What is Fair Housing?
Fair housing issues are among the most important legal issues facing tenants, brokers, and landlords today. Fair housing laws - for the benefit and protection of all tenants and prospective tenants - impact virtually every decision made by owners, managers, sellers, buyers and agents. Even though this blog covers primarily landlord - tenant relations, the prohibitions of fair housing law cover the spectrum of real estate transactions, including sales and rentals of real property, as well as lending practices.
The Federal Fair Housing Act
In response to widespread discrimination in housing, Congress passed the landmark Fair Housing Act (FHA) as part of Title VIII of the Civil Rights Act of 1968. The FHA, along with its subsequent amendments, is the primary federal law against discrimination in housing. This law prohibits anyone, include owners, property managers, agents and brokers, from discriminating in the sale or leasing of residential real estate. As enacted in 1968 (amended in 1974 to add the classification of 'sex'), the FHA prohibited discrimination on the basis of:
- Race: a class or kind of human population having a common origin, characteristics and other physical traits or appearances.
- Color: someone's skin pigmentation being lighter or darker than someone else's.
- Religion: an organized system of beliefs or devotion to a religious faith or similar observance.
- National Origin: an individual's place of birth or homeland
- Sex: Gender, male or female, includes protection against sexual harassment, but at present, does not include sexual orientation in NC or under the federal FHA.
The FHA was substantially revised by the Fair Housing Amendments of 1988, which added two new protected classes of citizens:
- Handicapped/Disabled Persons: may be physical or mental which substantially limits one or more major life activity.
- Families with children/familial status: one or more children under the age of 18 in a household living with a parent or legal guardian, a pregnant female, or persons seeking to adopt or otherwise obtain custody of one or more children.
Discrimination occurs when a person who is seeking, renting, or occupying a houses is treated differently because of her protected status - ie., because of her race, color, religion, sex, national origin, handicap or familial status. The 1988 amendments added elaborate provisions defining 'familial status' and a 1995 amendment created exemptions for 'housing for older persons.' It also gave handicapped persons the right to make reasonable modifications in existing housing and it required certain design standards in the construction of new housing.
Penalties for violations of the FHA include:
- Civil damages
- Punitive damages
- Criminal prosecution, fines and imprisonment, in some cases
- Consent decrees that restrict business practices
- Loss of professional licenses or certificates
- Expulsion from professional associations or trade groups
A full copy of the FHA is available at: http://www.justice.gov/crt/housing/title8.pho
The North Carolina Fair Housing Act
North Carolina has its own version of the Fair Housing Act. In virtually all respects, North Carolina's fair housing laws are identical to the federal in terms of the seven protected classifications discussed above. However, this changed in 2009, when the NC Legislature amended the State Fair Housing Act to add a new protected classification: Affordable housing in the context of municipal planning. It was amended to add subsection (f), which states:
"It is unlawful discriminatory housing practice to discriminate in land-use decisions or in the permitting of development based on race, color, religion, sex, national origin, handicapping condition, familial status, or except as otherwise provided by law, the fact that a development or proposed development contains affordable housing units for families or individuals with incomes below 80% of are median income. It is not a violation of this Chapter if land-use decisions or permitting of development is based on considerations of limiting high concentrations of affordable housing."
In addition, it was also amended to add subsections (3) and (4), which state:
(3) "A local government's act or failure to act in land-use decisions or in the permitting of development is intended to discriminate against affordable housing. A local government intents to discriminate if, in commiting an unlawful discriminatory housing practice desrcribed in G.S. 41-A-4(f), the local government was motivated in full, or in any part at all, by the fact that a development or proposed development contains affordable housing units for families or individuals with incomes below 80 percent of area median income. It is not a violation of this Chapter if land-use decisions or permitting of development is based on considerations of limiting high concentrations of affordable housing. An intent to discriminate may be established by direct or circumstantial evidence."
(4) "A local government's act or failure to act has the effect, regardless of intent, of discriminating against affordable housing in land-use decisions or in the permitting of development, as set forth in G.S. 41A-4(f). It is not a violation of this Chapter if land-use decisions or permitting of development is based on considerations of limiting high concentrations of affordable housing. It is not a violation of this Chapter if a local government whose action or inaction has an unintended discriminatory effect proves that the action or inaction was motivated and justified by legitimate, bona fide governmental interest."
Those these new amendments to the State Fair Housing laws do not directly affect tenants and landlords on day-to-day operations, they present a significant impact on multi-family developers and their relationship with local government entities, including town and city councils and planning boards. Under these new laws, municipalities must take great care before electing to deny a proposed affordable housing development, as a denial of such development could lead to claims of discrimination.
Local Fair Housing Ordinances & Regulations
Many localities have also adopted fair housing ordinances and regulations. These are usually very similar to the state and federal fair housing laws, but may include additional protected classes. For example, some localities also prohibit discrimination on the bases of sexual orientation, political preference, or marital status. Thus, it is extremely important that one check with their city or county government to find out if they have adopted such additional protections. If a city or state has fair housing laws that are comparable to the FHA, the federal and state authorities will sometimes refer complaints to the city or a designated state or local organization (a human relations department or commission) for counseling or investigation.