English composer Ethyl Smyth has an impressive musical pedigree. She studied composition with Carl Reinecke at the Leipzig Conservatory, where she brushed elbows with composers Tchaikovsky, Dvorak, and Grieg. Smyth later studied with Heinrich von. Herzogenberg, who was married to one of Brahms’ piano students.

The Metropolitan Opera performed Smyth's opera Der Wald in 1903. The esteemed opera company would not perform another opera written by a woman composer for more than a century. Yet, despite being an accomplished composer, Smyth experienced discrimination. Although many praised her music, others said it was too “masculine.”

In 1916, Smyth’s one-act opera The Boatswain’s Mate premiered at Shaftesbury Theatre in London. The opera was based partly on Smyth's song, The March of the Women, which was the anthem of the women’s suffrage movement in England.

The Boatswain’s Mate tells of a widow, Mrs. Waters, who is running a country inn by herself. A retired boatswain, Harry Benn, wishes to marry her, but preferring to remain independent, she refuses.

Harry devises a plot where ex-soldier, Ned Travers, will break into the inn. Harry, then can come to the rescue and save Mrs. Waters. He expects she will be so appreciative that she will accept his marriage proposal.

Things don’t go as Harry planned. Mrs. Waters catches Ned and chases him with a gun. When she threatens to shoot, Ned tells her about Harry’s plot. Deciding on a plot of her own, Mrs. Waters has Ned hide. Then, she discharges her gun.

Harry rushes in as planned. Mrs. Waters informs him she has shot a burglar and tells him to dig a grave to hide the body. Harry confesses his involvement to the police, only to return and find Ned alive and well.

The Boatswain’s Mate is a tale of a strong woman who didn’t need a man to run her inn. One sees much of Smyth, who never married and was an ardent suffragist in Mrs. Waters.

Mrs. Waters is much like the fictional Mrs. Murphy in the fair housing field – a widow who rents rooms in a small boarding house where she also resides. The Fair Housing Act (FHA) prohibits housing discrimination, but individuals who rent fewer than three units in a building where they also reside are exempt from the law.

This article discusses the Mrs. Murphy exemption and the recent Department of Housing and Urban Development (HUD) race discrimination case HUD v. Quang Dangtran, Han Nguyen, and HQD Enterprise, LLC (Dangtran Case), in which the landlord unsuccessfully pursued a Mrs. Murphy defense. As the Respondents learned, it can be costly not to pay attention to FHA requirements. In the Dangtran Case, the Plano, Texas landlords were ordered to pay $140,649.36, including $79,782.75 in damages to the prospective tenant they turned away.

What is the Fair Housing Act?

On April 11, 1968, in the aftermath of Martin Luther King, Jr.’s assassination, President Lyndon Johnson signed the Fair Housing Act (FHA). At first, the FHA only prohibited discrimination because of race, color, religion, and national origin. Sex was added to the FHA in 1974.

In 1988, the FHA was amended to add disability and familial status to the protected groups. Familial status includes not only the presence of children but also the age of the residents generally. HUD recently clarified that discrimination based on sexual orientation or gender identity is sex discrimination, so the FHA also prohibits discrimination on those bases.

In addition to the FHA, states and some local governments also have fair housing laws, which may protect groups not covered under the FHA. For instance, Maryland prohibits discrimination based on the source of income in addition to the areas in the FHA. Montgomery County, Maryland, where my office is located, goes even further and prohibits discrimination based on ancestry, age, and family responsibilities.

What Acts Violate the Fair Housing Act

The FHA covers much more than the refusal to rent or sell housing to individuals in the listed classes. For example, it also prohibits these types of discrimination in housing:

• Setting differing terms or conditions for sale or rent or offering different services or options;

• Steering– trying to convince an individual to live (or not to live) somewhere because of race, religion, national origin, or another covered class;

• Blockbusting–a real estate broker trying to persuade people to sell or move based upon claims that individuals of a protected demographic, such as race, have moved into the neighborhood;

• Claiming that housing is not available when it is;

• Refusing to provide information about loans or discrimination on the terms and conditions of the sale or rental of housing;

• Refusing to provide or discrimination on the terms of homeowners’ insurance;

• Discriminatory advertisements for housing.

Exceptions to the Fair Housing Act

There are very few exceptions to the FHA:

• Owner-occupied multifamily housing of two- to four- units. If the owner owns a duplex or four-plex and lives in one unit, that property is excepted from the FHA, provided the owner does not utilize a real estate broker to rent the units. This exemption is known as the Mrs. Murphy Exemption.

• Private clubs. Private clubs which provide housing to their members are excepted from the FHA, provided they do not offer housing to the public.

• Single-family home sales. If no real estate broker is used and subject to limitations on the number of homes owned, frequency of sales, and advertising limitations, an owner may rent or lease a single-family home without complying with the FHA.

• Religious organizations. Religious organizations may limit housing to adherents of their religion.

• Occupancy limitations imposed by local law. For health and safety reasons, most local laws limit how many individuals can live in apartments of a specific size. For instance, it may be lawful to refuse to rent a small studio apartment to a four-person family with two children due to the number of people and size of the apartment.

• Age-restricted communities. Certain housing for ages 55 or older or 62 or older is exempt from familial discrimination, but not other forms of discrimination, provided the housing meets specific requirements.

What Happened in the Dangtran Case?

The Dangtran respondents were the owners and landlords of a two-story, five-bedroom home with one first-floor owner's bedroom and four second-floor bedrooms. Respondents Dangtran and Nguyen lived in the owner’s bedroom and rented bedrooms on the second floor.

The complainant was a Black woman who worked full-time as a software engineer and was taking coursework to qualify for a master’s degree program. She sought a room in a quiet household close to her job with a monthly rent of no more than $800.

Respondents advertised on Craigslist to rent one of their bedrooms for $700 per month. Complainant sent a text message inquiring about the advertised room. Dangtran responded by asking for Complainant to send him her picture. Uncomfortable with that request, Complainant looked for another place to live.

A couple of days later, Dangtran followed up with Complainant to see if she was still interested. She spoke with Dangtran on the phone and provided information about her job and why she was seeking housing. Dangtran again asked her to send a photo, and she again declined. But he agreed to send the address so she could look at the room.

Although the parties disagreed on what happened when Complainant got to the house, they agreed that Dangtran didn’t allow Complainant to see the room. Complainant claimed Dangtran eventually told her that his wife, Nguyen, would not be comfortable having Complainant rent a room at the house because she was Black. He admitted he explained that the other tenants were Asian but not that he commented on Complainant’s race. Dangtran told her he did not have to follow the FHA because he was renting a room in his private home.

In subsequent texts, Dangtran claimed he had committed to rent the room to someone else when he met with Complainant. He later admitted that wasn't true, but he was trying to spare her feelings. He later posted a new ad for the room asking prospective tenants to provide a description about themselves, including their age and race.

Since the Mrs. Murphy exemption applies only if the property has four or fewer rental units, a critical factual question was whether only three or all four of the upstairs bedrooms were rented. Respondents initially claimed they rented only three upstairs bedrooms and kept the fourth bedroom as an extra room for visiting family members. However, Dangtran testified that he had sometimes rented out all four bedrooms. Based on this, the judge concluded the Mrs. Murphy exemption was inapplicable.

In addition, the judge noted that the Mrs. Murphy exemption only applies where the landlord lives at the property. Technically, Mr. Dangtran was not an owner of the home because Nguyen and HQD Enterprise owned it, making it questionable whether the Mrs. Murphy exemption could apply to Dangtran.

Further, the judge noted that the Mrs. Murphy exemption doesn’t apply to all discriminatory acts. While the exemption might have applied to Respondents’ refusal to rent to Complainant, the exemption doesn’t apply to advertisements. Therefore, Respondents’ advertisement mentioning race violated the FHA.

Conclusion

Recently there has been an increase in auxiliary dwelling units, which homeowners may rent. Plus, inflation is causing homeowners to consider renting rooms to help make ends meet. Those homeowners must proceed with caution if they rely on the Mrs. Murphy exemption to the FHA.

While the Mrs. Murphy exemption might apply to those rentals, homeowners must ensure that their advertisements comply with the FHA. Plus, homeowners who technically don’t own their homes because they have been deeded to a trust or limited liability company for estate planning purposes might find the Mrs. Murphy exemption doesn’t apply.

Also, homeowners who utilize a real estate broker to lease their unit won’t qualify for the Mrs. Murphy exemption. And finally, homeowners must comply with state and local fair housing laws, which may not recognize the Mrs. Murphy exemption.

This series draws from Elizabeth Whitman’s background in and passion for classical music to illustrate creative solutions for legal challenges experienced by businesses and real estate investors.