“Fair housing is sneaky,” said Hank Lerner, PAR general counsel, in yesterday’s the Best of the Legal Hotline – Fair Housing Edition webinar.
The four PAR attorneys tackled the most-asked Legal Hotline questions about fair housing, with Lerner cautioning that every situation is unique and there is no one-fits-all answer. “Just because you have done it successfully in one setting doesn’t mean you’ll do it the same in another,” said Lerner.
With a wide variety of fair housing laws and rules, it can be difficult to keep everything straight. On the federal side, three acts Realtors® should know are the Civil Rights Act, the Fair Housing Act and the Americans with Disabilities Act. On the state level, there is the Human Relations Act, while each local community has its own ordinances and municipal laws. And Realtors® must abide to the Code of Ethics, specifically Article 10 in regards to fair housing.
“You have to know the law at the federal level, state level and whatever municipalities you do business in,” said Lerner.
“There are different ways real estate agents get themselves in trouble,” said Desiree Brougher, a PAR attorney. “Fair housing laws cover a wide variety of protections. But it can be quite easy to stay out of trouble.”
Brougher encouraged Realtors® to examine their own preconceived notions. Just because someone doesn’t look as though they have a disability doesn’t mean they do not. Disabilities can be physical or mental and they are described as “substantially limiting a person’s major life activity.” Landlords must provide reasonable accommodations for tenants, whether that is allowing hand rails in a shower or designating a handicapped parking space, she said.
“Another way to potentially get into trouble is making presumptions,” she added. “Don’t make any assumptions about what you think your client wants.”
Another hot topic that comes up frequently on the Legal Hotline is service and support animals. The U.S. Department of Housing and Urban Development issued guidance in January 2020, which includes an eight-part decision tree to help landlords and property managers determine the next steps.
“Assistance animals are not pets,” said Kacy Clouser, a PAR attorney. She said while it is not legal to charge additional fees for an assistance animal, it is fine to charge for any damages an assistance animal causes. Typically, animals that are commonly kept as household pets would be OK, but unique animals require a specific showing of necessity, she said.
Another possible fair housing violation could happen via the mail. A love letter, a letter drafted by a potential buyer to the seller explaining why they think they are the right buyer for the property, can be a headache for both the buyer’s and seller’s agents.
“Love letters can lead to fair housing violations,” said Clouser. “It makes rejection much more personal.”
If your buyer insists, you should not help with it, advised Clouser. The sellers’ agent should discuss with clients ahead of time to determine whether they want to actually see any they may receive.
“It is not a violation to write one or read one, but could create a violation if the seller’s decision is based on a protected class,” added Clouser.
Advertising can also lead to fair housing violations.
It’s most likely not OK to advertise a property as great for a specific type of renter, whether that be a family, retirees, etc, said Brian Carter, a PAR attorney. “Limiting the number of occupants makes it easy to make a claim of familial status discrimination,” he said.
Steering, or leading certain clients to specific neighborhoods or areas, is another fair housing violation that Realtors® should be conscious of, added Carter.
“Do not be blindly following customers instructions,” said Brougher. “As a licensee, you are held to a higher standard of knowledge and behavior. Your job is to educate your clients and sometimes other Realtors® on fair housing laws. If your client is not willing to follow fair housing laws, it is OK to drop them.”
Watch the recorded webinar here.
The PAR Legal Hotline is open from 9 a.m. to 3 p.m. Monday through Friday.