Unit 17 Human Rights and Fair Housing

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.

Implications For Brokers And Salespersons

To a large extent, the laws place the burden of responsibility for effecting and maintaining fair housing on real estate licensees, brokers, and salespeople. A complainant does not have to prove specific intent, but only the fact that discrimination occurred. In addition, brokers are liable for the discriminatory behavior of their salespeople and employees, even if they have nondiscrimination policies in effect and are not aware of the illegal activities. - There is a concept in the law know as 'vicarious liability' in that if our broker or agent that we work with commits an act of discrimination we might find ourselves on the hook for that the same A broker can take the following steps to ensure compliance with fair housing laws: -Include the fair housing logo and/or slogan in all display ads and all classified ads of six column inches or more -Prominently display the fair housing logo and/or slogan in all brochures, circulars, billboards, signs, and direct mail advertising, as well as any other forms of marketing -When using human models in an advertisement, select the models in such a way as to indicate that the housing is available to all persons without regard to race, color, religion, sex, national origin, familial status, or handicap -Prominently display the fair housing poster at all real estate offices, model homes, or other locations where properties are offered for sale or rent. -Watch out for the wording used in ads. If you are focusing on things like the size of the unit, the cost of it, its general location, you are probably safe. When you start focusing on things like 'good for a family with children', 'good for retirees', 'close to Roman Catholic Church/ Orthodox or Synagogue', 'singles only', you start to get into discriminatory territory which you should avoid. -Make fair housing information readily available to salespeople and employees, and encourage them to become familiar with it and to attend fair housing education programs -Directly inform salespeople and employees of their responsibilities under the fair housing laws through in-house or other training -Establish and monitor office procedures to ensure compliance with fair housing regulations and objectives. At a minimum, such procedures should ensure that prospective buyers and renters are made aware of all available properties within their price range and areas of interest and are provided with complete and accurate information -Use the "Equal Employment Opportunity" slogan in all employment advertising and take appropriate steps to ensure a broad range of potential recruits -Require that salespeople educate sellers regarding their fair housing obligations by providing them with fair housing brochures and other information, and refuse to accept listings from sellers who do not agree to abide by fair housing requirements. -You have a professional responsibility to catch the fair housing grievances when they happen and make sure they go reported. That is part of your licenser and that is something that must be report when you observe it. When your client is attempting to violate the fair housing laws you must terminate all contact with them or rather you must make a noisy withdrawal making sure that they are aware that you are no longer representing them and what they are doing is in violation of the law. You must also report to any potential parties that have been grieved by it. -It is probably equally important not only for each individual licensee to be familiar with the various Fair Housing Laws but it would probably behoove each office to have a Fair Housing specialist, one who makes a point of not only knowing all the fair housing law requirements within that area but also keeps up to date on all the recent changes and amendments that may impact your office. It is always good to have someone within your own office where you can go back to post those questions and concerns to determine what is the best option and how best to proceed. - You want to make sure you are taking good care of your client as best as you can and looking out for their interest as being a real estate professional, broker or agent. Specifically here perhaps about lending terms and conditions whereas you are familiar with the various lenders and mortgage lenders and banks and the type of loans that people can receive and the financial rates that they are going to receive. Chances are that your clients don't have the same broad knowledge that you have with regards to that. Consequently they may not be aware when they are being taken advantage of and you perhaps are aware. Paying attention to what your clients are being offered not only is good business, but you might be able to pinpoint a Fair Housing violation that perhaps your clients would not be aware of.

Equal Opportunity In Housing

-Fair Housing is really about giving people the choice to live where they want, as long as they are financially capable. -Federal, state, and local laws about human rights and fair housing affect rentals, sales, and every phase of the real estate sales process from listing to closing. The goal of these equal opportunity laws and regulations is to create a single, unbiased housing market, one in which every home seeker has the opportunity to buy any home in the area he or she chooses and can afford. The student of real estate must be aware of undesirable and illegal housing practices so as to avoid them. Failure to comply with fair housing practices is not only grounds for loss of license but also an unlawful act.

NYC Protected Income 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.

Terms

-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. -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. - Red-Lining - The refusal to lend money within a specific area for various reasons. This practice is illegal. -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. -Civil Rights Act of 1866 - A federal law that prohibits all discrimination on the basis of race. -Disability / Handicap - The consequence of an impairment that may be physical, cognitive, mental, sensory, emotional, developmental, or some combination of these. -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. -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. -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. -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. - 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. -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. -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. - Non-Solicitation Order - 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.

Example of discrimination:

-We had a case several years ago where a seller's agent was going around shopping around for a potential buyers. A seller wanted to sell his house, Caucasian man. The agent found a financially worth black family that wanted to purchase. Ran back to his client and said I have a family available. Seller said 'Great! What color are they?' and the seller said what are you talking about? Seller: 'Are they black?' Agent: 'Yes but that is not relevant' Seller: 'I can't sell to a black person; my neighbors will be really upset with me so find somebody else.' The agent went back to their brokerage talked to the manager, issued a letter saying 'What you are doing is discriminatory; we cannot be party to this, so we are terminating the relationship'. Then they went to the prospective black family, the perspective purchasers and informed them of the discriminatory act. The purchasers, the black family brought action not only against the seller but against the agency and the broker. What do you think resulted? The court ultimately found against the seller because he violated the Housing Laws and fined them appropriately, but and this is the catch, also found against the agent and against the brokerage themselves. Why is that? Didn't they do everything right? They terminated the relationship, they told the prospective purchaser, correct. They did everything right didn't they? NO What they did wrong, specifically what the agent did wrong is when the seller asked: 'Are they black?' The agent's responsibility was to say: 'I can't answer that, it violates the fair housing laws!' everything from there was fine but those 3 little letters Y-E-S when he said 'Are they black'...'Yes'...the court said you facilitated the discrimination. You have a professional responsibility to not do that and in there they helped the seller discriminate. Remember always you have to be careful not only that you are not discriminating but that you are not facilitating the discrimination of others. You are aware of what other people are doing, when they discriminate, you have a professional, ethical, and social responsibility to make sure you stem that.

cont'd

Federal Fair Housing Act of 1968 In 1968, the first significant event that greatly encouraged the progress of fair housing occurred: the passage of the federal Fair Housing Act of 1968, which is contained in Title VIII of the Civil Rights Act of 1968. This law originally provided that it is unlawful to discriminate on the basis of race, religion, or national origin when selling or leasing residential property. Federal Fair Housing Act of 1968 In 1974, an amendment added sex (gender) as another of the protected classes, and in 1988 two new classes were added: those with handicaps and familial status (presence of children in the family). Protection of the handicapped extends to those with hearing, mobility, and visual impairments; recovering alcoholics; AIDS; and mental retardation. Anyone currently using illegal drugs is not protected as handicapped, nor are those who pose a threat to the health or safety of others. HUD is the enforcement agency who has the power and responsibility to enforce the Federal Housing Act. -Important to note that HUD and the NY State Human Rights commission or NY State vision of human rights are partner agencies which simply means that any complaint of discrimination that happens with NY State; if the complainant goes to HUD and files with HUD, HUD will forward that complaint on to the state, the state will be the actual enforcement agency to do the investigation. -The Housing and Community Development Act of 1974 created the Section 8 voucher program Disabled -Americans with Disabilities Act (1992) really focuses on employment, public accommodation and things of that nature. While it is important to note what it says and what it does, it is not controlling with regards to real property; commercial property YES, real property NO. New York State human rights law is the controlling law on fair housing state level. Landlords must make REASONABLE ACCOMMODATIONS for the disabled, for example, allowing a guide dog in a no-pets building or setting aside easy-access parking for a handicapped tenant. The tenant who needs to make reasonable MODIFICATIONS to an apartment must be allowed to do so if he or she agrees to restore the property to its original condition when the rental is over and it will be at the tenant's expense. Newly constructed multifamily buildings with four or more units must provide for wheelchair access to all ground floor units and to all upper floor units in buildings with elevators. Reasonable accommodations means that the cost for the adjustment will be reasonable and not more than the landlord can handle financially. - In New York State Human Rights law if there is a cost for an accommodation in a common area space, the main entrance to a building, the common area of a gym the pool, etc, the cost is to the housing provider the landlord or the Co-op board or the condo board -How does the housing provider know where disability actually exists or not, esp. for those w/ PTSD that need service animals? The general rule of thumb is that the person with a disability must provide the minimum invasive information that would inform the housing accommodation (landlord, Co-op board) such that they can make an informed decision. Someone who's blind that needs a seeing eye dog wouldn't need proof but someone suffering from PTSD who needs a service animal would need some type of proof. (What does my individual disability require and what is it that I can provide to the housing provider, minimal invasive information, such that they can understand, how my disability impacts me.)

HUD Advertising Guidelines cont'd

Handicap Real estate advertisements should not contain explicit exclusions, limitations, or other indications of discrimination based on handicap (e.g., no wheelchairs). Advertisements containing descriptions of properties (great view, fourth-floor walkup, walk-in closets), services or facilities (jogging trails), or neighborhoods (walk to bus stop) do not violate the act. Advertisements describing the conduct required of residents ("nonsmoking," "sober") do not violate the act. Advertisements containing descriptions of accessibility features are lawful (wheelchair ramp). Familial status Advertisements may not state an explicit preference, limitation, or discrimination based on familial status. Advertisements may not contain limitations on the number or ages of children or state a preference for adults, couples, or singles. Advertisements describing the properties (two-bedroom, cozy, family room), services and facilities (no bicycles allowed), or neighborhoods (quiet streets) are not racially discriminatory and do not violate the act. Jones v. Mayer The second significant fair housing development of 1968 was the Supreme Court decision in the case of Jones v. Alfred H. Mayer Company. In its ruling, the court held that the Civil Rights Act of 1866 "prohibits all racial discrimination, private or public, in the sale and rental of property." This decision is important because although the 1968 federal law exempts individual homeowners and certain groups, the 1866 law prohibits all racial discrimination without exception. So despite any exemptions in the 1968 law, an offended person may seek a remedy for racial discrimination under the 1866 law against any homeowner, regardless of whether the owner employed a real estate broker and/or advertised the property. Where race or color is involved, no exceptions apply. (In 1987, U.S. Supreme Court decisions implied that the 1866 law, to which there are no exceptions, extended to ethnic and/or religious groups as well.) Brown v. Board of Education In 1954, under this case, the U.S. Supreme Court reversed a previous ruling on Plessy v. Ferguson (1896). Separate facilities (previously decided as legally acceptable) were ruled to be unequal.

New York Human Rights Law

Protected classes under the New York Executive Law for Fair Housing cover race, creed, color, national origin, sex, disability, age, sexual orientation, military status, and marital status (some exceptions). Blockbusting, forbidden under federal statutes, is specifically mentioned in the New York Human Rights Law (Article 15, Executive Law) and also is prohibited by a New York Department of State (DOS) regulation. The DOS has, in the past, responded to complaints by the public by issuing cease and desist orders that prohibit canvassing for listings to certain homeowners. A person charging discrimination may initiate a private lawsuit (with no dollar limit mentioned under state law) and also may lodge a complaint with the DOS if the offender is licensed. A complaint also may be filed with the New York State Division of Human Rights within a one-year period. Under sections of the Executive Law, New York statutes broaden the nondiscrimination rules to cover commercial real estate. They also add several other categories in which discrimination is prohibited, including age, sexual orientation, military status, and marital status. The age provisions apply only to those 18 and older. The Real Property Law forbids denial of rental housing because of children or an eviction because of a tenant's pregnancy or new child. The rules extend to mobile homes.

Code For Equal Opportunity

The National Association of REALTORS® has adopted a Code for Equal Opportunity. The code sets forth suggested standards of conduct for REALTORS® so that they may comply with fair housing laws. The REALTORS® Code, while it does not have the force of law, asks equal treatment for those classes protected by state and federal law and also for one more class, sexual preference. Voluntary The National Association of REALTORS® has a voluntary cooperative agreement with HUD. This agreement, called the Fair Housing Partnership Agreement, stipulates that HUD and the National Association of REALTORS® will work together to identify fair housing issues, concerns, and solutions.

Federal Fair Housing Laws

The efforts of the federal government to guarantee equal housing opportunities to all U.S. citizens began soon after the Civil War with the Civil Rights Act of 1866. This law, an outgrowth of the Civil War, prohibits any type of discrimination based on race or color. "All citizens of the United States shall have the same right in every state and territory as is enjoyed by white citizens there of to inherit, purchase, lease, sell, hold, and convey real and personal property.'' The act provides no exceptions. It is enforceable by a suit in federal court. -In 1886 the Supreme Court case of Plessy vs. Ferguson that essentially said 'separate but equal' is lawful and it is constitutional. -In 1917 the case of Buchanan vs. Warley Supreme Court that essentially said that city zoning that maintained block by block discrimination was in fact unlawful and unconstitutional and not permitted. -In 1954 the case of Brown vs. Board of Education overturned the court decision of Plessy vs. Ferguson and said that separation is by its nature unequal and therefore discriminatory. - In 1962, JFK has issued an executive order guaranteeing non discrimination in housing for any kind of FHA or VA loans that would be put out. - in 1964 the Civil Rights Act of 1964, specifically Title 6 of the Civil Rights Act ensure that any recipient of federal funds could not be given in a discriminatory fashion. Anybody who received federal funds could not discriminate on the basis of race or several other protective classes.