ADVERTISING GUIDELINES AND FAIR HOUSING INFORMATION 100% OF LOCAL MLS LISTINGS AT HOULIHANLAWRENCE.COM

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1 ADVERTISING GUIDELINES AND FAIR HOUSING INFORMATION 100% OF LOCAL MLS LISTINGS AT HOULIHANLAWRENCE.COM

2 TABLE OF CONTENTS Advertising Guidelines & Fair Housing Information...1 Helpful Websites...2 Advertising!...3 Illegal Advertising...4 Fair Housing Summary...7 Human Rights and Fair Housing...8 Fair Housing Laws Summary...9 HUD s Advertising Guidelines...12 Equal Housing Poster...14 Protected Classes...16 Summary...19 Houlihan Lawrence Weathervane Advertising 28 Maple Avenue, Armonk, NY

3 1-1 - Advertising Guidelines & Fair Housing Information When in doubt, leave it out! As a rule of thumb, always DESCRIBE the home and property, don't say what or whom it would be perfect for. Listed below are some guidelines to follow when writing ad copy: Permitted Gunite pool, pool, sparkling pool Modern, Gorgeous or spacious kitchen Opens to Lower level Large rooms, spaces Attractive neighborhood Happy holidays Handicap accessible Mother-in-law suite Four spacious bedrooms Cozy cottage Residential enclave Suburban neighborhood Close to worship Not Allowed In-ground pool Eat-in kitchen Sliding glass doors Basement Perfect for Family neighborhood Merry Christmas, Happy Kwanzaa Great for disabled A woman s office Great for a large family Retiree dream home White neighborhood Italian neighborhood Close to synagogue Not sure what the style of the home is? Click here to get detailed information ALWAYS PROOF COPY BEFORE PUTTING IT ON MAIN STREET!! 1

4 Helpful Websites for Realtors and Home Seekers in Westchester and Putnam Counties link to census for population and demographic information. link to towns for information about specific communities. link to Municipalities and then to Census 2000 for information about specific communities. link to Geocoding/mapping system for information about specific neighborhoods and streets (sponsored by the federal financial institutions examination council). good source of information about local communities. - information provided by the New York Times real estate section about local communities. Plus, every community and school district has its own website. 2

5 ADVERTISING! What is Advertising? What is Discriminatory Advertising? Much of the description you write about a property can be considered advertising. It can include not only advertisements in published newspapers and magazines, but fact sheets you compose as well as your remarks in the MLS. Information described above that contains words, phrases, symbols or visual aids that state or imply a preference, limitation, or discrimination based on the protected categories (race, religion, etc.) under federal, state, municipal and county Fair Housing Laws. Follow these Advertising - Describe the property, not the people. Guidelines Example: Instead of using executive to describe a property, list the amenities such as a deck with hot tub, pool with cabana, etc. Example: It is acceptable to state no smoking, however, it is not acceptable to state no smokers. The former refers to an activity whereas the latter refers to people. Check that your advertisement shows no preference or implied exclusivity. Example: Although a property is located across from a well known church or synagogue you should not use the church/synagogue as a landmark in the ad. Instead, use a street name or public building, such as a library. Acceptable/Unacceptable Words HUD Clarification Regarding Advertising The Oregon Newspaper Publishers Association is one of the organizations that has compiled a list of words considered acceptable, unacceptable, or use with caution. The reason some words are viewed unacceptable is because they state or imply a preference or exclusivity regarding who is desirable to live in the property. Note: these lists are not necessarily approved by HUD. A January 9, 1995 memorandum by HUD stated that its advertising guidelines have been misinterpreted by some outside the department to extend the liability for advertisements to unreasonable circumstances. HUD states that physical descriptions such as master bedroom, bachelor apartment, great view, walk-up, and family room are not discriminatory and do not violate the Federal Fair Housing Act. 3

6 Illegal Advertising How to avoid placing advertisements that can get you into trouble with the fair housing laws. Here are some basic rules to help you write ads that will keep you out of trouble. WHAT DOES THE LAW SAY? According to the fair housing laws issued by the U.S. Department of Housing and Urban Development (HUD), it s against the law to publish an advertisement with respect to the sale or rental of a dwelling that indicates any preference based on race, color, religion, sex, handicap, familial status, or national origin. That rule applies to print, radio, TV, and Internet ads, as well as to statements made to prospects. It s obvious that an advertisement that says no blacks or no children violates the fair housing laws. But what about innocent-sounding phrases like aster bedroom or family room? Does HUD view those phrases as code words expressing a preference for certain types of residents? Some owners were worried about using such common phrases as great view or walk-in closets because someone somewhere could conceivably think that those descriptions discriminate against blind or wheelchairbound residents. In 1995, in response to numerous inquiries, HUD said it was taking what can best be described as a reasonable approach on the issue of advertisements. HUD has made it clear that an advertisement doesn t discriminate against blind prospects if it says an apartment has a great view. HUD has also said that advertising the fact that an apartment has a family room won t get you into trouble with single prospects. Ending an ad with the phrase Merry Christmas, which HUD described as a secularized term, is also permissible. And you ll be relieved to know that you can even include a picture of the East Bunny in your ads, according to HUD. What can t you say in your ads? Ads that state a preference based on any of the covered categories, such as race or religion, are impermissible. For example, you can t describe your community as containing a white family home or a Christian home. And you can t discriminate on the basis of handicap by saying No wheelchairs. You should also know that pictures or photographs in your ads could get you into trouble with the fair housing laws if you re not careful. According to HUD s regulations, if human models are used in advertising, the models should be clearly definable as reasonably representing majority and minority groups in the metropolitan area. What does that mean? If you community is located in a city where one third of the residents are members of minority groups, it s discriminatory to advertise using all white models. Example: The owner of a community in Virginia marketed his apartments using a brochure that featured white models. The court ruled that the advertising was discriminatory because it implied that the apartments were meant for white residents only. The owner of the community was ordered to pay $14,800 [Saunders v. General Services Corp.]. WHAT DOES THE LAW MEAN? The law means that an advertisement can t indicate, either in words or in pictures, that certain residents are more or less desirable because of their race, religion, familial status, or handicap. The federal housing laws prohibit discrimination based on those categories, and your advertisement shouldn t contain pictures or be written in such a way that indicates a preference based on those categories. The following rules should help reduce your changes of facing a discrimination complaint. Rule #1: 3 RULES FOR PROBLEM-FREE ADS Describe the Apartment, NOT the People You Want to Live There The best way to avoid violating the fair housing laws when writing an advertisement is to describe the apartment you re trying to rent and not talk about what kind of people might be happy renting the apartment, says Raymond Cartwright, director of housing at the Pennsylvania Human Relations Commission. For example, you can say that an apartment has a large family room, but you shouldn t say that the apartment is perfect for a family with children. 4

7 Here are some more specific suggestions based on HUD s categories of protected individuals. 1) Race, color, or national origin. Your ads shouldn t use words that indicate a preference either for or against someone because of his or her race, color, or national origin. What can you say? Any physical description of an apartment is usually okay. For example, you can use the following terms in your ad master bedroom, rare find, or desirable neighborhood. HUD has said those terms aren t discriminatory. But you can t use racial or ethnic terms to describe current or potential residents. For example, ad advertisement for an apartment described as being in a white home and which stated gentlemen only violated the fair housing laws, according to a Maryland court [United States v. Hunter]. PRACTICAL POINTER: Remember, one easy way to get out of the habit of including descriptions of people is to avoid using certain phrases. Make sure your ads don t say: Perfect for as in Perfect for a large family Ideal for as in Ideal for a Christian family or A dream home for as in A dream home for newlyweds with no children. If you avoid those phrases, you ll reduce your chances of getting hit with a discrimination lawsuit. When in doubt, Cartwright says, leave it out. 2) Religion. Describing the property in the case of religion may be a bit trickier. Obviously, you can t say a Christian home or no Muslims in your advertisement. But you can use religious language to describe the property to some extent. It s okay to say that your community contains a chapel or that kosher meals are available so long as you don t indicate a preference for renting to residents who might use that facility or service. So adding a sentence that says ideal for observant Christians or perfect for Jewish residents would transform your acceptable ad into an unacceptable one. It s also not a violation of the fair housing laws to use a picture of Santa Claus or the Easter Bunny in your advertisements since those images aren t considered religious images by HUD. TIME OUT! When describing the location of your property, you re better off not referring to religious or cultural landmarks, says Tom Harris, a Texas fair housing expert. Saying that an apartment building is around the corner from a certain church or just two blocks from an African- American community center could be construed as evidence that you prefer a particular type of resident. 3) Sex. You can t say no single women in your ads. But you can use the terms master bedroom or bachelor apartment to describe the property you re trying to rent or sell. According to HUD, those phrases don t mean that you prefer men as residents. 4) Handicap. You can t run ads that suggest preferences or restrictions based on a prospect s disability. For example, ads that say no wheelchairs or independent living are discriminatory. But ads that contain a description of accessibility features are lawful. It s okay to say that your property contains a wheelchair ramp. Your ad can also describe features in an apartment that a disable resident might not be able to use or enjoy. For example, your ad can mention the fact that an apartment has a great view or walk-in closet. It can also mention the availability of a jogging trail or describe a location as a short walk to bus stop. These descriptions don t indicate a preference for residents without disabilities. 5) Familial status. Again, if you stick to describing the property in your ads, you property won t get into trouble with the fair housing laws. For example, it s acceptable to say that the apartment you re renting has a cozy family room or that no bicycles are allowed in the building. But you can t say that the apartment is perfect for a single person or is in an adult-only community, or that children aren t welcome. Example: The owners of a mobile-home park in Iowa published a newsletter saying that they were thinking of converting the park into an adult community and would no longer rent homes to families with children. The court determined that the newsletter was a discriminatory advertisement, and the owners were ordered to pay a $5,000 penalty and almost $1,500 in costs [Iowa v. Kedings]. 5

8 PRACTICAL POINTER: When writing your advertisement, be as general as possible so that no one can accuse you of having a preference for families without children. For example, instead of saying no bicycles in your ad, why not say No sporting equipment allowed in public spaces. And instead of saying No baby carriages may be stored in the hallways, say No personal property may be stored in the hallways. Rule #2: Use Models Who Reflect Your Community We ve learned that using the wrong words in an advertisement can violate the fair housing laws and result in a hefty fine. Using the wrong pictures in an advertisement can also violate HUD s regulations and wind up costing you a lot of money. HUD s guidelines are clear concerning models in ads. The models in your ads must reflect the real people who live in your city. If one third of the population in your city is made up of African- Americans, you can t advertise your community using only white models. In general, don t use models of only one race or one sex in your advertisements. Include models who represent both the majority and minority populations in your city, advises Harris. For example, the owner of a community in Virginia got himself into trouble because his brochures contained almost no pictures of minority models [Saunders v. General Services Corp.]. Including the logo will add little, if anything, to the cost of your advertisement, and if a problem should arise with the content of your ad, the logo will provide some evidence that your had no intent to discriminate. Also, HUD has said that a problematic advertisement, such as one that must use the name of an entity that contains a religious reference, such as the Roselawn Catholic Home, can be cured by including the right kind of statement. For example, an ad for the Roselawn Catholic Home won t violate the fair housing laws if it contains the following statement: This home doesn t discriminate on the basis of race, color, religion, national origin, sex, handicap, or familial status. Adding this phrase to your ad is a good idea. LEGAL CITATIONS Iowa v. Keding: 553 N. W. 2d 305 (Iowa Sup. Ct. 1996). Saunders v. General Services Corp.: 659 F. Supp (U.S. Dist. Ct. Va. 1987). United States v. Hunter: 549 F.2d 205 (U.S. Ct. App. 4 th Cir. 1972). AT A GLANCE 3 Rules for Problem-Free Ads 1. Describe the apartment, not the people you want to live there. 2. Use models who reflect your community. 3. Use the fair housing logo and statement. PRACTICAL POINTER: Sometimes the owner of a community will use staff members or family members as models in his ads, says Harris. This costsaving idea may seem innocent enough. But, if your staff or family doesn t reflect the racial composition of your city, you may get into trouble. The models in your advertisements must be varied and must look like the people who live in your community s city, even if they aren t professional models. Rule #3: Use the Fair Housing Logo and Statement Here s a simple and easy rule: Always include the fair housing logo in your advertisements for apartments. The Fair Housing Logo looks like this: 6

9 FAIR HOUSING SUMMARY Protected Classes Who is protected from discrimination under the federal, state and county fair housing laws? Race Color Religion/creed Sex/gender National origin Disability or handicap Familial status Marital status Age Sexual orientation Military status Citizenship or alien status Victims of domestic abuse Discriminatory Practices What actions violate the fair housing laws? The refusal to sell or rent Misinformation about the availability of the unit Differences in terms and conditions Exemptions To The Fair Housing Laws The sale or rental of a single-family home; provided, the owner does not advertise, use a broker, or own more than 3 such homes. The rental of a 2-family dwelling; provided, the dwelling is not listed, the owner resides in one of the accommodations, no advertising is used and the owner does not have a real estate license. Shared Facilities The rental of a room or rooms in an accommodation may be limited to members of the same sex, either where the rental is in an owner-occupied dwelling or where the Rules Of Thumb For Brokers And Agents Less is more! Avoid subjective information about communities and schools and label your personal experience clearly as such. Provide clients with websites and phone numbers for all communities and schools in your service area. Focus on the property and not the person looking. Focus on the customer s financial qualifications and stated housing requirements. Treat all customers the same think of each customer as a potential tester! Calculate 2 people per bedroom as a reasonable number of persons per dwelling. Steering Coercion, intimidation, threats or interference dwelling requires the sharing of bedrooms, bathrooms and kitchens, like a Y, a dorm or a rooming house. Dwellings owned by religious organizations; provided, the restrictions is limited to religious affiliation. Lodgings in a private club that is not open to the public or operated commercially. Age-related facilities for seniors (age 55 for NYS funded housing and age 62 for federally funded housing). Point out fair housing office policies and law on the listing agreement before it is signed. Do not accede to a seller s discriminatory conditions you will be equally liable. Turn down the listing, if necessary. Hand out listing sheets to your customers to ensure that each customer gets the same information. Document in detail all requirements and special requests by your clients on your written Equal Service Report. Quote client, if need be. Discrimination can be expensive it is not covered by your errors and omissions insurance and fines can begin at $10,000. If in doubt weather something is discriminatory, CALL WRO! 7

10 Human Rights and Fair Housing Mrs. Townsend has the upstairs apartment in her Albany home to rent out. She would prefer renting to a woman, and second-hand cigarette smoke makes her ill. She would like to advertise for a nonsmoker, woman, but wonders if that would violate human rights laws. Besides damaging society, unfair housing practices can land property owners and real estate licensees in serious trouble, with ruinous consequences. Understanding eh complex laws and regulations concerning human rights is the first step toward fair treatment of all parties. Equal Opportunity in Housing 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. 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 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 thereof to inherit, purchase, lease sell, hold and convey real and personal property. A summary of fair housing laws appears in Table 1. Federal Fair Housing Act of 1968 In 1968 a major event greatly encouraged the progress of fair housing: the passage of the federal Fair Housing Act of 1968, which is contained in Title VIII of the Civil Rights Act of The law originally provided that it is unlawful to discriminate on the basis of race, religion or national origin when selling or leasing residential property. In 1974 an amendment added sex (gender) as a protected class, 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; chronic 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. 8

11 Table 1 Fair Housing Laws Summary Law New York City Civil Rights Act of 1866 Title VII of the Civil Rights Act of 1968 (Federal Fair Housing Act) Housing and Community Development Act of 1974 Fair Housing Amendments Act of 1988 New York Executive Law New York Real Property Law Americans with Disabilities Act Protected Classes Citizenship, lawful occupation, sexual orientation Prohibits discrimination in housing based on race or color (without exception) Prohibits discrimination in housing based on race, color, religion or national origin (with certain exceptions) Extends prohibitions to discrimination in housing based on sex (gender) Extends protection to cover handicaps and families with children (with exceptions) Covers race, creed, color, national origin, sex, disability, age and marital status (some exceptions) Prohibits discrimination based on presence of children in a family or pregnancy Prohibits discrimination based on disabilities 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. Newly constructed multifamily buildings with four or more units must provide for wheel chair access to all ground floor units and to all upper floor units in buildings with elevators. Housing developments intended for older persons may exclude children if such developments are occupied solely by persons 62 and older, or if 80 percent of the units are occupied by at least one person 55 or older and there are policies and procedures published and adhered to demonstrating an intent to provide housing for person 55 or older. Prohibited acts. The federal Fair Housing Act specifically prohibits the following acts, where they are based on prospective tenants or buyers membership in a protected group: Refusing to sell, rent or negotiate with any person, or otherwise making a dwelling unavailable to any person Example: Broker Bill is negotiating a listing with Seller Sue. Sue informs Bill that she will not sell her property to anyone who is not a god-fearing Christian. Because refusing to sell on the basis of religion is a forbidden practice, Bill should refuse to accept the listing. Changing terms, conditions or services for different individuals as a means of discrimination Example: The Sky Towers Apartments has a policy of collecting a $500 security deposit from its tenants. However, in the case of families with children, Sky Towers requires a security deposit of $1,000. This variation in the terms of the apartment leases on the basis of familial status is a violation of fair housing laws. 9

12 Practicing discrimination through any statement or advertisement that restricts the sale or rental of residential property Example: Jones Realty advertises its listings in the classified section of the local newspaper. The ads include the slogan Jones Realty specializing in homes for Asian immigrants. The ad s implication that certain housing is more suitable to persons of a particular race, color or national origin is a clear violation of fair housing requirements. (This is known as steering.) Representing to any person, as a means of discrimination, that a dwelling is not available for sale or rental Example: When George applies to rent an apartment, the manager takes his application but informs him that there are no units currently available. White it is true that all the units are currently occupies, one of the tenants is due to move out in three days. The manager simply prefers to rent the unit to a woman, since she believes they make better tenants. This is a case of unlawful housing discrimination on the basis of sex. Making a profit by inducing owners of housing to sell or rent because of the prospective entry into the neighborhood of persons of a particular race, color, religion, national origin, handicap or familial status Example: Acme Real Estate Company is running a direct mail campaign attempting to solicit listings from the predominantly white Alderbrook neighborhood. Included in the direct mail package are the results of a demographic study that projects that the population of Alderbrook will become increasingly nonwhite in the next few years. Use of such scare tactics to generate profit through increased listings puts Acme in violation of fair housing laws. (This is known as blockbusting.) Altering the terms or conditions for a home loan to any person who wishes to purchase or repair a dwelling or otherwise denying such a loan as a means of discrimination Example: Citywide Mortgage Company has a policy of refusing to make loans for properties located in the Valley View neighborhood, claiming that borrowers from Valley View have historically been at higher risk of default. Because this policy does not consider the creditworthiness of individual borrowers from Valley View, it is more than likely intended to discriminate against such borrowers on the basis of some other characteristic, such as race or national origin. (This is known as redlining.) Denying people membership or limiting their participation in any multiple-listing service, real estate brokers organization or other facility related to the sale or rental of dwellings as a means of discrimination Example: A multiple-listing service cannot lawfully exclude brokers from participation on the basis of their race, color, sex, religion, age, national origin, familial status or handicap. 10

13 In New York, real estate advertising is often monitored by state and federal government agencies to detect evidence of discriminatory practices. There has been much confusion about what types of property descriptions are and are not appropriate or legal to us in an ad. In an effort to clarify federal regulations regarding real estate advertising, HUD issued the following policy guidelines in January 1995 (also see Figure 1): Race, color, national origin. Real estate advertisements should state no discriminatory preference or limitation on account of race, color or national origin. Use of words describing the housing, the current or potential residents or the neighbors or neighborhood in racial or ethnic terms (e.g., white family home, no Irish) will create liability under this section. However, advertisements that are racially neutral will not create liability. Thus, complains over use of phrases such as master bedroom, rare find or desirable neighborhood should not be filed. Religion. Advertisements should not contain an explicit preference, limitation or discrimination on account of religion (e.g., no Jews, Christian home). Advertisements that use the legal name of an entity that contains a religious reference (for example, Roselawn Catholic Home) or those that contain a religious symbol (such as a cross) standing alone, may indicate a religious preference. However, if such an advertisement includes a disclaimer (such as the statement, This home does not discriminate on the basis of race, color, religion, national origin, sex, handicap or familial status ), it will not violate the act. Advertisements containing descriptions of properties (apartment complex with chapel) or services (kosher meals available) do not on their face state a preference for persons likely to make use of those facilities and are not violations of the act. The use of secularized terms or symbols relating to holidays, such as Santa Claus of the Easter Bunny, or St. Valentine s Day images, or phrases such as Merry Christmas, Happy Easter or the like, does not constitute a violation of the act. Sex. Advertisements for single-family dwellings or separate units in a multi-family dwelling should contain no explicit preference, limitation or discrimination based on sex. Use of the term master bedroom does not constitute a violation of either the sex discrimination provisions or the race discrimination provisions. Terms such as mother-inlaw suite and bachelor apartment are commonly used as physical descriptions of housing units and do not violate the act. Handicap. Real estate advertisements should not contain explicit exclusions, limitations or other indications of discrimination based on handicap (e.g., no wheel chairs). 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). 11

14 Figure 1 HUD s Advertising Guidelines CATEGORY RULE PERMITTED NOT PERMITTED Race Color National Origin No discriminatory limitation/preference may be expressed master bedroom attractive neighborhood white neighborhood no French Religion Sex Handicap Familial Status Photographs or Illustrations of People No religious preference/limitation No explicit preference based on sex No exclusions or limitations based on handicap No preference or limitation based on family size or nature People should be clearly representative and nonexclusive chapel on premises kosher meals available happy holidays mother-in-law suite master bedroom female roommate sought wheelchair ramp walk to shopping two bedroom family room Illustrations showing ethnic races, family groups, singles, etc. no Muslims nice Christian family near great catholic school great house for a man wife s dream kitchen no wheelchairs able-bodied tenants only married couple only no more than two children retiree s dream house family neighborhood Illustrations showing only singles, African-American families, elderly white adults, etc. 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 facially discriminatory and do not violate the act. Exceptions. The following exemptions to the federal Fair Housing Act are provided: The sale or rental of a single family home is exempted when the home is owned by an individual who does not own more than three such homes at one time and when the following conditions exist: (a) a broker, salesperson or agent is not used and (b) discriminatory advertising is not used. If the owner is not living in the dwelling at the time of the transaction or was not the most recent occupant, only one such sale by an individual is exempt from the law within any 24-month period. The rental of units is exempted in an owner-occupied one-to four-family dwelling (but again, discriminatory advertising may not be used). 12

15 Dwelling units owned by religious organizations may be restricted to people of the same religion if membership in the organization is not restricted on the basis of race, color, national origin, handicap or familial status. A private club that is not in fact open to the public may restrict the rental or occupancy of lodgings that it owns to its members, as long as the lodgings are not operated commercially. Equal Housing Poster (see page 14) o An equal housing opportunity poster can be obtained from HUD. Displayed in a broker s office, it informs the public about fair housing laws and shows the firm s intention to comply. When HUD investigates a broker for discriminatory practices, it considers failure to display the poster evidence of discrimination. The poster should be prominently displayed in any location where the broker conducts business, including model homes. Blockbusting and Steering o Blockbusting and steering are undesirable housing practices frequently discussed in connection with fair housing. The are prohibited by federal and New York State law. o Blockbusting means inducing homeowners to sell by using scare tactics about the entry of a certain group into the neighborhood. The blockbuster frightens homeowners into selling and makes a profit by buying the homes cheaply, then selling them at considerably higher prices to minority persons. o Steering is the channeling of home seekers to particular areas on the basis of race, religion, country of origin or other protected class. Steering is often difficult to detect, because the steering tactics can be so subtle that home seekers are unaware that their choices have been limited. Steering may be done unintentionally by agents who are not aware of their own unconscious assumptions. Even if unconscious or unintentional, discrimination is still illegal. An increasingly common means of detecting steering is the use of testers. Redlining o Denying applications for mortgage loans or insurance policies in specific areas without regard to the economic qualifications of the applicant is known as redlining. This practice, which often contributes to the deterioration of older, transitional neighborhoods, is frequently based on race rather than on any supportable objections to the applicant. Enforcement. A person who believes illegal discrimination has occurred has up to one year after the alleged act to file a charge with the Department of Housing and Urban Development (HUD) or may bring a federal suit within two years. HUD will investigate, and if the department believes a discriminatory act has occurred or is about to occur, it may issue a charge. Any party involved (or HUD) may choose to have the charge heard in a federal district court. If no one requests the court procedure, the charge will be heard by an administrative law judge within HUD itself. 13

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17 The administrative judge has the authority to issue an injunction (court order). This would order the offender to do something (rent to the complaining party, for example) or to refrain from doing something. In addition, penalties can be imposed, ranging from $10,000 for a first violation to $25,000 for a second violation within five years and $50,000 for further violations within sever years. If the case is heard in federal court, an injunction and actual and punitive damages are possible, with no dollar limit. The Department of Justice may also on its own sue anyone who seems to show a pattern of illegal discrimination. Dollar limits on penalties in such cases start at $50,000, with a possible $100,000 penalty for repeat violations. The guilty party may be required to pay the other side s legal fees and court costs, which can add up to substantial amounts. Complaints brought under the Civil Rights Act of 1866 must be taken directly to a federal court. The only time limit for action is three years, which is New York s statute of limitations for torts, that is, injuries done by one individual to another. There is no dollar limit on damages. Threats or Acts of Violence The federal Fair Housing Act of 1968 contains provisions protecting the rights of those who seek the benefits of the open housing law as well as the rights of owners, brokers or salespersons who assist them. Threats and intimidation should be reported immediately to the local police and to the nearest office of the Federal Bureau of Investigation (FBI). Americans with Disabilities Act of 1992 The Americans with Disabilities Act (ADA) of 1992, a federal antidiscrimination law, was enacted primarily to protect disabled persons from discrimination in public accommodations and commercial facilities. It also provides protection from discrimination and mandates easy access in new multifamily housing with at least four units. In the event a tenant wishes to make alterations at his or her own expense to make an existing dwelling unit more accessible, the tenant may do so. The landlord may require that the tenant restore the premises, as necessary, to their original state when vacating. 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 and marital status (some exceptions). Blockbusting, forbidden under federal statutes, is specifically mentioned in the New York Human Rights 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. Although not a part of New York human rights laws, the DOS s code of professional conduct for real estate licensees adds one more state-wide protected class: sexual preference. 15

18 A person charging discrimination may initiate a private lawsuit (with no dollar limit mentioned under state law) and also 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 and marital status. The age provisions apply only to those 18 and older. Table 2 Protected Classes Civil Rights Act of 1866 Fair Housing Act of 1968 New York Law New York City Yes Citizenship Race Yes Yes Yes Yes Color Yes Yes Yes Yes Religion Yes Yes ( creed ) Yes National origin Yes Yes Yes Lawful occupation Yes Sex Yes (1974) Yes Yes Age Yes (over 18) Yes Handicap Yes (1988) Yes Yes Sexual orientation Yes Yes Marital status Yes Children in family No Yes (1988) Yes Yes (Familial status) Exceptions Yes Yes Yes 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. Various exceptions are made to the New York State rules, but these exceptions will not apply where the discrimination is racially based, because the federal Civil Rights Act of 1866, which covers race, permits no exceptions. With that in mind, New York State excepts public housing that may be aimed at one specific age group, restriction of all rooms rented to members of the same sex, rental of a room in one s own home and restriction of rentals to persons 55 years of age or older. Although an owner sometimes may discriminate under these exemptions, a licensee may not participate in the transaction, either through ownership or employment. In general the New York statutes cover renting, selling, leasing and advertising. Public accommodations also are included. The law further forbids any real estate board to discriminate in its membership because of any of the listed categories, which in this case include age. New York regulations are generally more restrictive than federal laws. Table 2 summarizes the categories covered by the various federal and New York State laws. 16

19 Local Regulations Local governments may add other groups to the list of protected categories. New York City, Syracuse and Albany are among cities that have prohibited housing discrimination based on sexual orientation. The New York City Human Rights Commission has adopted the standard of domestic partner (an unmarried adult person who can prove emotional and financial commitment and interdependence) for gay or lesbian couples who deal with co-op boards. The definition also has been used in disputes over rights to rent-controlled and rent-stabilized apartments. The city also prohibits discrimination on the basis of lawful occupation or citizenship and allows no exceptions to fair housing laws for the rental of an owner-occupied two-family house. 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, the 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 are a number of steps that a broker can take 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. 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. 17

20 In addition, the National Association of REALTORS suggests a sign stating that it is against company policy as well as state and federal laws to offer any information on the racial, ethnic or religious composition of a neighborhood or to place restrictions on listing, showing or providing information on the availability of homes for any of these reasons. If a prospect still expresses a locational preference for housing based on race, the association s guidelines suggest the following response: I cannot give you that kind of advice. I will show you several homes that meet your specifications. You will have to decide which one you want. A broker s responsibility for the discriminatory behavior of his or her salesperson presents unique problems. Although brokers may wish to limit their control of salespeople to protect the salesperson s independent contractor status, effective control of behavior in the area of fair housing is essential to protect the broker from liability under civil rights laws. Brokers should have formal office policies regarding discriminatory behavior, and they should require that salespeople acknowledge in writing that they understand those policies and that they have received adequate training to be aware of the requirements of the fair housing laws. In addition, brokers must have some system for monitoring the activities of salespeople in regard to fair housing compliance. One way to do this is through a record-keeping system that requires that salespeople keep a record of all prospects, including the prospects qualifying information, the properties that were identified for the prospects and the prospects reactions to each individual property. Periodic review of such records by the broker will help identify any instances where a salesperson may be in violation of fair housing standards. Discrimination involves a sensitive area, human emotions. The broker or salesperson who complies with the law still has to deal with a general public whose attitudes cannot be altered by legislation alone. Therefore, a licensee who wishes to comply with the fair housing laws and also succeed in the real estate business must work to educate the public. In recent years brokers sometimes have been caught in the middle when local governments enacted well-meaning reverse discrimination regulations. Intended to preserve racial balance in given areas, local laws sometimes run counter to federal and state rules, posing a real problem for the conscientious licensee. From time to time real, estate offices are visited by testers or checkers, undercover investigators who want to see whether all customers and clients are being treated with the same cordiality and are being offered the same free choice within a given price range. For example, two testers-one black and one white-with similar qualifications and interest may separately visit a real estate office to inquire about properties. If the two testers are treated differently by the office or are shown a different range of properties, it may be an indication of unlawful discriminatory behavior by the office. Courts have held that the practice of using testers is permissible as the only way to test compliance with the fair housing laws that are of such importance to American society. When a broker is charged with discrimination, it is no defense that the offense was unintentional or the broker did not know the law. Citing past service to members of the same minority group is of little value. The agent s best course is to study fair housing law, develop sensitivity, and follow routine practices to reduce the danger of unintentionally hurting any member of the public. 18

21 These practices include careful record keeping for each customer: financial analysis, properties suggested, houses shown, check-back phone calls. Using a standard form for all qualifying interviews is essential. Special care should be taken to be on time for appointments and to follow through on returning all phone calls. Besides helping to avoid human rights violations, these practices are simply good business and should result in increased sales. Key Terms -Affirmative marketing agreement -Federal Fair Housing Act of 1968 (NAR) -Marital status -Americans with Disabilities Act -New York Human Rights Law (ADA) -New York State Division of -Blockbusting Human Rights -Cease and desist order -Protected classes -Civil Rights Act of Real Property Law -Code for Equal Opportunity -Redlining -Department of Housing and -Reverse discrimination Urban Development (HUD) -Steering -Executive Law -Testers -Familial status Summary Federal regulations regarding equal opportunity in housing are principally contained in two laws. The Civil Rights Act of 1866 prohibits all racial discrimination, and the federal Fair Housing Act (Title VIII of the Civil Rights Act of 1968) prohibits discrimination on the basis of race, color, religion, sex, national origin, handicap or familial status (the presence of children in a family) in the sale or rental of residential property. Discriminatory actions include refusing to deal with an individual or a specific group, changing any terms of a real estate or loan transaction, changing the services offered for any individual or group, making statements or advertisements that indicate discriminatory restrictions or otherwise attempting to make a dwelling unavailable to any person or group because of membership in a protected class. Some exceptions apply to owners but none to brokers and none when the discriminatory act is based on race. Complaints under the federal Fair Housing Act may be reported to and investigated by the Department of Housing and Urban Development and may be taken to a U.S. district court. Complaints under the Civil Rights Act of 1866 must be taken to a federal court. New York s Executive Law (Human Rights Law) adds age and marital status to the grounds on which discrimination is forbidden. The National Association of REALTORS Code for Equal Opportunity suggest a set of standards for all licensees to follow, including equal service regardless of a customer s or client s sexual preferences. 19