Chapter 7

EVICTION PROCEDURES

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STATE LAWS

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RESPONSIBILITY AND LIABILITY OF BUSINESS

Real estate brokers and licensees must always work to comply with the basic anti-discrimination rules without violating the fiduciary duties that they owe to the client.The best practice is to always disclose all the rules up front and withdraw from employment if asked to violate them. The biggest risk for a licensee who violates fair housing rules is a civil suit. The FREC may also take action against a licensee who is guilty of discrimination.

Dwelling:

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.

Family:

can include a single individual.

The Americans with Disability Act of 1990...

protects those with handicaps and mandates accessibility standards in new construction and public accommodations.

The Interstate Sales Full Disclosure Act...

was passed in 1968 to protect the public from fraud by developers. It applies to subdivisions with 100 or more lots for sale.

Fair Housing Amendments

The 1988 Fair Housing Amendments Act was signed into law by President Ronald Reagan. It contained many significant provisions that strengthened the Fair Housing Act, expanding its coverage to prohibit discrimination based on either disability or familial status, such as pregnancy or the presence of children under the age of 18. New administrative enforcement mechanismswere established for HUD attorneys to bring actions on behalf of victims of housing discrimination, and revised and expanded Justice Department jurisdiction to bringsuit on behalf of victims in Federal district courts. The Act removed the cap on punitive damages, making monetary awards possible for actual damages as well as for non-economic injuries such as embarrassment and mental anguish. The amendments also contained design and construction accessibility provisions for certain new multifamily dwellings developed for first occupancy on or after March 13, 1991, in connection with prohibitions on discrimination against individuals with physical and mental disabilities.

At first glance, these exemptions seem far-reaching. However, there are very specific requirements to be fulfilled:

1. Any single-family house sold or rented by an owner is exempt: PROVIDED that such private individual owner does not own more than three such single-family houses at any one time. Also, in the case of the sales of any such single-family house by a private individual owner not residing in such house at the time of sale or who was not the most recent resident of such house prior to such sales, the exemption granted shall apply only with regard to one such sale within any twenty-four month period. Further, it is stipulated that such a private owner may not own any interest in, nor is there reserved on his behalf, title to any right to all or the portions of the proceeds from the sale or rental of more than three single-family homes at any one time

A person "in the business of selling or renting real estate" includes anyone who:

A. has, within the preceding twelve months, participated as principal in three or more transactions involving the sale or rental of any dwelling, or any interest therein, or B. has, within the preceding twelve months, participated as agent, other than in the sale of his own personal residence, in providing sales or rental facilities or sales or rental services in two or more transactions involving the sale or rental of any dwelling or any interest therein, or is the owner of any dwelling designed or intended for occupancy by, or occupied by, five or more families.

Wow - that was quite a mouthful! But it is important that you understand the restrictions that are in force and how to deal with them. Let's look at the other two exemptions:

2. The Act shall not apply to rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more than four families living independently of each other, if the owner actually maintains one of such living quarters as his residence. 3. Nothing shall prohibit a religious organization, association, or society, or any other nonprofit or organization operated, supervised, or controlled by or in conjunction with a religious organization, association, or society, from limiting the sale, rental or occupancy of dwellings which it owns or operates for other than a commercial purpose to persons of the same religion, or from giving preference to such persons, unless membership in such religion is restricted on account of race, color, or national origin. Nor shall anything prohibit a private club not in fact open to the public, which as an incident to its primary purpose or purposes provides lodgings which it owns or operates for other than a commercial purpose, from limiting the rental or occupancy of such lodgings to its members or from giving preference to its members.

Further clarifications and restrictions of this provision state that the sale or rental of any such single-family house shall be exempt only if such house is sold or rented:

A. without the use in any manner of the sales or rental facilities or the sales or rental services of any real estate broker, agent, salesman, or of such facilities or services of any person in the business of selling or renting dwellings, or of any employee or agent of any such broker, agent, salesman, or person; and B. without the publication, post or mailing, after notice, of any advertisement or written notice in violation of sections 804(c) of this title (discriminatory advertising); but nothing in this proviso shall prohibit the use of attorneys, escrow agents, abstractors, title companies, and other such professional assistance as necessary to perfect or transfer title.

CIVIL RIGHTS ACT OF 1866

After the Civil War ended, the U.S. entered a period known as Congressional Reconstruction. During this period, the Civil Rights Act of 1866 was created, and the 13th, 14th and 15th Amendments to the Constitution were ratified. The 13th amendment was the vehicle that ended slavery as it stated, "Neither slavery nor involuntary servitude...shall exist within the United States."Involuntary servitude, often of white immigrants from Europe, was also banned. The 15th amendment, ratified in 1870, was the Voting Rights Amendment. This is important to Fair Housing because it contained the terminology,"...on account of race, color, or previous condition of servitude." You can see where we are going with this. The Civil Rights Act of 1866 declared freed slaves U.S. citizens and nullified the Black Codes, which consisted of laws and proclamations passed in most southern states at the end of the Civil War restricting the civil rights of former slaves. Congress passed the Act by overriding President Andrew Johnson's veto. The Civil Rights Act of 1866 spelled out the civil rights granted to all persons (except Native Americans) born in the United States, including the right to make and enforce contracts; to sue and give evidence; and to inherit, purchase, and convey real and personal property. This act covered not only natural born citizens, but naturalized citizens as well. It stated that "All citizens of the United States shall have the same right, in every state and territory, as is enjoyed by white citizens..." Because of doubts about the constitutionality of the Civil Rights Act of 1866, the 14th Amendment defined national citizenship to include African Americans. It passed Congress on June 13, 1866 but was rejected by most southern states. Its ratification was made a condition of restoring the Union, and it was finally ratified on July 9, 1868.

Complaints

Complaints of housing discrimination should be filed with the Department of Housing and Urban Development. When complaints are filed, HUD issues a Charge of Complaint to the parties involved.A hearing will be scheduled with a HUD administrative law judge unless the parties elect to have the case heard in a federal court.This may result in an injunction (an order to stop a discriminatory practice), monetary damages, and punitive damages.

ENFORCEMENT OF THE FAIR HOUSING LAWS

Enforcement of the fair housing law is ensured by a number of consumer organizations and ultimately by the Department of Housing and Urban Development (HUD). Under the Fair Housing Act of 1968, complaints should be filed with HUD. (See www.hud.gov for more information.) The Florida Real Estate Commission may also initiate disciplinary action against a licensee found guilty of discrimination.

Disclosure Requirements

FS 498 establishes the minimum legal requirements for the disclosure that must be given to potential buyers. The disclosure requirements are similar to those in the federal Interstate Land and Sales Disclosure Act. The idea is to make sure that the buyer knows what he is buying and to ensure that he has a seven-day cancellation period after signing a binding contract.

UNIFORM LAND SALES PRACTICES ACT

FS 498 is also called the Florida Uniform Land Sales Practices Act. Under this act, the Florida Division of Land Sales, Condominiums and Mobile Homes was created under the Department of Business and Professional Regulations to regulate the sale of newly subdivided land. Subdivided land is defined as land divided into 50 or more subdivisions, parcels, or interests.

FEDERAL LAWS

Federal Laws Real Estate licensees in the state of Florida can better serve the public if they are familiar with the following Federal laws: The Civil Rights Act of 1866 The Civil Rights Act of 1968 The Americans with Disabilities Act (ADA) of 1990 The Truth in Lending regulations, passed in two distinct years,1968 and 1969 The Equal Credit Opportunity Act (ECOA) The Real Estate Settlement Procedures Act or RESPA, of 1974. All of these laws regulate the Real Estate market in some way and have some impact on the actions of a licensee.

Provisions of Chapter 498 Florida Statutes

General powers and duties of the Division of Land Sales, Condominiums and Mobile Homes are defined in FS 498.007 and include the power to establish rules, impose fines, and bring court actions against violators. FS 498 sets the standards for the disclosure or registration that must be submitted in order to sell subdivided lands to individuals. Its intent is to provide prospective buyers with full disclosure of information concerning the parcel of a subdivision they are seeking to buy. It also gives the Division of Land Sales, Condominiums and Mobile Homes the authority to investigate complaints.

Plessy v. Ferguson

In Plessy v. Ferguson (1896), the U.S. Supreme Court decided that a Louisiana law mandating separate but equal accommodations for blacks and whites on intrastate railroads was constitutional. This decision provided the legal foundation to justify many other actions by state and local governments to socially separate blacks and whites. Plessy v. Ferguson was overturned in 1954 by Brown v. Board of Education. The arrest of Homer Plessy (1862-1925) on June 7, 1892, was part of a planned challenge to the 1890 Louisiana Separate Car Act by the Citizens' Committee to Test the Constitutionality of the Separate Car Law, a small group of black professionals in New Orleans. Soon after its organization in 1891, the committee appointed Albion Tourgée its legal representative. After successfully leading a test case in which the Louisiana district court declared forced segregation in railroad cars traveling between states to be unconstitutional, the committee was eager to test the constitutionality of segregation on railroad cars operating solely within a single state. The committee's strategy was to have someone with mixed blood violate the law, which would allow Tourgée to question the law's arbitrariness. Homer Plessy, a native of south Louisiana who could "pass" as white, agreed to be the test case. The committee arranged with the railroad conductor and a private detective to detain Plessy until he was arrested. When Plessy appeared before the Louisiana district court, the court ruled that a state had the constitutional power to regulate railroad companies operating solely within its borders and concluded that the Louisiana Separate Car Act was constitutional. The decision was appealed to the state supreme court in 1893 and appealed again to the U.S. Supreme Court in 1896. By the time Plessy v. Ferguson arrived at the Supreme Court, Tourgée and his colleagues had solidified their strategy. Tourgée argued that Plessy was denied his equal protection rights under the Fourteenth Amendment, which violated the Thirteenth Amendment by perpetuating the essential features of slavery. Eight of the nine justices were unconvinced by Tourgée's arguments and ruled that neither the 13th nor 14th Amendment was applicable in this case. The majority opinion, delivered by Henry Billings Brown, attacked the 13th Amendment claims by distinguishing between political and social equality. According to this distinction, blacks and whites were politically equal (in the sense that they had the same political rights as whites) but socially unequal (blacks were not as socially advanced as whites): "Legislation is powerless to eradicate racial instincts or to abolish distinctions based on physical differences, and the attempt to do so can only result in accentuating the differences of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them on the same plane." The majority decision in Plessy v. Ferguson served as the organizing legal justification for racial segregation for over 50 years. 1 In 1968, the US Supreme Court upheld the Civil Rights Act of 1866 in the Jones vs Mayer case. This reaffirmed the principle that racial discrimination was prohibited and illegal. Mr. Jones, an African-American buyer, was refused a contract on a piece of property by the seller, Mayer Corporation, in a community near St. Louis, Missouri. Mr. Jones sued the Mayer Corporation for discrimination. The lawsuit was dismissed both in the district court and in appeal. However, the U.S. Supreme Court overruled the decision of the lower courts. With this action, the Supreme Court upheld the constitutionality of the 1866 Civil Rights Act. 1.http://www.bgsu.edu/departments/acs/1890s/plessy/plessy.html

Actions Prohibited Under the Fair Housing Act

In summary, they prohibit any of the following actions based on race, color, national origin, religion, sex, familial status or handicap: I. Refusal to rent or sell housing or to negotiate for housing II. Making housing unavailable or denying a dwelling III. Setting different terms, conditions, or privileges for sale or rental of a dwelling, or in the provision of different housing services or facilities IV. Falsely denying that housing is available for inspection, sale, or rental V. For profit, persuading owners to sell or rent (blockbusting) VI. Discrimination in residential real-estate related transactions VII. Denying anyone access to or membership in a facility or service (such as a multiple listing service) related to the sale or rental of housing VIII. Threatening, coercing, intimidating, or interfering with anyone exercising a fair housing right or assisting others who exercise that right. Let's take them one at a time and make sure we understand the details and nuances of each. We may encounter these kinds of acts every day in our business. It is important that each agent and each office follow these rules in a strict fashion. The key is to employ consistent policies.

Civil Suits

Individuals who feel that their rights have been violated can file suit in a federal district court to seek compensation. They may do this in addition to filing a complaint with HUD.However, lawsuits are often expensive and may be prohibited for individuals with limited financial resources.

VI. Discrimination in residential real-estate related transactions

It is unlawful 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 and conditions of such a transaction, because of membership in a protected group. The term "residential real estate-related transaction" is defined as: 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 estate. That casts a pretty wide net and probably encompasses anyone taking this course. Prohibited acts under this section include: A. 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 the person's membership in a protected class B. Refusing to purchase loans, debts, or securities, or imposing different terms and conditions for such purchase to persons of a protected class C. Using different policies, practices, or procedures in evaluating or 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 member of a protected class D. 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 an individual's membership in a protected group. Examples of unlawful practices in appraising, selling, or brokering residential real property include: A. An appraisal that improperly takes into consideration a person's protected status in estimating value B. Using an appraisal that improperly takes into consideration the protected 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

VIII. Threatening, coercing, intimidating, or interfering with anyone exercising a fair housing right or assisting others who exercise that right.

It is unlawful to coerce, intimidate, threaten, or interfere with any person exercising a fair housing right or on account of a person having assisted others in exercising such rights.

VII. Denying anyone access to or membership in a facility or service (such as a multiple listing service) related to the sale or rental of housing

It is unlawful 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 against him or her in the terms or conditions of such access, membership, or participation on account of membership in a protected group.

III. Setting different terms, conditions, or privileges for sale or rental of a dwelling, or in the provision of different housing services or facilities

It is unlawful 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, national origin, or disability. It is unlawful because of race, color, religion, sex, familial status, national origin, or disability to: a. Use different provisions in leases or contracts of sale, such as those relating to rental charges, security deposits, and the terms of a lease, and those relating to down payment and closing requirements b. Use different qualification criteria or applications on sale or rental, or rental standards or procedures such as income standards, application requirements, application fees, credit analysis, or sale and rental approval procedures c. Fail to make or delay maintenance or repairs of sale or rental dwellings d. Fail to process an offer for the sale or rental of a dwelling or to communicate an offer accurately It is good business practice to use a standard form to gather the same information, in the same order, every time, and keep the completed form in your files. This will give you a consistent format to use and provide a recorded history if issues arise in the future. Standard inquiries might include: Do you wish to rent or buy? Do you own or rent now? Must you sell first to purchase? What is your price range? Do you have a location preference? Do you have a preference for possession date? You should note properties that were shown to the client and keep lists of the properties that were offered to the client. If you qualified the client financially, keep the worksheets in your file. It is equally important that you be consistent in your listing presentations. Cover the same points each time and provide consistent information about your office, showing procedures, and your obligation to abide by fair housing laws.

II. Making housing unavailable or denying a dwelling

It is unlawful to refuse 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 status, national origin, or disability. Prohibited actions include: a. Representing that covenants or other deed, trust, or lease provisions which purport to restrict the sale or rental of dwellings on the basis of race, color, religion, sex, familial status, or national origin preclude the sale or rental of a dwelling to any person from a protected class. b. Limiting information given, either by word or conduct, regarding suitably priced dwellings available for inspection, sale, or rental c. Discouraging any person from inspecting, purchasing, or renting a dwelling by exaggerating drawbacks, and failing to inform any person of desirable features of a dwelling or neighborhood d. Assigning any person to a particular section of a community, neighborhood, or dwelling, or to a particular floor of a building, because of race, color, religion, sex, familial status, or national origin e. Discharging or taking another adverse action against an employee, broker, or agent because he or she refused to participate in a discriminatory housing practice

I. Refusal to rent or sell housing or to negotiate for housing

It is unlawful to refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of a dwelling because of race, color, religion, sex, familial status, national origin, or disability. Prohibited actions would include: a. Imposing different sales prices or rental charges upon any person because of membership in a protected class b. Evicting tenants because they or their guests are members of a protected class

IV. Falsely denying that housing is available for inspection, sale, or rental

It is unlawful to represent to any person because of race, color, religion, sex, familial status, national origin, or disability. that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available. Prohibited actions include: a. Indicating through words or conduct that a dwelling has been sold or rented when, in fact, it is available for inspection, sale, or rental b. Providing false or inaccurate information regarding the availability of a dwelling for sale or lease to any person, including testers, regardless of whether such person is actually seeking housing based on race, color, religion, sex, familial status, or national origin.

V. For profit, persuading owners to sell or rent (blockbusting)

It is unlawful to, for profit, induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a protected class. This practice is known as "blockbusting." Prohibited actions under this section include: a. 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 population of people of a certain class, in order to encourage the person to offer a dwelling for sale or rental b. Encouraging any person to sell or rent a dwelling by asserting that the entry or prospective entry of persons of a particular 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 In establishing a discriminatory housing practice under this section, it is not necessary to show that there was, in fact, profit, as long as the goal of profit was a factor for engaging in the blockbusting activity.

AMERICANS WITH DISABILITIES ACT OF 1990

The Americans with Disabilities Act was passed in 1990. It covers discrimination in employment and housing against disabled persons, including those who have mental or behavioral problems that prevent them from living a normal life. The ADA also has provisions that require accessibility for the disabled in public accommodations, commercial facilities, and multi-family dwellings. It includes standards for common use areas of multi-family dwellings, and design specifications for doorways, height of light switches, grab bars in bathrooms, and other accommodations to make multi-family units usable and accessible by persons with disabilities. The Department of Housing and Urban Development enforces compliance with the Americans with Disabilities Act.

CIVIL RIGHTS ACT OF 1964

The Civil Rights Act of 1964 has been referred to as the "law that ended racial discrimination." Its eleven titles affected everything from voting rights to access to public accommodations. Some of its most important sections are: 1. Title I. Outlaws arbitrary discrimination in voter registration and expedites voting rights suits. 2. Title II. Bars discrimination in public accommodations such as hotels and restaurants. 3. Titles III & IV. Authorized the national government to bring suits to desegregate public facilities and schools. 4. Title VII. Prohibits private employers from refusing to hire, or from firing or discriminating against any person, because of race, color, sex, religion, or national origin

EQUAL HOUSING OPPORTUNITY POSTER

The Civil Rights Act requires real estate brokers to display the equal opportunity housing poster in their offices. But it is good practice to do so, because otherwise, it shifts the burden on the broker to prove he is in compliance with the fair housing law. It may be seen as evidence of discrimination if a lawsuit is filed. The poster is available from the Department of Housing and Urban Development (HUD). It displays the equal housing logo and contains a statement pledging that the brokerage will adhere to the provisions of the Fair Housing Act.

ECOA and RESPA. EQUAL CREDIT OPPORTUNITY ACT:

The Equal Credit Opportunity Act (ECOA) is a federal law that prohibits discrimination in lending but still leaves the lender ample room for choice if its decisions are based on the credit history of the borrower. Equal opportunity lenders must display the equal opportunity poster in their offices.ECOA ensures that lenders will make credit available fairly and without discrimination. A. It prohibits discrimination on the basis of race, color, religion, national origin, sex, marital status, or age. (A lender cannot require an applicant's spouse to sign a loan application.) B. It prohibits discriminatory treatment of income from alimony, child support, public assistance, or part-time employment. C. It prohibits inquiry about, or consideration of, child bearing plans or potential for child bearing. Real Estate Settlement Procedure Act

INTERSTATE LAND SALES FULL DISCLOSURE ACT

The Interstate Sales Full Disclosure Act was passed in 1968 to protect the public from fraud and abuse in the sale of land. It requires land developers to register subdivisions of 100 or more lots with HUD. They must file a Statement of Record, with information regarding the land, title, and owners. The developers must also provide each prospective buyer with a disclosure document called a property report three business days before a contract is signed. The report contains relevant information about the subdivision. The contract to purchase a lot covered by the act may be revoked at the purchaser's option until midnight of the seventh day following signing of the contract. Action to revoke may be brought by the buyer for two years if a property report was not given to the buyer.

RESPA. REAL ESTATE SETTLEMENT PROCEDURE ACT:

The Real Estate Settlement Procedure Act (RESPA) regulates the process of closing a real estate transaction. It was enacted in 1974 to ensure full disclosure to the borrowers of the fees charged at closing. RESPA applies only to residential transactions involving a federally insured lender. It does not apply to nonresidential (e.g., commercial, industrial, or business) transactions. RESPA establishes several rules, one of which is that the final accounting of such transactions must be done on the Uniform Settlement Statement also known as HUD-1 statement.

ACCESS TO PUBLIC TRANSPORTATION, ACCOMMODATIONS, AND COMMUNICATION FACILITIES

Title II of the Americans with Disabilities Act deals with access to public transportation and Title III deals with public accommodations and common facilities. In Title II, the act establishes that services such as city buses, public rail transit, subways, commuter rail, and Amtrak need to make their services accessible to disabled persons, or at least make a diligent effort to do so. More info on access to public transportation is available at www.fta.dot.gov. Title III requires public facilities to provide access for disabled people. It defines public accommodations as privately owned entities that own, lease, or operate facilities such as restaurants, stores, hotels, schools, and recreation centers. In older buildings, barriers should be removed where it is easy to do so without much difficulty or expense.

The Fair Housing Act

Title VIII of the Civil Rights Act of 1968 prohibited discrimination in the sale, rental and financing of dwellings based on race, color, religion, or national origin and was the first meaningful legislation to ban discrimination in most types of housing, not just public accommodations. The Fair Housing Act prohibits discrimination in housing on the basis of: Race Color Creed (Religion) National origin Sex Familial status Handicap (Disability) Before we go any further, let's look at some definitions under the Act.

Florida laws...

reinforce the federal laws. They provide specific standards for the implementation of federal laws as well as for eviction, disclosure of information on subdivisions, landlord and tenant relationships, and more.

The Florida laws to be aware of

include the Florida Fair Housing law, the Florida Americans with Disabilities Accessibility Implementation Act, the Florida Residential Landlord and Tenant Act, and the Florida Uniform Land Sales Practices Act.

To rent:

includes leasing, subleasing, and otherwise granting for a consideration the right to occupy premises not owned by the occupant. Most housing, both private and public, is covered under the Act. There are certain exemptions, which include: A. Single-family housing sold or rented without the use of a broker B. Owner-occupied housing with no more than four units C. Housing operated by organizations and private clubs that limit occupancy to members

Person:

includes one or more individuals, corporations, partnerships, associations, labor organizations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in cases under Title 11 (of the United States Code), receivers, and fiduciaries.

Many state and federal laws...

shape the buying and selling of real estate.The federal Civil Rights Acts of 1964 and 1968 were passed to ensure that the public was protected from discrimination in the pursuit of housing and public accommodations. These laws protect consumers from discrimination in housing based on race, color, religion, sex, national origin, handicap or familial status.