RealEstateU Ch 9
Brokers & Salesperson responsibilites
- Maintain a Fair Housing Office - Reporting of any Fair Housing misconduct
Ethical & Social Responsibilities
- Protect your clients against Fair Housing and Human Rights Violations. -
Co-op Board Disclosure
-Co-ops are permitted to not disclose in NYC. In NYS at the moment however they still have to be bound by the various housing laws. They may reject a potential sale or rent, due to a good reason. For example the individual cannot afford, the family has a negative tenant history, etc. In New York City, a lawful application is a protected class and that would be discriminatory if the applicant gets rejected for a bad reason i.e. 'Because it is Tuesday and we don't like to approve people on Tuesdays'. -What cannot be done however is a Co-op cannot reject you or an individual based on one of their protected classes. -The ability to not disclose in NYC can be a double edged sword. If someone applies and gets rejected and they felt that they were discriminated against and they file this w/ HUD, HUD will be obligated to investigate and now the co-op board has to defend their decision b/c if they don't, they will be seen as being discriminatory. So as the RE licensee, you need to understand why co-op boards reject an applicant. If the reason is legitimate, then you need to be aware of their criteria for accepting applicants so that you don't cause unneccesary charges to be filed against the co-op board. You need to always present those candidates that you know will actually have some chance of succeeding.
NYC Protected Income Class (under NYC Human Rights Law)
-First of all the source of income that is protected by NYC Human Rights Law has to be a lawful source of income and generally speaking we are talking about government subsidies. Specifically and primarily the purpose of the law is to protect primarily Section 8 voucher holders, but it is not limited to them. VA vouchers, SSI, SSDI, any kind of government subsidy, be it federal, or state, or local subsidy. All of those housing types of subsidies or grants are protected and cannot be used to deny or reject a potential purchaser or renter. This piece of legislation has not passed the NY state yet.
Inappropriate facts to be advertised:
-close to a house of worship -close to Greek Orthodox Church -Gay friendly neighborhood -Perfect for empty nesters -no children -singles only studio apartment: presumption of 1 bedroom (2 people per bedroom) but cannot state the above. (any age, any gender, any marital status). Inappropriate advertising messages: - good for families with children - good for retirees - close to Roman-Catholic Church/ Orthodox/ Synagogue also be careful what you depict in your advertisements (all white family smiling over kitchen table ex.) --> be careful.
Appropriate facts to be advertised:
-dimensions (unit size) -costs (unit costs) -location (general location)
Inappropriate advertising messages
-good for family with children -good for retirees -close to Roman-Catholic Church/Orthodox/Synagogue
Appropriate advertising messages
-unit size -unit cost -general location
Exemptions and Exceptions (from various Fair Housing Laws)
1) Single Family Homes Exemption 2) Gender Exemption 3) Housing for Older Persons (2 kinds that do not violate fair housing laws)
Broker and salesperson's responsibilities
1. Be transparent with all parties in the transaction 2. The fair housing laws require that you must sell to all qualified candidates. Maintain a fair housing office -advertise that you maintain a fair housing office -maintain the concept of fair housing -have an in-house fair housing specialist providing ongoing training and education for staff and agents Reporting of any fair housing misconduct -bringing action in court -involving the right agency: HUD, NYS Human Rights Commission, etc.
Broker and salesperson's responsibilities cont.'
1. Be transparent with all parties in the transaction 2. The fair housing laws require that you must sell to all qualified candidates. Maintain a fair housing office -advertise that you maintain a fair housing office -maintain the concept of fair housing -have an in-house fair housing specialist providing ongoing training and education for staff and agents Reporting of any fair housing misconduct -bringing action in court -involving the right agency: HUD, NYS Human Rights Commission, etc. - It is imperative NOT to facilitate the discrimination of others. you cannot tell seller or buyer that the client is black if they ask. must state that it violates the fair housing laws and you cannot provide that information. this is your professional responsibility. 1) relationship must be terminated 2) told perspective purchaser 3) but told seller they are black therefore, they facilitated the discrimination and court found against the seller but also found against the agent and against the brokerage themselves (they violated fair housing laws). helped seller discriminate. be careful that not only are you not discriminating but you are not facilitating discrimination of others. YOU HAVE PROFESSIONAL, ETHICAL AND SOCIAL RESPONSIBILITY TO MAKE SURE THAT this doesn't occur. [In advertising: Brokers and salespersons must follow the Fair Housing Laws when displaying ANY type of advertising (Craigslist, internet ads, newspaper ads, fliers, TV ads, radio spots, etc...)]
Dates that followed:
1962 (almost 100 years later): Non-discrimination and housing for FHA or VA loans (signed by JFK). 1964: Civil Rights Act of 1964 (Title 6): ensured that any recipient of federal funds at all, could not discriminate on the basis of race or several other protective classes? 1968: Fair Housing Act of 1968 (Title 8) - essentially created and empowered HUD Department of Housing and Urban Development (HUD) to investigate and try to consiliate claims of discrimination specifically based on: 1) race 2) color 3) religion 4) nation origion At that time HUD did not have the full enforcement powers that it currently has today. 1974 - The Housing and Community Development Act of 1974 - amendment to the fair housing act. protecting sex, gender, statutes of freed, within the scope of fair housing act which also includes acts of sexual harrassment. 1988 - The Fair Housing Amendment Act - final amendments of this act - protect classes of familiostatus (which protects families with children or under the age of 18), also includes women who are pregnant but also added the protective class as disability (at that time referred to it as handicapped; federal law still refers to it as this). - other amendments were also made to fair housing law that gave broader powers to HUD to enforce and make sure that they had greater responsibility and enforceability when it came to fair housing laws. - created design and construction requirements - within any new design and construction 1991 and tried to beef up powers of HUD. Plessy vs. Fergusen 1896 - seperate but equal facilities (public accomodations) was a totally legitiamate fine. Buchana vs. Warley 1917 - city ordinances (local ordinances) that required each block to be racially segregated from another. - courts found it was discriminatory to hold those zoning ordinances and that cities could not create those kinds of ordinances to minorities from occupying where predominately Caucasians were. 1954 Brown vs. Board of Education - overturned of plessy vs. fergusen said separate is by very nature unequal so separate facilites cannot be equal The Housing and Community Development Act of 1974 (Section 8 program) - created section 8 voucher program ADA - 1992 * doesn't touch upon residential. - focus on employment and public accommodation - real estate offices must be compliant with ADA ; --> accessibility but not exclusively that. - not controlling in regards to real property like Fair housing act of 168 (federal law regarding fair housing) and NYS human rights law (state law). - controlling in regard to commercial property yes; real property no.
Gender Exemption
A )ex. org like YWCA or YMCA can limit tenants to certain gender. B) for purposes of private housing, a landlord can limit gender so long as their sharing facilities like kitchens and bathrooms. (1 bathroom; 3 bedrooms and sharing facilities --> you can limit to one gender) - However, If you have two different genders living in unit (male and female already), you cannot limit gender of third person that is moving in.
Co-op Board Disclosure
A co-op board cannot reject a tenant/owner based on protected classes. Ex. Race
Civil Rights Act of 1866
A federal law that prohibits all discrimination on the basis of race. * all citizens can inherit, buy, sell or lease real and personal property. construed to mean no racial discrimination. - but law did state all citizens did have the same rights (some people considered citizen and some were not).
Fair Housing Act of 1968
A federal prohibition that protects buyer/renter of a dwelling from seller/landlord discrimination with regards to race, color, religion, gender, national origin, familial status, or disability.
N.Y. State Human Rights Law
A rule adopted by the Secretary of State which prohibits any or all types of solicitation directed towards homeowners within a defined geographic area. Such rule may be adopted after a public hearing and upon the Secretary's determination that homeowners within the subject area have been subject to intense and repeated solicitations by real estate brokers or salespersons and that such solicitations have caused owners to reasonably believe that property values may decrease because persons of different race, ethnic, religious or social backgrounds are moving or about to move into such area.
Familial Status
A single person, pregnant woman or a household with children under 18 living with parents or legal custodians who might experience housing discrimination. Filtering Down - The decline in value of properties in neighborhoods that were once middle or upper-middle income.
Americans with Disabilities Act
A wide-ranging civil rights law enacted by the U.S. Congress in 1990 that prohibits, under certain circumstances, discrimination based on disability.
Housing for Older Persons (2 kinds that do not violate fair housing laws)
A) 55 and older exemption - is distinguishable - 1 person in the unit has to be of age; everyone else/ the rest of the occupants can be of any age. - The '55 and older exemption' mandates that one of the residents must be 55 years of age or older. - 80% of the units have to be so occupied; 20% of the units can be occupied by nobody of age (this is probably due to inheritance --> that kind of thing). B) 62 and older exemption - 100% of All residents must be 62 years of age or older to qualify for the '62 and older exemption'. (if I am 62 and my wife is 61 1/2 she can move into apartment only on her birthday. there is no spousal exceptions). - 62 and older means 62 and older.
Ethical & Social Responsibilities
Along with legal and professional responsibilities, also come those ethical and social responsibilities, that we have not only to society in general, but the professional has to your client. - As a matter of simple good business, you want to make sure you are taking care of your client as best as you can and looking out for their interest. - Being a real estate professional (broker or agent), you are uniquely situated in a place that your clients perhaps are not. I am talking specifically here about perhaps lending terms & conditions ex. lending terms & conditions - you are familiar with the various mortgage lenders and banks, and the type of loans people can receive, and the financial rates they can receive. - your clients don't have the same broad depth and knowledge that you have with regards to that. Consequently, they may not be aware of when they are being take advantage of and you perhaps are aware. - Paying attention to what your clients are being offered is not only good business, but you may be able to point out a fair housing violation that perhaps your client may not be aware of. * Having a client who is perhaps muslim, or black or gay and finding out they are being offered a certain percentage rate from a bank or financial lender that you know for a fact is not as good as they probably would qualify for. Or if they went somewhere else they could have done better. Or if you know somebody else whose is not gay or muslim or not black who has gone to that very same lender just the day before, or just 2 hours earlier, or who received a much better package, you are legally situated to not only protect your client but also to raise the flag of fair housing violations and perhaps cure that social ill. in other words: --> - Protect your clients against Fair Housing and Human Rights Violations.)
9.7 Prohibited Activies
Elderly with spouse with walker. Landlord decides with good intention that he may get hurt going up stairs or cannot go up stairs b/c of walker and age. this is discrimination. - Well what about the fact that he can fall? Liability? As long as landlord keeps home in good condition it is discrimination because he is just as likely to fall as any of us after a couple of drinks or we slip or fall. -This is not just confined to racial discrimination or those classic areas. - Also adults and children. Allowing adults to walk around in enclosed (private) property but asking children to go out and play because they like to laugh and giggle, to leave the premise to go and play is discriminatory. - Asking that children not enjoy the property as adults do, is violative of the fair housing laws based on familiostatus. - Children have to within reason have to be able to be children. Laughter or giggling may irritate some individuals, but unless you are living in housing for older persons, you have to allow children to be children b/c we all have to live with each other within a reasonable and fair manner.
Department of Housing and Urban Development (HUD)
Established in 1965, HUD works to create a decent home and suitable living environment for all Americans; it does this by addressing housing needs, improving and developing American communities, and enforcing fair housing laws.
Exemptions and Exceptions (from various Fair Housing Laws)
Ex. under Federal Fair Housing Act (Federal Law) there are certain exemptions: 1) Single Family Homes 1) someone who is not in the business of buying or selling single family homes (non-real estate personel) 2) who has not sold a single family home in 2 year period 3) who has not used any kind of aid (or real estate broker or agent) 4) has not also advertised the single family home in any other way shape or form. they may decide who they want to sell or rent such a single family home to. UNDERSTAND HOWEVER, they cannot make a discriminatory statement. All of the exemptions for the most part, there is an exception to the exemption in that no discriminatory statements may be made. But, for single family home as an example under federal law, so long as all those caveats are met, a seller or renter of a single family home may choose who to rent or sell to outside the confines of the fair housing laws. The single-family home exemption is also known as the 'Mrs. Murphy's Exemption'.
Fair housing poster - english
Fair Housing is a Human Right protected by the NYC Human Rights Law. If you believe that you are a victim of housing discrimination, you should dial 311 to reach the NYC Commission on Human Rights or visit www.nyc.gov/cchr
Jones vs. Mayer Supreme Court Decision (1968)
Held that Congress could regulate the sale of private property in order to prevent racial discrimination. 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 13th Amendment.
Marital Status
Indicated whether the person is married. The only possible answers are "married" or "single".
N.Y. State Human Rights Law
Protects individuals from the discrimination based on their age, creed, race, color, sex, sexual orientation, national origin, marital status, disability, military status, domestic violence victim status, arrest record, conviction record, predisposing genetic characteristics, and familial status.
Reasonable Accommodations for Individuals with Disabilities
Reasonable Accommodations (and modification) for Individuals with Disabilities - The cost to accommodate persons with disabilities in a common area will be paid by the housing provider. In NYS, under NYS Human Rights Law. - No animals allowed or doesn't allow dogs or doesn't allow dogs perhaps over a certain size, weight or breed. psych disability or someone who is blind, comes in and needs a seeing eye dog, that policy must be accepted. this is an accommodation for disability. also emotional support animals --> not for physical need such as sight, perhaps for nonphysical and psych needs, such as PTSD or depression, agoraphobia or other disabilities. Diagnosed w/ this disability and care provider determined they need this service animal. - Seeing eye dog or any form of service animal, if it is in fact necessary for the disability, must be allowed by the housing provider so long as it's reasonable. - How does Housing provider know if disability exists or not? General rule of thumb is that a person w/ disability must provide the least/ minimal invasive information that would inform the housing accomodation (the landlord, the co-op board, etc.) such that they can make an informed decision. - For seeing eye dog, being utilized by someone who is blind, they would not have to provide any form of documentation or proof whatsoever b/c it is clear to the casual observer both what the disability is and what the need for the accommodation is. There is a clear nexus to the casual observer and nothing else is necessary. But what happens when you have a visible disability, but the accommodation that is being sought after is not very clear as to what the nexus is. Ex. perhaps person w/ psychiatric disability or more specifically if I have a dog and I am in a wheelchair; I am requesting that my building that does not allow dogs permits me my accommodation of having a dog. Well its clear that I am disabled --> I am in a wheelchair. But it is not clear what function the dog is going to be performing. Perhaps I need to provide some kind of credible information to my board. A doctors letter may be best but it is not exclusively the only thing that is permitted. But perhaps if I provide them some information detailing how this dog has been specially trained to get my medicine b/c i am subject to epileptic fits, this dog answers my door, or is able to fetch things for me that I cannot access myself. Perhaps under a circumstance like that, I should be permitted an animal or an accommodation. It varies. Also important to note: What is reasonable is very case specific. What is reasonable for me is not reasonable for you and vice versa. It is always going to be dependent upon what the situation itself calls for. Just b/c i get a dog doesn't mean you get a dog. Just b/c u get a parking space, doesn't mean I am entitled to a parking space. What does my individual disability require? And what is it that I can provide to the housing provider - minimally invasive information such that they can understand how my disability impacts me and what it is that I actually want and how that accommodation nexuses with my disability.
Reasonable Accommodations for Individuals with Disabilities
Reasonable Accommodations (and modification) for Individuals with Disabilities - The cost to accommodate persons with disabilities in a common area will be paid by the housing provider. In NYS, under NYS Human Rights Law. - Seeing eye dog (psych or seeing problem or emotional service) or any form of service animal, if it is in fact necessary for the disability, must be allowed by the housing provider so long as it's reasonable. - minimally invasive information may be required in some cases to housing provider when disability and reason for need are not apparent. info explains how my disability impacts me and what it is that I actually want and how that accommodation nexuses with my disability. - What is reasonable is very case specific - Building has several stairs leading up to main entrance; b/c building constructed in 1899 --> a time way before they considered any kind of disability access. NEED A RAMP; if I was healthy last week, but I now require a wheelchair and require ramp to get up to main entrance. ** if this that is in fact reasonable under the circumstances, the housing provider (co-op/condo) would have to construct this ramp. 4) If I need to install a ramp in my own individual unit however, this is called a MODIFICATION. - so long as its reasonable, my housing provider (landlord etc.) would have to allow me. 5) Move into apartment and I am in wheelchair and need to remove a bathtub from my bathroom, and install a wheelchair accessible shower. *** Under a circumstance like that, I would have to modify the unit, the cost would be TO ME (MY COST). *** 1) But I cannot be denied the housing b/c their not accessible, 2) and they cannot deny me that modification (I have to be allowed to make that modification so long as its reasonable). - Under those circumstances you have to allow for reasonable wear and tear; the landlord/housing provider can request that the housing unit be returned to the condition that it was found in before person moved in once they vacate. --> remove the wheelchair accessible shower; reinstall the bathtub; but again they have to allow for things like wear and tear. Modifications done inside of a unit must be paid by the disabled tenant. 1) NYS says that if it is a modification in common area space it is considered in all intensive purposes an ACCOMODATION; and the cost is to the housing provider themselves (landloard, co-op board, condo board) 2) If any of these boards refuse to sell or rent because they don't want to incur that cost down the road, that would be discriminatory. They cannot do that. They cannot say no to the person in anticipation of having to absorb the cost. 3) If it turns out that the person is in fact disabled, and do in fact need that specific accommodation or modification and is a clear nexus between those two, even after all the information is provided, does that mean that the person with the disability must be given everything that they want? Absolutely not. The key word is the term REASONABLE. What is a reasonable accommodation or a reasonable modification? That which is reasonable, is that which is a financial or administrative reality. It would be therefore unreasonable, if there is a financial and administrative hardship. For example, I live on the third floor of a 3 story walk up that was constructed some time in the mid 19 century. I have now been hit by a bus and now I am in a wheelchair. I require that my landlord install an elevator in my building. The building itself costs 2 million dollars and the elevator, if he were to install it, will cost another 450,000. - Even though I am clearly disabled, I need this modification. Just because I want it, I am not necessarily entitled to it. It would be financially prohibitive for the landlord to have to install. A circumstance like that again kind of informs us, it's not about any accommodation that you want, it is about what is reasonable under a certain set of circumstances.
Reasonable Accommodations for Individuals with Disabilities
Reasonable Accommodations (and modification) for Individuals with Disabilities - The cost to accommodate persons with disabilities in a common area will be paid by the housing provider. In NYS, under NYS Human Rights Law. ** If any of these boards refuse to sell or rent because they don't want to incur that cost down the road, that would be discriminatory. They cannot do that. They cannot say no to the person in anticipation of having to absorb the cost. ** However, just b/c I am disabled and need accommodation doesn't mean I will get it. MUST BE REASONABLE under a certain set of circumstances. Reasonable = (meaning) a financial or administrative reality. If it is financially prohibitive for the landlord to have to install they are not obligated to. Ex. building cost 2 mil and would require landlord to pay 450 k to install elevator. This is financially prohibitive. not a reality. - Seeing eye dog (psych or seeing problem or emotional service) or any form of service animal, if it is in fact necessary for the disability, must be allowed by the housing provider so long as it's reasonable. -Sometimes have to provide minimal documentation if reason for use of dog is not visible to eye (like for blind, they help lead them). Ex. you are visibly or not visibly disabled, but have to provide explanation for why you need dog since it is not visible to naked eye (ex. dog helps when you have seizures get medicine etc.). - Modifications done inside of a unit must be paid by the disabled tenant. 1) Ex. Ramp inside home 2) removing bathtub and placing with handicap shower --> landlord can request that when person moves out they restore it back to normal conditions; however, normal wear and tear must be allowed.
Reasonable Accommodations for Individuals with Disabilities
Reasonable Accommodations (and modification) for Individuals with Disabilities Reasonable Accommodations are those exemptions from the practices and policies and rules of a housing accommodation, such that it would allow a person with a disability the opportunity to live and enjoy a property as anybody else would. In NYS, under NYS Human Rights Law, if there is a cost for an accommodation in a common area space, if there is any cost associated (although generally there are not), the cost is to the housing provider --> the landlord, the co-op board, or the condo board. The cost to accommodate persons with disabilities in a common area will be paid by the housing provider. This is different from the Federal Fair Housing Law, because if theres any kind of cost associated with an accommodation the cost would be to the individual. NOT THE CASE however.
Disability / Handicap
The consequence of an impairment that may be physical, cognitive, mental, sensory, emotional, developmental, or some combination of these.
Steering
The practice in which real estate brokers guide prospective home buyers towards or away from certain neighborhoods based on their race. Steering is highly illegal.
Blockbusting
The practice of inducing homeowners in a particular neighborhood to sell their homes quickly, often at below market prices, by creating the fear that the entry of a minority group or groups into the neighborhood will cause a precipitous decline in property values.
Red-Lining
The refusal to lend money within a specific area for various reasons. This practice is illegal.
'Mrs. Murphy's Exemption'.
The single-family home exemption is also known as the 'Mrs. Murphy's Exemption'. 'The Ms. Murphy Exemption' applies to two family homes in New York State..
'Mrs. Murphy's Exemption'.
The single-family home exemption is also known as the 'Mrs. Murphy's Exemption'. 'The Ms. Murphy Exemption' applies to two family homes in New York State.. Under federal law, it is a law that congress contemplated back in 1968 thinking of poor widowed Mrs. Murphey who simply wants to rent attick/basement to make ends meet. Shouldn't Mrs. Murphy be allowed to determine who she is going to live with? So congress said yes. 1) So as long as Mrs. Murphy doesn't make any discriminatory statements, and advertisements etc. 2) So long as she resides in one of the units 3) and the building itself has not more than 4 units for families living independently of each other (so mrs. murphey plus a max of 3 other units). of FEDERAL LAW then Mrs. Murphey can decide who she wants to live with outside the confines of the fair housing law. But be aware: under NYS Human Rights Law: They have lowered that from a 4 family unit to 2. --> So Mrs. Murphy in NYS is her plus one other person. Almost literally just her attick, or just her basement or just her other bedroom. So even though, you may have a Mrs. Murphey situation where Mrs. Murphey is renting out 2 units to her plus 2 other units, she may be exempt from the federal fair housing act, but would still be violating the NYS Human Rights Law as it pertains to housing if she is basing who her tenants will be based on some protective class.
Colleagues and Employees Responsibilities
Touching for a little bit, on our responsibilities with regards to Fair Housing, as they relate to our colleagues and other employes. There is a concept in the law called Vicarious Liability: in that if our agent or broker that we work with (college), commits an act of discrimination, we may find ourselves on the hook for that. - Same as if we have have a brokerage, and our agent/employee commits an act of discrimination, we may find ourselves responsible for that act. - If we are aware of a colleague, agent or broker (or employee) committing a discriminatory act - we will have some responsibility for not reporting that. - If on the other hand, we don't know about their act, we still may be liable if ultimately the courts feel we should have known. ** If we are turning a purposeful blind eye, we make a point of not asking questions so nobody tells us any lies, you may still find yourself liable for the actions of your colleague. --> This is not to say spy on everything that your friends and colleagues and other employees do, this is not to say install cameras everywhere so your aware of all things of all times. --> It is to say, be aware as a professional you have a responsibility. If you see something you must say something. And if your not seeing it, there is a difference between simply not having observed and not being aware, and purposefully not being aware --> or simply being negligent and not being aware. Pay attention to what is happening. Having your license and being a professional carries with it a multitude of responsibilities. Make sure you protect yourself; Make sure you protect your license. An Act of Discrimination is not worth your license.
Cease and Desist List
Upon the establishment of a cease and desist zone by the Secretary, a list of homeowners who have filed owner's statements expressing their wish not to be solicited by real estate brokers or salesperson. Soliciting of listed homeowners by licensees is prohibited. Violators of such prohibition are subject to licensure suspensions or revocation.
Testers
Volunteers from state or private agencies who enforce fair housing by claiming to be home seekers, thereby finding out if brokers deal fairly with all clients/customers.
NYC Protected Income Class
You cannot discriminate against people with federal or state government subsidies, including Section 8 housing vouchers, VA vouchers, SSI, SSDI, housing grants, etc. - Relatively new law that is impacting greater and greater parts of the country as has been part of the NYC (City) Human Rights Law for several years now. - It is not in effect throughout NY State; - Although it has been considered on several occasions over the past several years. Most recently vetoed by former Governor Paterson and was most recently proposed by current Governor Coumo. - And yet the bill has not passed yet at NYS level. - Be aware however, in NYC (city) --> Source of income is protected. --- westchester county currently has a similar law. Be aware again where you practice, what is protected and what that actually means. Different words are defined differently (ex.) just as disability has a different definition from the federal to the state to the city level, source of income can have a different definition. Always make sure you are well versed on that.
55 and older exemption
mandates that one of the residents must be 55 years of age or older
Ms. Murphy's Examption
single-family home exemption applies to two family homes in NYS
