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Fair housing: Liability for Your Association?

March 16, 2012

By Nan Roytberg

Could your association end up in court for publishing property listings in its MLS or on its Web site that inadvertently violate the Fair Housing Act? The answer
is yes. Here’s one cautionary tale, along with some words of wisdom.

The danger of unintended consequences
A broker took a listing on a property that was in particularly good shape. The seller had been a single non-smoker who had no pets or children living in the property. In an effort to illustrate that the property showed little or no wear and tear, the broker placed the following print ad:

If you like new—you’ll love this one!
Single owner had no pets,
non-smoking and no children.

However, when the property listing appeared on REALTOR.com, it somehow described the property as follows:

Immaculate & beautiful.
Nonsmoking – No pets – No children.
It is just like new.

When staff from the local human relations commission went trolling through various property listings on REALTOR.com, they came across the modified description of the property. Unaware of the original language, they perceived the remarks as indicating a preference for families without children. The commission thus filed complaints against the listing broker and the National Association of Realtors® under a local fair housing ordinance as well as Section 804(c) of the federal Fair Housing Act, which says it’s unlawful:
To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.
Where did things go wrong?
Was it someone at the brokerage, the association, or the Web site operator who edited the broker’s original language without considering possible violations of the Fair Housing Act? The problem could have occurred at any of these points. What’s important is avoiding a similar problem in the future.
The broker in this case argued that the original language in the print ad—“Single owner had no pets, non-smoking and no children”—should serve as evidence that the broker intended to describe the property as being in great shape, not to show a preference for families without children. NAR responded to the complaint in a similar manner, arguing that the ad on REALTOR.com describes the condition of the property, not the potential buyers, and pointing out that “the challenged words appeared in the remarks sandwiched between “Immaculate & beautiful” and “It is just like new.”
NAR also provided evidence of its strong commitment to the Fair Housing Act by including excerpts from a number of its publications that consistently warned that “it is best to describe the property, not the prospective tenant, purchaser or neighbor.”
So what was the final resolution? We’ll get back to that later. For now, let’s look at what you can do to prevent this from happening at your association.

Your association may
face publisher’s liability
Courts across the country have held that the prohibitions of Section 804(c) of the Fair Housing Act apply to newspapers and other entities that publish housing ads that are discriminatory. Courts find “publisher’s liability” for these discriminatory ads, despite the fact that, in most instances, the ads weren’t written by the publisher. Section 804(c) also covers discriminatory statements published in a multiple listing service or over the Internet, such as the property listings your association publishes in its MLS or on its Web site.
You should thus recognize that your association is a publisher, subject to publisher liability under the Fair Housing Act, and take steps to ensure that nothing in the remarks section of your property listings indicates, unintentionally or otherwise, “a preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin.”
Take preventive measures
To avoid such liability, be sure everyone who has the ability to enter or modify information about a property listing at your association has a thorough understanding of what the Fair Housing Act requires and is aware of the consequences of violating the act. The best way to ensure this is through education—the education of your association members and staff, your MLS staff, and your Web site operator and its staff. That education should be based on a well-thought-out policy for writing and editing ads “right.”
A good starting point in preparing your policy
is to take a look at a memo written by Roberta Achtenberg, former assistant secretary of fair housing and equal opportunity, on http://www
.hud.gov/offices/fheo/disabilities/sect804
achtenberg.pdf. In this 1995 memo, Achtenberg provided guidance to FHEO staff members who were charged with ascertaining whether complaints stated a claim under the Fair Housing Act. The advice in this memo, which includes some guidelines on acceptable and unacceptable phrases, is still good advice today. According to the memo:
nWording that describes the housing, the current or potential residents, or neighbors or neighborhood in express or implied racial or ethnic terms, such as “white family homes, no Irish” are unacceptable because they indicate discrimination on the basis of the race, color, or national origin of potential buyers. Racially and ethnically neutral terms, such as “master bedroom” or “rare find” are acceptable because they describe only the property, not the potential buyers or tenants.
nAds that blatantly say “Christian home” or “no Jews” are unacceptable. So are ads that use the legal name of an entity containing a religious reference (e.g., Roselawn Catholic Home) or a religious symbol such as a cross, unless there is a disclaimer indicating that the property does not unlawfully discriminate. Secular terms, such as “Merry Christmas,” “Happy Easter,” or images of Santa Claus, an Easter bunny, or a St. Valentine’s Day graphic are acceptable.
nAds that indicate a gender preference are unacceptable—except where a shared living arrangement applies. Commonly used physical descriptions of housing units that aren’t preferential, such as “mother-in-law suite” or “bachelor apartment,” are acceptable because they describe the property and don’t literally limit the buyers or tenants to mothers-in-law or bachelors.
nAds that state that wheelchairs, service animals, or other aids for the handicapped will be disallowed aren’t acceptable. Phrases that describe a property’s features, services, facilities, or neighborhood (e.g., “great view,” “fourth-floor walk-up,” “walk-in closets,” “jogging trails,” “walking distance to bus stop,” “wheelchair ramp available”) are fine.
nAds that limit the number or ages of children allowed or express a preference for adults, couples, or singles are unacceptable, unless the property is “qualified senior housing.” Descriptions of properties (such as “two-bedroom, cozy family room” or “immaculate, like new”) or descriptions of property services and facilities (such as “warm-water pool” or “exercise room”) are acceptable because they describe the features of the property without any express or implied restrictions as to who may live there.

Know more than
words and phrases
Although it’s useful to know which words and phrases could land your association in hot water, your policy should be more than a list of prohibited language. Such a list may be a good starting point for electronic screening, but it can lull members, staff, and editors into a sense of false security where they measure ads against a “checklist” rather than giving careful consideration to each ad. They may get hung up on issues that aren’t grounded in common sense—where they fear using phrases like “family room” or “near jogging trail”—and forget about words that should raise red flags but you just hadn’t thought to put on your prohibited word list.
Your policy should insist that ads focus on property descriptions, rather than descriptions of potential buyers and tenants. It should also note that violations of the Fair Housing Act can occur even when there is no overt discriminatory reference or intent. The determinative consideration is whether an ordinary reader would find the advertisement discriminatory.

Careful in editing that listing
Your policy should include guidelines on entering comments into a “remarks” field and on what to do if the length of the remarks the listing broker provides is greater than the standard remarks field allows. What is acceptable editing in such an instance? Who should be consulted if the party doing the data entry isn’t sure the remarks, as provided or edited, are acceptable under the Fair Housing Act?
Work with your association’s Web site operator, as NAR does, to develop appropriate, modifiable filtering methods that flag potentially problematic phrases for review. You may even want to contractually require your Web site operator to train the people who make the day-to-day listing information decisions on how to spot fair housing red flags and follow your association’s policy on handling them.
A happy ending
Now back to the case we described earlier. We have been advised that the city commission that filed the complaints against the listing broker and NAR was satisfied with the respective explanations. The investigation has been closed.
Even with this happy ending, there are some lessons we should all take to heart. The Fair Housing Act should be familiar to everyone who touches the listing language—the listing salesperson or broker who writes the “remarks” for a property listing, the association/MLS staff who put the listing information into the MLS and onto your association’s Web site and REALTOR.com, and the folks who work for your Web site operator and sometimes have the final say on how that listing language reads in cyberspace.
Everyone involved must understand that trimming remarks to fit the maximum number of characters allowed for a property listing, or otherwise editing the listing language without a good understanding of the law, can have serious legal consequences, including lawsuits against Realtors® and Realtor® associations for violations of the Fair Housing Act.

Nan Roytberg is an attorney in NAR’s legal department. She specializes in fair housing, employment law, cultural diversity issues, and the Americans with Disabilities Act. She can be reached at
nroytberg@realtors.org.