Equal housing opportunity is more than a myth or a fine notion: it’s the law. The federal Fair Housing Act, which is celebrating its 50the anniversary this year, enforces equal housing opportunity across the country. Equal housing opportunity is a critical concept in the modern real estate market and it is important to know what equal housing opportunity means.
Imagine searching for a new home for weeks before finding your dream home. It sits within the perfect neighborhood and its schools are well ranked compared to others in the area. It even has a nearby park and playground where your children can play. Now imagine being told that the house is unavailable to you even though the house is on the market and you have the financial means to buy it at the requested price. You are then told that due to a series of restricted covenants in the bylaws of the homeowner’s association’s regulations buried on page 12 subsection B of the neighborhood’s rules is a provision that reads: “the sale of real estate in this neighborhood is only permitted to members of the Caucasian race and skin color.” And you are not white.
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The Civil Rights Acts of 1866
Shortly after the United States Civil War, the federal Congress passed the Civil Rights Act of 1866. Despite the tenor of the subsequent century, the Civil Rights Act of 1866 explicitly prohibits discrimination in the purchase, sale, lease, or conveyance of real property on the basis of race or color.
The Civil Rights Acts of 1964
The Civil Rights Act of 1964 marks the next significant milestone in equal housing opportunity legislation. This Act established the Fair Housing and Equal Opportunity Office of Program Compliance, whose job is to investigate claims of race, color, and national origin discrimination in the receipt of any programs receiving federal financial assistance including state-run low-income housing programs.
The Fair Housing Act – True Equal Housing Opportunity Legislation
The Fair Housing Act, also known as Title VIII of the Civil Rights Act of 1968, allows the federal government to directly enforce anti-discrimination laws in housing and promote equal housing opportunity. The Fair Housing Act prohibits discrimination in housing and real estate based on an individual’s race, color, religion, national origin, gender, and disability.
Pursuant to the Fair Housing Act, landlords and sellers must also make reasonable accommodations in rules, policies, practices, or services when such accommodations are necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling. A housing provider should do everything it can to assist, but it is not required to make changes that would fundamentally alter the program or create an undue financial and administrative burden. Reasonable accommodations may be necessary at all stages of the housing process, including application, tenancy, or to prevent eviction. For example, a reasonable accommodation for a tenant with mobility impairment could be reserving a parking space in front of the entrance to the tenant’s unit, even though all parking is unreserved.The Act also requires housing providers to allow persons with disabilities to make reasonable modifications. A reasonable modification is a structural modification that is made to allow persons with disabilities the full enjoyment of the housing and related facilities. Examples of a reasonable modification would include allowing a person with a disability to: install a ramp into a building, lower the entry threshold of a unit, or install grab bars in a bathroom.
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In addition, the Act requires that all multifamily housing consisting of four (4) or more units with an elevator built for occupancy after March 13, 1991 be designed and constructed to be accessible, meaning that all units must comply with the following seven design and construction requirements:
- Accessible Entrance on an Accessible Route;
- Accessible Public and Common-Use Areas;
- Usable Doors;
- Accessible Route Into and Through the Dwelling Unit;
- Accessible Light Switches, Electrical Outlets, Thermostats, and Environmental Controls;
- Reinforced Walls in Bathrooms;
- Usable Kitchens and Bathrooms.
The Act also prohibits housing providers from refusing residency to persons with disabilities, or placing conditions on their residency, because they require reasonable accommodations.
The Americans with Disabilities Act
In most cases, the Americans with Disabilities Act (“ADA”) does not apply to residential housing. However, Title III of the ADA covers public and common use areas at housing developments when these public areas are, by their nature, open to the general public. For example, it covers the rental office since the rental office is open to the general public.
The Equal Credit Opportunity Act
Alongside the passage of the early civil rights and equal housing opportunity legislation was an understanding that discrimination was pervasive in society, particularly in the south. Passing anti-discrimination laws risks a game of whack-a-mole with those who have overtly racist tendencies. If the federal government squelched discrimination in one area, discrimination would begin in other forms to compensate and create a similar end result. The Equal Credit Opportunity Act of 1974 was an answer to shifting discrimination strategies. While the Fair Housing Act prevented discrimination in the sale of housing, discrimination in the financing for those homes often prevented minorities from paying for their dream home.
The Equal Credit Opportunity Act, therefore, was enacted to prohibit creditors from discriminating against credit applicants on the basis of the same protected classifications used by the Fair Housing Act. Federal law provides credit applicants equal access to mortgage loans, home improvement loans, and other types of financing to help ensure that minorities are not purposefully priced out of exclusive housing markets.
Various State and Local Housing Anti-Discrimination Laws Also Help Realize the Vision of Equal Housing Opportunity
In addition to federal law, each state has passed laws relating to the prevention of discrimination in housing. For specific information about your state’s housing laws, you should research your state’s anti-discrimination laws. In addition to the protected classifications listed under federal law, New York State also prohibits housing discrimination on the basis of age, sexual orientation, marital status, familial status, and military status.
Compliance With Housing Anti-Discrimination Laws – What Does the Law Require?
The housing anti-discrimination laws penetrate every level of the real estate market and apply to both home sellers, real estate professionals, and financiers.
The Fair Housing Act requires home sellers to avoid discrimination on the basis of the protected classifications. In New York, that means that no property owner or landlord can discriminate on the basis of race, color, creed, national origin, sex, gender, sexual orientation, marital or familial status, military status, age, religion, or disability. Because of the broad scope of the Fair Housing Act, the safest course of action from a legal perspective is to not even think about any of those factors when making any decisions with regard to closing a real estate sale or turning away an offer. Property owners and landlords also cannot instruct their real estate brokers to discriminate.
The Responsibilities of Real Estate Brokers and Other Real Estate Professionals:
Real estate brokers and other types of real estate agents or professionals are bound by the same limitations as property owners and landlords. Consideration of any protected trait when making real estate sale decisions in conjunction with the property owner is illegal. It is also unlawful to follow any instruction from the property owner or landlord that would result in housing discrimination as defined by federal and state law. Finally, real estate professionals are also under a duty to provide equally professional service to all prospective purchasers or renters. This includes making the buyer aware of all available properties that meet their requirements, providing tours, and responding to inquiries about properties.
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The Responsibilities of Financiers:
Landlords, home sellers, real estate brokers, and third party companies can all be involved in the financing process for a real estate transaction. The Equal Credit Opportunity Act creates certain similar requirements with regard to financing discrimination. In short, financing cannot be denied on the basis of a protected classification. If a prospective tenant or home buyer is denied financing, federal law requires the financier to answer questions about the reasons for denying credit.
Property owners and real estate brokers have specific responsibilities under federal law. As a result, home seekers and renters should have certain expectations about their rights when entering either the real estate or rental markets. As a home seeker or prospective tenant, you have the right to access housing opportunities in your price range without fear of discrimination. You should also anticipate that your broker will provide you with the same equal choices and options as other home seekers. Finally, you should not be subjected to any discrimination in financing and should not be denied any reasonable accommodations for a disability.
A Case Study of Modern Housing Discrimination – Texas DoH v. Inclusive Communities Project, Inc.
Despite several layers of housing anti-discrimination protection, equal housing opportunity is still not always ubiquitous. Just as access to credit prevented minorities from purchasing their dream homes prior to the passage of the Equal Credit Opportunity Act, financial factors still play a major role in the denial of equal housing opportunity across the country.
Just three years ago, the United States Supreme Court decided the case of Texas Department of Housing v. the Inclusive Communities Project, Inc. The Texas Department of Housing is in part responsible for the allocation of federal and state money to assist in providing housing for the poor. The Inclusive Communities Project is a non-profit entity whose purpose is to combat continued de facto segregation in urban environments. The case involved the distribution of tax credits by the Texas Department of Housing to low income individuals. The lawsuit claimed that the Texas Department of Housing was providing a disproportionately high number of tax credits to assist minorities to live in predominantly minority neighborhoods, but was providing far fewer tax credits to assist minorities in purchasing homes in predominately white suburbs. The Supreme Court held that the disproportionate assignment of tax credits was illegal because the result of such policies impermissibly reinforced the racial composition of neighborhoods.
What to Do if You Suspect Housing Discrimination
Fortunately, people who suspect housing discrimination have several different options available to them. If you have been denied housing or service by a real estate broker, you should inquire about the reason for the denial. If you feel that the reason given is nothing more than a pretextual excuse to cover up the actual discriminatory reason, you can call the U.S. Department of Housing and Urban Development and report the incident. An investigation by HUD can be lengthy and does not always reach a satisfactory conclusion. If you want to see a swifter resolution, particularly if you want to move into your dream home before someone else snatches it away, you should consider hiring an attorney to facilitate your investigation and bring a lawsuit if required.
The Law Office of Yuriy Moshes is a full service real estate and discrimination law firm practicing law in New York and New Jersey. We provide assistance in real estate transactions and home sale closings. If you have any questions about equal housing opportunity laws, please contact our law firm for additional information.