Table of Contents
Fair Housing
Federal Statutes Affecting Fair Housing.
Title VIII of the Civil Rights Act of 1968 prohibits discrimination in the sale, rental, and financing of dwellings, and in other housing-related transactions, based on race, color, national origin, religion, sex, familial status, and handicap (disability). Click HERE for an explanation of the statute.
return to top State Statutes Affecting Fair Housing.
Oregon Unlawful Discrimination In Real Property Transactions
- ORS 659A.420 “Purchaser” defined for ORS 659A.421 Click HERE for an explanation of the statute.
- ORS659A.421 Discrimination in selling, renting or leasing real property prohibited Click HERE for an explanation of the statute.
return to top Explanation of Title VIII
The Fair Housing Act covers most housing. The Federal Act (not the state) 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. For all other housing, no one, including an agent, 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.
The Fair Housing Act also places restrictions on residential 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 to these specific restrictions, it is illegal under the Act to threaten, coerce, intimidate or interfere with anyone exercising a Fair Housing right or assisting others who exercise that right. It is also illegal to 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 and plays a large role in real estate advertising.
return to top Explanation of Oregon Unlawful Discrimination in Real Property Transactions
Oregon’s housing discrimination statutes mirror Federal statutes. The mirroring is deliberate so that Oregon can benefit from Federal discrimination enforcement dollars. Oregon laws can be more restrictive or grant more rights than Federal laws, but not less. So, for instance, there is no exception under Oregon for laws for owners of single family residences or small landlords (< 5 units) as there are under Federal discrimination statutes. Oregon adds marital status, source of income and sexual orientation to the Federal list of protected classes. Cities and counties occasionally add classes locally, so always ask about local discrimination statutes if you are unfamiliar with an area.
In addition to Fair Housing provisions like those found in Federal law, Oregon law contains a unique disclosure prohibition that applies to AIDS. Under Oregon law, “no person shall disclose to any person that an occupant or owner of real property has or died from human immunodeficiency virus or acquired immune deficiency syndrome.” This prohibition applies to agents as well as homeowners and buyers.
Oregon law is also unique in the way it handles exceptions based on familial status and gender. Under Oregon law, those sections of ORS 659A.421 that prohibit actions based upon familial status or sex do not apply to the renting of space within a single-family residence if the owner actually maintains and occupies the residence as the owner’s primary residence and all occupants share some common space within the residence. This exception is the only one found in Oregon law and is much narrower than the exceptions applicable under Federal law.
return to top Complying with Fair Housing Laws
The key to complying with the Fair Housing Act is having good company policies and following them. Real estate companies and their agents cannot engage in discriminatory practices or allow their clients to do so and need to be able to show that is the case. Proving you do not engage in discriminatory conduct or allow your clients to do so is not easy.
The following questions will allow you to assess your company’s exposure and suggest areas for improvement. If you answer “no” to any of the questions below, evaluate and adjust your office practices accordingly:
- Do you have a written Fair Housing policy?
- Do you publicize your commitment to Fair Housing in your office, in your advertising, and to sellers and buyers?
- Is Fair Housing training required in your company?
- Have you developed procedures to provide equal professional service?
- Do you review your offices' compliance with your procedures on a regular basis?
- Do you have a corrective action policy?
- Do you regularly review and modify your procedures to respond to changes in the law or new Fair Housing issues and to correct deficiencies in your office?
- Do you have a mechanism for feedback from customers and prospects?
Help with developing written policies, implementing procedures, conducting training, and even handy forms are available from the National Association of REALTORS® (NAR) by visiting their website at www.realtors.org NAR recommends the following Fair Housing policy statement: “This company conducts business in accordance with all Federal, state, and local Fair Housing laws. It is our policy to provide housing opportunities to all persons regardless of race, color, religion, sex, familial status, handicap, or national origin. The company's Fair Housing procedures are not recommendations. They must be followed by everyone associated with the company.”
Fair Housing Advertising Practices
All forms of promotion done by the brokerage company and by individual agents, including marketing brochures, newspaper advertising, Internet advertising and radio ads, must comply with the nondiscriminatory goals of the Fair Housing Act. To comply, it is important to avoid using language that indicates a bias against a protected class. The key is to describe the attributes of the property, not of the prospects you think would like it.
For example, say “a beautiful, fully fenced backyard,” not “a great backyard for children.”
Watching your language isn’t as easy as it sounds. As with any message, context matters. What is prohibited is discrimination, not specific words or phrases. It is possible to use language to express a preference without saying “no wheelchairs.” At the same time, an accurate neutral description of the property is not itself discriminatory. For instance, “fourth-floor walk-up” or “master bedroom” is not normally evidence of discriminatory intent.
Advertisers, like newspapers and even multiple listing services, have their own fair housing advertising obligations. This obligation causes them to have their own advertising guidelines. These guidelines are not required by Federal law and tend to be more restrictive than the law itself. Nevertheless, guidelines used by newspapers are an excellent resource for real estate professionals.
The Newspaper Association of America publishes a manual called: How to Write Real Estate Ads that Compete Fairly. You can purchase the manual directly from the newspaper association. You can also get a copy from the National Association of REALTORS® by calling 800/874-6500.
Fair Housing and Disabilities
Fair Housing rules afford the disabled additional protection in rental housing. These protections apply to anyone with 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. Under the rules, a landlord may not refuse to let the disabled make reasonable modifications to a dwelling or common use areas, at the disabled person’s expense, if modification is necessary for the disabled person to use the housing.
Probably the single biggest right the disabled have under Fair Housing rules is that a landlord cannot refuse to make reasonable accommodations in rules, policies, practices or services if necessary for the disabled person to use the housing. For instance, a building with a "no pets" policy must allow a visually impaired tenant to keep a guide dog. In recent years, tenants have used claims of mental disability (typically depression or anxiety) in order to keep pets in rental units with “no pet” policies.
Accommodation of disabilities is a matter of reasonableness and, therefore, can be very hard to assess. For 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. When parking is scarce or already assigned or assignment only to the disabled person is convenient, problems arise. That is why a real estate agent should never give clients advice on Fair Housing issues. Always refer your client, whether landlord or tenant, to an attorney if they want to know if something is “legal” or “illegal” under the Fair Housing statutes.
Fair Housing and Familial Status
The other Fair Housing category that can cause real estate licensees serious problems is “familial status.” Familial status means children. Unless a building or community qualifies as housing for older persons, it may not discriminate against families with one or more children under18. Familial status protection also applies to pregnant women and anyone with legal custody of a child under 18.
As mentioned above, housing for older persons is exempt from the Fair Housing prohibition against familial status discrimination. There are, however, strings attached to the exemption. Housing is exempt from the familial status discrimination provision if (1) 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 (2) It is occupied solely by persons who are 62 or older; or (3) 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.
It is, of course, the 55 or older exemption that causes the most problems. For many years after the familial status category was added to the Fair Housing laws in 1988, the law required 55 and older housing to have “significant services and facilities specifically designed for its elderly residents.” That provision proved unworkable and has been eliminated by Congress.
There are now three requirements to qualify for the 55 and older exemption. First, at least 80 percent of the occupied units must be occupied by at least one person 55 years of age or older per unit. Second, the owner or management of the housing facility or community must publish and adhere to policies and procedures that demonstrate an intent to provide housing for persons 55 years or older. Finally, the facility/community must comply with rules issued by the Secretary for verification of occupancy through reliable surveys and affidavits.
Examples of policies and procedure that show intent to provide housing for persons 55 years of age or older include written rules, regulations, lease provisions, deed or other restrictions. They also include the actual practices of the owner, including the kind of advertising used to attract prospective residents. Operators of exempt facilities must have age verification procedures. Birth certificates, driver’s licenses, passports, immigration cards and the like are considered to be reliable for age verification. Self certification in a lease, application affidavit, or other document signed by an adult member of the household will also satisfy the requirement.