Tuesday, July 14, 2020

Part II of III

What are the exceptions to Federal Fair Housing Laws and what actions can I take if I believe I have been the victim of housing discrimination?

In Part I, I outlined some of the milestones in federal fair housing law, including legislation and presidential executive orders. Here are some important exceptions to federal fair housing laws and what actions you can take if you believe that you have been discriminated against in your efforts to obtain housing. In New York State and its various jurisdictions, there are also anti-discriminatory criteria of which you should also be aware. But exceptions come with caveats: 1) Real estate agents may not be involved because they are held to higher standards with regard to fair housing practices. 2) Even if the discriminatory practice is legal, property may not be advertised in a discriminatory manner. 3) No matter what the 1968 Fair Housing Act says with regard to exemptions, the 1866 Civil Rights Act is controlling and permits no exceptions where race is concerned. Here are the exceptions in the 1968 Fair Housing Act:

Certain classes of property are exempt from federal anti-discrimination law such as owner-occupied multi-family buildings with four or fewer rental units where one of the units is occupied by the owner: the “Mrs. Murphy” exemption which is based upon Mrs. Murphy’s hypothetical desire to pick and choose among applicants for rental units in her home. Under federal fair housing law, Mrs. Murphy may do so in any state in the United States. However, each state has the option of circumscribing or entirely eliminating the exemption under the individual state’s own fair housing act. (In New York State, the controlling statute is McKinney’s Exec. Law Section 296). Federal housing law also exempts shared housing units in which tenants will share a bathroom, kitchen or other common area, in which case it is permitted to express a preference based solely upon sex.

Housing which is operated by religious organizations may, in non-commercial transactions, restrict their housing to members of their particular religions and may so advertise provided that the religions do not discriminate in their membership policies regarding race, color or national origin.

Private clubs that limit occupancy to their own members, provided that they do not restrict membership based upon race, color, or national origin, may restrict tenancy/give preference to their members in non-commercial transactions in properties that they own, and may advertise on that basis.

Age-related exemptions include senior citizen housing which may exclude people who are less than 62 years old. Communities in which at least one occupant per unit is 55 years or older and in which at least 80 percent of the occupied units have at least one tenant who is age 55 or older are exempt. Properties that participate in a federal, state or local senior housing program are exempt. All of these facilities may exclude children and are exempt from the prohibition on discriminatory advertising on that basis.

Discrimination based on familial status by means of setting unreasonably low occupancy standards for an apartment is forbidden but there are legitimate exceptions. If a landlord offers a spacious two-bedroom apartment for rent and specifies that only two people may occupy it, is the landlord discriminating against a family with children? If the landlord can show that the building’s infrastructure will not support such levels of occupancy, then the landlord can restrict the number of occupants, for example, due to the limitations imposed by an antiquated plumbing system. If local laws restrict the number of persons who may occupy a given space, then a landlord may not be forced to rent a small studio apartment to a couple with a child.

By Vivian J. Oleen, Associate Broker, Sopher Realty

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