Transcript Law Lecture 10

FAIR HOUSING
Protection against unlawful practices in
the housing market
The Federal Housing Administration
The Federal Fair Housing Act

Students should use my Planning Law Web Site for a
complete overview of the FFHA. This presentation is
a short synopsis of the material contained on the
web site.
Overview


The FFHA is actually a series of amended acts that
date back to the original Model Cities Act – 1966
and the Civil Rights Act of 1968 that sought to
prevent racial discrimination in housing practices
The act is cited as 42 USC 5301 as amended
Amendments


Amendments to the FFHA broadened the sphere of
regulation. Once the Act was limited to race, color,
creed, and origin
The Act now includes protection for gender,
children, elderly, and persons with disabilities
Targeted Practices


General Plan Practices – failure and/or conscious effort of the
local community to provide an affordable mix of housing for its
current or expanding population
Regulatory Practices – Often called a “Pattern and Practice
Case” were there is a discernable pattern and practice of
local government using its regulatory power to prevent,
frustrate, or impede reasonably affordable housing
Targeted Practices


Private Practices – the use of private restrictions, practices,
threats, harassment, and other means to bar the entry of
persons into the housing market
Sales and Marketing Practices – The majority of persons in the
U.S. purchase homes through brokers or real state agents.
Unfair practices such as bait and switch, block busting,
advertising, denying access to multiple listing, are favorite
tools
History

The FFHA is the primary Federal Law addressing
discrimination. Roots of the act date to the Model
Cities Act of 1966 but the first act with “teeth” was
the Title VIII of the Civil Rights Act of 1968
What Is Prohibited


Actions based on refusal to bar housing
opportunities because of Race, Color, Creed,
National Origin, Gender, Familiar States, Age,
Disability
Collectively, these are know as the covered
protections
What Is Covered




Refusal to rent or sell after a bona fide offer based on …
Discrimination in terms of conditions of sale or rental because
of …
Make, print, publish, make statements or advertise any
preference because of …
Represent to any person because of … that a covered
dwelling unit is not available for sale or rent when it is actually
available
Covered Terms




Engage in block busting or similar practices
Different provisions such as security deposits or
down payments
Limiting the use of privileges or facilities
Engaging in sales because of favors of
general/sexual harassment (The Packwood
Amendment)
Steering



Discouraging … from inspecting, purchasing, renting because
of the characteristics of the person or the neighborhood
Exaggerating drawbacks or not informing purchasers of the
desirable features of the dwelling, neighborhood, or
development
Communicating that …”you” would not be comfortable or
compatible with existing residents
Practices




Discharging or taking adverse action against an
employee for refusing to participate in a
discriminatory practice
Refusing to provide municipal services or insurance,
or loans (redlining) because of …
Employing city codes or regulating to segregate
applicants or renters because of …
Providing inaccurate or untrue information
Disability



Provided in the 1988 amendments to the FFHA
Unlawful to discriminate because of a handicap
Handicap is a physical or mental impairment which
substantially limits one or more of life's activities.
Ugly Is Not A Disability
Nor Is Being Stupid
Covered Requirements for MultiFamily after 1991




At least one building entrance on a handicapped accessible
route – ANSI 1.117
A covered building contains four or more units
Disabled persons must be allowed to make reasonable
modification to the rental unit at their own expense to gain full
benefit of the unit. Renter must also restore at their own
expense
Owners must provide handicapped routes, door openings,
fixtures, hand rails in bathrooms
Some Exemptions to the FFHA



Housing intended to be occupied solely by elderly
persons with certain conditions
Act does not apply to religious or certain non-profit
organizations when they limit the sale or rental to
persons of a particular faith or organization,
provided that the limitation is not based on ::::
Does not apply to private sales when owner does
not have an interest in more than three single family
homes
The Bottom Line

All accessibility and modification issues based on a
disability fall under the rule of reasonable
accommodation
Accommodation – The Language


Section 3604(f)(1) of the FHA provides in relevant part that it is
unlawful "to discriminate in the sale or rental, or to otherwise
make unavailable or deny, a dwelling to any buyer or renter
because of a handicap of . . . a person residing in or intending
to reside in that dwelling after it is sold, rented, or made
available.“
Section 3604(f)(3)(B) states, "For purposes of this subsection,
discrimination includes . . . a refusal to make reasonable
accommodations in rules, policies, practices, or services, when
such accommodations may be necessary to afford such
person equal opportunity to use and enjoy a dwelling . . .
Enforcement






Courts, local housing offices, and Department of HUD
Complaints must be filed in one year
After filing a practice complaint HUD has 10 days to notify
Investigations must be completed within one year
HUD make use conciliation
Relief may be based on monetary damages, fines, attorney
fees or orders to ban future practices
Penalties
Penalties can range from $10,000 to $50,000 depending on the
number of offenses
 Failure to comply can result in penalties up to $100,000

The Fair Housing Cases
Parking for
Disabled Persons
Only
Ultimate Disability Parking Space
Gittelman v Woodhaven
Condominiums 1997



A condominium owner in Old Bridge N.J. requested
exclusive use of a parking space to accommodate
his disability
The condominium association refused to grant his
request because doing so would diminish the other
unit owner’s undivided interests in common areas,
which was prohibited under state law
The Master Deed expressly provides that parking
spaces in the Condominium are common elements
for the non-exclusive use of the unit owners
Circuit Court of Appeals


The court held that the condominium association should have
granted the accommodation even though the association
members voted against it because the condominium
association was the entity responsible for making sure that the
condominium rules were enforced in accordance with the
FHAA, and for taking whatever affirmative steps were
necessary to ensure compliance with federal law.
The court issued a strongly worded opinion in which it refused
to allow the condominium association to rely on the
contradictory state law and the private agreement among
condominium owners to excuse its refusal to make a
reasonable accommodation.
Case Significance

This case presents a strong statement
regarding the Fair Housing Act’s requirement
that an individual’s right to be free from
discrimination sometimes supersedes private
property interests and state law.
Brandt v Chebanse



Mrs. Brandt is a residential developer
She builds a triplex and adapts one unit for her
handicapped husband for which the Village
granted her a variance since the land was zoned
single family residential
She sought another variance for a four unit
apartment at the same intersection and planned to
equip the bottom units for handicapped rental
Mrs. Brandt
Basis



The Village offered her an alternative location for
the 4 plex but Mrs. Brandt refused
She sues under Section 4, Title VIII of the Fair Housing
Act. She says that the Village was bound to make
reasonable accommodation for the disabled in its
zoning laws and that they failed to do so
The trial court ruled in favor of the Village
The Appeals Court



What this case comes down to is:
A claim that the Fair Housing Act renders all singlefamily zoning unlawful whenever the developer is
willing to make the units on the first floor accessible
to persons in wheelchairs
Actually, the claim is even broader. Since March
1991 the Fair Housing Act has required developers
to make the first floor units of all four-unit residential
buildings handicapped-accessible.
The Bottom Line
What Mrs. Brandt is asking for is that the
court invalidate single family zoning as a
municipal tool
 The Fair Housing Act does not require this. It
only requires that IF the community allows a
developer to build a four unit apartment,
the first floor must be accessible

What Does This Case Say

It reminds us that there are in fact limits as to how
far courts will allow groups to wrap themselves in
the mantle of the Fair Housing Act in an attempt to
avoid municipal zoning restrictions. Developers
seeking to use the Act as a sword to cut through
municipal restrictions in multiple family housing had
better try a new approach. The court concluded:
– Unless the Fair Housing Act has turned
the entire United States into a multi-family
dwelling zone, Brandt must lose.
It doesn't, so she does."
Leaves Town and Moves to the
Country
Oxford House Again

U.S. v Palantine, IL
– Palatine permits group homes in its’ single family zoning district
but restricts them to eight residents and two paid, professional
staff in a facility certified by the State
– Oxford House operates a facility in Palatine for recovering
alcoholics but it contains 11 occupants and the staff are not
certified.
Background



When Oxford house first leased the facility they
were aware that they did not meet the city’s code
for group homes
Later, the City amended its code to include a
special use permit in single family districts for group
homes of nine or more persons and for untrained
staff
Oxford House was cited by the City for registration
violations and for Life Safety Code violations
Current Action



Oxford House requests that the city give them a
reasonable accommodation and waive all code
enforcement.
Oxford House refuses to apply for a special use
permit
The trial court issued an injunction against the City
and prevented them from evicting its residents
Appeals Court Review


First, Oxford House’ allegation that the city did not
grant them reasonable accommodation is not ripe
because they never invoked the procedures that
would have allowed the City a chance for review
However, like Cleburne, Oxford House claims that
they were singled out to apply for a special use
permit and that this was contrary to the provisions of
the FFHA.
Oxford House’s Reply


Part of plaintiff's argument, however, is that
requiring Oxford House-Mallard to utilize the
procedures for obtaining a special use approval is
itself a failure on the part of the Village to make a
reasonable accommodation to the needs of the
handicapped
This claim is currently ripe. Plaintiff argues that
requiring the residents of Oxford House-Mallard to
undergo a public hearing on their proposed special
use would subject them to "a firestorm of vocal
opposition within the neighborhood, that in turn
would stigmatize the residents and increase the
chances of a relapse.
Appeals Court Reply


Public input is an important aspect of municipal decision
making; we cannot impose a blanket requirement that cities
waive their public notice and hearing requirements in all cases
involving the handicapped.
Even though Palatine's procedures do not themselves violate
the FFHA, Oxford need not resort to them if it is manifestly futile.
The Village has an outstanding record in responding to the
needs of the handicapped, including individuals with
substance-abuse problems. Indeed, the Village "has made
numerous zoning changes in the face of community
opposition" in order to accommodate the handicapped.
Conclusion

In a case such as this, where plaintiff's sole
argument is that the Village failed to make a
reasonable accommodation under the Act, the
Village must be afforded an opportunity to make
such an accommodation pursuant to its own lawful
procedures--unless it is clear that the result of such
procedures is foredoomed, which is not the case
here--before plaintiff will have a ripe claim. The
preliminary injunction is vacated and the case is
remanded to the district court with instructions to
dismiss it.
Krueger v Como


Violation of Section 3601 of Title 42 which includes
sexual harassment
In law, verbal or physical behavior of a sexual
nature, aimed at a particular person or group of
people, especially in the workplace or in academic
or other institutional settings, that is actionable
Background


In 1992, Debbie Maze was living with her two
children, ages four and three, in her sister's twobedroom apartment, also home to the sister's
boyfriend and four children.
So when she saw a "for rent“ sign on an apartment
owned by Lyle Krueger, she inquired within and
found Krueger, who gave her a rental application
and suggested they meet the next morning for
breakfast.
The Breakfast Meeting
At the breakfast meeting, it became apparent that
Maze could not afford the three-bedroom, $547-a
month apartment, for her housing voucher
provided only $395 for a two-bedroom apartment,
to which she was expected to add a personal
contribution of $52 per month.
 Krueger refuses to rent and the meeting is over. A
few days later he traces Ms. Maze through her sister
and proposes another breakfast meeting.

The Second Breakfast


Krueger told Maze that she could pay money on
the side or "fool around or something" to make up
the $100 shortfall. She declined this payment
scheme, but Krueger nevertheless agreed to rent
her the apartment.
Maze did not own a car, and Krueger gave her a
ride home from their meeting. In his car, Krueger
rubbed Maze's thigh and predicted, "we're going to
be close." Maze asked Krueger not to touch her.
Home at Last?



Krueger and Maze went to the Kenosha Housing
Authority to sign a rental agreement.
In the elevator on the way to the office, Krueger
touched Maze, rubbed her, and tried to kiss her.
She told him to stop, a request he greeted with
laughter.
After the two had signed the lease, an undaunted
Krueger once again prophesied that he and Maze
"were going to be real close." Maze was so
disturbed by Krueger's behavior that, later the same
day, she returned alone to the Housing Authority.
Housing Authority – Section 8

She reported Krueger's advances to a Housing
Authority official, Paula Lattergrass, who urged her
not to take the apartment. Maze felt that she had
few alternatives other than to move into the
apartment, but she did, at the suggestion of
Lattergrass, file complaints against Krueger with the
Urban League and HUD.
The Next Month



After Ms. Maze moves in Krueger continues to make
advances, sometimes in front of her children
Krueger tells her that he is losing money on the
apartment, but invites her out for drinks
Ms. Maze tell him that she “does not date white
men.”
After the Fall Out




Krueger’s relationship deteriorates
Maze no longer makes contact with Krueger and
sends the rent checks to the Housing Agency for
forwarding
Maze files a series of sexual harassment reports to
HUD
Krueger starts sending letters suggesting that Maze
move
The Battle is Formed



Maze children were sick which proved to be lead
poisoning – Krueger has painted over the old lead
based paint
Maze moves out to her Mother’s home while the
apartment is being repainted
Krueger now sends a letter to vacate because of
unpaid rent (money deducted from her rent checks
to repaint the apartment)
Maze Moves Out




Krueger continues to harass Maze
She moves out
The HUD administrative hearing is held one year
later
The administrative hearing board finds Maze
testimony credible and Krueger’s “inconsistent” and
“untenable.”
Hearing Decision

Krueger must pay Maze






$622 for alternative rent
$2000 for inconvenience
$10,000 for a civil penalty
$20,000 for humiliation & emotional distress
Krueger appeals
Says that sexual harassment is not forbidden by the
Fair Housing Act
The Court
Krueger asserts that he tried to evict Maze for
legitimate business reasons and not for retaliation
for his harassment
 That dog don’t hunt, says the court
 $20,000 is too much, say Krueger
 "The more inherently degrading or humiliating the
defendant's action is, the more reasonable it is to
infer that a person would suffer humiliation or
distress from that action, says the court
 Pay up, shut up

Krueger is Dejected
"The more inherently
degrading or humiliating the
defendant's action is,
the more reasonable it is to
infer that a person
would suffer humiliation or
distress from that
action;
Jankowski & Lee v Cisneros
Chicago 1997
Background

Andrew Rusinov – Tenant/Intervener Respondent
– 1982 - Diagnosed with multiple sclerosis
– 1986 - Moved into River Park Apartments and indicated that he
had MS
– 1993 - Inquired about assigned space or lack of “sufficient”
handicapped spaces to accommodate his disability
Multiple Sclerosis

MS causes the body's own immune cells to attack
the nerves in the brain and spinal cord, causing
repeated episodes of inflammation.


Cause unknown – no cure; varies from very mild to
fatal
In multiple sclerosis, the immune system attacks the
nerves of the brain and spinal cord that compose
the central nervous system

Symptoms are usually progressive ending in
complete paralysis
More Background

Jankowski Lee & Associates - Petitioners
– Managing agent for the owners of River Park Apartments (RPA)
 Two apartment buildings
 Prior to 1993
– One handicapped space per building
 After 1993
– Two handicapped spaces per building
– One van-accessible handicapped space
Jankowski’s Argument


Not aware of the extent to which Rusinov’s
condition limited his mobility
Did not violate the FHA because they granted
Rusinov’s request when they increased the number
of handicapped parking spaces
Court Hearing

Petitioners were in violation
– First reason -Did not provide reasonable accommodation for
Rusinov and denied his request of an assigned parking space
– Second reason – increased the number but not enough to
accommodate all the tenants with handicap stickers
Remedy

Petitioner’s had a duty
– Ask Rusinov for more information regarding his disability
– To provide an adequate number of handicapped parking spaces
for its disabled tenants

Awarded Rusinov
– $2,500 damages
– $2,500 civil penalties
Transfer Liability

River Park Development Corporation and John
Pankratz
– There was no credible evidence presented that could tie them to
any liability
– The record contradicts stating that owners of real estate may be
held vicariously liable for discriminatory acts by their agents or
employees
Private Action

Rhodes v Plamentto Pathway Homes,
1990 – South Carolina Supreme Court
– Rhodes owned property in a subdivision that he intended to use
for a group home for nine mentally retarded individuals
– A restrictive covenant stated: The property hereby conveyed
shall not be used otherwise than for private residence purposes,
nor shall more than one residence, with the necessary
outbuildings be erected on any one lot, nor shall any apartment
house or tenement house be erected thereon;
Court Action


The trial judge held that "the group housing as
described by the Defendant does not meet the
definition of a single family house as intended by
the restrictive covenants . . .“
The court noted: "The defendant is about to
engage in a business or commercial enterprise"
based upon the fact that the appellant would
receive income as a result of housing the residents,
pay employees, pay withholding taxes, keep
records and prepare profit and loss statements.
On Appeal



This Court finds that necessities of operating a group home
such as maintaining records, filing accounting reports,
managing, supervising, and providing care for individuals in
exchange for monetary compensation are collateral to the
prime purpose and function of a family housekeeping unit.
These activities do not, in and of themselves, change the
character of a residence from private to commercial.
They conclude that the location and operation of a group
residence for mentally retarded adults in the manner and
under the conditions proposed by the appellant would not
significantly alter the character of the residential community in
which it is situated and would not infringe upon the plain and
obvious purpose of the restrictive covenants………. AND
Fair Housing Act

Furthermore, this Court finds that enforcement of this restrictive
covenant would have the effect of depriving the mentally
impaired of rights guaranteed under the Fair Housing
Amendments Act. For the foregoing reasons, the ruling of the
circuit court is reversed.

Quick Facts
– There are 4,356,300 children (under 18) with a mental of
physical condition severe enough to restrict their activities
including normal schooling – 60,124 of them are in group
homes. About 1.29 million of these children are waiting for
inclusion in a group home or foster care.
Hill v Community of Damien of
Molokai - 1996

The contractual covenant:
– No lot shall ever be used for other than a single
family residence purpose. No dwelling house located
thereon shall ever be used for other than single
family residence purposes, erection or maintenance
or use of any building, or the use of any lot for other
purposes, including, but not restricted to such
examples as stores, shops, flats, duplex houses,
apartment houses, rooming houses, tourist courts,
schools, churches, hospitals, and filling stations is
hereby expressly prohibited.
Background of Case




Neighborhoods In Four Hill Villages complained of
increased traffic on a local street
Upon investigation it was found that the Community
of Damien of Molokai rented a residence as a
group home
The home contained four individuals with Auto
Immune Deficiency Syndrome – they required some
in-home nursing
The community claims that the four individuals
constitute a single family
The Island of Molokai Hawaii

Father Damien Vuester built two churches on Molokai to
minister to the leper colonies (Hansen’s disease) located on
the island
Hansen’s Disease
The AIDS of the 19th Century
 Identified as a bacterium in 1940
 Antibiotic treatment available by 1942
 About 738,000 cases identified today
 Like AIDS, its victims were social outcasts for the
entire lives and forced to live in colonies

The Trial – Trail Court Level


The trial court concludes that the residence is being used for
commercial purposes and thus violates the covenant
The appeals court reverses:
– The individuals provide support for one another
– They receive spiritual guidance
– Some in-home nursing care is provided several times a week by a
private contractor
– This residence is not rendering a service such as a hospice or a
boarding house
Rulings of the Appeals Court

The purpose of the group home is to provide the
residents with a traditional family structure and
atmosphere. Accordingly, we conclude as a matter
of law that, given the undisputed facts regarding
how the Community operates the group home and
regarding the nature of the family life in the home,
the home is used for residential purposes in
compliance with the restrictive covenant.
But Does It Violate the Covenant
Because They Are Not A Family?




The covenant does not define family
City of Albuquerque defines family as 5 unrelated
persons or less
Also, the government has expressed a strong public
desire in favor if removing barriers preventing
individuals with physical and mental disabilities from
living in group homes in residential locations
The court finds that they are a family within the
traditional meaning of the term
Does the Covenant Violate the
Fair Housing Act?



The trial court concluded that nothing in the
covenants discriminated against a person with a
disability
The covenant applies equally to people with or
without a disability
However, the appeals courts notes that this view of
the FFHA is incorrect
Correct Interpretation


Section 3604 says that it is unlawful to discriminate
on the basis of a disability or refuse to make a
reasonable accommodation
Thus 3604 provides for 3 distinct claims of violation
– Discriminatory Intent
– Disparate Impact
– Reasonable Accommodation
Points of Law on the FFHA Discrimination




No one contests that AIDS is a disability
The “Community” need not show if a disabled
person has been treated differently from others
The “Community” need not show that there was
purposeful, malicious treatment – only that the
disability was in some part the basis for the policy
being challenged
However, there is no open proof that the residents
sought to carry out a discriminatory enforcement of
the covenant
Points – Disparate Impact


To prove disparate impact the “Community” need
only show that the residents’ conduct actually or
predictable results in discrimination or has a
discriminatory effect
The covenant does has a disparate impact since it
has the effect of denying congregate living
opportunities to ALL, including disabled individuals
who could not live on their own without some form
of assistance
Points – Reasonable
Accommodation
The trial court was not upset that the residents failed
to make a reasonable accommodation since the
covenant was facially neutral
 In this case a reasonable accommodation would
been not to seek enforcement of the covenant
 Therefore, the covenant is barred because it offers
no reasonable accommodation

Conclusion

The FHA provides disabled individuals the
opportunity to live in traditional community settings
by removing obstacles that hinder their quest for
independent living.

The FHA's application is clear when disabled
individuals are confronted with intentional housing
discrimination motivated by bigotry or
misunderstanding of their handicaps.

However, the FHA helps the disabled overcome the
subtle effects of unintentional, facially neutral, or
even well-meaning restrictions that have the
consequence of denying housing to the
handicapped.
A Fact Or Two
People infected with HIV in 2003 = 5 million +
 People living with HIV in 2003 = 40 million
 Total number of AIDS deaths since the beginning of the epidemic
until the year 2003 = 22 million
 Current number of AIDS orphans = 15 million
