Notes from the Attorneys of the Massachusetts Association of REALTORS Legal Hotline
Q. I have a rental listing and the owner of the unit was very clear when I took the listing that they did not want any animals of any kind in the apartment. With that understanding in mind, I placed an ad in the local paper describing the unit and put the words “no animals” in the advertisement. When I got into the office this morning there was a voice mail message from a nonprofit fair housing group telling me that I should change the ad immediately. They said that the words “no animals” could be viewed as discriminatory because some people require the assistance of service animals. What should I tell my landlord?
A. The most expeditious way to address this is to let the landlord know about this issue and change the ad to say “no pets”. There are many physically challenged individuals who rely on seeing-eye dogs, hearing dogs, service monkeys and other specially trained animals. These animals are not pets but are, in fact, service animals and more akin to an aid such as a cane or a hearing aid. Refusing to rent to a person because they have a service animal is inconsistent with state and federal fair housing laws and can result in injunctive relief, civil damages and penalties.
Q. I am renting a first floor unit in a two family home. A prospective tenant has called to inquire about the apartment and told me that she sometimes uses a wheelchair and, if she decides to rent the unit she will need a ramp installed. Would the landlord have to pay for this ramp? If they do, can the landlord just say they won’t rent to her?
A. Because the building contains less than ten units, the tenant would be responsible for cost and construction of the ramp. More importantly, the landlord cannot refuse to rent to her simply because she is physically challenged and must grant permission for “reasonable modifications” to the dwelling unit. Under Massachusetts law Chapter 151B, owners of housing with less than ten units may, where the modification to be paid for by the handicapped person will materially alter the marketability of the housing, condition permission for a modification on the tenant agreeing to restore or pay for the cost of restoring, the interior of the premises to the condition that existed prior to such modification, reasonable wear and tear excepted.
Q. We are confused about ways to avoid discriminatory advertising. We have a seaside property which we advertise as “short walk to beach.” Is this discriminatory against handicapped individuals?
A. No, that is not discriminatory. In 1995 HUD released a memorandum which addressed the regulations on illegal advertising to clarify the limitations. Specifically it stated that this kind of advertising is not a violation. Specifically the memo states:
“Handicap. Real estate advertisements should not contain explicit exclusions, limitations, or other indications of discrimination based on handicap (i.e., no wheelchairs). Advertisements containing descriptions of properties (great view, fourth-floor walk-up, 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 (“non-smoking”, “sober”) do not violate the Act. Advertisements containing descriptions of accessibility features are lawful (wheelchair ramp).”
For more information please visit: http://www.hud.gov/offices/fheo/library/sect804achtenberg.pdf
Q. We have a seller client who has instructed us not to allow his neighbor, a real estate salesperson, to show his home. They have an ongoing personal feud and do not like each other. The neighbor is a minority, could I be accused of discrimination by refusing to allow this individual access to the home?
A. It seems clear that the exclusion of this individual from the home is due to the feud between the neighbors rather than an exclusion based on his race. A troublesome neighbor is not a protected class even if they are a member of another protected class. It is important that you document the reason for the exclusion and provide a written statement to this agent’s company as to why he is not permitted to participate on this listing. This will document your actions and protect you from any complaints in the future. From a practitioner standpoint you must also notify the salesperson’s broker in writing that this individual is not permitted to show or participate in this listing and compensation is not offered.
| REALTOR ® FAIR HOUSING DECLARATION As a REALTOR Member of the Berkshire County Board of REALTORS, I Agree to:Provide equal professional service without regard to the race, color, religion, sex, handicap, familial status or national origin of any prospective client, customer, or the residents of any community Keep informed about fair housing law and practices, improving my clients’ and customers’ opportunities and my business. Develop advertising that indicates that everyone is welcome and no one is excluded; expanding my clients’ and customers’ opportunities to see, buy or lease property. Inform my clients and customers about their rights and responsibilities under the fair housing laws by providing brochures and other information. Document my efforts to provide professional service, which will assist me in becoming a more responsive and successful REALTOR®. Refuse to tolerate noncompliance. Learn about those who are different from me, and celebrate those differences. Take a positive approach to fair housing practices and aspire to follow the spirit as well as the letter of the law. Develop and implement fair housing practices for my firm to carry out the spirit of this declaration. |
Resources from the US Department of Housing and Urban Development:
Fair Housing—A Web of Legislation
Federal fair housing law consists of the Civil Rights Act of 1866 and Title VIII of the Civil Rights Act of 1968, otherwise known as the Fair Housing Act. The act, as amended in 1988, provides that no one can be discriminated against in the sale, rental, or financing of residential dwellings on the basis of these protected classes:
- Race
- Color
- Religion
- Sex
- Handicap
- Familial status
- National origin
In addition, the Civil Rights Act of 1866 provides that all U.S. citizens have the same rights as white citizens to “inherit, purchase, sell, hold, and convey real and personal property.” The U.S. Supreme Court has interpreted this act to prohibit all forms of racial discrimination with regard to real estate—even discrimination by private individuals. Penalties can include punitive as well as actual damages.
Fair housing laws in some states and municipalities may include additional protected classes—such as sexual preference, age, or sources of income. For information on your state’s fair housing laws, contact your state housing authority or visit the U.S. Department of Housing and Urban Development online. The site has a section for real estate brokers and a listing of state HUD offices.
The handicapped category under the Fair Housing Act includes not only obvious physical handicaps, but mental handicaps, alcoholism, and AIDS. Current abusers of controlled substances are not covered.
Exceptions to the Rules
- An owner who sells or rents a single-family home without the services of a real estate practitioner is exempt from coverage if he or she doesn’t own or have an interest in more than three single-family houses and doesn’t engage in advertising.
- Owners of buildings designed for occupancy by up to four families are exempt from the Fair Housing Act as long as they live in one of the rental units and do not use any advertising or the assistance of a real estate professional. However, discrimination on the basis of race is never lawful.
- Owners or managers of qualified “housing for older person” may refuse to rent to families with children. To qualify, a property must have at least 80 percent of the units occupied by at least one person 55 years of age or older and be marketed to those 55 or older.
Get a statement that a property meets these requirements from the current owner before you begin marketing it to seniors.
Religious organizations may discriminate in the sale, rental, or occupancy of their noncommercial property.
Private clubs may limit the rental or occupancy of their noncommercial lodgings to members.
8 Real-Life Fair Housing Violations
Training your sales associates in the practical applications of the Fair Housing Act will help ensure that they do not inadvertently violate the Fair Housing Act by:
Fair Housing Violations
1. Refusing to sell or rent a property or discouraging a potential buyer or tenant because of a person’s protected class status.
Don’t say: “This two-bedroom condominium is just too small for you and your three children. Plus, there’s no playground nearby.”
2. Using different provisions in leases or sale contracts, such as those relating to rental charges, security deposits, lease terms, down-payment, and closing requirements because of a person’s protected class status.
Don’t say: “Because you only moved to this country from Japan a little while ago, the sellers may be uneasy about your ability to secure a mortgage. I suggest you make a larger earnest money deposit to help convince them of your interest and ability to close.”
3. Urging residents to sell or rent their properties, often at bargain prices, by suggesting that members of a protected class are likely to move into the area and have a negative impact on property values. This violation is called blockbusting.
Don’t say: “You know, the people who live in this neighborhood aren’t the same Polish immigrants who lived here when you bought this house 30 years ago. It’s just not safe for you to walk around alone any more. Maybe you should consider selling now while you can still get a good price for your house.”
4. Restricting a person’s choices to perpetuate segregated housing patterns based on membership in a protected class—taking African-American families, for example, only to predominantly African-American neighborhoods.
Don’t say: “I know how important it is for you to find a church congregation you can belong to. Let me show you two houses near the African-American Baptist Church on Second. I think that church would suit you.”
5. Providing false information on the availability of a property for sale or rental based on a person’s protected class status—even if that information is based on the owner’s desires.
Don’t say: “There’s no point in your showing the Smith’s house to that Hispanic couple; the Smiths will never sell to them.”
6. Refusing to provide information on the availability of loans or other financial assistance or providing information that is inaccurate or different because of a person’s membership in a protected class.
Don’t say: “Mr. Hernandez, I think you best bet is to go to a mortgage broker for a loan. It’ll be more expensive, but they’re more likely to accept your application.”
7. Using an appraisal that improperly takes into consideration the protected classes in estimating property value.
Don’t say: “See if you can get the value of the property as high as you can. She’s an old lady, and this house is her only asset, so I want to get her a really good price.”
8. Relying on illegal covenants or provisions that preclude the sale or rental of a dwelling to a person because of membership in a protected class.
Don’t say: “I’d love to show you the house in this development, but the restrictive covenants wouldn’t allow you to build the entry ramp you need for your wheelchair.”
The courts have determined that a violation of the Fair Housing Act may be proven even if there was no intent to discriminate, if there is evidence of a discriminatory effect
More Information on Fair Housing at Realtor.org
Reprinted from REALTOR® Magazine [March, 2006] with permission of the NATIONAL ASSOCIATION OF REALTORS®. Copyright 2006. All rights reserved.