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Fair Housing Frequently Asked Questions

1. Can I be charged with discrimination if I refer a client to another agent because we cannot communicate clearly? (e.g., due to a language barrier)

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)

2. What is the Realtor’s® liability if they or their client contract with an interpreter to assist in a real estate transaction and the interpreter does not explain something accurately?

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)

3. Who decided to add sexual orientation as a protected class in Portland? Did the voters pass this?

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)

4. Can I be charged with a fair housing violation for my answers on the phone?

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)

5. Title companies are providing demographic or census information as part of their “trios”. Can a Realtor® get into trouble by passing this information on to buyers or sellers?

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)

6. How does a Realtor® answer the question “I want to see homes in the Asian or Hispanic or Mormon neighborhood”?

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)

7. How do the fair housing laws affect “for sale by owners?”

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)

8. Are there any concerns that Realtors® should be aware of related to the Act and sexual predators? (e.g. would it be discriminatory to refuse to rent or sell to a sexual predator?)

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)

9. I have recently heard of several situations where Realtors® have discovered discriminatory and illegal language in old deeds, association bylaws and CC&R’s (e.g. “no coloreds”, “no children under the age of 21” etc). If a Realtor® discovers such language that appears to run afoul of the Federal Fair Housing laws, does he/she have an affirmative obligation to seek to have that language expunged? Does a title company have any such obligation? Whether or not a Realtor® has an affirmative obligation, how would he/she undertake such an endeavor?

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)

10. What agency certifies/approves senior housing facilities?

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)

11. Some mobile home park associations require approval of the new applicant, not application. How do we word this on the sale agreement to protect our clients and ourselves? Indicate that the transaction is contingent upon the approval of the buyer’s application by the association. (FHCO 02/02)

12. Do we have a duty to report a mobile home park association that we know is discriminating?

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)

13. Are there fair housing concerns if a Realtor® specifically targets their personal marketing efforts toward one protected class? As a possible example, a Realtor® identifies the Hispanic community as the niche market in which he hopes to develop his business, and he advertises his services as a real estate licensee exclusively in the El Hispanic Newspaper.

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)

14. A listing agent has a property for sale that she believes may be of particular interest to readers of the Asian Reporter newspaper, and she targets her limited advertising budget toward that one newspaper; the property is also promoted in the multiple listing service as well as various real estate websites. Is there cause for concern that the listing agent might be accused of steering, or some other infraction of fair housing laws, by advertising in one print media that might be considered culturally specific?

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)

15. Is it okay for Realtors® to promote a property as “great feng shui”, if, in fact, the property meets many of the feng shui standards?

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

16. How many people can live in a 1-bedroom apartment? Is it based on bedrooms or baths?

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. (see, http://www.hud.gov/utilities/intercept.cfm?/offices/fheo/library/occupancystds.pdf)

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)

17. I get complaints from the first floor tenants about children running and jumping upstairs and I have even had tenants leave because of this. Why can’t I disallow families with small children on the second floor since it affects the first floor tenants?

This issue is related to the previous question in some ways. It is not up to the landlord to dictate which units may be occupied by which types of tenants. It is up to the tenant to choose which unit is best for them. If a landlord tries to limit where families may live (either on particular floors or in particular areas of the apartment complex, or in specific single-family rentals but not others) it is considered to be “steering”. If a landlord steers a tenant (and by the way, this sometimes takes place for reasons other than familial status, such as trying to place all households of one nationality together) that tenant’s fair housing rights have been violated. A landlord should not presume that a problem will occur simply due to the make-up of the
household. This is stereotyping and can lead you into a fair housing violation. Even if a landlord is trying to make a decision which they honestly believe is in the best interest of the tenant (such as not allowing families to live in housing which may have areas that could be “dangerous for children” or a unit which is directly over a tenant who is hyper-sensitive to noise) this is still a form of discrimination. The landlord is attempting to make the choice for the tenant, not allowing them freedom of housing choice. (FHCO 02/02) 18. Do I have to rent to families who have “latch key” children, who are unsupervised in the morning or afternoon when not in school? What can I do about children who create complaints from other tenants when they are unsupervised? Yes, you must rent to families with children who are just as qualified as any other applicant (even if they have “latchkey” children). However, if you have a prior rental reference that indicates problems with the unsupervised children have occurred at a prior residence, you may wish to discuss with the applicant how things have changed to prevent this from being a problem at your rental. If it does not appear that any change has taken place, you may choose to use this prior poor reference as a reason to decline this applicant. (Bad rental references are a legitimate reason to decline an applicant, as long as you apply these criteria to all of your applicants.) If you rent to someone, and the children have behavior problems that cause
neighbors to be disturbed, this is a lease violation and you would deal with it in the same way you would deal with any lease violation. (FHCO 02/02)

19. Do I have to rent to unmarried or homosexual couples if it is against my religious beliefs?

Varying supreme court circuits have interpreted this in different ways. In the 9th circuit (Oregon is part of the 9th circuit), the judges have upheld the landlord’s right to refuse to rent to unmarried couples if it violates their religious beliefs. However, sexual orientation is now a protected class statewide, as is marital status. Therefore, you may run afoul of state fair housing laws by refusing to rent to unmarried or homosexual couples. It is also always possible that a new case with a slightly different fact pattern could be filed under either of these protected classes, resulting in a new decision. Fair housing laws, as all laws, are ever-evolving based on current court decisions. (FHCO 05/08)

20. Can landlords set a rental amount based on a certain number of tenants and then charge additional tenants at a per person rate, like a hotel?

Yes, providing the charge is “reasonable”. This is especially the case in situations where a landlord pays common utility costs for tenants, such as water, sewer, refuse; and additional household members would add to the usage of these utilities. However, the key to this answer is the reasonableness test. If the fee is so high as to be prohibitive for larger numbers of people (e.g. in excess of $100.00 per person per month) it may be considered a way to dissuade families with children from renting. Landlords have been required to prove the legitimate business necessity of some of these per person charges in discrimination cases. (FHCO
02/02)

21. Can a property manager refuse to rent to couples that are not married?

This issue should be addressed in the contract between the property owner and the property manager. If the owner gives the property manager specific instructions regarding their property, the property manager would not be able to use their own beliefs to supercede the contract. From a different perspective, the court cases that have upheld the owners’ right to prohibit unmarried couples from renting, have all been in instances where the owner also resided in the building. If a property manager were involved, this may create a new fact, which would change the outcome of a court case in which the owner’s beliefs were the
legitimate business defense. (FHCO 02/02)

22. What does “landlord (description of)” mean on the RMLS™ Word List?

This refers to any description of the landlord (e.g., white landlord). (RMLS™)

23. Can a landlord lower rental rates for a disabled person and not be charged with discrimination by other tenants?

A landlord may favor a legally protected class, provided that group does not disfavor another protected class. (This is the same principle in which faith based groups can create housing limited to members of only their faith.) Therefore, a landlord can lower rents on behalf of disabled tenants because people not having a disability are not a protected group. However, lowering rents for most protected classes is not allowed. For example, if a landlord offered differing rental rates based on race, it would be considered discriminatory because we all belong to a race and are therefore protected from race discrimination. (FHCO 02/02)

24. Are landlords exempt from the Act if they live on-site in a complex of four or fewer detached units on the same property (commonly referred to as “accessory dwellings”)?

An owner of four or fewer units, where the owner occupies a unit, is exempted from the federal provisions of the fair housing laws, however, most jurisdictions (the State of Oregon, being one) has no similar exemption. Complaints of fair housing violations against landlords falling into these categories would be filed with the Bureau of Labor and Industries. (FHCO 02/02)

25. Are short-term vacation rentals subject to the Federal Fair Housing Laws?

Vacation rentals (even for the weekend) MAY be covered under the fair housing act. Complaints are looked at on a case by case basis and have to do with the duration of someone’s stay and if they intend to return, year after year. I always try to err on the side of caution… so I would tell vacation-home owners to assume they are subject to the Fair Housing Act. (FHCO 04/02)

26. If a landlord accepts a Section 8 tenant, is landlord obligated to continue to accept additional Section 8 tenants on the same or other rental properties?

There used to be a law which said that “take one take all”, however, that law has been revoked and landlords may decide not to take Section 8 tenants on certain properties or to limit the number of Section 8 residents on a site. Section 8 vouchers are specifically exempted from Oregon’s source of income protection, although certain local jurisdictions have discussed trying to reverse this in their areas. (FHCO 05/08)

27. If a landlord has set aside only some units in a building or complex for Section 8 tenants, must all the units in the building/complex meet Section 8 standards?

If a landlord has Section 8 tenants, they cannot hold out certain units as ALWAYS being the Section 8 units and meet the maintenance standards in only those units. That would be a very definite fair housing violation because it would disparately impact certain protected classes (e.g. families with children and/or people with disabilities who are the ones most likely to be using Section 8). Section 8 inspectors would only inspect units with Section 8 tenants or units for potential occupancy by a Section 8 tenant, which might include several vacant units if you were simply saying you wanted to participate and weren’t yet sure which units the Section 8 participants may occupy. Those would all have to meet the standards. As to something like
exterior maintenance, it would most likely be required of an entire building…if you had a duplex, painting only the outside of one side, if the paint was peeling, would most likely NOT be okay. If you did some kind of upgrade (say added a ramp because the program participant used a wheelchair) you could actually petition the housing authority for a higher rent…it may not always be possible to get it, but I have seen it agreed upon many times. (FHCO 08/04)

ENFORCEMENT

28.What is the process for determining violation of fair housing laws, and how does the investigation and fining process work?

The Fair Housing Counsel of Oregon (FHCO) is not an enforcement agency. They conduct enforcement related activities such as testing, or filing a HUD or BOLI complaint on their own behalf, or helping a person who claims a fair housing violation has been committed against them to file a complaint with HUD or BOLI. FHCO may also file a civil lawsuit with a private attorney against someone when they have testing evidence that supports an allegation. Usually, there is a HUD complaint filed by FHCO and/or an individual charging party. The testing is used as evidence against someone, in the way that a controlled narcotics buy
would support a claim of drug dealing. Testing is subject to the same kind of rigorous protocols to which controlled narcotics buys are subjected.

If someone contacts FHCO and makes an allegation against a housing provider, FHCO first determines if it is a testable issue. If it so, FHCO will conduct a test, usually followed by at least one more test to substantiate the results of the first test. If the first test showed no signs of supporting the allegation made, FHCO will usually declare that the test did not support the claim, and explain to the charging party that there is not sufficient proof to help them file a complaint. The charging party may decide to try to file a complaint with HUD or BOLI on their own, or even seek out a private attorney to represent them.

If a fair housing complaint is filed with a regulatory authority, like HUD or BOLI, the respondent (the party against whom the charge is filed) is contacted, notified of the complaint and given a chance to respond. The respondent typically says something along the lines of, “yes, we did do what they said, but here is the reason why and it is not a discriminatory reason” or “no, we absolutely did no such thing; this is the real story…”At this point, HUD or BOLI conducts an investigation and the investigator makes a finding. The finding is either “no reasonable cause to believe discrimination took place” or “reasonable cause.” A “no cause” finding closes the complaint, a “reasonable cause” finding results in a formal charge of a violation of the fair housing laws being made against the respondent. The parties then decide if they will go to civil court or if they will have the case heard by an administrative law judge. A judge (or jury) will make a determination of what damages will be awarded and/or what civil penalties will be assessed.

In some cases, affirmative relief “for the public good” is required. This can take the form of requiring the defendants to take fair housing classes, or to start up a victims’ fund for people who have been harmed but never came forward previously, or a public letter of apology, or a variety of other forms. Damages in civil cases can include punitive charges; damages in administrative processes are restricted to out of pocket damages. When you hear about multimillion dollar damages being paid by defendants, you can usually assume that it was private litigation, outside of the regulatory agency process. Civil penalties are paid to whatever jurisdiction has assessed them, i.e., federal court penalties get paid to the US Treasury, State court penalties go to the State. FHCO does not receive any portion of any penalties paid. (FHCO 05/08)

29. Can an Oregon Realtor® be tested by someone from another state?

Yes, in fact it has occurred more often than you may be aware. (FHCO 02/02)

30. Must a tester respond affirmatively if asked directly by a real estate agent whether he/she is in fact a tester?

There is no legal requirement that a tester identify him/herself as such, if asked. Additionally, the Supreme Court has upheld testing as a reasonable, if perhaps not the only, way to determine how an individual or business conducts their day-to-day operations. If a tester were required to divulge their true identity/role during the course of a business transaction, it would create an artificial atmosphere similar to a role-playing scenario and the actual way one did business would be difficult to measure. (FHCO 02/02)

FHCO (Fair Housing Council of Oregon) full review 05/08
Last update: 05/08
Fair Housing FAC 0508 revised