Flashcards in Chapter 7: Federal and State Laws Pertaining to Real Estate Deck (48)
Federal Fair Housing Laws
Discrimination in housing has been, and continues to be, an issue that has great significance for real estate professionals. Over the years, Federal Fair Housing laws have added protection from discrimination for specific classes of individuals.
• 1866 Civil Rights Act- protected race
• 1968 Title VIII of the Civil Rights Act (Fair Housing Act)- protected color, religion, sex, national origin
• 1988 Fair Housing Amendment- protected handicap, and familial status
Civil Rights Act of 1866
Prohibits discrimination on the basis of race. It was interpreted by the U.S. Supreme Court to prohibit all racial discrimination in the sale or rental of real property.
Jones v. Mayer- No Exemptions- in 1968, the Supreme Court in Jones v. Mayer ruled that discrimination based on race is strictly prohibited. This means there can be no exemptions or exceptions with regard to race.
Fair Housing Act
Title VI of the Civil Rights Act of 1964 prohibited discrimination in government funded housing programs, which paved the way for much larger changes with Title VIII of the Civil Rights Act of 1968.
Prohibits discrimination in the sale, rental, and financing of dwellings based on race, color, religion, sex, or national origin.
Although marital status, age, and occupation may be covered under other civil rights statutes, they are not specifically covered under the Civil Rights Act of 1968.
The Civil Rights Act of 1968 specifically prohibits the following when based on race, color, religion, sex, or national origin:
• Refusing to sell or rent after receiving an offer from a person.
• Changing the terms or conditions of the sale or rental of a dwelling.
• Representing that a dwelling is not available for sale or rent when in fact it is.
• Employing deed restrictions with references to restrictions based on race, religion, color, or national origin.
• Denying membership in a homeowners’ association or condominium association where membership is required for ownership.
• Using discriminatory statements or discriminatory advertising.
The Civil Rights Act of 1968 also prohibited the following specific activities:
2. Steering (or channeling)
consists of inducing an owner to list or sell on the basis that the neighborhood is deteriorating or becoming transitional due to an influx of minority persons. Even unusually heavy solicitation for listings in racially transitional neighborhoods may be unlawful. The terms “changing neighborhood,” “falling property values,” “bad schools,” or “undesirable elements.” The word “restricted” may not be used unless the exact nature of the restriction is described and is lawful.
Steering (or channeling)
an individual, directly or indirectly, into or away from a neighborhood or location in a muiltiunit building on the basis of race, color, religion, sex or national origin is prohibited. The use of a different sales pitch or catchwords that are suggestive of race, religion, sex, or national origin for different types of prospects is unlawful.
is the refusal by a lender to approve a mortgage loan based on a property being located in a certain geographical area, the age of the property, the income level of the residents, or the racial composition of the area.
The Civil Rights Act requires brokers
to display a HUD (Housing and Urban Development) fair housing poster in all places of business, including model homes in subdivisions. Developers using FHS programs must undertake an affirmative marketing program to attract a cross section of the community.
Exemptions to the Fair Housing Act
Exemption from provisions of the Civil Rights Act of 1968 does not provide an exemption from the Civil Rights Act of 1866. Therefore, racial discrimination is always prohibited.
Generally speaking, the Civil Rights Act of 1968 prohibits discrimination in both single-family and multifamily housing. However, there are several exemptions, which include:
• Limited exemptions for the sale or rental of one-to four- family housing, when the owner lives in the property, does not use the services of a real estate broker, and does not use discriminatory advertising;
• Lodging in a private club for the noncommercial benefit of club members;
• Rental of rooms in owner-occupied dwellings of up to four families; and
• Property owned by chirches or fraternal organizations used for lodging, provided that the church or fraternal organization does not discriminate in the selection of members.
1988 Fair Housing Amendment
Expanded the Civil Rights Act of 1968 to include handicap and familial status, including:
• People with physical or mental impairments that limit major life activities. Blind and deaf individuals may not be charged a higher security deposit or evicted because of guide dogs or primate helpers.
• Individuals with drug addiction problems. However, current drug users are specifically excluded from protection by the Act.
• Persons with acquired immune deficiency syndrome (AIDS) and recovering alcoholics cannot be refused housing.
• Women who are pregnant and people with children under the age of 18.
Exemptions from the 1988 Fair Housing Amendment
• Housing occupied solely by persons 62 years of age or older
• Housing with 80% or more of the units occupied by at least one person 55 years of age or older.
• Housing for the elderly or the poor that is financed or subsidized by state or federal government agencies.
Americans with Disabilities Act (ADA)
Was passed in 1990 with the purpose of providing the same employment opportunities to qualified individuals with disabilities that are available to persons without disabilities, and to provide access for all such persons to public buildings.
Owners of properties open to the public are required to remove barriers that limit access or utility to individuals with disabilities.
Some of the features addressed by the ADA include
• Raised lettering on elevator buttons
• Audible floor signals
• Height of fire extinguishers
• Wheelchair ramps
• Grab bars in restrooms
• Wheelchair accessible toilet facilities
• Handicapped parking
The ADA mandates design specifications for
multifamily dwelling units to provide accessible and usable common areas for people with disabilities. The ADA also covers employment opportunities, telecommunications, and access to public transportation, public accommodations, and commercial facilities with the goal of eliminating barriers that affect individuals with disabilities.
For existing properties that do not comply with the ADA
he owners are required to make necessary modifications whenever such changes are readily achievable and economically feasible, which means easy to accomplish without much difficulty or expense. ADA standards must also be considered for new construction and renovation of public accommodations and commercial facilities.
The Florida Legislature enacted the
Florida Americans with Disability Accessibility Implementation Act in 1993 to incorporate the architectural accessibility requirements of the ADA into Florida law. The Florida Building Code, F.S. 533, was updated to ensure that Florida standards meet or exceed federal ADA standards.
Enforcement of the Laws
The Federal Fair Housing laws require that a complainant file a claim of violation of the Federal Fair Housing laws if he or she suspects a violation. He or she can file a complaint with the Department of Housing and Urban Development (HUD) or sue for civil damages in Federal district court. The Department of Justice (DOJ) sues on behalf of individuals based on referrals from HUD.
Under the Fair Housing Act, the DOJ may bring lawsuits where there is a reason to believe that there is a pattern or practice of discrimination or where a denial of rights to a group of persons raises an issue of general public importance. Where force or threat of force is used to deny or interfere with fair housing rights, the DOJ may institute criminal proceedings.
A violation of the Federal Fair Housing law is also a violation of F.S. 475. Therefore, a licensee found guilty of a violation of the Federal Fair Housing law would face possible disciplinary action by the Commission.
Florida Fair Housing Act
Chapter 760 of the Florida Statutes, Parts I, II and III cover “Discrimination in the Treatment of Persons.”
Exemptions from Age Discrimination
Discrimination in housing based on age is contrary to law, unless specific criteria are met. The Florida Fair Housing Act allows a facility or community to claim an exemption under certain conditions when housing is provided for persons over the age of 55.
To qualify for the exemption, either citation 1 or 2 below must be met, but not both.
1. The housing is specifically designed and operated to assist elderly persons and is intended for, and solely occupied by, persons 62 years of age or older.
2. The housing is intended and operated for occupancy by persons 55 years of age or older and meets the following requirements:
a. At least 80% of the occupied units are occupancy by persons 55 years of age or older.
b. The facility or community publishes and adheres to policies and procedures that demonstrate its intent to, in fact, be a provider of housing for older persons.
c. The facility or community complies with rules established by HUD for verification of occupancy.
A facility or community which claims an exemption under either of the two criteria
is required to register with the Florida Commission on Human Relations. To register the community must submit a certified letter on the letterhead of the facility or community, which must be signed by the president of the facility or community. A nominal fee paid by check, money order, or cashier’s check must be included with the letter. Registration is effective for two years, after which time the facility or community must reregister.
Registration alone does not qualify the facility or community for the exemption. Proof of compliance is required under the rules established by HUD.
The law requires the commission to make available to the public a list of all facilities and communities that have requested registration. This list is available at the Florida Commission on Human Relations website.
Penalties for Violation
An administrative fine of $500 will be assessed against any facility or community that knowingly submits false information in meeting the Florida Fair Housing Act requirements.
Penalties for violation of the Florida Fair Housing Act are specified in F.S. 760.34. the Commission may institute a civil action whenever it is unable to obtain voluntary compliance. The court is authorized to impose a fine of up to $10,000 for a first offense, up to $25,000 if the violator has been found guilty of a previous offense within the previous 5 years, and up to $50,000 if the violator has been found guilty of two or more offenses within the previous seven years. The court shall also impose court costs and attorney’s fees in any action in which the Commission prevails.
Discrimination Based on AIDS or HIV
F.S. 760.50 declares that persons infected or believed to be infected with human immunodeficiency virus (HIV) have suffered and will continue to suffer irrational and scientifically unfounded discrimination. Such discrimination can deprive individuals of the means of supporting themselves, providing for their own health care, housing themselves, and participating in other opportunities.
Under this statute, persons who have acquired immune deficiency syndrome (AIDS), immune deficiency syndrome related complex, or human immunodeficiency virus (HIV) are designated as handicapped and are afforded all protections made available to such persons.
It is unlawful to discriminate against an otherwise qualified individual
in housing, public accommodations, or governmental services on the basis of the fact that such individual is, or regarded as being, infected with human immunodeficiency virus.
Any person who violates a provision of F.S. 760.50 is subject to action in court and may suffer liquidated damages of $1,000, or actual damages, whichever is greater.
Intentional or reckless discrimination may subject a party to liquidated damages of $5,000 or actual damages, whichever is greater. The court may also impose attorney’s fees and costs to any violator.
The Florida Residential Landlord and Tenant Act (F.S.83)
is intended to reduce inequities and confusion by defining the rights of landlords and tenants in both residential and nonresidential relationships. F.S. 83 is divided into three parts:
• Part I regulates nonresidential tenancies,
• Part II regulates residential tenancies, and
• Part III regulates self-service storage.
Florida law does not distinguish between a rental and a lease. Both a tenancy at will and a tenancy for years are considered to be leases since both are agreements between a landlord and tenant.
If a court finds that any lease contract contains provisions that are unconscionable or in material conflict with the statue, the lease provision or the entire lease contract may be declared unenforceable in court.
The Florida Residential Landlord and Tenant Act does not apply when:
• A tenant is a resident, or is detained in a public or private facility for medical, geriatric, education, counseling, religious, or similar services incidental to the detention.
• A tenant is an occupant of a dwelling unit that is under a contract for sale.
• A tenant is a transient occupant within a hotel, condominium, motel, rooming house, or similar public lodging or within a mobile home park.
• A tenant is an occupant in a cooperative apartment under a proprietary lease.
• A tenant is an occupant of a condominium unit that the tenant owns.
Security Deposits and Advance Rents
A landlord is required to make clear provisions for the handling of deposit money and advance rent held for periods other than the next immediate rental period.
The landlord is required to notify the tenant in writing within 30 days of receiving the security deposit or advance rent as to the manner in which the landlord is holding the funds and the interest being accrued, if any.
Options for Handling Security Deposit Money & Advance Rent
The landlord has three options handling security deposit money and advance rent.
If a real estate broker is operating as a rental agent for a landlord, any security deposits or advance rental fees received must be deposited in accordance with these requirements.
1. Non-interest Bearing Escrow Account
2. Interest Bearing Escrow Account
3. The landlord may post a surety bond
Non-interest Bearing Escrow Account
the landlord may hold the total amount of the security deposit or advance rent in a non-interest bearing escrow account in a Florida banking institution for the tenant’s benefit. The landlord cannot commingle the funds with any other funds of the landlord.