Section TWO - Fair Housing

Transcription

1 Section TWO - Fair Housing I. TERMS USED IN FAIR HOUSING AARP stands for American Association of Retired Persons. ACLU stands for American Civil Liberties Union. ADA stands for The Americans with Disabilities Act. Adult communities see Housing for older persons. Aggrieved person includes any person who (1) claims to have been injured by a discriminatory housing practice; or (2) believes that such person will be injured by a discriminatory housing practice that is about to occur. Blockbusting refers to the efforts of real estate agents and speculators to trigger the turnover of white homes and properties to African Americans. In evidence as early as 1900, blockbusting techniques included the repeated and often incessant urging of white homeowners in areas adjacent to or near black communities to sell before it becomes too late! and their property value diminish. Agents frequently hired African American subagents to walk or drive in the changing areas soliciting business to increase the fears of white property owners. Commercial facilities include warehouses, factories and office buildings. They are facilities that are intended for nonresidential use and whose operations affect commerce. Complainant means the person (including the Secretary of HUD) who files a complaint under section 810 of the Federal Fair Housing Act. Conciliation means the attempted resolution of issues raised by a complaint, or by the investigation of such complaint, through informal negotiations involving the aggrieved person, the respondent, and the Secretary. Conciliation agreement means a written agreement setting forth the resolution of the issues in conciliation. Creditor means a person who regularly extends, renews or continues credit or arranges for the same. Persons, who in the ordinary course of business regularly participates in the decision of whether or not to extend credit. The term includes a creditor s assignee, transferee, or subrogee who so participates. For purposes of the Equal Credit Opportunity Act, the term also includes a

2 person, who in the ordinary course of business, regularly refers applicants or prospective applicants to creditors or offers to select creditors to whom requests for credit may be made. Disability or handicap means, with respect to a person: 1. a physical or mental impairment which substantially limits one or more of such person s major life activities. Major life activities means functions such as working, seeing, hearing, caring for oneself, learning, walking, etc. 2. a record of having such an impairment, or 3. being regarded as having such an impairment 4. disabled or handicapped includes AIDS. This term does not include current, illegal use of or addiction to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)). This term does not include an individual solely because that individual is a transvestite. Discriminatory housing practice means an act that is unlawful under section 804, 805, 806, or 818 of the Fair Housing Act. It also included unlawful acts under any of the federal and state fair housing and lending laws. Dwelling means 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. ECOA stands for the Equal Credit Opportunity Act. Familial status means one or more individuals (who have not attained the age of 18 years) being domiciled with: 1. a parent or another person having legal custody of such individual or individuals; or 2. the designee of such parent or other person having such custody, with the written permission of such parent or other person. The protections afforded against discrimination on the basis of familial status shall apply to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18 years. Family includes a single individual. FEHA stands for Fair Employment and Housing Act, also known as the Rumford Act, the California Fair Housing Act of 1963.

3 Housing for older persons Congressional term used to describe senior citizen or adult communities exempt from the ban on discrimination against families with children. Since 1982, California has prohibited discrimination against children. However, federal laws allow housing for older persons. The federal laws take precedence over state laws. The federal laws cover standard housing and mobile home parks. There are three types of housing for older persons. 1. Housing intended for and occupied solely by persons over the age of 62. All persons must be 62 years of age or older, with the following exceptions: a. A younger person providing substantial duties relating to maintenance or management of the housing. b. Vacant units. c. A person residing in the housing prior to d. Housing intended for and occupied by at least one person over the age of 55 years. Each household must contain one member of 55 years or older. 80% of the units must be occupied by at least one person, who has attained the age of 55 or older. In addition to the age requirement, the housing must publish and adhere to policies and procedures, which demonstrate an intent by owner or manager to provide housing to persons 55 or older. This is essentially a consistency requirement and means that literature, leasing procedures, advertising and actual management practices conform to the 55+ exemption. 2. Housing provided under state and Federal programs specifically for the purpose of accommodating elderly persons. HUD stands for Department of Housing and Urban Development. NAR stands for Nation Association of Realtors. The Code of Ethics and Standards of Practice of the NATIONAL ASSOCIATION OF REALTORS. Article 10 clearly states: REALTORS shall not deny equal professional services to any person for reasons of race, color, religion, sex, handicap, familial status, or national origin. REALTORS shall not be parties to any plan or agreement to discriminate against a person or persons on the basis of race, color, religion, sex, handicap, familial status, or national origin. (Amended 1/90) REALTORS, in their real estate employment practices, shall not discriminate against any person or persons on the basis of race, color, religion, sex, handicap, familial status, or national origin. (Amended 1/00) Standard of Practice 10-1 When involved in the sale or lease of a residence, REALTORS shall not volunteer information regarding the racial, religious or ethnic composition of any neighborhood nor

4 shall they engage in any activity which may result in panic selling, however, REALTORS may provide other demographic information. (Adopted 1/94, Amended 1/06) (More information about NAR in the Definition of VAMA.) Occupancy Rule is based on the 1996 law. The Federal occupancy rule allows owners to limit occupancy to two adults per bedroom. California occupancy rule allows owners to limit occupancy to 2 adults per bedroom, plus one additional adult. There is no limit on children. Owner occupied means property with four or less residential units, in which the owner is living in one of the units. 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. Public accommodations includes twelve types of facilities: 1. Social service centers (e.g., a day care or senior center) 2. Places of exercise or recreation (e.g., health spa, golf course, or a gym) 3. Establishments serving food or drink (e.g., a bar or restaurant) 4. Places of recreation (e.g., a park or amusement center) 5. Places of public display or collection (e.g., a museum or library) 6. Public transportation facilities (e.g., a depot or terminal) 7. Sales or rental establishments (e.g., shopping center, or bakery) 8. Service establishment (e.g., an insurance office, or gas station) 9. Places of lodging (e.g., an inn or hotel) 10. Places of public gathering (e.g. a convention center or auditorium) 11. Places of exhibition or entertainment (e.g. a theater or motion picture establishment) 12. Places of education (e.g., undergraduate, nursery or high school). Readily achievable means easily accomplished and/or carried out without much expense or difficulty.

5 Redlining is discrimination in financing of housing. Some areas were redlined meaning that loans were not given in that area for housing. Some redlining practices required higher down payments or higher mortgage interest rates. Loans may be for purchase, construction, improving, repairing or maintaining a dwelling. Appraising using neighborhood trends based on changes in race, color, national origin, etc. is also considered redlining. Rent includes to lease, to sublease, to let and otherwise to grant for a consideration the right to occupy premises not owned by the occupant. Respondent means 1. the person or other entity accused in a complaint of an unfair housing practice; and 2. any other person or entity identified in the course of investigation and notified as required with respect to respondents so identified under section 810(a) of the Federal Fair Housing Act. State means any of the several States, the District of Columbia, the Commonwealth of Puerto Rico, or any of the territories and possessions of the United States. Steering includes conduct or statements by a real estate professional that encourages or discourages someone from or towards a location, home, apartment, or neighborhood, because of family status, race, national origin, religion or handicap. The term channeling is also used and has the same meaning. Tester is an individual or individuals who, without an intent to rent or purchase a residence, pose as renters or purchasers in order to collect evidence of discriminatory housing practices. The United States Supreme Court has ruled that this practice is allowable and the tester or fair housing organization using the tester may sue under the Fair Housing Act. II. EXEMPTIONS Individuals may be exempt from Federal Fair Housing Laws in limited circumstances if THERE IS NO REAL ESTATE LICENSEE INVOLVED IN THE TRANSACTION. 1. Individuals may rent rooms or units in a dwelling containing no more than four units if the INDIVIDUAL LIVES IN THE DWELLING. 2. Individual who own three single family houses or less are exempt from the fair housing provisions of the Civil Rights Act for one transaction in any twenty-four month period of time. This exemption is valid on a national level. California law is vague regarding this issue. It would be wise to follow fair housing laws in California, in this instance. 3. Religious Organizations and Private Clubs may limit the sale, rental or occupancy of housing to their members. However, membership in such

6 religion may not be restricted on the basis of race, color or national origin. The housing must be owned or operated for a purpose other than commercial. The exemptions apply only if the sale or lease/rental is performed: 1. without the use, in any manner of the sales or rental facilities or the sales or rental services of any real estate broker, agent, or salesperson, 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 2. without the publication, posting (including internet) or mailing, after notice, of any advertisement or written notice in violation of section 804 of the Federal Fair Housing Act; 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 the title. III. FAIR HOUSING VIOLATIONS The Fair Housing Act prohibits discrimination by direct providers of housing, such as landlords and real estate companies and well as other entities, such as banks or other lending institutions, municipalities and homeowners insurance companies whose discriminatory practices make housing unavailable to persons because of race, religion, sex, national origin, familial status or disability. In cases involving discrimination in mortgage loans or home improvement loans, the Department of Justice may file suit under both the Fair Housing Act and the Equal Credit Opportunity Act. Under the Fair Housing Act, the Department of Justice may bring lawsuits where there is reason to believe that a person or entity is engaged in a pattern or practice of discrimination or where a denial of rights to a group of persons raises an issue of general public importance. Where force or threat of force is used to deny or interfere with fair housing rights the Department of Justice may institute criminal proceedings. Under the Fair Housing Act, suit may be brought by private parties, HUD, the U.S. Attorney General or state agency (if a matter was turned over to them by HUD). A person may file a complaint with HUD or file a lawsuit in federal court, or both. Discrimination may be obvious in a refusal to sell or rent. Refusals to sell or rent may involve misrepresentations regarding the availability of a property. Sales or rental criteria must be applied to all applicants, equally. If a credit report is required for a rental, it must be required from all applicants. Examples of discrimination include charging higher security deposits, countering a sales offer at a higher price, allowing a buildings occupied by disabled people to fall into disrepair while maintaining buildings occupied by non-handicapped people. Vague or

7 subjective rental criteria may lead to charges of discrimination. Waiting lists are not to be manipulated. Landlords have a legal responsibility to protect tenants from being harassed in a discriminatory manner. If a tenant is harassed by other tenants, and the landlord is aware of this harassment, the landlord has the responsibility to intervene. Continued harassment could be grounds for eviction of the offending tenants. Landlords are required to instruct all employees in non-discriminatory behavior. All tenants have the legal right to peaceful enjoyment of their homes. Fair housing laws apply to all persons living in the U.S. If someone is living the U.S. illegally, they still have the right to file a fair housing complaint but may choose not to since the information will become public record. If a landlord is using a social security number to verity credit, the landlord must do so with all applicants. If a landlord is not verifying credit, other forms of identification may be used, such as a work visa or student visa. A landlord or real estate professional cannot discriminate against people who do not speak English. There is no legal requirement for landlords or real estate professionals to provide translations. However, it is important to take the time necessary to communicate with persons who speak limited English or use a translator. IV. FORMS OF DISCRIMINATION RACIAL DISCRIMINATION: The majority of Fair Housing cases handled by the Department of Justice involve claims of race discrimination in sales and rentals of housing. Sometimes, housing providers try to disguise their discrimination by giving false information about availability of housing, either saying that nothing was available or steering home-seekers to certain areas based on race. Individuals who receive false information or misdirection may have no knowledge that they have been victims of discrimination. The Department of Justice s Fair Housing Testing Program seeks to uncover this kind of hidden discrimination and hold those responsible accountable. A single African American mother and her four children attempted to apply for housing in a San Jose, CA, neighborhood. The landlord and his wife refused to process her application, telling her they did not want her to move into their Vietnamese community. Project Sentinel (the largest fair housing agency in Northern California) tested the site and found substantial evidence or racial discrimination. The prospective tenant was referred to the Fair Housing Law Project, which negotiated an $88,000 settlement. The Fair Housing Council of Orange County, California, filed a federal lawsuit alleging racial discrimination against an African-American and multiracial couple by Flowertree Apartment complex. The apartment complex attempted to increase the security deposit terms and delayed

8 the process of the couple s application. The apartment complex owners were found guilty of racial discrimination. Additionally, they were found guilty of instructing employees to engage in discriminatory actions, as the employees were told to make it harder and less desirable for blacks to rent than whites. The employees were also told to not give applications, unless asked to non-whites, and to aggressively follow-up in processing applications of whites. Suit was filed by the plaintiffs and the Fair Housing Council, on behalf of the community. In Alameda, California a study done by ECHO Housing (Eden Council for Hope and Opportunity) showed that racial discrimination is very common. During 2005, ECHO sent 2 white and 2 black men with identical tenant profiles to view the same 53 rental units in Alameda, Union City, Livermore, Pleasanton and Hayward. The 53 properties were chosen at random and the study showed housing discrimination occurred 26% of the time. In one situation, when the white tester went to an apartment complex, he was told about the $500 move-in special. The black tester was not told about the special. In another situation at a different complex, the black tester was told that there were no vacancies, the white tester was told that there were three vacancies. NATIONAL ORIGIN The Fair Housing Act prohibits discrimination based upon national origin. Discrimination can be based either upon the country of an individual s birth or where his or her ancestors originated. Discrimination may also be based appearance, accent or participation in customs associated with a nationality. Some typical examples or discrimination based on national origin include steering tenants of a particular national origin to one section of an apartment complex, refusing to make repairs to units occupied by people of a particular national origin or prohibiting or limiting a tenant s guests because of national origin or the tenant or his/her guests. Census data indicate that the Hispanic population is the fastest growing segment of our nation s population. The Justice Department has taken enforcement action against municipal governments that have tried to reduce or limit the number of Hispanic families that may live in their communities. The Justice Department has sued lenders under both the Fair Housing Act and the ECOQ when they have imposed more stringent underwriting standards on home loans or made loans on less favorable terms for Hispanic borrowers. Long Beach Mortgage Company, Long Beach, California, was required to pay $3 million to reimburse 1,200 borrowers who received Long Beach loans and are identified by the U.S. Justice Department as victims of unlawful lending discrimination. The Justice Department began investigating after a 1993 examination by the Office of Thrift Supervision determined the lender may have engaged in discriminatory conduct. The complaint alleged that Long Beach, which makes most of its loans to less credit-worthy borrowers, known as the B/C market, established a

9 base price for its loans depending on a borrower s level of risk. A portion of the proposed price of the loan, above the base price was then charged to the borrower. The establishment of that portion of the price, above the base price was carried out in a way in which Latinos, women, the elderly and African Americans were charged higher rates than other people. The complaint alleged that the disparities between loan rates could not have occurred by chance and cannot be explained by factors unrelated to national origin, race, gender or age. For example, African American females over the age of 55 were 2.6 times more likely than white males under the age of 56 to be charged fees and points that amounted to 6% or more of the loan amount. As part of the settlement, Long Beach Mortgage is also required to spend $1 million on education programs to help consumers understand how to shop for the most appropriate loan. Many areas of the country have experience an increasing diversity of national origin groups within their populations. This includes new immigrants from Southeastern Asia, such as the Hmong, the former Soviet Union and other portions of Eastern Europe. FAMILIAL STATUS The Fair Housing Act, with some exceptions, prohibits discrimination in housing against families with children under 18 years of age. In addition to prohibiting an outright denial of housing to families with children, the Act also prevents housing providers from imposing any special requirements or conditions on tenants with custody of children. For example, landlords may not locate families with children in any single portion of a complex, place an unreasonable restriction on the total number of persons who reside in a dwelling or limit their access to recreational services provided to other tenants. In most instances, the amended Fair Housing Act prohibits a housing provider from refusing to rent or to sell to families with children. Included in this grouping are pregnant women, legal custodians, and children under the age of 18, living with parents. This Act also includes persons in the process of adopting or gaining custody of children. (However, some facilities may be designated as Housing for Older Persons and therefore exempt.) It is also discrimination to refuse to rent, lend or sell to unmarried persons, if married persons would qualify. For example, if a married couple were allowed to combine income and resources to qualify to rent, borrow, etc. then unmarried persons must be allowed to combine income and resources to qualify. In Sunnyvale, CA, a family with children contacted the landlord of a six-unit complex to apply for a vacancy. The landlord told the prospective tenants that she does not rent to people with children. The family contacted Project Sentinel (the largest fair housing agency in Northern California). Project Sentinel tested the site and corroborated the family s experience. When Project Sentinel spoke with the landlord, she said that she d had a bad experience renting to families with children so has not done so in the last 6 years. The case was referred to the

10 Department of Fair Employment and Housing, who was able to mediate the case. A $3,000 settlement was awarded and the landlord was required to attend a fair housing workshop. The Federal Court granted a preliminary injunction, in 2004, barring The Keys Condominium Association, in Walnut Creek, CA, from enforcing a rule that children under 18 are not allowed in a large main swimming pool and surrounding areas during the summer months. The Federal Court found that the rule limiting children s access to the main pool during the summer months is based solely on the fact that the children are persons under the age of 18. The result of the rule is that children and their families are treated differently and less favorably than households comprised of adults only. The Condominium Association could impose restrictions on the use of the swimming pool, such as certain hours for lap-swimming or lap-walking. Furthermore, the Association could impose reasonable restrictions on noise or roughhousing in the pool area. All restrictions must apply to all people, regardless of age. The Housing Rights Center, in Los Angeles, CA, and a mother of a 15-year old daughter obtained a consent decree and a $10,000 settlement against the owner of a small apartment complex in South Pasadena, CA. Plaintiffs alleged that the owner and manager made discriminatory statements to families with children. The owner displayed a sign in front of the property that included the term Adults Only. The owner s agent stated that a second floor unit would pose a safety issue for a child. Both the owner and the owner s agent made several discriminatory statements relating to children and families with children. Owners and managers are allowed to impose non-age related restrictions, such as no bikes allowed, keep-off of grass or restrictions on noise. However, all restrictions must be non-age related and equally enforced. In Rosemead, California, the U.S. District Court awarded $23,064 to a rental applicant for damages and attorneys fees. The Southern California Housing Rights Center filed suit with Jennifer Fleming. Ms. Fleming was applying to rent a house and was told that there was a rule which prohibited her children from playing outside in the front yard. There was no rule stating that she (Ms. Fleming) was not allowed in the front yard. In Los Angeles, California, Galaxy Apartments told persons with children, that Galaxy Apartments were a seniors only complex. The Housing Rights Center sent testers to the building and learned that childless testers of all ages were accepted. Only testers with children or who were expecting children were told that the complex was seniors only The complex paid $51,000 and entered into a two year fair housing training program. Rarely is older age used in housing discrimination, but it does exist. In Sanibel, FL., an 82 year-old man faced eviction from his home of 12 years because his landlord thought that he was disabled due to his age. Symons, an active bicycle rider and tap dancer, had maintained throughout the dispute that he was entirely capable of taking care of his own needs an opinion shared by three of his doctors and his pharmacist, one of whom noted that Symons arrived at appointments by bicycle and was well-engaged in managing his health.

11 Attorneys from AARP and the Bazelon Center for Mental Health Law worked with the plaintiff to win the right to stay in his home. RELIGION The Fair Housing Act prohibits discrimination in housing based upon religion. This prohibition covers instances of overt discrimination against members of a particular religion as well as less direct actions, such as zoning ordinances designed to limit the use of private homes as places of worship. The number of cases filed under the Fair Housing Act alleging religious discrimination is small in comparison to some of the other prohibited bases, such as race or national origin. It is not legal to ask about religion or belief in God, either verbally or in writing. The California Supreme Court has ruled that a housing provider cannot discriminate against tenants even if the provider s reason is religious. A landlord cannot refuse to rent to an unmarried couple because renting to the unmarried couple violated her own religious beliefs. The court held that the landlord s religious beliefs did not justify discrimination. The Act does contain a limited exception that allows non-commercial housing operated by a religious organization to reserve such housing to persons of the same religion. (The religious organization must not practice discrimination on the basis or race, color or national origin.) A COMMERCIAL establishment with a religious name, such as Catholic Hospital or Christian Apartments must display a statement of non-discrimination. The Justice Department filed suit against the San Francisco Housing Authority, alleging a pattern or practice of discrimination against public housing residents on the basis of race, color, national origin and religion. The complaint alleges that residents of public housing in San Francisco have been victims of racial, ethnic and religious harassment including verbal abuse, slurs threats, assaults, vandalism and robbery. The harassment of residents of Iraqi descent and Muslim faint increased substantially following the terrorist attacks of September 11, The complaint alleges that the Housing Authority had knowledge of harassment incidents, but failed to take reasonable steps to protect its tenants from this harassment, as required by law. Assistant Attorney General for Civil Rights, Ralph Boyd, Jr. said, A landlord who remains idle in the face of know racial or ethnic harassment among its tenants is in violation of the law. The lawsuit, still pending, at this time, seeks an order prohibiting the San Francisco Housing Authority from engaging in un lawful housing discrimination and monetary damages for victims.

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