Michigan Real Estate Education and Licensing (www.123ConEd.com and www.1StopConEd.com))

Sunday, March 22, 2009

What should I consider before running ads with human models?

Fair housing laws apply to all types of advertising and marketing used in home sales and purchases, including ads in newspapers, on the radio, in magazines, on the Internet, on television, on flyers, even in comments for a listing in the Multiple Listing Service. But what should you consider before running ads with human models?

Selective advertising may involve an advertising campaign using human models primarily in media that cater to one racial or national origin segment of the population without a complementary advertising campaign that is directed at other groups. Another example may involve use of racially mixed models by a developer to advertise one development and not others. Similar care must be exercised in advertising in publications or other media directed at one particular sex, or at persons without children. Such selective advertising may involve the use of human models of members of only one sex, or of adults only, in displays, photographs or drawings to indicate preferences for one sex or the other, or for adults to the exclusion of children.

Avoid using pictures or images that show preference or discourage people because of their protected class. If you use advertising with photographs or drawings of people, try to show men, women, children, people with disabilities, and people of all races, nationalities and ages in a way that reflects the population as a whole. A series of newspaper ads run over a period of weeks using only white models could be found to be a violation of fair housing laws.

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To learn more about Fair Housing issues (and many other topics affecting Michigan real estate professionals), please visit us at www.123ConEd.com. 123 ConEd LLC (www.123ConEd.com) is a leading online provider of continuing education courses to real estate professionals in Michigan. Our online Michigan real estate con ed courses are fully approved and properly certified by the Michigan Department of Labor & Economic Growth. All of our courses are designed to offer our students the most information, as quickly and economically as possible.

Who qualifies as a person with a disability under the Fair Housing Act?

The following is a summary of what it takes to qualify as a "person with a disability" under the Fair Housing Act.

The Fair Housing Act defines a person with a disability to include (1) individuals with a physical or mental impairment that substantially limits one or more major life activities; (2) individuals who are regarded as having such an impairment; and (3) individuals with a record of such an impairment. The Act defines certain terms as follows:

The term “physical or mental impairment” includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, Human Immunodeficiency Virus (HIV) infection, mental retardation, emotional illness, drug addiction (other than addiction caused by current, illegal use of a controlled substance) and alcoholism.

The term “substantially limits” suggests that the limitation is “significant” or “to a large degree.”

The term “major life activity” means those activities that are of central importance to daily life, such as seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning, and speaking. This list of major life activities is not exhaustive.

It's important for all real estate professionals to remember that the Fair Housing Act prohibits discrimination in housing on the basis of race, color, religion, sex, familial status, national origin and disability.

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Types of Discrimination Against Persons with Disabilities Prohibited by the Fair Housing Act

The goal of the Fair Housing Act is to ensure “no person shall be subjected to discrimination because of race, color, religion, sex, handicap, familial status or national origin in the sale, rental or advertising of dwellings, in the provision of brokerage services, or in the availability of residential real-estate related transactions.” With respect to people with disabilities, the Act serves to:

Give people with disabilities opportunities to choose where they want to live;

Assure that reasonable accommodations and reasonable modifications are made so that a person with a disability can secure and use housing as fully as a person without a disability.

Assure that persons with disabilities are able to live free from intimidation and harassment; and

Require that multi-family housing built for first occupancy after March 13, 1991, has certain accessible features (e.g., a usable kitchen for a person who uses a wheelchair).

The Fair Housing Act prohibits housing providers from discriminating against applicants or residents because of their disability or the disability of anyone associated with them and from treating persons with disabilities less favorably than others because of their disability. The Act also prohibits housing providers from refusing residency to persons with disabilities, or, with some narrow exceptions, placing conditions on their residency, because those persons may require reasonable modifications or reasonable accommodations.

With respect to reasonable accommodations and reasonable modifications:

The Act makes it unlawful for any person to refuse “to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford . . . person(s) [with disabilities] equal opportunity to use and enjoy a dwelling."

The Act makes it unlawful for any person to refuse “to permit, at the expense of the [disabled] person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises, except that, in the case of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.”

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Department of Justice Sues a Large Multi-Family Housing Developer Alleging Disability-Based Housing Discrimination

Here is another example of a lawsuit that was recently filed by the United States Department of Justice ("DOJ") to enforce the Fair Housing Act. I try to post summaries of these types of cases in order to provide timely updates to real estate professionals about the "dos and don'ts" under the Fair Housing Act, since fair housing is such an important issue.

On March 4, 2009), the DOJ filed a lawsuit against JPI Construction L.P. (“JPI”) and six JPI-affiliated companies for failing to provide accessible features required by the Fair Housing Act and the Americans with Disabilities Act at multi-family housing developments.

Since 1991, when the Fair Housing Act first required most new multi-family housing to contain accessible features, JPI and its affiliates have built more than 200 apartment, condominium and other housing complexes in twenty-six states and the District of Columbia.

According to the DOJ’s complaint, the defendants failed to design and construct accessible dwelling units and public and common use areas at several of its complexes that are located in various states throughout the country. According to the complaint, certain complexes designed and constructed by the defendants have inaccessible steps and curbs leading to units, steeply sloped routes leading to units, and no accessible routes to site amenities, including inaccessible trash facilities, barbecue grills and cookout tables. In addition, certain housing units have narrow doors and hallways; kitchens that lack accessible clear floor space at the sinks, ranges and refrigerators; bathrooms that lack accessible clear floor space at the toilets and tubs; and thermostats that are mounted too high to be accessible to a person using a wheelchair. The lawsuit filed by the DOJ is an allegation of unlawful conduct, and the allegations must still be proven in court.

The lawsuit seeks money damages to compensate victims and a civil penalty to be paid to the government. The lawsuit also seeks a court order requiring the defendants to modify the complexes to bring them into compliance with federal laws. This case is currently pending in the United States District Court for the Northern District of Texas.

As every real estate professional should already know, the Fair Housing Act prohibits discrimination in housing on the basis of race, color, religion, sex, familial status, national origin and disability. This case demonstrates that failing to design and construct multi-family housing with basic features of accessibility can lead to a violation of fair housing laws.

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Sunday, March 1, 2009

In the wake of the attacks of September 11, 2001, is it okay to screen housing applicants on the basis of their citizenship status?

The question often arises whether is it okay to screen housing applicants on the basis of their citizenship status. This question seems to have come up more often in the wake of the attacks of September 11, 2001.

The Fair Housing Act does not prohibit discrimination based solely on a person's citizenship status. Accordingly, asking housing applicants to provide documentation of their citizenship or immigration status during the screening process would not violate the Fair Housing Act. In fact, such measures have been in place for a number of years in screening applicants for federally-assisted housing. For these properties, HUD regulations define what kind of documents are considered acceptable evidence of citizenship or eligible immigration status and outline the process for collecting and verifying such documents. These procedures are uniformly applied to every applicant. Landlords who are considering implementing similar measures must make sure they are carried out in a nondiscriminatory fashion.

It is important to keep in mind that it is still unlawful to screen housing applicants on the basis of race, color, religion, sex, national origin, disability, or familial status, since those are protected classes under the Fair Housing Act.

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Some Examples of Discriminatory Advertisements in Real Estate

As every real estate professional should already know, the Fair Housing Act prohibits discrimination in housing on the basis of race, color, religion, sex, familial status, national origin and disability. Fair housing laws prohibit making, printing or publishing any notice, statement, or advertisement that indicates any preference, limitation, or discrimination based on a protected class.

Although not an exhaustive list, the following are a few examples of what might constitute a discriminatory housing advertisement.

1. Race/Color

Ads stating a preference for the race of a desired applicant (e.g., “no blacks,” “whites only,” etc.)

Ads describing the race of current occupants of the complex or neighborhood (e.g., “African-American neighborhood,” “most residents are Asian,” “lots of Hispanic families,” etc.)

2. Religion

Ads stating a preference for the religion of a desired applicant (e.g., “Christians only,” “no Muslims,” etc.)

Ads describing the religion of current occupants of the complex or neighborhood (e.g., “nice, Christian neighborhood,” “Jewish family seeks roommate,” etc.)

3. National Origin

Ads stating a preference for a certain national origin (e.g., “no immigrants,” “no foreigners,” “Irish preferred,” etc.)

Ads posted only in a language other than English

Ads describing the national origin of current occupants of the complex or neighborhood (e.g., “predominately Latino neighborhood,” “mostly Asian residents,” etc.)

4. Handicap/Disability

Ads stating a preference for able-bodied tenants (e.g., “no wheelchairs,” “must be able to live independently,” etc.)

Ads describing the complex as unable to accommodate people with disabilities (e.g., “units are not accessible”, “no pets, even seeing eye dogs”, etc.)

5. Familial Status

Ads stating a clear preference for families without children (e.g., “no children,” “no kids and no pets,” “single occupancy only,” etc.)

Ads that could discourage families with children (e.g., “ideal for working professionals,” “perfect for single or couple,” “nice, quiet, mature, neighborhood,” etc.)

6. Sex/Gender

Ads stating a preference for one sex over another (e.g., “no young men,” “female preferred,” etc.)

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Requirements for Using Fair Housing Logos and Posters

Using the fair housing logo is a great way to show a commitment to fair housing. Many housing providers use the Equal Housing Opportunity logo in their ads and on their written materials to show that they do business in compliance with fair housing laws.

HUD requires that owners and managers display a fair housing poster with its logo at rental offices. This applies to rentals covered by the federal Fair Housing Act, and to dwellings rented through a real estate broker/agent. See 24 C.F.R. §§ 110.1 – 110.30.

Who Is Required to Display a Fair Housing Poster?

HUD’s regulations require the following:

If a single-family dwelling (one that is not being offered for sale or rental in conjunction with the sale or rental of other dwellings) is offered for sale or rental through a real estate broker, agent, salesman, or person in the business of selling or renting dwellings, such person must post and maintain a fair housing poster at any place of business where the dwelling is offered for sale or rental. 24 C.F.R. § 110.10(a)(1).

With respect to all other dwellings covered by the Fair Housing Act, a fair housing poster must be posted and maintained at:

o Any place of business where the dwelling is offered for sale or rental, and

o The dwelling (except that with respect to a single-family dwelling that is being offered for sale or rental in conjunction with the sale or rental of other dwellings, the fair housing poster may be posted and maintained at the model dwellings instead of at each of the individual dwellings). 24 C.F.R. § 110.10(a)(2).

With respect to new construction, the fair housing poster must be posted at the beginning of construction and maintained throughout the period of construction and sale or rental. 24 C.F.R. § 110.10(a)(3).

HUD does not require the posting and maintaining a fair housing poster on vacant land. 24 C.F.R. § 110.10(b)(1).

All real estate brokers and agents must post and maintain a fair housing poster at all of their places of business. 24 C.F.R. § 110.10(c).

Location of Posters

All fair housing posters must be prominently displayed “so as to be readily apparent to all persons seeking housing accommodations or seeking to engage in residential real estate-related transactions or brokerage services.” C.F.R. § 110.15.

Availability of Posters

Fair housing posters can be obtained from HUD’s regional and area offices. A facsimile may be used if the poster and the lettering are equivalent in size and legibility to the poster available from HUD. 24 C.F.R. § 110.20.

Effect of Failure to Display Poster

Any person who claims to have been injured by a discriminatory housing practice may file a complaint with HUD. And consistent with that, a failure to display the fair housing poster as required by this part shall be deemed prima facie evidence of a discriminatory housing practice. 24 C.F.R. § 110.30

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A Housing Provider Can't Condition Approval of a Request for a Reasonable Modification on the Requester Obtaining Special Liability Insurance

The question often arises whether a housing provider or homeowner’s association may condition the approval of a request for a reasonable modification (under the Fair Housing Act) on the requester obtaining special liability insurance.

The answer is, no. Imposition of such a requirement would constitute a violation of the Fair Housing Act.

For Example: Because of a mobility disability, a tenant wants to install a ramp outside his unit. The housing provider informs the tenant that the ramp may be installed, but only after the tenant obtains separate liability insurance for the ramp out of concern for the housing provider’s potential liability. The housing provider may not impose a requirement of liability insurance as a condition of approval of the ramp.

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How Does A Housing Provider Know If An Accommodation Or Modification Request Is “Reasonable”? When Can The Housing Provider Refuse A Request?

Under the Fair Housing Act, a person with a disability may be entitled to a reasonable accommodation or modification. A reasonable modification is a structural change made to the premises whereas a reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service. A person with a disability may need either a reasonable accommodation or a reasonable modification, or both, in order to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces.

An accommodation or modification is reasonable if:

It is related to the resident’s disability needs;
Is not an undue administrative and financial burden for the housing provider;
Does not fundamentally alter the nature of the provider’s operations.

Undue Burden: The request must not impose an undue financial and administrative burden on the housing provider. The determination of undue financial and administrative burden must be made on a case-by-case basis involving various factors, such as the cost of the requested accommodation, the financial resources of the provider, the benefits that the accommodation would provide to the requester, and the availability of alternative accommodations that would effectively meet the requester’s disability-related needs.

Example: An applicant who uses a walker prefers a third-story rental in an older walk-up building – the housing provider does not have to install an elevator if such a modification is cost-prohibitive.

Fundamental Alteration: The requested accommodation or modification must not require the housing provider to make a fundamental alteration in the essential nature of the provider’s operations.

Example: A resident with a disability cannot do his own housekeeping and the housing provider does not supply housekeeping for residents. A request for such services is not reasonable.

Refusing a Request: When a housing provider refuses a requested accommodation because it is not reasonable, the provider should discuss with the requester whether an alternative accommodation would effectively address the person’s disability-related needs. If an alternative accommodation would effectively meet the person’s needs and is reasonable, the provider must grant it.

A failure to reach an agreement on an accommodation request is in effect a decision by the housing provider not to grant the requested accommodation. Someone who was denied an accommodation may file a fair housing complaint to challenge that decision.

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Instances When a Housing Provider Can Deny a Request for a Reasonable Accommodation Without Violating the Fair Housing Act

A housing provider can deny a request for a reasonable accommodation if the request was not made by or on behalf of a person with a disability or if there is no disability-related need for the accommodation. In addition, a request for a reasonable accommodation may be denied if providing the accommodation is not reasonable (i.e., if it would impose an undue financial and administrative burden on the housing provider or it would fundamentally alter the nature of the provider’s operations). The determination of undue financial and administrative burden must be made on a case-by-case basis involving various factors, such as the cost of the requested accommodation, the financial resources of the provider, the benefits that the accommodation would provide to the requester, and the availability of alternative accommodations that would effectively meet the requester’s disability-related needs.

When a housing provider refuses a requested accommodation because it is not reasonable, the provider should discuss with the requester whether there is an alternative accommodation that would effectively address the requester’s disability-related needs without a fundamental alteration to the provider’s operations and without imposing an undue financial and administrative burden. If an alternative accommodation would effectively meet the requester’s disability-related needs and is reasonable, the provider must grant it. An interactive process in which the housing provider and the requester discuss the requester’s disability-related need for the requested accommodation and possible alternative accommodations is helpful to all concerned because it often results in an effective accommodation for the requester that does not pose an undue financial and administrative burden for the provider.

Example: As a result of a disability, a tenant is physically unable to open the dumpster placed in the parking lot by his housing provider for trash collection. The tenant requests that the housing provider send a maintenance staff person to his apartment on a daily basis to collect his trash and take it to the dumpster. Because the housing development is a small operation with limited financial resources and the maintenance staff are on site only twice per week, it may be an undue financial and administrative burden for the housing provider to grant the requested daily trash pick-up service. Accordingly, the requested accommodation may not be reasonable. If the housing provider denies the requested accommodation as unreasonable, the housing provider should discuss with the tenant whether reasonable accommodations could be provided to meet the tenant’s disability-related needs – for instance, placing an open trash collection can in a location that is readily accessible to the tenant so the tenant can dispose of his own trash and the provider’s maintenance staff can then transfer the trash to the dumpster when they are on site. Such an accommodation would not involve a fundamental alteration of the provider’s operations and would involve little financial and administrative burden for the provider while accommodating the tenant’s disability-related needs.

There may be instances where a housing provider believes that, while the accommodation requested by an individual is reasonable, there is an alternative accommodation that would be equally effective in meeting the individual’s disability-related needs. In such a circumstance, the housing provider should discuss with the individual if she is willing to accept the alternative accommodation. However, providers should be aware that persons with disabilities typically have the most accurate knowledge about the functional limitations posed by their disability, and an individual is not obligated to accept an alternative accommodation suggested by the provider if she believes it will not meet her needs and her preferred accommodation is reasonable.

When in doubt about whether you can rightfully deny a request for a reasonable accommodation, you should contact your local fair housing office, HUD, or an attorney.

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Michigan Real Estate Education and Licensing (www.123ConEd.com and www.1StopConEd.com))

Sunday, March 22, 2009

What should I consider before running ads with human models?

Who qualifies as a person with a disability under the Fair Housing Act?

Types of Discrimination Against Persons with Disabilities Prohibited by the Fair Housing Act

Department of Justice Sues a Large Multi-Family Housing Developer Alleging Disability-Based Housing Discrimination

Sunday, March 1, 2009

In the wake of the attacks of September 11, 2001, is it okay to screen housing applicants on the basis of their citizenship status?

Some Examples of Discriminatory Advertisements in Real Estate

Requirements for Using Fair Housing Logos and Posters

A Housing Provider Can't Condition Approval of a Request for a Reasonable Modification on the Requester Obtaining Special Liability Insurance

How Does A Housing Provider Know If An Accommodation Or Modification Request Is “Reasonable”? When Can The Housing Provider Refuse A Request?

Instances When a Housing Provider Can Deny a Request for a Reasonable Accommodation Without Violating the Fair Housing Act

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