The Best of the Legal Hotline: Fair Housing Focus


 Tracy Rucka  |    April 13, 2020
Legal Hotline

To bring awareness to fair housing during April as the official fair housing month, the legal hotline article this month highlights fair housing implications pertaining to real estate advertising. Specifically, this article reviews WRA Legal Hotline discussions surrounding advertising requirements, the practice of potential buyers sending ‚Äúlove letters‚ÄĚ to sellers, and listing photos that include human subjects.

Real estate advertising and fair housing implications

What are the federal or state law regulations regarding what REALTORS¬ģ must include in their print ads or their website?¬†
How about the fair housing logo?


All advertisements, regardless of where they appear, must clearly and conspicuously include the name of the broker/firm or a trade named filed with the Real Estate Examining Board (REEB). Wis. Admin. Code ¬ß REEB 24.04, and Wis. Stat. ¬ß 452.136 apply. Advertising by a licensee who is also a REALTOR¬ģ is subject to compliance with Article 12 of the REALTOR¬ģ Code of Ethics.¬†

Whether a fair housing logo is required is a matter of company or, if applicable, franchise policy. The use of the Equal Housing Opportunity slogan or logo is not mandatory in all real estate advertising, but it alerts consumers to the concept of fair housing,
shows the broker‚Äôs commitment to fair housing and demonstrates¬†intent to abide by the fair housing law. Read more in ‚ÄúFair Housing Advertising Pointers‚ÄĚ in the April 2014 Wisconsin Real Estate Magazine at www.wra.org/WREM/Apr14/FairHousingAdvertising.

HUD rules, former 24 C.F.R. part 109 regulations, used to require the slogan or logo in many ads, but those rules are no longer in force. The requirements included size criteria for newspaper ads. There are no new requirements or rules regarding the slogan or logo. Read more about the former rules at www.wra.org/FairHousing/FormerRules.

While the federal Fair Housing Act (FHA) by its text does not require the use of the equal opportunity logo or slogan ‚ÄĒ ‚ÄúEqual Housing Opportunity‚ÄĚ ‚ÄĒ in any ad, the fact is that using the logo and statement reflects a commitment to fair housing compliance, for example, for property managers and landlords. The equal housing opportunity logo is a picture of a small house with the words ‚Äúequal housing opportunity‚ÄĚ directly beneath it. Using the equal housing opportunity logo may help demonstrate a commitment to the law in cases where there is an allegation of discrimination and may be required by HUD settlement agreements or enforcement orders.

For more information about advertising, see the August 2015 Legal Update, ‚ÄúReal Estate Advertising Content,‚ÄĚ at www.wra.org/LU1508 and the October 2015 Legal Update, ‚ÄúReal Estate Advertising Methods,‚ÄĚ at www.wra.org/LU1510.¬†

‚ÄúLove letters‚ÄĚ and fair housing

Many agents in today‚Äôs real estate market are seeing an uptick in the ‚Äúlove letter‚ÄĚ trend. In this scenario, a potential buyer sends a letter to a seller, complimenting the seller on the property and essentially telling the seller to ‚Äúpick me as your buyer.‚ÄĚ In some of these letters, the buyer makes comments about the buyer‚Äôs familial status; in other letters, the buyer may show pictures of the buyer‚Äôs family. Should agents have any concern with harboring acts against fair housing and therefore avoid the presentation of such letters?¬†

Whether the content of the buyer’s love letter could raise liability issues for the buyer, the seller or the broker, would be transaction-specific and depends on the content of the letter. For example, information contained in the letter could raise
a misrepresentation issue if inaccurate and the seller relied on the information when accepting the offer. The content of the letter could raise fair housing issues if decisions regarding 
the sale are made based on the buyer’s protected class status. The information contained in the letter could create contractual obligations between the buyer and seller for the closing of the transaction. Likewise, if there are any promises or conditions contained in the letter that were to be implemented after closing, that could be problematic.

Having identified potential issues, buyers may choose to provide love letters with offers on a case-by-case basis. Whether the letter is incorporated by reference as part of the offer or the letter accompanies the offer would be a decision for the buyer to make after reviewing the pros and cons. A letter not incorporated by reference may not be presented to the seller. Any document can be made part of an offer if it is incorporated by reference into the offer to purchase. If the cooperating broker thinks the listing broker will not present the buyer’s letter, the broker may remind the listing agent of the offer presentation rules in Wis. Admin. Code § REEB 24.13, which provides for the submission of all written proposals, not just offers:

Wis. Admin. Code ¬ß REEB 24.13(1): ‚ÄúRefusal prohibited. Licensees shall not refuse to draft or submit any written proposal unless the terms of the written proposal would be contrary to specific instructions of the other party.‚ÄĚ

Wis. Admin. Code ¬ß REEB 24.13(3)(a): ‚ÄúFair presentation of written proposals. (a) Licensees shall present all written proposals in a objective and unbiased manner to their clients and customers. Licensees shall inform their clients and customers of the advantages and disadvantages of all submitted written proposals.‚ÄĚ


‚ÄúWritten proposal‚ÄĚ means any written document provided by one party to another during the course of a transaction, including but not limited to notices, offers, counteroffers, options, exchanges, rental agreements and amendments.

For more information, see the September 2017 Legal Update, ‚ÄúFair Housing Advancements,‚ÄĚ at www.wra.org/LU1709.

Listing photos and fair housing

The seller provided the broker photos of the property. Included in the photos are children as well as images of people in a hot tub. Can the broker use these photos when advertising this property, and what issues could the use of such photos pose?  

There are many considerations when placing photographs in advertising materials or the MLS including copyright law, privacy laws, fair housing laws, and MLS rules and regulations to name a few.  

Wisconsin privacy statute

Wis. Stat. § 995.50 is the Wisconsin right to privacy statute. An invasion of privacy occurs if one uses, for advertising purposes, the name, portrait or picture of any living person without prior written consent. Similar to copyright law when using any image of an individual, the agent and/or broker should assure proper written consent is obtained. 

See the excerpt from the NAR Handbook on Multiple Listing Policy at www.realtor.org/handbook-on-multiple-listing-policy.  

Copyright law

Photographs are subject to copyright law. Therefore, before using a photograph taken by another individual, the agent must obtain consent to use the photo. Written consent is preferable, describing the authorized uses. See information about copyright from NAR.

Fair housing

The Federal Fair Housing Act and Wisconsin law make it unlawful to make, print or publish any notice, statement or advertisement with respect to the sale or rental of a dwelling that indicates a preference, limitation or discrimination based upon membership in a protected class. The cardinal rule for avoiding fair housing liability in advertising is to describe the property and property features, not the buyer or tenant.
 
Fair housing laws impact what REALTORS¬ģ may or may not say when advertising property for sale or rent. Liability for a discriminatory ad in a publication or on a multiple listing service (MLS) may be especially far-reaching, potentially including the broker and his or her agents and office staff, the MLS or other publisher and its staff, and a website operator and its staff.

Photos as well as words in advertising can indicate a preference for a protected class. It may be preferable to show photos of the property features, not people using the property.

Human Models

Whether there is a violation of fair housing law, based on the use of human models, HUD takes into consideration the entirety of the broker’s advertising. More detailed information is sourced from www.hud.gov/offices/fheo/library/part109.pdf.

b) Use of human models. Human models in photographs, drawings, or other graphic techniques may not be used to indicate exclusiveness because of race, color, religion, sex, handicap, familial status, or national origin. If models are used in display advertising campaigns, the models should be clearly definable as reasonably representing majority and minority groups in the metropolitan area, both sexes, and, when appropriate, families with children. Models, if used, should portray persons in an equal social setting and indicate to the general public that the housing is open to all without regard to race, color, religion, sex, handicap, familial status, or national origin, and is not for the exclusive use of one such group.

Copyright

When it comes to listing content, there are several aspects of the listing that may be protected by copyright law: photographs, drawings, property descriptions or remarks beyond the basic description, or video tours. Photographs are subject to copyright law. Copyright protection exists from the time a work, such as a photograph, is created. There is no requirement to register the photograph, and reproduction by anyone other than the creator, without the creator’s permission, is a violation of U.S. copyright law. The copyright of the work immediately becomes the property of the author, here the photographer/agent, who created the work. Likewise, written property descriptions used for the advertising or marketing of property would vest in the author/agent.

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

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