The Best of the Legal Hotline and Fair Housing


 Tracy Rucka  |    January 11, 2018
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An agent has a client who wants to list his home but does not want to sell it to anyone who is homosexual, two people of the same sex, or a couple who are not married. Is this legal?

The 1968 federal Fair Housing Act prohibits discrimination in the sale, renting or financing of housing on the basis of race, color, religion, gender and national origin. The 1988 Fair Housing Amendments Act created new protected classes based on handicap and familial status. Additional protected classes under Wisconsin law include sexual orientation, marital status, lawful source of income, age and ancestry.

Wisconsin fair housing laws tell us it is illegal to discriminate based on these characteristics in the sale and rental of housing. For example, it is illegal to refuse to rent or sell housing to someone because the person is in one of the protected classes. A seller cannot lawfully set different prices, terms or conditions when selling or renting housing based on the buyer’s being in a protected class. Advertising in a manner that shows a preference or a limitation for buyers or tenants based on their class status is also illegal.
The broker may refer the potential seller to legal counsel regarding fair housing laws. The broker may elect to not enter into the listing if the broker believes the seller may attempt to engage in unlawful discrimination. 

A buyer’s agent was scheduling showings when the listing agent asked if the buyers have children. When the buyer’s agent told her yes, the listing agent immediately answered that she was declining the showing because the buyers had children. She said the home was simply too small for someone with children, and she did not want to waste the seller’s time with buyers who would not buy. Is this discrimination that should be reported?

Unlawful discrimination in housing is based on federal, state or municipal protected class status. The 1988 Fair Housing Amendments Act created new protected classes, members of which have the right to sue persons who commit housing discrimination. Familial status was among those classes. Similar protections are provided in Wis. Stat. § 106.50, Wisconsin’s open housing law, which prohibits discrimination in housing based on family status.
If the seller or listing broker attempts to discourage or prohibit a family with children from purchasing, significant legal liability could result. Although one might initially assume that this is discrimination based on age, it appears to be discrimination based on family status. Under fair housing laws, age discrimination applies only with respect to persons at least 18 years of age.
If there is evidence that the listing broker and/or seller is engaging in discrimination, the buyers or the buyers’ agent have the right to bring discrimination complaints. 

A tenant who is in a wheelchair had a maintenance request. The maintenance man who visited the unit reported a considerable amount of damage to the unit, including holes in the walls, scratched/marred cabinets, holes in doors, damaged trim and damaged flooring. Are people in wheelchairs held to a different standard in regards to damages to an apartment at the time of move-out?

While a landlord is responsible to make reasonable accommodations and modifications, if requested, for persons with disabilities under the fair housing law, a disabled tenant would still be responsible for damage to the unit that is above and beyond normal wear and tear.

The broker listed a condominium unit recently and reviewed the WB-4 with the seller. The broker discussed lines 297-300 of the listing contract regarding fair housing, protected classes and discrimination against prospective buyers. At that point, the seller asked whether pedophiles or registered sex offenders were included. The seller does not want her unit sold to such buyers. Are they a protected class? How to proceed? 

Real estate licensees, landlords, property managers and sellers all will have a duty, if asked by a person in connection with a real estate transaction, to disclose any actually known information concerning any sex offenders. Specifically, if asked whether a particular person is required to register as a sex offender, about the location of sex offenders in a neighborhood, or for any other information about the sex offender registry, the licensee, owner or property manager must disclose whatever actual knowledge he or she has on the subject. However, the licensee, owner or property manager will have immunity relating to the disclosure of such information if he or she promptly gives the person requesting the information a written notice indicating that the person may obtain the sex offender registry information by contacting the Department of Corrections via either the Internet or by a toll-free telephone number. In other words, even if the licensee, owner or property manager knows something regarding sex offenders, they will have immunity if the person asking the question is referred to the Department of Corrections. Instead of answering based on what they have heard or read, the licensee, owner or property manager can instead refer the person to the Department of Corrections’ sex offender registry for factual and accurate information at www.widocoffenders.org or by phone at 608-240-5830 or 877-234-0085.

Prior to entering into the listing or taking any action that limits access to housing, the broker may consult with legal counsel. Although registered sex offenders are not specifically included in the list of protected classes under state law, the broker should check with an attorney in the area to confirm that local ordinances/codes do not expand the protected classes to include past felons and/or sex offenders. Occasionally the argument is made that being a sex offender stems from having a handicap or disability, which could place some sex offenders within a protected class. This has not been tested in the courts. 

Obviously this is not a black and white issue. Rather, the seller is best served making her own decision after consideration of these factors and upon consultation with private legal counsel. She may be referred to the Department of Corrections for information about what, if any, obligations or limitations there are relating to the sex offender status. The broker may review Legal Update 02.05, ‚ÄúSex Offender Registry,‚ÄĚ online at www.wra.org/LU0205, for more information about the sex offender registry and disclosure obligations.¬†

More info online  

  • Fair Housing/Equal Opportunity REALTOR¬ģ Resource page online at www.wra.org/fairhousing.¬†
  • April 2007 Legal Update, ‚ÄúAvoiding Discrimination in Advertising and Racial Steering‚ÄĚ online at www.wra.org/LU0704.¬†¬†
  • April 2005 Legal Update, ‚ÄúDiversity and Fair Housing‚ÄĚ at www.wra.org/LU0504.¬† ¬†
  • ¬†‚ÄúThe Best of the Legal Hotline: April is Fair Housing Month‚ÄĚ in the April 2010¬†Wisconsin Real Estate Magazine at www.wra.org/WREM/Apr10/FairHousingMonth.
  • ‚ÄúThirty Years after the Federal Fair Housing Act,‚ÄĚ at www.wra.org/LU9803.¬† ¬† ¬†

Tracy Rucka is Director of Professional Standards and Practices for the WRA.

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