Fair Housing Conversations



In an ongoing effort to celebrate the 50th Anniversary of the Fair Housing Act and continue our conversations on the subject of equality, this article is provided as a tool for brokers to better understand Fair Housing law and to highlight how brokers can often unwittingly be in violation. This information is based on the Legal Hotline Fair Housing video series produced by Washington REALTORS® and is not an exhaustive treatise on all Fair Housing law. To view the 10-part video series, visit Washington REALTORS® YouTube Channel and for questions on Fair Housing, contact legalhotline@warealtor.org or the Washington Human Rights Commission. 


Washington State Fair Housing Law Expands on the Federal Fair Housing Act...

  • Federal Fair Housing Act Protected Classes: Race, Color, National Origin, Religion, Disability, Sex, and Familial Status.

  • Washington and some local laws include all the above plus: Creed, Marital Status, Sexual Orientation, Gender Identity, HIV/AIDS and Hepatitis C Status, Veteran/Military Status and participation in the Section 8 housing program. 

Every single person in a real estate firm who comes in contact with a buyer, seller, or tenant is subject to the Fair Housing Act. This includes managers, brokers, independent contractors, receptionists, assistants, etc.

When advertising, Listing Brokers must market property features—NOT who they think should live there...

 

It is unlawful to advertise any preference that discriminates against or discourages members of any of the protected classes. You may, however, advertise to attract families or people with disabilities. Prohibited advertising phrases: 

  • Condo unit perfect for mature adults!

  • Home located in a Spanish speaking neighborhood. 

  • Separate apartment on site provides an excellent home for your mother-in-law.

  • You might want to consider a house in the neighborhood next door. It has a wonderful playground.

Competing Buyers & Love Letters can cause Fair Housing Violations...

Buyers often write a letter to seller stating they are perfect for the property…Should listing broker give that letter to seller (especially if there is a photo included)? Washington Law requires listing broker convey that letter to the seller (RCW 18.86.030 – timely presentation of all written offers and other written communications to or from parties). However, your seller must select a buyer based only on price, terms and the buyer’s financial capacity, all of which is included in the buyer’s offer and the buyer’s lender’s pre-approval letter. Brokers must document file showing the business reason that the seller selected the buyer they did.

Do You Know What to Do When Your Client Violates the Fair Housing Act?

More often than not, violations are done unintentionally. For example, in a multiple offer scenario, perhaps one buyer has less desirable financial terms, but seller chooses to proceed with accepting the buyer because of a personal preference (say that the buyer submitted a letter with a photo explaining why they are perfect for the property). Listing broker must say something to the effect, “Seller, there is no business reason for you to accept the less desirable offer over the other. If I proceed, both I and my firm will be in violation of the Fair Housing Act. I will not participate in violation of the Fair Housing Act. If you chose to proceed in this manner, I will have to terminate our listing agreement & the agency relationship.” Then you need to document your file on these conversations!

Senior Housing

 

The protected class of familial status includes anyone under the age of 18 living with a parent or guardian. It is unlawful to discriminate against any one potential buyer/tenant based on their membership of the protected class of familial status because the child under the age of 18 lives with the adult. There is one exception—where the property itself complies with senior housing criteria for a 55+ or a 62+ community. 

  • 55+ is a community where at least 80% of the units are occupied by a person that is 55 or older. 

  • 62+ is a community where every single person who lives in the community is 62 years or older. 

CC&Rs

 

When you take a listing, it is important that you pull a preliminary commitment as soon as you take that listing. You’ll look for a copy of the CC&Rs. You need to review for provisions that violate the Fair Housing Act.  Example: Racial Restrictions The title company usually catches this and redacts the language. If you do find language with racial restrictions, you’ll need to call the title company to have it redacted. Look for Red Flag provisions (not necessarily violative, but still concerns) 

Examples: Parking, pet policy against service/comfort animals, occupancy restrictions restricting caregivers. 

Buyer Representation

 

What do you say when your buyer asks you to identify the best neighborhood to live in? Is this a good neighborhood? Is this a bad neighborhood? What are the crime statistics? Are the schools any good? Be careful! You should not answer these questions.  Instead, you should say, “I cannot give you information about what constitutes a good neighborhood or a bad neighborhood.” In doing so, you’re avoiding an action that violates the Fair Housing Act: Steering. 

Brokers can play no role directing a buyer to or away from a community. The information the broker provides can only be the information and statistics that allow the buyers themselves to assess the community where they want to live.  You can describe the school district with statistical information as long as how you describe it is entirely consistent with the way you describe it to every single buyer you show the property to.  The way you treat one buyer is the way you treat every buyer. The way you describe a neighborhood to one buyer is the way you describe it to every buyer. Direct the buyer to sources where they can answer their own questions. Give them info to access local police department, local public library, the local school district. Your job is to show them houses that match the physical description of what the buyer has defined.

Clients with Disabilities

 

A disability is classified as a physical or mental impairment that substantially limits one or more of the person’s major life activities. A person can have a disability that you may not observe. Post-Traumatic Stress Disorder (PTSD) is one of many examples of invisible disabilities. Because you offer your services as a real estate broker in a public marketplace, you are required to accommodate a buyer or seller with a disability. How do you accommodate a buyer with a disability? You ask, “How can I accommodate your disability?” 

When a buyer comes to you and says, “I am disabled,” your question should be “How can I accommodate your disability?”

If their disability is apparent, then you are not allowed to ask any further questions. If their disability is not apparent and you are being asked to accommodate a disability that you cannot observe, then you can ask for a verification. But that is all you can ask for.  After that, you can only say, “How can I accommodate your disability?” They answer, and you accommodate. With respect to a wheel chair, brokers are not required to transport the wheelchair.

In the example of comfort or service animals, you accommodate them. If there are limitations related to your own allergies or allergies of the seller that would inhibit the buyer’s use of the comfort/service animal, you will have to offer solutions. There is not a one-size-fits-all answer. Contact the Washington REALTORS® Legal Hotline at www.warealtor.org or the Human Rights Commission at www.hum.wa.gov to get clarification on a specific scenario.

Accommodations & Modifications

 

If a resident comes to the association or the property management company with a disability, that disability must be accommodated. We should distinguish the difference between an accommodation and modification.

Reasonable Accommodations: 

  • Are related to the resident’s disability needs.
  • Are not an undue administrative and financial burden to the housing provider. 
  • Do not fundamentally alter the nature of the provider’s operations.  

Accommodations include service animals (dogs or mini-horses); comfort animals can be any animal (do not require training). In Fair Housing, there is no distinction–service AND comfort animals required by a person with disabilities must be accommodated by the condo association or property manager or owner. Pet policies do not apply. Service animals are considered an assistive device to the person with a disability – therefore pet policies do not apply to comfort or service animals. No deposits can be required, no restrictions on size or weight or breed. No restrictions that can be enforced.

Condo associations are also required to find some way to accommodate the parking needs of the person with the disability. 

Modifications are provided and paid for by the resident themselves. A resident cannot be prohibited from make a modification to the unit as long as the following criteria are met: 

  • Resident provides reasonable description of the proposed modification.

  • Gives assurance that construction will be workmanlike and agrees to obtain any required building permits. 

  • Agrees to restore premises, except restoration is not necessary when modification won’t interfere with the next resident’s use.

Modification Examples

  • Installation of a wheelchair ramp on the front of the condo building. Note: If the CC&Rs prohibit exterior alterations to the building, it does not apply to modifications required by persons with disabilities. 

  • Widening doorways inside a home for access. The tenant must be given permission, consistent with the criteria for “Modifications” to widen the doorways in their unit to make it accessible. 

Banning Felons...

 

It is unlawful to have a policy of not accepting applicants who have felonies. It is lawful for a landlord to use criminal history in screening tenants, but it is unlawful to have an outright ban. 

The Washington Attorney General has said that when the question about past convictions are asked and the answer is yes, then follow up questions MUST be asked. Questions like: What are the convictions? When did it/they occur? What has happened since? Did they serve time? Did they have any rehabilitation? In every case, the landlord must evaluate the application, including the history around any criminal records. 

Why is this related to Fair Housing? Historically there are a greater number of felony convictions among people of color. Because of that, there is a disparate impact on people of color who are trying to apply for tenancy if there is an outright ban on everyone that has a felony on their record. 

Property Management Policies

 

Ensure that you have a policy in place for all residents to satisfy occupancy within your units.  The policy language must be neutral and enforced neutrally.  You cannot use language like, “Kids may not skateboard in the parking lot.” Instead, use neutral language like, “No skateboarding in the parking lot.”

If you receive complaints, you are required to investigate and make a determination as to the merits of the allegations. A policy will help you in this regard. For instance, if harassment is occurring, you must take action. The action can include any steps along the way to eviction if necessary. If you do evict, Landlord Tenant Law does not give you the authority to evict a tenant for harassment, yet the Fair Housing Act requires it.  How do you accommodate the requirement of the Fair Housing Act? The only way you accommodate it is by having a policy in place prohibiting the harassment of one tenant by another. Hire legal counsel to help you create a set of policies that comply with the Fair Housing Act. 


If you have questions on any of these topics, email Annie Fitzsimmons at legalhotline@warealtor.org. You must be an active Washington REALTORS Member to have questions answered by the Legal Hotline lawyer. 

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