Magazine article Journal of Property Management

Advertising and the Fair Housing Laws

Magazine article Journal of Property Management

Advertising and the Fair Housing Laws

Article excerpt

Advertising and the Fair Housing Laws Property managers face stricter requirements when they advertise residential property than when they select tenants. First, the court recognizes claims for damages from people who have had no direct dealings with managers or owners. In other words, many more people may sue because of discriminatory advertising than other violations of the Fair Housing Act of 1968 (42 U.S.C. 3601) or the Civil Rights Act of 1866 (U.S.C. Tit. 42 1981-1982). Secondly, the standard of proof required of plaintiffs to win the case is less.

The purpose of this article is to explain the requirements imposed on advertising practices by the Fair Housing Act. In addition, it reviews several recent court decisions that have important implications for property managers. Lastly, the article makes some practical suggestions to avoid suits or to help when suits occur.

General requirements

for selecting tenants

Unless their professional organization has agreed to an affirmative action plan or policy, property managers have no ethical obligation to seek minority tenants for housing units. When accusing them of discrimination because of race, color, religion, sex, or national origin, claimants must prove an intentional act or policy. To show that an apartment project has no minority tenants is not sufficient proof. Statistics are accepted by courts as evidence, but more proof is needed for claimants to win damages. (1)

Oddly, an intentional act--as defined by the courts--does not have to be deliberate. The assumption that a woman might be uninterested in a rental unit because it is in an isolated or unsecured location is an example of "steering." In showing residential units, property managers must make no assumptions about prospective tenants' preferences or needs.

Many states have expanded the list of "protected classes." This term refers to types of people specifically protected by fair housing laws. Age and handicap status are the most common additions. Generally, these laws make exceptions for limiting rental of all or part of the property to single and childless couples or elderly people. In March 1989, the Congress expanded discrimination to include age and handicap. However, the exact provisions and congressional intent have not been clarified.

The federal law allows the owners of a single-family residence to discriminate if they sell or rent the property without the services of a broker. However, property managers generally do not enjoy this exclusion. If they sell or rent personal residence or single-family rental properties, they may not discriminate. They are considered to be "in the business of renting dwellings" if they have acted as an agent in the sale or rental of two or more transactions in the past year. The Act forbids discrimination by such people.

Management of a residential property owend by a religious organization falsl under a special exemption to the Act. So long as the religion does not discriminate in its membership, the organization may exclude all people not belonging to the religion. This exemption applies whether or not management is provided by licensed people.

State and local governments may not require rental property owners to set aside a certain number of units for minority people or for protected classes in general (2) unless the state or local government can show that a set-aside program compensates for past rampant and intentional discrimination by rental property owners in the county or city. To prove this contention, government officials would need evidence of a conspiracy to exclude, coordinated by major owners and managers of apartments. Congress may require set-aside programs, but is unlikely to do so without funding allocations.

More stringen rules

The 1866 Civil Rights Act differs significantly from the Fair Housing Act of 1968 in several ways. …

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