Fair housing = good business 2014

Fair Housing = Good Business
Kevin Cahill
(I wrote this course in 2009, as a 3 hour
Continuing Education course. The material is not
dated, though I taught the class with this
powerpoint as a visual aid to the class. I’ve
removed the slides thanking sponsors and those
surrounding the coffee-break. Use it as you
wish!)

Welcome!
Discrimination can be subtle, or indirect, and sometimes unintentional.
It is very important that real estate agents are aware of and
compliant with the laws that govern housing discrimination.
Today we will look at the history of important legislation and court
cases affecting equal housing opportunities; we will look at working
properly with our buyers, and properly counseling our sellers; and
we will look at properly advertising to open the doors for more
people to the dream of home-ownership.
Practicing fair housing is a better way to conduct your real estate
business; it is the right thing to do for your clients and customers;
and it is the law.

Allow me to introduce myself…
Kevin Cahill
• Licensed Realtor since June of 1999
– Keller Williams Realty
• Team Leader, South Tampa, Florida, May 2009
• Realtor, Greater Cleveland, Ohio, Nov. 2004-present

– Smythe, Cramer Co.
Realtor, Shaker Heights, June 1999-Nov.2004

• Director, CABOR and Ohio Association of Realtors
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Accredited Buyer Representative (ABR)
e-PRO certified
Member of the Real Estate Program of the National Trust for
Historic Preservation
Certified ProManage Instructor
Husband, father of two daughters
Pretty Nice Guy (PNG)

Fair Housing = Good Business
Outline:
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Introduction and History of important legislation and Court Cases

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The Protected Classes
Disparate Treatment of Customers and Clients
Steering of Buyers; Obligations to Out-of-Towners
Buyer Agent Fair Housing Practices

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Fair Housing Issues with Sellers
Fair Housing and Advertising: Words that can and cannot be used;
providing direction
Complaints and Penalties

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Questions and Answers – Fair Housing in Practice

Introduction
The remarkable homeownership rate in America is not a
free-market phenomenon.
Since the time of our founding fathers, the government has
had a deliberate policy of promoting and subsidizing
property ownership.
From the Declaration of Independence to the Homestead
Act of 1862 to modern policies in this current
administration, the federal and state government have
made it easy for more and more families to own a home.
The U.S. government seized on this idea of democratic
ownership of property and made it the envy of the world.

History of Important Legislation
and Court Cases

and Court Cases (cont’d)
“Life, Liberty and the Pursuit of…”

“Life, Liberty and the Pursuit of Property”
Jefferson had drawn on the philosophy of John Locke (1632-1704),
who had written in his Second Treatise on Government in 1690 that
under the law of nature, every man has “a power not only to
preserve his property—that is, his life, liberty and estate, against the
injuries and attempts of other men, but to judge of and punish the
breaches of that law in others.” Life and liberty, as well as owned
land, were all considered property in Locke’s view, and his treatise
spells out very clearly the concept of natural property rights entitled
to all men.


“We hold these truths to be self-evident, that
all men are created equal, that they are
endowed by their Creator with certain
unalienable Rights, that among these are
Life, Liberty and the pursuit of
Happiness.--That to secure these rights,
Governments are instituted among Men,
deriving their just powers from the consent
of the governed…”

"OUR LIVES, OUR FORTUNES, OUR SACRED HONOR"
Of those 56 who signed the Declaration of Independence,
nine died of wounds or hardships during the war. Five were
captured and imprisoned and were tortured before they
died. Several lost wives, sons or entire families. One lost his
13 children. Two wives were brutally treated. All were at one
time or another the victims of manhunts and driven from
their homes. Twelve signers had their homes completely
burned. Seventeen lost everything they owned. Yet not one
defected or went back on his pledged word. Their honor,
and the nation they sacrificed so much to create, is still
intact.

“Fortunately, the Constitution of the United States knows no distinction between
citizens on account of color. Neither does it know any difference between a
citizen of a State and a citizen of the United States. Citizenship evidently
includes all the rights of citizens, whether State or national. If the
Constitution knows none, it is clearly no part of the duty of a Republican
Congress now to institute one. The mistake of the last session was the
attempt to do this very thing, by a renunciation of its power to secure
political rights to any class of citizens, with the obvious purpose to allow the
rebellious States to disfranchise, if they should see fit, their colored citizens.
This unfortunate blunder must now be retrieved, and the emasculated
citizenship given to the negro supplanted by that contemplated in the
Constitution of the United States, which declares that the citizens of each
State shall enjoy all the rights and immunities of citizens of the several
States,--so that a legal voter in any State shall be a legal voter in all the
States.”
RECONSTRUCTION
by Frederick Douglass
Atlantic Monthly 18 (1866): 761-765.

Civil Rights Act of 1866
“All citizens of the United States shall have the same right, in every State
and territory, as is enjoyed by white citizens thereof to inherit, purchase,
lease, sell, hold and convey real and personal property.”

The Fourteenth Amendment 1868
Section 1. All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and of the state
wherein they reside. No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor
shall any state deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
Section 2. The Congress shall have power to enforce this article by
appropriate legislation
Passed by Congress in June of 1866… All of the Confederate States needed to ratify this
amendment in order to return to the Union… only Tennessee ratified it immediately;
by 1868, the other ten states did.

The Fifteenth Amendment 1870
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Section 1. The right of citizens of the United States to vote shall not be
denied or abridged by the United States or by any state on account of race,
color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by
appropriate legislation.

In 1870 African Americans were also given the right to vote through the 15th
Amendment. Despite this right, some Southern states added grandfather
clauses to their state Constitutions to counter this new right. Typical clauses
stated that the right to vote extended only to citizens or their descendants,
who had the right to vote prior to 1866 or 1867. The U.S. Supreme Court
declared grandfather clauses unconstitutional in 1915 and in 1939.

Plessy v. Ferguson 1896 (Separate but Equal)

On June 7, 1892, a 30-year-old shoemaker named Homer Plessy was jailed for sitting in the “white" car of the East Louisiana
Railroad. Plessy was only one-eighths black and seven-eighths white, but under Louisiana law, he was considered black and
therefore required to sit in the “colored" car. Plessy went to court and argued, in Homer Adolph Plessy v. The State of
Louisiana, that the Separate Car Act violated the Thirteenth and Fourteenth Amendments to the Constitution.
The judge at the trial was John Howard Ferguson, a lawyer from Massachusetts who had previously declared the Separate Car Act
"unconstitutional on trains that traveled through several states". In Plessy's case, however, he decided that the state could
choose to regulate railroad companies that operated only within Louisiana. He found Plessy guilty of refusing to leave the white
car. Plessy appealed to the Supreme Court of Louisiana, which upheld Ferguson's decision. In 1896, the Supreme Court of the
United States heard Plessy's case and found him guilty once again. Speaking for a seven-person majority, Justice Henry Brown
wrote:
"That [the Separate Car Act] does not conflict with the Thirteenth Amendment, which abolished slavery...is too clear for
argument...A statute which implies merely a legal distinction between the white and colored races -- a distinction which is
founded in the color of the two races, and which must always exist so long as white men are distinguished from the other
race by color -- has no tendency to destroy the legal equality of the two races...The object of the [Fourteenth A]mendment
was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not
have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality,
or a commingling of the two races upon terms unsatisfactory to either."
The lone dissenter, Justice John Harlan, showed incredible foresight when he wrote:
"Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights,
all citizens are equal before the law...In my opinion, the judgment this day rendered will, in time, prove to be quite
as pernicious as the decision made by this tribunal in the Dred Scott case...The present decision, it may well be
apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of
colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the
beneficient
purposes which the people of the United States had in view when they adopted the recent amendments
of the Constitution.“
Over time, the words of Justice Harlan rang true. The Plessy decision set the precedent that "separate" facilities for blacks and
whites were constitutional as long as they were "equal." The "separate but equal" doctrine was quickly extended to cover many
areas of public life, such as restaurants, theaters, restrooms, and public schools. Not until 1954, in the equally important Brown
v. Board of Education decision, would the "separate but equal" doctrine be struck down.

Buchanan v. Warley 1917
It was ruled that Louisville, Kentucky’s residential segregation laws (block-by-block
segregation) were unconstitutional because they interfered with a landowner’s right to
dispose of real property.
Block-by-block segregation was replaced with racially restrictive covenants whereby
owners agreed not to sell to anyone other than a member of a specific group, or
excluded specific groups.

Shelley v. Kraemer 1948
In 1945, a black family by the name of Shelley purchased a house in St. Louis, Missouri.
At the time of purchase, they were not aware that a restrictive covenant had been in
place on the property since 1911. The restrictive covenant barred "people of the
Negro or Mongolian Race" from owning the property. Neighbors sued to restrain the
Shelleys from taking possession of the property they had purchased. The Supreme
Court of Missouri held that the covenant was enforceable against the purchasers
because the covenant was a purely private agreement between the original parties
thereto, which "ran with the land" and was enforceable against subsequent owners.
The United States Supreme Court reversed this decision in 1948.
In 1972, The US Supreme Court ruled that the recording of deeds with racial restrictions
violated the Fifth Amendment and the Federal Fair Housing Law passed in 1968.

Fair Housing Struggles in the 1960s

Title VI of the Civil Rights Act of 1964
Title VI prohibits discrimination on the basis of race, color, or
national origin in programs and activities receiving federal financial
assistance.

The Fair Housing Act of 1968
Title VIII of the Civil Rights Act of 1968 (Fair Housing Act), as
amended, 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 (including
children under the age of 18 living with parents of legal custodians,
pregnant women, and people securing custody of children under the
age of 18), and handicap (disability).

Fair Housing-Related Presidential Executive Orders:
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Executive Order 11063 (20 November 1962 Kennedy)
Executive Order 11063 prohibits discrimination in the sale, leasing, rental, or other disposition of
properties and facilities owned or operated by the federal government or provided with federal
funds.
Executive Order 11246 (24 September 1965 Johnson)
Executive Order 11246, as amended, bars discrimination in federal employment because of race,
color, religion, sex, or national origin.
Executive Order 12892 (17 January 1994 Clinton)
Executive Order 12892, as amended, requires federal agencies to affirmatively further fair
housing in their programs and activities, and provides that the Secretary of HUD will be
responsible for coordinating the effort. The Order also establishes the President's Fair Housing
Council, which will be chaired by the Secretary of HUD.
Executive Order 12898 (11 February 1994 Clinton)
Executive Order 12898 requires that each federal agency conduct its program, policies, and
activities that substantially affect human health or the environment in a manner that does not
exclude persons based on race, color, or national origin.
Executive Order 13166 (16 August 2000 Clinton)
Executive Order 13166 eliminates, to the extent possible, limited English proficiency as a barrier
to full and meaningful participation by beneficiaries in all federally-assisted and federally
conducted programs and activities.
Executive Order 13217 (18 June 2001 Bush)
Executive Order 13217 requires federal agencies to evaluate their policies and programs to
determine if any can be revised or modified to improve the availability of community-based living
arrangements for persons with disabilities.

Are there issues today before the courts you question as right and good?

Eminent Domain?
Let’s have the local township take your $100,000 lakefront
cottage, and those of your neighbors, and give them to a
private developer who will build a $10,000,000 condo
project… it is, after all, for the greater good.

OUCH!


I’d like to hear your thoughts…
Were you alive in 1964?
What were your thoughts about fair housing?
Did you watch the evening news… what was on?
Were there Gentleman’s Agreements to discriminate?

Federal Level
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Race
Color
Religion
National Origin
Sex (gender)
Handicap (disability)
Familial Status (persons with children under 18
years of age; women who are pregnant)

Other States and Municipalities may have additional classes
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Race
Color
Religion
National Origin
Sex (gender)
Handicap (disability)
Familial Status (persons with children under 18 years of age;
women who are pregnant)
Age
Sexual Orientation
Lawful Occupation
Citizenship Status
Marital Status

in Ohio
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Race
Color
Religion
National Origin
Ancestry
Sex (gender)
Handicap (disability) and those associated with a
person with a disability
• Familial Status
• Sexual Orientation in some jurisdictions
• Military Status (effective 24 March 2008)
– “Military status” means a person’s status in
“service in the uniformed services” as defined
in section 5903.01 of the Revised Code.

Military Status
“Service in the uniformed services” means the performance of duty,
on a voluntary or involuntary basis, in a uniformed service, under
competent authority, and includes active duty, active duty for
training, initial active duty for training, inactive duty for training, fulltime national guard duty, and performance of duty or training by a
member of the Ohio organized militia pursuant to Chapter 5923. of
the Revised Code. “Service in the uniformed services” includes also
the period of time for which a person is absent from a position of
public or private employment for the purpose of an examination to
determine the fitness of the person to perform any duty described in
this division.
(H) “Uniformed services” means the armed forces, the Ohio
organized militia when engaged in active duty for training, inactive
duty training, or full-time national guard duty, the commissioned
corps of the public health service, and any other category of persons
designated by the president of the United States in time of war or
emergency

The Protected Classes (cont’d)
a.
b.
c.
d.
e.
f.
g.

In 1965, Ohio became one of the first states to enact Fair Housing Legislation. On June 30, 1992, Governor
George Voinovich signed House Bill 321, which enacted changes in the classes of persons protected by the Ohio
Fair Housing Law, and significantly enhanced the enforcement powers of The Ohio Civil Rights Commission. The
law gives all persons in the protected classes the right to live wherever they can afford to buy a home or rent an
apartment. It is unlawful on the basis of race, color, religion, sex, national origin or ancestry, disability, or
familial status to:
refuse to rent, sell, finance, or insure housing accommodations or residential property
represent to any person that housing accommodations are not available for inspection, sale, rental or lease
refuse to lend money for the purchase, construction, repair, rehabilitation, or maintenance of housing
accommodations or residential property
discriminate against any person in the purchase, renewal, or terms and conditions of fire, extended coverage, or
home owner’s or renter’s insurance
refuse to consider without prejudice the combined income of both spouses.
print, publish, or circulate any statement or advertisement which would indicate a preference or limitation.
deny any person membership in any multiple listing services, or real estate broker’s organization.
The law covers all housing accommodations, residential buildings, vacant lots, or other property used for
residential purposes. However, religious, fraternal, or bona fide private organizations that provide housing
accommodations may give a preference to their own members.
The Fair Housing Act of 1968, as amended, also prohibits discrimination in housing on the basis or race, color,
religion, sex, national origin, familial status, or disability. Familial status means either one or more minors
(under the age of 18) who live with a parent or guardian or any person who is pregnant, or in the process of
securing legal custody of any minor. The familial status provision, with limited exceptions, prohibits a housing
provider from denying housing to families with children; however, protection is not applicable if housing is
intended for, and to be occupied only by persons 62 years or older; or at least one person 55 years or older
resides in each unit.
The law states that protection is provided for persons who have a disability as defined by the law, or who have a
history of a disability, or who are perceived as being disabled. The law also protects those persons who are
associated with a disabled person. Reasonable accommodation or a person’s disability, and/or modifications of
the housing accommodations that will afford the person with a disability full enjoyment of the premises or services
of the housing accommodations, must be provided for all common use areas. Under some circumstances the
landlord, manager or owner must pay the expense of these reasonable accommodations or modifications. Under
other circumstances, that cost can be paid by the occupant or user of the housing accommodations. All new
construction designed or first occupied on or after March 13, 1991, must meet accessibility standards for persons
with disabilities.

-- Ohio Civil Right Commission website

Disparate Treatment of Customers and
Clients

disparate DIS-puh-rit; dis-PAIR-it,
adjective:
1. Fundamentally different or distinct in
quality or kind.
2. Composed of or including markedly
dissimilar elements.

Clients (cont’d)
Provide your Buyer Clients with the pamphlet:

Fair Housing: Know the Law

Clients (cont’d)
Specific Actions prohibited under the Fair Housing Act:
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Refuse to rent or sell housing or to negotiate for housing.
Make housing unavailable or deny a dwelling.
Set different terms, conditions or privileges for sale or rental of a dwelling or in the
provision of 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).
Discriminate in residential real estate related transactions
Deny anyone access to or membership in a facility or service (such as the MLS)
related to the sale of rental or housing
Threaten, coerce, intimidate, or interfere with anyone exercising a fair housing
right or assisting others who exercise that right

Steering of Buyers;
Obligations to Out-of-Towners
Buyers are entitled to see any property that
can fit their needs, regardless of location.
Real estate agents must take special care to
show out-of-towners any properties that
can fit their needs, without limiting what
they see based on a discriminatory factor,
or on what the buyer requests in terms of
a protected class distinction.

Buyer Agent Fair Housing Practices
• Treat all of your buyer clients consistently.
• Treat all of your buyer clients fairly.
• Utilize systems to ensure consistent and
fair treatment of your buyer clients.
• Take copious notes of your buyer clients’
needs.
• Keep records of what properties you’ve
shown buyer clients, and be able to
demonstrate consistent and fair treatment.

Fair Housing Issues with Sellers
Provide your Seller Clients with the pamphlet:

Fair Housing: Know the Law

Accidental Landlords
•Property owners who become landlords cannot discriminate
against prospective renters.
•They must treat all prospective renters equally… if they do it to
one, request it from one, allow it from one… they must treat all
others equally and lawfully.
•This is an area of renewed concern, and an issue that is quite
treacherous.

Fair Housing Issues with Sellers (cont’d)
• Discuss Fair Housing with your seller clients.
• Counsel your seller clients that they will, of
course, sell their home to any buyer who can
afford it, without regard to any protected classes.
• Have your seller client initial and date the Fair
Housing clause of your listing agreement, to
demonstrate that you had this discussion with
the seller prior to listing their home for sale.
• Be prepared with scripts and dialogues should
you ever encounter a resistant seller

Who can share an example of an effective
script or dialogue should you encounter a
seller who has issue with Fair Housing?

The Resistant Seller
• First Step:
– refer resistant seller to the Fair Housing
pamphlet, and the conversation you had when
listing the property…
– remind the resistant seller that the only
concern we have is whether the seller can
afford the property.

• Second Step (if needed)
– Remind the resistant seller that this is the law
of the land, that we’re talking about Federal
Law.
– Inform the seller that you will not be party to a
violation of Federal Law

• Third Step (if needed)
– “Mr and Mrs Seller, I am going to sit here
while you call your attorney, and inform your
attorney of what you are trying to do.”
– Have them contact their attorney.
– If they refuse to contact their attorney, contact
your own attorney immediately, as you need
to demonstrate that you are not in any way a
party to a Fair Housing Violation.

Fair Housing and Advertising:
Words that can and cannot be used

Refer to the 4-page handout of words that
can and cannot be used, and those that
should only be used with caution.
A helpful rule of thumb is to always describe
the property, and never describe the buyer
or seller of that property.

Fair Housing and Advertising:
Providing Direction
• You may not provide location information or
driving directions that refer to local landmarks
which might be inferred to suggest a preference
of certain buyers… for example, you cannot say
that a property is near a church, or near a
synagogue, or near a temple.
• You can use street names, you can use road
references in your directions.
• Remember, we want as many buyers as
possible to consider purchasing our listings!

Complaints and Penalties
Fair Housing Enforcement
Fair Housing Enforcement is conducted by the US Department of Justice, and
the US Attorney General is authorized to bring Civil Actions if:
• There is cause to believe that any person or group is engaged in a pattern
or practice of resistance to the full enjoyment of any rights granted by this
title
• There is cause to believe that any group of persons has been denied any
rights and such denial raise and issue of general public importance
• The Secretary of HUD refers a case of discriminatory practice to the
Attorney General
• There is a breach of conciliation agreement entered into by HUD
These civil actions pursued by the Attorney General may result in a penalty up
to $55,000 for the first violation and up to $110,000 for any subsequent
violation.

Complaints and Penalties (cont’d)
Fair Housing Enforcement
Private Law Suits
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Federal District Court or State Court
– Any aggrieved person may file suit, at their own expense, within two
years of an alleged violation
– You may even bring suit after filing a complaint with HUD, if you have
not signed a conciliation agreement and an Administrative Law Judge
has not started a hearing
– A court may award actual and punitive damages and attorney’s fees and
costs. The Fair Housing Amendments Act also removed the former
$1,000 cap on punitive damages.

Questions and Answers –
Fair Housing in Practice

I welcome your questions and observations.

Helpful Resources
• www.nationalfairhousing.org
– Opening America’s Closed Doors

• http://crc.ohio.gov
– Ohio’s Civil Rights Commission

• www.hud.gov
– Homes and Communities

• www.realtor.org/housopp.nsf
– Housing Opportunity Program

Conclusion
• We need to do the right thing and practice
proper behavior
• Treat all people fairly and consistently in
your business practices
• Think Win-Win
• Have Integrity
• Remember the Golden Rule:
treat everyone like you’d want to be treated.

It’s the Law, but it’s also just good business!

This has been my pleasure!
Thank you for attending!
Kevin Cahill
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Evolve Real Estate in Florida
www.evolverealestate.net
727-755-1995
kevincahillgroup@gmail.com

• Freely distributed for your use.

Fair housing = good business 2014

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Fair housing = good business 2014