April is Fair Housing Month

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George Gershwin’s opera Porgy and Bess requires a cast entirely comprised of African American singers. Initially, Gershwin had difficulty obtaining financing for the opera’s premiere because he refused Broadway producers’ requests that he use white singers in blackface.

Based upon DuBose Heyward’s 1925 novel Porgy, the opera takes place on Catfish Row, a waterside area in Charleston, South Carolina. And Gershwin and Heyward worked together on the opera on an island near Charleston. Heyward’s plot is replete with racial stereotypes. Yet, thanks to Gershwin, the opera provided African American singers with an opportunity to be spotlighted at a time when they had few opportunities in opera or on Broadway.

Catfish Row was an actual place known as Cabbage Row. Based upon a tenement at 89 and 91 Church Street, it was as Cabbage Row because of cabbages grown and sold there, Built in the Revolutionary War era, likely as a mercantile, located only about two blocks from a slave auction site (now the Old Slave Mart Museum). By the late 1880s, the site was a bordello.

By the early 20th century, Cabbage Row was a crowded residence, occupied by an estimated 100 African Americans at once. In 1922, one Charleston council member called it a “sore spot,” referencing terrible sanitary conditions (but not caring about the plight of Cabbage Row’s residents who had to live in that environment).

In 1928, shortly after Porgy was published, Cabbage Row was purchased by an architect who wanted to restore the property. The African American residents were likely evicted, possibly moving to even more rundown housing.

Cabbage Row was being restored by the time the Federal Housing Agency created its infamous redlining maps in the 1930s. However, Cabbage Row was the type of property that experienced redlining due to being in an area occupied by African Americans.

Redlining was a part of the New Deal designed to support government insurance of home mortgages to encourage homeownership. Redlined areas were deemed too risky for mortgages in that area to be insured.

Most redlined neighborhoods had a high percentage of African American residents. Without government insurance, people who purchased homes in redlined areas faced higher interest rates, which kept home values low and homeownership out of reach for many.

As such, redlining was a form of government-sponsored housing discrimination. And the discrimination continued for some 30 years until President Johnson signed the Fair Housing Act (FHA) into law on April 11, 1968. Every April, the U.S. Department of Housing and Urban Development (HUD) and other fair housing agencies and organizations commemorate the FHA and other fair housing efforts.

Who is Protected by the Fair Housing Act?

At first, the FHA only prohibited discrimination because of race, color, religion, and national origin. In 1974, the FHA was expanded to also prohibit sex discrimination. And in 1988, the FHA was amended to add disability and familial status to the list of protected groups.

Although the FHA doesn’t expressly mention LGBTQ, in 2021, HUD clarified that discrimination against LGBTQ individuals is sex discrimination and, therefore, violates the FHA.

Exceptions to the Fair Housing Act

There are very few exceptions to the FHA:

  • Owner-occupied multifamily housing of up to four units. If the owner owns a duplex or four-plex and lives in one unit, that property is excepted from the FHA.

  • 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, an owner may rent or lease a single-family home without complying with the FHA. This exception is subject to additional restrictions on the number of homes owned, frequency of sales, and advertising limitations,

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

  • Occupancy limitations imposed by local law. 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. However, if the landlord rented the studio apartment to two adults, it could not refuse to rent to a single parent with a child.

  • Age-restricted communities. Housing for age 55 or older or age 62 or older are exempt from the familial discrimination provisions, provided the housing meets certain specific requirements. However, Age-restricted communities may not discriminate against residents based upon age, sex, race, color, national origin, disability, or LGBTQ status.

  • Direct threat to others. A landlord may discriminate against a disabled individual if they pose a “direct threat to others.” However, the landlord’s concern about the individual posting a direct threat must be specific to the particular individual based upon facts. It can’t be based upon speculation, generalized assumptions, or stereotypes.

What Actions Does the Fair Housing Act Prohibit?

The FHA covers much more than the refusal to rent or sell housing to individuals in the listed classes. The FHA also prohibits other activities which treat individuals in protected classes less favorably than others:

  • 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 protected demographic, such as race, have moved into the neighborhood;

  • Claiming that particular housing is not available when it is;

  • Refusing to provide information about loans or discrimination on lending terms and conditions;

  • Refusing to provide or discrimination on the terms and conditions of homeowner’s insurance.

Additional Rights for Disabled Individuals

It is unlawful to refuse to rent or sell housing to someone based upon their disability. It also is illegal to steer or limit options offered to disabled individuals based upon perceptions about their disabilities. Disabled individuals also may have the right to reasonable accommodations of their disabilities.

Landlords should not make assumptions about a disabled individual’s needs based upon stereotypes or preconceived notions. Instead, a disabled individual must request accommodation. A common accommodation is to allow a service animal or emotional support animal without an additional charge or in a pet-free community. Or an owner might provide a disabled individual a convenient, accessible parking location.

However, owners need not provide every accommodation that an individual requests. If the accommodation would pose an undue hardship for the owner, the owner may refuse to provide the requested accommodation. For instance, an owner does not have to agree to install an elevator in a building so a disabled tenant can live on an upper floor. But, if a mobility-challenged tenant requests a unit on the first floor or near to an existing elevator, such a unit must be provided if it is available.

Additional accessibility requirements under the Americans with Disabilities Act (ADA) apply to buildings first occupied or which experienced major renovations after March 13, 1991. The requirements vary depending upon whether the accessibility concerns are inside a dwelling unit or are in a common area. For multi-floor buildings, the rules vary depending upon whether the building has an elevator.

If the unit meets ADA construction requirements, Owners usually won’t have to pay for modifications inside a rental unit accessible for a disabled tenant’s specific needs. However, an owner might have to allow the resident to modify the unit at the tenant’s expense. The owner also can require restoration of the property to its previous condition at the resident’s expense upon move-out.

Fair Housing Best Practices

Fair housing is not only the law and the right thing to do, but discriminatory practices also cost money in fines and lawsuits to the owner and distract staff from running the property. Plus, by making a property welcoming to a diverse tenant base, landlords may have more qualified applicants and experience higher occupancy.

  • Know the Law. In addition to the FHA, there are requirements for owners that receive federal funding. Plus, many states, counties, and cities have fair housing laws imposing obligations beyond those in the FHA. For instance, landlords that receive government rent support must provide access to individuals whose English proficiency is limited.

  • Develop Strong Fair Housing Policies and Procedures. Owners and managers should develop policies and procedures to assure compliance with fair housing laws. Developing policies and procedures forces an owner to examine their property and vulnerabilities for fair housing violations. Fair housing policies and procedures also can prevent inadvertent fair housing violations by standardizing sale, leasing, and management processes.

  • Train Employees. Landlord employees should receive regular fair housing training on the law and on the policies and procedures. Fair housing signs in the leasing office may be required by law and also remind employees of their fair housing obligations.

  • Use Fair Housing Friendly Advertising. Include fair housing language in advertising. Also, be sure that advertising describes only the real estate available for sale or rent. Advertisements should not describe the buyer or tenant being sought. As an example, “cozy two-bedroom, one-bath house for rent” is appropriate. “Two-bedroom, one-bath house for rent–perfect for a couple without children” is not. “Rental property with swimming pool, playground, and picnic area, close to public transportation” is appropriate. “Rental property with swimming, playground, and picnic area, close to churches and perfect for young family” is not.

  • Don’t Make Assumptions. Many fair housing complaints arise because landlords make assumptions about a prospective tenant’s needs. For instance, the landlord might assume that a visually impaired individual will want a first-floor apartment or that an individual with no visible disability is faking the need for an emotional support animal.

  • Think Before You Speak. Think about how your words might be perceived by the listener. For instance, asking a pregnant woman if this is her first child might be perceived as familial status discrimination by determining how large the prospective tenant’s family is. Directing a prospective tenant who is Hispanic to a unit because it is close to families who speak Spanish might be discrimination based upon national origin.

  • Be Consistent. Establish neutral tenant screening policies and apply them consistently to everyone. For example, background and credit checks should be used for everyone and evaluated on the same basis for all prospective tenants.

  • Keep Good Records. Knowing the law and consistently applying strong fair housing practices help landlords and sellers defend unjustified discrimination claims. Good recordkeeping also helps keep employees accountable and serves as a reminder to follow fair housing practices. Records also can provide support for retraining, discipline, and firing employees who engage in unlawful discrimination.

  • Conduct an Accessibility Audit. Apartment owners should hire a professional to evaluate their property for ADA compliance. Even if the property is old enough not to be subject to the ADA, it still should be welcoming to individuals with disabilities.

  • Keep Communication Channels Open. Communicate the reason for adverse decisions to tenants and prospective tenants. Provide them with a process to ask questions and raise objections.

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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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