Best of the Legal Hotline: Fair Housing


 Tracy Rucka  |    April 02, 2008
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What are the protected classes for fair housing law?

Federal, state and local governments have enacted fair housing laws. The protected classes enumerated in federal law include: race, color, religion, sex/gender, national origin, and handicap. Added to that list by Wisconsin are: ancestry, sexual orientation, marital status, family status, lawful source of income and age. Some Wisconsin counties and municipalities add additional protected classes. REALTORS® working in Appleton, Beloit, Brookfield, the city of Madison, Manitowoc, the city of Milwaukee, Oak Creek, Platteville and Stevens Point may refer to county and municipal codes for the list of additional protected classes.

Are students a protected class?

Although federal and state fair housing laws do not include students as a protected class, some municipalities do. For example, the city of Madison and Dane County include students as a protected class.

Can a landlord discriminate against a convicted felon or someone with a criminal record?

Like students, arrest or conviction record is not a state class, but it is a local one (i.e., Madison).

A landlord has heard that he does not have to follow fair housing law because he is the owner of a duplex and lives in one of the units. Is there an exemption for this?

In the federal law there is an exemption for owner-occupied buildings with four or fewer units. However, the Wisconsin statutes do not include this exemption. So an owner occupant landlord would violate Wisconsin law if he were to discriminate based on a Wisconsin-protected class.

Where can people go if they believe they have been a victim of discrimination?

People who believe they have been the subject of discriminatory action may have a claim with federal, state or, sometimes, local authorities. The enforcement agency for federal law is the Department of Housing and Urban Development, Office of Fair Housing and Equal Opportunity, located in Milwaukee (414-297-3214). The enforcement agency for state law is the Wisconsin Equal Rights Division of the Department of Workforce Development in both Madison (608-266-6860) and Milwaukee (414-227-4384). Complaints, in the form of litigation, may also be made. Litigation may result in injunctions, restraining orders, or damages and fines.

More information about fair housing is available on the Wisconsin REALTORS® Association’s Fair Housing-Equal Opportunity in Housing Resources Page at www.wra.org/fairhousing.

While on a listing appointment, the seller instructed the agent that no children would be allowed to attend showings. The agent informed the seller that this may be a violation of fair housing laws, that the seller should consult with an attorney regarding protected classes, and that the agent needed to check also. The seller indicated that there would be no problem selling to families with children, but the seller just does not want children present for the showings. May this be construed as discrimination against a protected class?

Although the seller may be concerned that children would damage the property or be disruptive, this type of prohibition may not be the best way to accomplish the seller’s objectives. The listing contract provides on lines 111-112 that the seller is to prepare the house to minimize the likelihood of injury, theft, or property damage. Storing valuable items and monitoring attendees may serve this purpose.

If the seller excludes children from showings and open houses, this may indirectly send the message that families with children are not welcome or desired as purchasers. This might result in de facto discrimination where the actual effect was not the intended result, but is nonetheless illegal.

A buyer has three young children and is considering making an offer for a condominium unit. The bylaws of the condominium, which has two units, state that the common areas, including the pool, cannot be used by any person under the age of 14. Is this limitation enforceable or legal?

Under the federal and state statutes, it is unlawful to refuse housing to any family with children under the age of 18 (including women who are pregnant) unless the housing project meets the definition of housing for older persons. In addition, Wis. Stat. §106.50(2)(g) prohibits discrimination in providing privileges, services or facilities that are available in connection with housing. It appears the terms and conditions of the condominium documents may be contrary to fair housing laws. The condominium association may have legal counsel review condominium documents to ensure compliance with federal and state fair housing laws. Buyers with questions about the content of condominium documents should review the documents with private legal counsel and proceed with offers according to the advice of counsel.

A buyer with a disability wants to buy a condominium unit. The buyer is requesting a ramp on the outside of the building. The condominium board is thinking it may be discrimination if they do not allow it. Would this be considered discrimination?

Both federal and state fair housing laws protect persons with disabilities. A person is considered to have a disability if the person:

  • Has a physical or mental disability (including hearing, mobility and visual impairments, chronic alcoholism, chronic mental illness, AIDS, AIDS-Related Complex and mental retardation) that substantially limits one or more major life activities;
  • has a record of such a disability; or
  • is regarded as having such a disability.

A reasonable accommodation is a change in rules, policies, practices, or services so that a person with a disability will have an equal opportunity to use and enjoy a dwelling unit or common space. The federal Fair Housing Act requires housing providers, including condominium associations, to do everything they can to assist, but they are not required to make changes that would fundamentally alter the project or create an undue financial and administrative burden. The Act makes it unlawful to refuse to make reasonable accommodations to rules, policies, practices or services when such accommodations may be necessary to afford persons with disabilities an equal opportunity to use and enjoy a dwelling. To show that a requested accommodation may be necessary, there must be an identifiable relationship, or nexus, between the requested accommodation and the individual’s disability. (See “New Guidance on ‘Reasonable Modifications’ under Fair Housing Act” on page 12.)

An agent has a two-bedroom apartment for rent and a person inquires about renting. It turns out to be a husband and wife, boyfriend and girlfriend, and two children. Does the agent have to accept the application?

Both federal and state law provide that it is not discrimination based on family status if property owners comply with any reasonable federal, state or local regulations or ordinances which relate to the maximum number of occupants permitted to occupy a housing unit. Neither law prohibits an owner or property manager from restricting the number of occupants so long as the number of occupants, and no other factor relating to protected classes, resulted in the restriction. Occupancy standards may be created to meet legitimate reasons (i.e., health and safety of the occupants, preventing overcrowding, etc.).

While the HUD has not established definitive standards in enforcing the federal fair housing law, it will consider several criteria to determine whether an occupancy policy is reasonable or not: size and number of bedrooms, size of unit, configuration of unit, age of children, other physical limitations of the housing, and any applicable state and local laws. HUD “Guidelines” base occupancy standards on a maximum of two persons per bedroom (although the agency has not formally adopted this standard). Read more about the HUD policy on occupancy standards online at www.nmhc.org/Content/ServeFile.cfm?FileID=1545.

A broker has a seller who wants to screen all buyers who want to view the property because she has gone through a nasty divorce, is afraid of her ex-husband, and does not want him or any of his relatives on the property. The ex-husband’s best friend has requested a showing and the seller is denying access. The potential buyer is very upset and wants to know why. Can the broker disclose?

Unlawful discrimination in housing is based upon federal, state or municipal protected class status. However, it is not unlawful for a seller to limit showings for reasons other than those based upon protected class status. The Administrative Code rules allow the seller, in writing, to limit access for showing purposes. Confidentiality rules would limit, without the seller’s consent, the sharing of information that would reasonably be expected to be confidential. The new provisions in the 2008 WB-1 Residential Listing Contract allow the broker to document the seller’s limitations for showing purposes. The broker may work with the seller to ensure that the listing contract documents the seller’s directions and indicates the scope of information that may be shared with potential buyers.

Tracy Rucka is a Staff Attorney for the WRA.

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