Fair Housing

Fair Housing

The following does NOT constitute legal advice from me to you.  The information provided on this website is for information purposes only and does not create an attorney-client relationship between us.

I represent a number of landlords, property management companies, apartment complexes and real estate agents that collectively manage more than 4,000 rental units.  My office handles fair housing cases quickly, efficiently and cost effectively.  If I can be of any assistance to you, then please email me at Jason@jasonbolden.com or call me at 501-952-8114.

Below is some general information about fair housing laws.

Basic Facts About the Fair Housing Act

What Housing Is Covered?

The Fair Housing Act covers most housing. In rare circumstances, the Act exempts owner-occupied buildings with no more than four units, single-family housing sold or rented without the use of a broker, and housing operated by organizations and private clubs that limit occupancy to members.

What Is Prohibited?

In the Sale and Rental of Housing: No one may take any of the following actions based on race, color, national origin, religion, sex, familial status or handicap:

  • Refuse to rent or sell housing
  • Refuse to negotiate for housing
  • Make housing unavailable
  • Deny a dwelling
  • Set different terms, conditions or privileges for sale or rental of a dwelling
  • Provide different housing services or facilities
  • Falsely deny that housing is available for inspection, sale, or rental
  • For profit, persuade owners to sell or rent (blockbusting) or
  • Deny anyone access to or membership in a facility or service (such as a multiple listing service) related to the sale or rental of housing.

In Mortgage Lending: No one may take any of the following actions based on race, color, national origin, religion, sex, familial status or handicap (disability):

  • Refuse to make a mortgage loan
  • Refuse to provide information regarding loans
  • Impose different terms or conditions on a loan, such as different interest rates, points, or fees
  • Discriminate in appraising property
  • Refuse to purchase a loan or
  • Set different terms or conditions for purchasing a loan.

In Addition: It is illegal for anyone to:

  • Threaten, coerce, intimidate or interfere with anyone exercising a fair housing right or assisting others who exercise that right
  • Advertise or make any statement that indicates a limitation or preference based on race, color, national origin, religion, sex, familial status, or handicap. This prohibition against discriminatory advertising applies to single-family and owner-occupied housing that is otherwise exempt from the Fair Housing Act.

Additional Protection For The Disabled

If someone:

  • Has a physical or mental disability (including hearing, mobility and visual impairments, chronic alcoholism, chronic mental illness, AIDS, AIDS Related Complex and mental retardation) that substantially limits one or more major life activities
  • Has a record of such a disability or
  • Is regarded as having such a disability

the landlord may not:

  • Refuse to let the tenant or applicant make reasonable modifications to the dwelling or common use areas, at the tenant’s expense, if necessary for the disabled person to use the housing. (Where reasonable, the landlord may permit changes only if the tenant agrees to restore the property to its original condition when the tenant moves.)
  • Refuse to make reasonable accommodations in rules, policies, practices or services if necessary for the disabled person to use the housing.

Example: A building with a “no pets” policy must allow a visually-impaired tenant to keep a seeing-eye guide dog.

Example: An apartment complex that offers tenants ample, unassigned parking must honor a request from a mobility-impaired tenant for a reserved space near her apartment if necessary to assure that she can have access to her apartment.

However, housing need not be made available to a person who is a direct threat to the health or safety of others or who currently uses illegal drugs.

Requirements for New Buildings

In buildings that are ready for first occupancy after March 13, 1991, and have an elevator and four or more units:

  • Public and common areas must be accessible to persons with disabilities
  • Doors and hallways must be wide enough for wheelchairs
  • All units must have:
    • An accessible route into and through the unit
    • Accessible light switches, electrical outlets, thermostats and other environmental controls
    • Reinforced bathroom walls to allow later installation of grab bars and
    • Kitchens and bathrooms that can be used by people in wheelchairs.

If a building with four or more units has no elevator and will be ready for first occupancy after March 13, 1991, these standards apply to ground floor units.

These requirements for new buildings do not replace any more stringent standards in State or local law.

Housing Opportunities for Families

Unless a building or community qualifies as housing for older persons, it may not discriminate based on familial status. That is, it may not discriminate against families in which one or more children under 18 live with:

  • A parent
  • A person who has legal custody of the child or children or
  • The designee of the parent or legal custodian, with the parent or custodian’s written permission.

Familial status protection also applies to pregnant women and anyone securing legal custody of a child under 18.

Exemption: Housing for older persons is exempt from the prohibition against familial status discrimination if:

  • The HUD Secretary has determined that it is specifically designed for and occupied by elderly persons under a Federal, State or local government program or
  • It is occupied solely by persons who are 62 or older or
  • It houses at least one person who is 55 or older in at least 80 percent of the occupied units, and adheres to a policy that demonstrates an intent to house persons who are 55 or older.

A transition period permits residents on or before September 13, 1988, to continue living in the housing, regardless of their age, without interfering with the exemption.

In the Sale and Rental of Housing: No one may take any of the following actions based on race, color, national origin, religion, sex, familial status or handicap:

  • Refuse to rent or sell housing
  • Refuse to negotiate for housing
  • Make housing unavailable
  • Deny a dwelling
  • Set different terms, conditions or privileges for sale or rental of a dwelling
  • Provide different housing services or facilities
  • Falsely deny that housing is available for inspection, sale, or rental
  • For profit, persuade owners to sell or rent (blockbusting) or
  • Deny anyone access to or membership in a facility or service (such as a multiple listing service) related to the sale or rental of housing.

In Mortgage Lending: No one may take any of the following actions based on race, color, national origin, religion, sex, familial status or handicap (disability):

  • Refuse to make a mortgage loan
  • Refuse to provide information regarding loans
  • Impose different terms or conditions on a loan, such as different interest rates, points, or fees
  • Discriminate in appraising property
  • Refuse to purchase a loan or
  • Set different terms or conditions for purchasing a loan.

In Addition: It is illegal for anyone to:

  • Threaten, coerce, intimidate or interfere with anyone exercising a fair housing right or assisting others who exercise that right
  • Advertise or make any statement that indicates a limitation or preference based on race, color, national origin, religion, sex, familial status, or handicap. This prohibition against discriminatory advertising applies to single-family and owner-occupied housing that is otherwise exempt from the Fair Housing Act.

Additional Protection For Those With a Disability

If tenants or applicants:

  • Have a physical or mental disability (including hearing, mobility and visual impairments, chronic alcoholism, chronic mental illness, AIDS, AIDS Related Complex and mental retardation) that substantially limits one or more major life activities
  • Have a record of such a disability or
  • Are regarded as having such a disability

The landlord may not:

  • Refuse to let to allow the tenant to make reasonable modifications to the dwelling or common use areas, at the tenant’s expense, if necessary for the disabled person to use the housing. (Where reasonable, the landlord may permit changes only if the tenant agrees to restore the property to its original condition when the tenant moves.)
  • Refuse to make reasonable accommodations in rules, policies, practices or services if necessary for the disabled person to use the housing.

Example: A building with a no pets policy must allow a visually impaired tenant to keep a seeing-eye guide dog.

Example: An apartment complex that offers tenants ample, unassigned parking must honor a request from a mobility-impaired tenant for a reserved space near her apartment if necessary to assure that she can have access to her apartment.

However, housing need not be made available to a person who is a direct threat to the health or safety of others or who currently uses illegal drugs.

Requirements for New Buildings

In buildings that are ready for first occupancy after March 13, 1991, and have an elevator and four or more units:

  • Public and common areas must be accessible to persons with disabilities
  • Doors and hallways must be wide enough for wheelchairs
  • All units must have:
    • An accessible route into and through the unit
    • Accessible light switches, electrical outlets, thermostats and other environmental controls
    • Reinforced bathroom walls to allow later installation of grab bars and
    • Kitchens and bathrooms that can be used by people in wheelchairs.

If a building with four or more units has no elevator and will be ready for first occupancy after March 13, 1991, these standards apply to ground floor units.

These requirements for new buildings do not replace any more stringent standards in State or local law.

Housing Opportunities for Families

Unless a building or community qualifies as housing for older persons, it may not discriminate based on familial status. That is, it may not discriminate against families in which one or more children under 18 live with:

  • A parent
  • A person who has legal custody of the child or children or
  • The designee of the parent or legal custodian, with the parent or custodian’s written permission.

Familial status protection also applies to pregnant women and anyone securing legal custody of a child under 18.

Example:  A landlord may not deny an applicant’s rental application just because the tenant has young children.

Exemption: Housing for older persons is exempt from the prohibition against familial status discrimination if:

  • The HUD Secretary has determined that it is specifically designed for and occupied by elderly persons under a Federal, State or local government program or
  • It is occupied solely by persons who are 62 or older or
  • It houses at least one person who is 55 or older in at least 80 percent of the occupied units, and adheres to a policy that demonstrates an intent to house persons who are 55 or older.

A transition period permits residents on or before September 13, 1988, to continue living in the housing, regardless of their age, without interfering with the exemption.

What Happens When A Tenant or Applicant Files a Complaint?

Complaint Referrals

If HUD has determined that the State or local agency has the same fair housing powers as HUD, HUD will refer the complaint to that agency for investigation and notify the parties of the referral. In Arkansas, HUD refers the complaints to the Arkansas Fair Housing Commission for investigation.  That agency must begin work on the complaint within 30 days or HUD may take it back.

HUD  or the Arkansas Fair Housing Commission will notify the parties when it receives the tenant or applicant’s complaint. Normally, HUD the Arkansas Fair Housing Commission also will:

  • Notify the alleged violator of complaint and permit that person to submit an answer

At this point it is wise to obtain legal counsel.  Whatever a landlord, owner, property manager or apartment complex says in the answer can and will be used against them.  Having an attorney who is familiar with fair housing laws review the answers first can save an owner, property manager, real estate agent, apartment complex a tremendous ordeal.

  • Investigate the complaint and determine whether there is reasonable cause to believe the Fair Housing Act has been violated
  • Notify the parties if it cannot complete an investigation within 100 days of receiving the complaint

Conciliation

HUD or the Arkansas Fair Housing Commission will try to reach an agreement between the two parties. A conciliation agreement must protect both the alleged victim and the public interest. If an agreement is signed, HUD or  the Arkansas Fair Housing Commission will take no further action on the complaint. However, if HUD or the Arkansas Fair Housing Commission has reasonable cause to believe that a conciliation agreement is breached, HUD or the Arkansas Fair Housing Commission will recommend that the Attorney General file suit.

If the Alleged Victim Needs Help Quickly?

If an alleged victim needs immediate help to stop a serious problem that is being caused by a Fair Housing Act violation, HUD may be able to assist the alleged victim to file a complaint. HUD may authorize the Attorney General to go to court to seek temporary or preliminary relief, pending the outcome of the complaint, if:

  • Irreparable harm is likely to occur without HUD’s intervention
  • There is substantial evidence that a violation of the Fair Housing Act occurred

Example: A builder agrees to sell a house but, after learning the buyer is black, fails to keep the agreement. The buyer files a complaint with HUD. HUD may authorize the Attorney General to go to court to prevent a sale to any other buyer until HUD investigates the complaint.

What Happens after a Complaint Investigation?

If, after investigating the complaint, HUD finds reasonable cause to believe that discrimination occurred, it will inform the parties. The case will be heard in an administrative hearing within 120 days, unless the alleged victim or the other party wants the case to be heard in Federal district court. Either way, there is no cost to alleged victim.

The Administrative Hearing:

If the case goes to an administrative hearing, then HUD attorneys or attorneys from the Attorney General’s office will litigate the case on the alleged victim’s behalf.  An Administrative Law Judge (ALA) will consider evidence from both sides. If the ALA decides that discrimination occurred, the respondent can be ordered:

  • To compensate the victim for actual damages, including humiliation, pain and suffering.
  • To provide injunctive or other equitable relief, for example, to make the housing available to the victim.
  • To pay the Federal Government a civil penalty to vindicate the public interest. The maximum penalties are $16,000 for a first violation and $65,000 for a third violation within seven years.
  • To pay reasonable attorney’s fees and costs.

Federal District Court

If either party chooses to have the case decided in Federal District Court, the Attorney General will file a suit and litigate it on the alleged victim’s behalf. Like the ALA, the District Court can order relief, and award actual damages, attorney’s fees and costs. In addition, the court can award punitive damages.

In Addition

The Alleged Victim May File Suit: The alleged victim may file suit, at his or her expense, in Federal District Court or State Court within two years of an alleged violation. If he or she cannot afford an attorney, the Court may appoint one for him or her. The tenant or applicant may bring suit even after filing a complaint, if the case has not reached a conciliation agreement and an Administrative Law Judge has not started a hearing. A court may award actual and punitive damages and attorney’s fees and costs.

Other Tools to Combat Housing Discrimination:

If there is noncompliance with the order of an Administrative Law Judge, HUD may seek temporary relief, enforcement of the order or a restraining order in a United States Court of Appeals.

The Attorney General may file a suit in a Federal District Court if there is reasonable cause to believe a pattern or practice of housing discrimination is occurring.

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