons. To qualify for the exemptions, 100% of the residents in a community must be age sixty-two or older, or 80% of the residents would have to be age fifty-five or older, and significant facilities and services for the elderly must be provided. Under a grandfather clause, existing adult communities, which do not meet the age requirements, do not have to force out persons under those ages.
ENFORCEMENT or THE FEDERAL CIVIL RIGHTS ACTS
ENFORCEMENT OF THE CIVIL RIGHTS ACT OF 1866.
A person who is discriminated against on the basis of race may bring an immediate civil suit in the Federal Court. The court can stop the sale to another person, and can order that the property be sold or rented to the complainant. Damages may be awarded to the complainant by the court.
ADMINISTRATIVE ENFORCEMENT AND PENALTIES FOR VIOLATION OF THE 1968 FEDERAL FAIR HOUSING LAW.
Fair housing cases are decided by administrative law judges (Ala) at HUD unless one of the parties demands a jury trial. Offenders can be fined up to $10,000 for the first violation, $25,000 for a second offense within the last five years, and $50,000 for two or more violations within the last seven years. Defendants electing court hearings face possible punitive damages and jail sentences in addition to fines. Victims of discrimination may opt to file complaints with their state regulatory agency or court if the state law is "substantially equivalent" to the federal law.
MASSACHUSETTS FAIR HOUSING LAW, M.G.L., Chap.151B
Except for minor differences, the Massachusetts Fair Housing Law is substantially equivalent to the federal law. In all cases of discrimination, the stricter law will be applied.
PROTECTED CLASSES.
Massachusetts has three protected classes with prohibited practices for each one. Each class with its prohibitions and exemptions is explained below.
NOTE: BECAUSE OF THE 1866 CIVIL RIGHTS ACT, NONE OF THE STATE EXEMPTIONS APPLY TO DISCRIMINATION BASED UPON RACE.
CLASS ONE. Class one excludes discrimination against persons because of race, color, religion, national origin, age, sex, sexual orientation, ancestry, marital status, veteran history, blindness or hearing impairment.
Prohibited Practices for Class One are:
Refusal to sell or rent.
Discrimination in terms, conditions or privileges of sale or rental.
Inquiring about or recording protected class status.
Blockbusting, i.e., making representations or initiating unrequested communication regarding entry into neighborhoods of persons of a particular age, race, color, religion, sex, national or ethnic origin, economic level or a handicapped person, or a person having a child, for purpose of inducing or preventing a sale or rental.
Steering, i.e., failure to disclose or offer to show all properties within requested price range regardless of location.
Falsely representing the availability of housing.
Refusing to sell or rent housing to persons over 18 years of age. The age protection does not bar an owner from refusing to sell or rent to a minor who is not residing with an adult.
Major Exemption for Class One:
The leasing or renting of units in owner-occupied two-family houses (except for race). Regardless of the type of property, there are no exemptions from the prohibition against discriminatory advertising.
Major Exemptions for Class One Relative to Age:
State or federally aided elderly developments.
Elderly retirement community with five acres or more, for persons over sixty- two years, or for persons over fifty-five years with significant facilities and services for this population.
CLASS TWO.
Class Two excludes discrimination against persons receiving public assistance or rental assistance.
Prohibited Practice for Class Two:
The refusal to rent to subsidy recipients because they hold a federal, state or local subsidy or because of program requirements.
Major Exemptions for Class Two: None.
CLASS THREE - FAMILIAL STATUS.
Class three excludes discrimination against adults with minor children. Note: Owners may refuse to deal with minors not residing with an adult.
Prohibited Practices For Class Three are:
Refusing to rent, sell or otherwise deny housing accommodations to an adult with a child who will occupy the premises with such person.
Refusing to sell or rent housing accommodations to families with children under six based solely on the presence of lead paint or the requirement to remove lead paint.
Major Exemptions for Class Three are:
Dwellings of three units or less, one of which is occupied by an elderly person for whom the presence of children would be a hardship.
Temporary leasing/sub-leasing for one year or less.
Leasing of a unit in an owner-occupied two family house.
Dwellings of 100 or more units of which 50% are occupied by children (16 or less). Note: Owners of rental properties can lawfully refuse to rent to a family that is too large for the dwelling.
Sexual orientation, which involves minor children as the sex object.
HANDICAPPED PERSONS.
The Massachusetts Fair Housing Law contains provisions similar to the federal law regarding discrimination against handicapped persons. Note: The Federal Fair Housing Act (as amended in 1988) provides that a landlord may require a handicapped tenant to remove any modifications to the dwelling at end of lease, providing the request is reasonable.
ENFORCEMENT OF THE MASSACHUSETTS FAIR HOUSING LAW.
The Massachusetts Commission Against Discrimination (MCAD) performs enforcement of the state's fair housing law. Following an investigation and hearing MCAD may refer the matter to a state court for injunctive relief. If it is found by MCAD, at a public hearing, that a respondent has engaged in an unlawful housing practice a civil penalty may be assessed. For a first offense the penalty cannot exceed $10,000; for a second, $25,000; for a third, $50,000. The penalty is paid to the Commonwealth. A petitioner is also entitled to damages for expenses incurred in obtaining alternative housing, moving and storage space.
VIOLATIONS OF FAIR HOUSING LAW BY REAL ESTATE BROKERS OR SALESPERSONS.
A final determination by MCAD of discrimination by a broker or salesperson results in a sixty-day license suspension; a second such determination within a two-year period results in a ninety-day license suspension. The penalty for blockbusting is a fine of from $1000 to $2500 and/or six months in jail. Brokers may be fined from $10 to $100 per day for failing to post a fair housing notice in their office.
OVERALL VIEW OF FAIR HOUSING ACT.
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed . . . "
From the Declaration of Independence
Adopted July 4, 1776
The Declaration of Independence, one of the greatest documents in human history, proclaimed that all people have certain human rights. The "pursuit of happiness," for most of us, means the opportunity to own our own home, or live where we want to live. However, the blessings of liberty have eluded millions of Americans, who have struggled through the years to attain the American Dream.
The signers of the Declaration intended "all men" to include people of every race and both sexes. Early on, however, it became apparent that persons of African descent would not be accorded any rights or freedoms. Article 1 of the U.S. Constitution, adopted in 1787, quantified slaves as "three fifths" of a person in determining a state's population for Congressional representation.
The rights of African-Americans were further eroded by the 1857 Supreme Court case of Dred Scott v. Sanford. The decision declared that no Black, free or slave, could claim United States citizenship, and that Blacks had no rights that Whites were bound to respect. In addition, the ruling stated that Congress could not prohibit slavery in any United States territory. The ruling was influential because it built angry resentment in the North, and moved the Nation closer to civil war. It also paved the way for the passage of the Fourteenth Amendment to the United States Constitution in 1868, which extended full citizenship and civil rights to African- Americans. The Amendment also guaranteed all persons due process and equal protection under the law.
Following the American Civil War (1861-1865) the Thirteenth Amendment, enacted in 1865, formally abolished slavery and gave Congress the power to enforce the Article through appropriate legislation.
The following year the Reconstruction Congress passed the Civil Rights Act of 1866, which guaranteed equal rights under the law. The Act specifically provided that:
"All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property."
For over a century, the Civil Rights Act of 1866 would be of little importance combating housing discrimination, primarily because courts interpreted the prohibit public, or governmental discrimination only. Not until 1968 would the Supreme Court rule in Jones v Mayer that the Act bars all racial discrimination, private as well as public, in the sale or rental of property and that the statute, thus construed, is a valid exercise of the power of Congress to enforce the Thirteenth Amendment. Today the Act is still good law and is often used in fair housing discrimination lawsuits, especially in situations not subject to The Fair Housing Act.
In a major setback in the struggle for racial equality, the Supreme Court 1896 decision in Plessy v. Ferguson opened the door for institutionalized segregation. The famous "separate but equal" doctrine legalized the separation the races in everything from schools to public accommodations. The facilities were indeed separate, but rarely equal. The Supreme Court finally overturned the doctrine in the 1954 landmark decision in Brown v. the Topeka Board Education. This ruling outlawed the separation of the races as applied to public schools, and was soon followed by other rulings outlawing the separation of races. The Court made clear that all forms of government-endorsed segregation violated the Fourteenth Amendment.
In 1948, the U.S. Supreme Court held in Shelly v Kraemer that enforcement of racially restrictive covenants by state courts violated the equal protection clause of the Fourteenth Amendment. Thus, persons were precluded from using judicial system to enforce racial discrimination.
On November 20, 1962 President Kennedy issued Executive Order 11063, which was entitled "Equal Opportunity in Housing." The Order prohibits discrimination in the sale, rental, or use of all residential property that was own operated, or financed by the federal government. The Order had little impact because it did not provide for judicial enforcement.
The Civil Rights Act of 1964 prohibited discrimination in public accommodations, in all federally assisted programs, and in employment on the basis of race, color, religion, sex or national origin.
The year 1968 marked the beginning of the modern era of fair housing law in this country. On March 1, 1968 the Commission on Civil Disorders published the Kerner Commission Report, which showed that America was moving toward two societies, one black, one white--separate and unequal.
President Johnson first introduced fair housing legislation in1966. The three- year debate culminated in the passage of the federal Fair Housing Act. The new law was not the result of careful Congressional consideration, but rather the product of an intense debate occurring over a relatively short period of time, against a background of dramatic national events. On April 4, 1968 Dr. Martin Luther King, Jr. was assassinated in Memphis, Tennessee. President Johnson, in urging unity and peace, said "America is shocked and saddened by the brutal slaying." Dr. King was the symbol of the nonviolent civil rights protest movement.
Although the Senate had passed an amended version of the Fair Housing Bill on March 11, 1968, there was little hope that the Bill would pass the House of Representatives. After Dr. King's assassination, however, the House hastily passed the Fair Housing Act. President Johnson signed into law the Civil Rights Act of 1968 (also known as The Fair Housing Act) on April 11, 1968.
The 1968 Law prohibited discrimination on the basis of race, color, religion, and national origin. The Act was, for the most part, ineffective in combating housing discrimination. The enforcement mechanisms were simply too weak to have any perceptible impact on housing discrimination.
In 1974, Congress passed the Housing and Community Development Act, which added sex as another basis on which discrimination was prohibited. This prohibited basis includes sexual harassment, but not sexual orientation.
The passage of the 1988 Fair Housing Amendments Act represented the most important development in fair housing law in the past 20 years. Federal civil rights protections were extended to families with children, and to persons with physical and mental handicaps. The 1988 Fair Housing Amendments Act radically changed the HUD enforcement procedure by adding a wide range of serious sanctions and remedies. Monetary awards are now available for actual damages as well as for non-economic injuries such as embarrassment, humiliation, inconvenience, and mental anguish. The cap of $1000.00 on punitive damages was removed in Federal District Court actions.
HISTORY OF RESIDENTIAL SEGREGATION
1920's: Whites who controlled the housing industry implemented a series of techniques designed to segregate the Black population. These techniques included 1) racial zoning; 2) restrictive covenants; and 3) discriminatory sales, rental, and financing practices.
1930's Segregation was perpetuated by federal policies that encouraged racial discrimination in federally assisted housing.
1940's-50's-60's: The Age of Industrialization and Urbanization brought millions of Black families to cities in both the South and North. The primary method of providing housing opportunities was through "blockbusting" neighborhoods next to ghettos.
1960's. , Geographic regions throughout the United States experienced an increase in residential segregation by RACE.
1980's: HUD Study estimated that approximately 2 million incidents of housing discrimination were occurring every year.
It is naĂŻve to think that 50 years of segregated housing patterns institutionalized discrimination would be reversed with the passage of this country's fair housing laws. Housing segregation has multiple causes, such as economic factors, and personal preference to live with persons of the same race; however, the primary cause of the patterns of racial segregation identified in metropolitan areas must be attributed to discrimination.
HISTORICAL OVERVIEW OF FAIR HOUSING IN AMERICA
1787 U.S. Constitution Quantified slaves as three- fifths of a person.
1791 Bill of Rights First 10 Amendments to the Constitution, including freedom of speech and the press, the right to due process, and the right of free exercise of religion.
1857 Dred Scott Decision Blacks were denied U.S. citizenship.
1865 Thirteenth Amendment Abolished slavery.
1866 Civil Rights Act of 1866 Guaranteed all citizens equal rights under the law.
1868 Fourteenth Amendment Extended full citizenship to persons of African descent; Guaranteed all persons due process and equal protection.
1896 Plessy v. Ferguson Supreme Court decision establishing "separate but equal" doctrine
1948 Shelly v. Kraemer Supreme Court decision barring state courts from enforcing racially restrictive covenants.
1954 Brown v. Board of Education Supreme Court decision overturning the "separate but equal" doctrine as applied to public schools.
1962 Executive Order 11063 Anti-discrimination mandate directed to all federal agencies.
1964 Civil Rights Act of 1964 Prohibited discrimination in public accommodations, in federally assisted programs and in employment on the basis of race, color, religion, sex or national origin.
1968 Kerner Commission Report Reported America was moving toward two societies, one black, one white--separate and unequal.
1968 The Civil Rights Act of 1968 Prohibited discrimination on the basis of race, color, religion, and national origin.
1968 Jones v. Mayer Supreme Court decision ruling that the Civil Rights Act of 1866 applies to private as well as to public discrimination.
1973 Rehabilitation Act of 1973 Prohibited discrimination against persons with disabilities in all federally assisted programs, including housing.
1974 Housing and Community Development Act Added sex as another basis on which discrimination was prohibited.
1988 The 1988 Fair Housing Added familial status and Amendments Act physical and mental handicap as protected classes. Greatly strengthened enforcement mechanisms.
EXEMPTIONS
The Fair Housing Act contains seven exemptions with respect to property transactions not subject to the Act's general mandate of nondiscriminatory treatment. It is important to note, however, that a housing provider exempt from coverage under the Fair Housing Act could still be liable for racial discrimination under the Civil Rights Act of 1866. The Civil Rights Act of 1866 is still good law and contains no exemptions to coverage.
*Religious Organizations - A religious organization may discriminate with respect to its noncommercial property provided that the religion itself doesn't discriminate on the basis of race, color or national origin.
*Private Clubs - The Act does not prohibit a private club, not in fact open to the public, from limiting the rental or occupancy of noncommercial lodgings to members.
*Occupancy Standards - The Act does not limit the applicability of any reasonable local, state or federal restrictions regarding the maximum number of persons permitted to occupy a dwelling.
*Drug Conviction - The Act does not prohibit conduct against a person because such person has been convicted in a court of law for the illegal manufacture or distribution of a controlled substance.
*Familial Status - Discrimination based on familial status will not apply to housing qualifying for exempted status as housing for older persons.
*Single Family Housing - The sale or rental of a single-family house by the owner will be exempt from coverage provided that the following conditions are met:
(1) The owner does not own or have any interest in more than three single-family houses at any one time.
(2) The house is sold or rented without the services of a real estate agent or the facilities of any person in the business of selling or renting dwellings. The exemption will apply to one sale within a two-year period, unless the owner was the most recent occupant.
*Mrs. Murphy's Exemption - The Act does not cover owner-occupied dwellings designed for occupancy by no more than four families living independently of each other.
DISCRIMINATORY HOUSING PRACTICES
The Fair Housing Act prohibits the following discriminatory housing practices:
NOTE: The first two provisions do not include the protected class handicap. The 1988 Amendments Act added several new provisions, which deal exclusively with protections for this class. The reason for treating handicap discrimination in this way was apparently to clarify that the law does not condemn housing available only to persons with physical or mental disabilities.
*To refuse to sell or rent after the making of a bona fide offer, or to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial national origin.
*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 in connection therewith, because of race, color, religion, sex, familial status, or national origin.
*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 that indicates any preference, limitation, or discrimination based on race, religion, sex, handicap, familial status, or national origin, or an intention any such preference, limitation, or discrimination.
*To represent to any person because of race, color, religion, sex, familial status, or national origin that any dwelling is not available for in sale, or rental when such dwelling is in fact so available.
*For profit, to induce or attempt to induce any person to sell or rent any dwelling by representation regarding the entry or prospective entry neighborhood of a person or persons of a particular race, color, religion, handicap, familial status, or national origin.
*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 - -
(1) that buyer or renter,
(2) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available,
(3) or any person associated with that buyer or renter.
*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 in connection with such dwelling, because of handicap of - -
(1) that buyer or renter,
(2) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available,
(3) or any person associated with that buyer or renter.
*To refuse to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises, except that in the case of a rental, the landlord may where it is reasonable to do so, condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.
*To refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a handicapped person equal opportunity to use or enjoy the dwelling.
*To fail to design and construct covered multifamily dwellings for first occupancy after March 12, 1991, that are accessible to and usable by handicapped persons.
*To deny any person access to or membership or participation in any multiple listing service, real estate brokers' organization or other service, organization, or facility relating to the business of selling or renting dwellings, or to discriminate in the terms or conditions of such access, membership, or participation, on account of race, color, religion, sex, handicap, familial status, or national origin.
*For persons whose business includes engaging in residential real estate related transactions to discriminate against any person in making available such a transaction, or in the terms or conditions of such a transaction, because of race, color, religion, sex, handicap, familial status, or national origin.
HUD REGULATIONS
The 1988 Fair Housing Amendments Act contains provisions the Department of Housing and Urban Development, or HUD, the authority to issue rules to implement The Fair Housing Act. HUD's Regulations were based in part, on twenty years of housing discrimination cases originating under the Act. In 1972, the Supreme Court ruled in Trafficante v Metropolitan Life Ins Co. , the very first decision involving the Civil Rights Act of 1968, that interpretations of the Act by HUD are entitled to a good deal of weight in construing the statute. The reason is because HUD is the primary agency responsible for implementing and administering the Act. The new Regulations went into effect on March 12, 1989 and have given a tremendous amount of authoritative material concerning the meaning of the Fair Housing Act.
Unlawful to sell or rent or to negotiate for the sale or rental:
Prohibited actions under this section include:
*Failing to accept or consider a bona fide offer because of race, religion, sex, handicap, familial status, or national origin.
*Refusing to sell or rent a dwelling to, or negotiate for the sale or re dwelling with any person because of protected class status.
*Imposing different sales prices or rental charges for the sale or rental of a dwelling upon any person because of membership in a protected class.
*Using different qualification criteria or applications, or sale or rental standards or procedures, such as income standards, application requirements, application fees, credit analysis or sale or rental approval procedures based on protected class status.
*Evicting tenants because of their race, color, religion, sex, handicap, familial , status, or national origin, or because their guests are members of a protected class.
Discrimination in terms, conditions and privileges and in service facilities:
Prohibited actions under this section include:
*Using different provisions in leases or contracts of sale, such relating to rental charges, security deposits and the terms of a lease a relating to down payment and closing requirements, because of race, religion, sex, handicap, familial status, or national origin.
*Failing or delaying maintenance or repairs of sale or rental dwellings because of membership in a protected group.
*Failing to process an offer for the sale or rental of a dwelling, or to communicate an offer accurately because of protected class status.
*Limiting the use of privileges, services, or facilities associated with a dwelling because of race, color, religion, sex, handicap, familial status, or national origin.
*Denying or limiting services or facilities in connection with sale or rental of a dwelling because a person failed or refused to provide sexual favors.
Other prohibited sale and rental conduct:
Prohibited actions under this section include:
*Restricting or attempting to restrict the choices of a person by word or conduct in connection with seeking, negotiating for, buying or renting a dwelling so as to perpetuate, or tend to perpetuate segregated housing patterns based on membership in a protected class.
*Engaging in any conduct, which related to the provision of housing or of services or facilities that otherwise makes unavailable or denies dwellings to protected persons.
*Discouraging any person from inspecting, purchasing or renting a dwelling on account of race, color, religion, sex, handicap, familial status, or national origin by exaggerating drawbacks, and failing to inform any person of desirable features of a dwelling or neighborhood.
*Communicating to any person that he or she would not be compatible with existing residents of a community because of their protected class status.
*Assigning any person to a particular section of a community, neighborhood or dwelling, or to a particular floor of a building because or race, color, religion, sex, handicap, familial status, or national origin. This practice is also known as "steering."
*Employing codes or other devices to segregate or reject applicants, purchasers, or renters, refusing to take or show listings of dwellings in certain areas because of race, color, religion, sex, handicap, familial status, or national origin.
*Refusing to provide municipal services or property or hazard insurance for dwellings, or providing such services or insurance differently because of race, color, religion, sex, handicap, familial status, or national origin.
Discriminatory representations on the availability of dwellings:
Prohibited actions under this section include:
*Indicating through words or conduct that a dwelling which is available for inspection, sale, or rental has been sold or rented.
*Representing that covenants, or other deed, trust or lease provisions purport to restrict the sale or rental of dwellings because of protected class status preclude the sale or rental of a dwelling to any person from a protected class.
*Enforcing covenants or other deed, trust, or lease provision preclude the sale or rental of a dwelling to any person because of member protected class.
*Limiting information, by word or conduct, regarding suitably priced dwellings available for inspection, sale or rental to members of a protected group.
*Providing false or inaccurate information regarding the availability of a dwelling for sale or rental to any person, including testers, regardless of such person is actually seeking housing, based on protected class status.
Blockbusting:
Prohibited actions under this section include:
*For profit, to induce or attempt to induce a person to sell or rent a by representations regarding the entry or prospective entry into the neighborhood of members of a particular protected group.
*In establishing a discriminatory housing practice under this section, it is not necessary that there was in fact profit, as long as profit was a factor for engaging in the blockbusting activity
*Engaging in conduct, including uninvited solicitations, that conveys to a person that a neighborhood is undergoing or is about to undergo a change in the race, color, religion, sex, handicap, familial status, or national origin , to encourage the person to offer a dwelling for sale or rental.
*Encouraging any person to sell or rent a dwelling by asserting that the entry or perspective entry of persons of a Particular protected class will result in undesirable consequences for the project, neighborhood, or community such as an increase in criminal or antisocial behavior, or a decline in the quality of schools or other services or facilities.
Discrimination in Residential Real Estate-Related Transactions:
It is illegal for any person or other entity whose business includes engaging in residential real estate-related transactions to discriminate against any person in making available such a transaction, or in the terms or conditions of the transaction because of a person's status in a protected class. The term residential real estate-related transaction means:
(1) The making or purchasing of loans, or providing other financial assistance for purchasing, constructing, improving, or maintaining a dwelling. Included in this section would be loans secured by residential real estate.
(2) The selling, brokering, or appraising of residential real property
Prohibited actions under this section include:
*Refusing to provide information to any person concerning the availability of loans or other financial assistance, or providing information that is inaccurate or different because of membership in a protected class.
*Refusing to purchase loans, debts, or securities, or imposing different terms and conditions for such purchase to persons of a protected group.
*Using different policies, practices, or procedures in evaluating determining creditworthiness of any person in connection with the provision of any loan or other financial assistance for a dwelling because that person is a of a protected class.
*Determining the type of loan or other financial assistance to be provided with respect to a dwelling, or fixing the amount, interest rate, duration or other terms for the loan or other financial assistance because of membership in a group.
Unlawful practices in the selling, brokering, or appraising of residential real property include:
*An appraisal that improperly takes into consideration race, color, sex, handicap, familial status, or national origin in estimating value.
*Using an appraisal that improperly takes into consideration the classes in estimating value in connection with the sale, rental, or financing of a dwelling where the person knows or reasonably should know that the appraisal was based on discriminatory factors.
Nothing in this section prohibits a person engaged in the business or furnishing appraisals of residential real property from taking into consideration factors other than race, color, religion, sex, handicap, familial status, or national origin.
NOTE: Section 818 of the Fair Housing Act makes it unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having encouraged any other person in the exercise or enjoyment of, any right protected by the statute.
AIDS Disclosure
Does the Fair Housing Act prohibit the disclosure that a seller or occupant of a dwelling has a Human Immunodeficiency Virus infection, or has been diagnosed with AIDS? This was the topic of a debate effectuated by a series of letters between former General Counsel of HUD, Frank Keating, and former General Counsel of the National Association of Realtors, Robert Butters. The debate culminated in both HUD and the National Association of Realtors establishing policies on AIDS disclosure. Both entities agreed from the outset that unsolicited statements made by a real estate agent that a current or previous occupant of the property has AIDS would violate the Act. In responding to an unsolicited question from a buyer or renter, a real estate agent may or may not violate the Act, according to Mr. Keating, depending upon the nature of the response and other facts and circumstances involved. The legislative history of the Fair Housing Act makes it clear, however, that Congress intended coverage to include persons suffering from communicable diseases, such as AIDS.
HUD's AIDS Disclosure Policy
It is illegal for real estate agents to make unsolicited disclosures current or former occupant of the property has AIDS. If a prospective buyer directly asks you if a current or former occupant has AIDS, and you know this is in fact true, HUD advises that you should not respond.
National Association of Realtor's AIDS Disclosure Policy
If a prospective buyer directly asks you if a current or former occupant has AIDS, and you know this is in fact true, The National Association of Realtors advises you to respond as follows:
"It is the policy of our firm not to answer inquiries of this nature one way or the other since our firm feels that this information is not material to the transaction; in addition, any type of response by me or other agents of our firm may be in violation of the federal fair housing laws. If you believe this information is relevant decision to buy the property, you must pursue this investigation on your own."
THE AMERICANS WITH DISABILITIES ACT
The Americans with Disabilities Act, or ADA was signed into law on 1990 by President Bush, and has been called the most comprehensive civil rights legislation to be enacted in the last quarter century. The purpose of the ADA is to eliminate discrimination directed toward the approximately 43 million individuals with disabilities, and allow them to enter the social and economic mainstream of society. This will be accomplished by providing equal opportunities in employment, transportation, access to goods and services offered by both the public and private sector, and communications.
The ADA was not intended to cover housing, and specifically "facilities that are covered or expressly exempted from coverage under Housing Act of 1968." However, the ADA could be applied to facilities that operate a "place of public accommodation," which would be covered by Title III, such as rental office in an apartment complex. Title III mandates that public facilities and services must be accessible to persons with disabilities. Accommodations must remove architectural barriers whenever readily achievable, make reasonable changes in policies, practices and procedures, and auxiliary aids or services unless to do so would result in an undue burden, or would pose a direct threat to the health or safety of others.
CLARIFICATION OF THE FAIR HOUSING ACT AND THE AMERICANS WITH DISABILITIES ACT
There is confusion concerning a condominium board's obligations as it relates to the Fair Housing Act (Title VIII of the Civil Rights Act) and the Massachusetts provision.
The ADA Americans with Disabilities Act (ADA) does not apply retroactively to residential buildings. The ADA applies only to places where the public is to be accommodated.
The Fair Housing Act (FHA) applies to condominiums. In brief, the FHA was amended in 1988 and has major changes, two of which are as follows:
To refuse to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises, except that in the case of a rental, the landlord may where it is reasonable to do so, condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.
2. To refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a handicapped person equal opportunity to use or enjoy the dwelling.
It is clear that the burden of cost of the modifications and/or alterations is to be at the expense of the owner of the premises. It is important to note that the Legislature in Massachusetts has made clear that a condominium trust or condominium association is considered the owner of such property and must bear the burden of cost of the modifications and/or alterations. Such requests by a unit owner must be reasonable. Clearly, door assist electronic buttons, wheel chair ramps, and elevator buttons with Braille counterparts would be considered reasonable. It should be noted that there is no violation of law unless said requests are unreasonably denied. If there is no formal request then there is no violation of law. The person making the request must have a legitimate disability. If there is any doubt as to whether or not a person has a disability, then expert documentation from qualified people in the medical profession can be demanded by the Trustees or condominium board members.
Remember, the 1988 amendment to the 1968 Civil Rights Act defines a handicapped person as one having a physical or mental impairment, which substantially limits one or more major life activities. A person having a record of such impairment or being regarded as having such an impairment is considered to be handicapped
KEY WORDS AND PHRASES
AIDS Disclosure
Americans with Disabilities Act
Blockbusting
Civil Rights Act of 1964
Civil Rights Act of 1866
Civil Rights Act of 1968
Declaration of Independence
Discriminatory Housing Practices
1988 amendment to 1968 Civil Rights Act
exemptions
familial status
Fourteenth Amendment
handicapped protection and building requirements
HUD Regulations
Massachusetts Commission Against Discrimination (MCAD)
Massachusetts Fair Housing Law G.L. Chapter 151B
panic peddling
redlining
steering
Thirteenth Amendment
SUMMARY OF FEDERAL AND STATE FAIR HOUSING LAWS
