The 15th Edition of Modern Real Estate Practice in Texas was published in November 2011. Updates to the content of Chapter 6 include:
Sexual Orientation and Gender Identity: Effective March 5, 2012, HUD prohibits owners and operators of HUD-assisted or HUD/FHA-insured housing from asking about an applicant’s or occupant’s sexual orientation and gender identity for the purpose of determining eligibility or otherwise making housing available. [National Apartment Association. “Political Insider: HUD Issues New Gender and Sexual Orientation Protections,” Units, March 2012.]
HUD.gov provides this explanation regarding LGBT discrimination (April 2013): [http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/LGBT_Housing_Discrimination]
“The federal Fair Housing Act prohibits housing discrimination based on race, color, national origin, religion, sex, disability, and familial status (i.e., presence of children in the household). The Fair Housing Act does not specifically include sexual orientation and gender identity as prohibited bases. However, a lesbian, gay, bisexual, or transgender (LGBT) person’s experience with sexual orientation or gender identity housing discrimination may still be covered by the Fair Housing Act. In addition, housing providers that receive HUD funding, have loans insured by the Federal Housing Administration (FHA), as well as lenders insured by FHA, may be subject to HUD program regulations intended to ensure equal access of LGBT persons.
- A gay man is evicted because his landlord believes he will infect other tenants with HIV/AIDS. That situation may constitute illegal disability discrimination under the Fair Housing Act because the man is perceived to have a disability, HIV/AIDS.
- A property manager refuses to rent an apartment to a prospective tenant who is transgender. If the housing denial is because of the prospective tenant’s non-conformity with gender stereotypes, it may constitute illegal discrimination on the basis of sex under the Fair Housing Act.
- An underwriter for an FHA insured loan is reviewing an application where two male incomes are being used as the basis for the applicants’ credit worthiness. The underwriter assumes the applicants are a gay couple and, as a result, denies the application despite the applicants’ glowing credentials. This scenario may violate HUD regulations which prohibit FHA-insured lenders from taking actual or perceived sexual orientation into consideration in determining adequacy of an applicant’s income.”
The Fair Housing Act and Reasonable Accommodations for Hoarders: “Hoarding is sometimes associated with mental illness and is soon slated to have its own formal diagnosis. . . Because hoarding has been associated with mental illness, owners/operators [of rental properties] should assume hoarding can qualify as a protected disability.” (John Sepehri, General Counsel for the Texas Apartment Association. “The Fair Housing Act and Reasonable Accommodations for Hoarders.” Texas Apartment Association, Spring 2013.)
Fair Housing/Lending Law: In February 2013, HUD issued a final rule clarifying the circumstances under which certain housing practices may violate the Fair Housing Act as a result of a discriminatory effect. Referred to as the disparate impact rule, this directive explains the longstanding prohibition of practices that have a discriminatory effect even where there may not be evidence of discriminatory intent. A practice is considered discriminatory under the act if it “actually or predictably results in a disparate impact on a group of persons or creates, increases, reinforces, or perpetuates segregated housing patterns because of race, color, religion, sex, handicap, familial status, or national origin.” (Ari Karen. Origination News, “Viewpoint: HUD Imposes New Discrimination Standards.” March 2013.)
“Under the law, as clarified by the new rule, when a practice results in the denial of a service (e.g., refusing to rent an apartment or approve a mortgage loan) or unfavorable terms and conditions under which that service is available to members of protected classes, it would violate the Fair Housing Act if it did not serve a substantial, legitimate, and nondiscriminatory interest. If the practice did serve such a purpose but the complainant can show a less discriminatory alternative is available that would equally serve that purpose, the practice in question would also violate the law. However, the rule also makes clear that those practices having a negative impact on racial minorities and other protected classes are fully in compliance if they serve a significant business objective and no less discriminatory alternative is available to serve that interest.” (Gregory D. Squires. “HUD’s Disparate Impact Rule Praised by Fair Housing Advocates: Misunderstood by Critics,” Huffington Post.com, February 24, 2013.)
Updated: April 15, 2013
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