RESOURCES

Fair Housing FAQs

GENERAL QUESTIONS

There are two main types of language and/or communication barriers…those related to people whose native language is not English and those who have disabilities. Fair housing laws require housing providers – including real estate agents – to provide reasonable accommodations to people with disabilities when requested. This may include providing materials in an alternative format (e.g. large print) or providing sign language interpretation (when in person) or TTY service (for phone conversations). The law also allows for a housing provider to choose not to supply such an accommodation if it would be an “undue financial and
administrative burden” or would cause the provider to fundamentally alter the nature of their business. You must always CONSIDER a reasonable accommodation request. Failure to consider the request is a clear fair housing violation. However, if you are unable to provide the requested accommodation for one of the prior reasons, you are welcome to offer alternatives or to attempt some negotiation with the client to come to a mutually acceptable accommodation. The client is the only party who may make the determination if a negotiated accommodation will meet their needs, a provider may not impose their decision on the client.

As for those whose native language is not English, fair housing law and case law to-date have not clearly stated a sales agent’s obligation. An agent may violate fair housing law if s/he referred the buyer/seller to someone else due to linguistic concerns. The extent of linguistic miscommunication/misunderstanding should be consider as opposed to simply assuming there’s a problem. Will an interpreter (hired by the agent or client; 3-party telephone translation services, etc.) resolve the matter? Would co-opping on the transaction with an agent with the linguistic skills help? Of greatest importance is the desire of the client. If
the client wishes to be referred to an agent who speaks his/her language, fine – document as much. If not, the best advice is to make a genuine effort to accommodate the client/prospect. (FHCO 05/08)

Just as in an inspection, if the agent only refers the customer or client to one person who can assist, and that referred person does not perform adequately, the agent could be found liable for a negligent referral, even though the interpreter, for example, would bear some liability for their own actions (or failure to act as the case may be). If the agent refers to the customer or client several people who have performed well in the past, and gives the customer or client the opportunity to choose their own interpreter, the agent probably bears little liability. If the customer or client choose their own interpreter without any input from the agent, the agent would bear almost no responsibility at all, unless during the course of the engagement, the agent
became aware of some red flag which would alert them to the fact that the interpreter was not doing their job properly. If that were the case, the agent would have an obligation to try to communicate with the customer or client that there may be something missing in the translation. (Andrea Bushnell, OAR EVP)

The Portland City Council passed this ordinance in October 1991. A similar ordinance was passed in Multnomah County, by the Multnomah County Board of Commissioners, in November 2001. In both cases, the ordinances were recommended initially by focus groups established by the Council and the Commission after significant citizen input. Sexual orientation (including gender identity) was added as a state protected class in 2007, and became effective 1/1/08. (FHCO 06/08)

Yes, agents need to be very careful about answering questions or inquiries either on the phone or in person. There is no difference between illegal statements made verbally (in-person or over the phone) and those printed or published (i.e., newspaper ads, promotional flyers, online ads, email communications, etc. (FHCO 05/08)

Providing racial demographic information to prospective buyers perpetuates segregation because its provision assumes that a real estate purchaser will be influenced positively or negatively based upon the racial makeup of the neighborhood. In addition, there is no legitimate business reason to provide this information. (PMAR legal counsel Phil Querin) There is case law about situations in which a bank linked to “demographic” sites that had very discriminatory information. The bank was sued and lost. The same could easily happen to an agent or broker who wasn’t attentive to all of the information contained in the link. In
addition, title companies providing such information may be held liable. Please advise them to contact the FHCO with questions or report the situation to the FHCO. (FHCO 05/08)

An agent should say, “Our company closely follows the fair housing laws. You can choose to live in a certain neighborhood, but our policy is not to steer clients to one particular area. This would be a violation of the fair housing laws. If you give me information on a particular neighborhood or streets which you are interested in, I can research homes in that area which are currently available.” There is actually case law in place upholding this position by the agent. Conversely, there is also case law where agents agreed to do the research and the subsequent showings and were found to have been discriminating. (FHCO 02/02)

Most FSBOs are exempt under 42 USC section 3603 (2)(b)(1). This is because there are criteria outlined based on the number of homes owned by the seller at one time and number of homes sold (or rented) in a 24-month period without the assistance of “professional representation;” i.e., a sales agent (or property manager). However, discriminatory statements (verbal or written) are always illegal and there are no exemptions. (FHCO 02/02)

The only situations in which a sexual predator would have coverage under the fair housing laws would be: 1) if the person’s behavior were a result of a disability, or 2) if the disability related factors resulting in the predatory behavior had been addressed to eliminate the possibility of that activity reoccurring. Meeting the second part of these criteria is very difficult for a prospective home-seeker with a history as a sexual predator because the statistics for recidivism rates for sexual predators is so high. For the most part, housing providers can make a very legitimate argument that providing housing to an individual with a history as a sexual predator would create an undue administrative/financial burden on the provider or a fundamental alteration of their services to do the research and monitoring required to insure the safety of the neighbors.
Additionally, once again, there is precedent where a person with a violent criminal history, of which the landlord was made aware, was allowed to reside at a property and re-offended. The victim was another resident at the rental property. The landlord was sued for failing to provide “reasonable security” to the residents of the site. The victim prevailed in the case. (FHCO 05/08)

Two statutes cover this issue, ORS 93.270 and 93.272. Essentially, 93.270 says that such discriminatory statutes are void and unenforceable. 93.272 provides a process to have them removed if one wants to. However, since they are already void, they have no binding effect and the only reason I could see for someone wanting them removed is just to eliminate the stigma of it ever being there in the first place. Presumably, once removed, it would never show up on a title search again. I do not believe there is any “affirmative obligation” for agents or anyone else to have an unenforceable provision expunged. As for title companies, their standard policy language says that they will insure the title except to the extent that it contains illegal or discriminatory provisions. So while this may give some concern to some agents, it is, in my opinion, a non-issue. Except, I suppose in those situations in which the agent, seller or buyer thought they could really enforce such a provision. Oregon Revised Statute provides specific direction for removing certain discriminatory restrictions. Any owner of record of real property that is subject to an instrument conveying or contracting to convey fee title to the property that contains a provision that is in violation of ORS 93.270 may file a petition to remove that provision from the title to the property. For specific guidance, consult the above referenced statutes, and/or consult an attorney. (PMAR legal counsel Phil Querin 0206)

Senior housing is defined very specifically under federal fair housing laws as either 100% of all occupied units being occupied by those 62+; or at 80% of all occupied units being occupied by at least one person aged 55+. A 55+ facility may self-certify by holding itself out as such (e.g. advertising, phone book, posting of notices, rules and regulations, etc). It is also wise to limit occupants to 55+ or 62+ persons, as well.

The government (i.e. HUD) has never “certified” senior housing. Facility management must have certain procedures for initially verifying that its occupants are age 55+ or 62+ (such as driver’s license, birth certificates, etc.). Lastly, every two years, management must make an attempt to verify the ages of its residents and retain these records. It should be noted that, generally speaking, only new construction can become senior housing without facing claims of illegal discrimination. (FHCO 05/08)

Indicate that the transaction is contingent upon the approval of the buyer’s application by the association. (FHCO 02/02)

Yes, otherwise, if you had some dealing with this park, you may be drawn into a complaint of discrimination, because you were aware of the practices and did not report them. This is true of any situation in which you feel illegal housing discrimination has occurred whether the offender is a lender, another agent, a property manager, a home insurance provider, etc. (FHCO 05/08)

Let’s say my family is Hispanic and I speak some Spanish, and as a Realtor® I want to build my client portfolio among my own community of Hispanic Americans, or my own religious community. Seems to make sense, because culturally my clients might be MOST comfortable with me. I am not aware of any fair housing cases based on this practice, nor am I aware of any specific language prohibiting this practice. A question to consider is would the Realtor® ONLY serve this group and send other clients not of this group to someone else? I think the fair housing concerns would begin once the non-protected class clients came to the door or called and what action was taken at that point. Additionally, if the practices of the Realtor® were less than ethical (e.g. in the cases of predatory lenders) and they were “targeting” their business to a certain group who may be more vulnerable to unethical practices, that would be another issue. In that case, the targeted marketing would be used by an investigator as evidence of intent to violate the fair housing rights of a particular group. The best advice is to include general public advertising (e.g. the Oregonian) in your larger marketing campaign along with your targeted marketing vehicles (e.g. El Hispanic News). (FHCO 05/08)

This would be a situation in which a person would most likely have to already have a complaint against them and the advertising piece would be used as supporting evidence in the complaint. I would say it could be a cause for concern that some steering was taking place, but the fact that it was not the ONLY medium of advertising used and other non-specific protected class marketing was used would be the likely defense. However, I think as a Realtor®, no matter whom I believed would be most interested in the listing (even if EVERY person in the neighborhood came from that particular group), I would still be unlikely to use only that paper along with the other media outlets. I think I would pick another paper that would be perceived as having a broader base of readers. I always suggest you look at this kind of a question from a different angle…if I had a listing in the neighborhood of a certain country club, known for having a very high percentage of Caucasians, and I advertised in the country club news paper, could a reasonable person infer that I was trying to get a Caucasian (or at least a country club member who was most likely to be a Caucasian) to buy that listing? There have been fair housing cases that have said “yes” to this question. It was considered steering and discriminatory advertising. (FHCO 01/03)

An advertisement of a home referencing “feng shui” is generally acceptable, if used in the context of “great energy” or “great ambiance”. It would not be acceptable in any context that suggests the property would be suitable/desirable for persons from certain cultures. (FHCO 02/06)

RENTAL/LANDLORD/TENANT QUESTIONS

HUD has not given clear direction regarding the interpretation of “reasonable occupancy” standards. Actually to be more correct, they have given and rescinded several directives on this issue. HUD’s most recent directive is referred to as the Keating Memorandum and gives a rule of thumb of 2 persons per bedrooms.

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You should be aware of local and state building code limitations on occupancy. However, HUD investigates these complaints on a “case-by-case” basis and looks at issues of “reasonableness”, such as the total square footage of the unit, total square footage of the bedrooms, area industry standards, etc. So far, we have not seen anyone get themselves into trouble with a standard of two people per bedroom with one extra person added to that total. So, in the case of a one bedroom, three people; in the case of a two bedroom, five people. There is generally not a differentiation made between adults and children in these situations, however, in some cases you may restrict the number of total adults in a dwelling. The idea is to protect families with children. If you had a three-bedroom rental and stated that you would take up to seven people, but no more than two adults in that dwelling, you may be completely within your rights. It depends on the make-up of the family. In a related issue, there is also a myth that children of separate genders may not share a room after a certain age. This is absolutely not true. It is up to the family to decide which rooms will be used for sleeping and who will occupy those rooms. This is not a decision that a landlord can impose on the household. (FHCO 05/08)