Thinking About Selling Your Home As A For Sale By Owner? The Fair Housing Act And You: Don’t Get Caught On The Wrong Side Of The Law

Thinking About Selling Your Home As A For Sale By Owner? The Fair Housing Act was designed to protect people looking for housing from discrimination. Could you be violating the law?

Most of us assume there’s no way we could violate Fair Housing laws because we don’t discriminate based on color, sex, or religion. But the Fair Housing Act is much more complicated than that, and subtle, unintentional words or actions can result in steep fines. Below are three ways you may be unwittingly violating the law.

Adopted in 1968, the Fair Housing Act prohibits discriminating against anyone in the sale or rental of a property based on race, color, religion, sex, familial status, handicap, or national origin. Most people think they know what that means and believe that as long as they avoid using overtly discriminating phrases, they’re safe.  

But, that’s only the tip of the iceberg. In fact, according to a 2009 report released by the National Fair Housing Alliance, housing discrimination has actually spiked in recent years, in part due to what is written in Internet advertisements.

What makes Fair Housing laws so difficult is that the law is broad and encompassing, says attorney Paul Hancock, a 20 years veteran with the Civil Rights Division of the U.S. Department of Justice that directed the enforcement of the Fair Housing Act before entering private practice. Hancock adds that there is a fine line between what you can say and do and what you can’t. Educating yourself on the nuances of the law is the best way to avoid violating it and possibly being hit with a very expensive lawsuit.

Be Careful How You Market

One of the best ways to avoid running afoul of the Fair Housing Act is to hire a real estate agent. An experienced agent will be well versed in housing laws and won’t create inappropriate materials.

If you market your home for sale or rent on your own, you probably already know that you can’t discriminate with phrases like, “No Indians,” or “No Muslims,” but according the Act you also can’t show a preference by using phrases like “Hispanic community.” As a general rule, don’t describe the neighborhood in racial or ethnic terms in any way, even if you are accurately describing the neighborhood demographics.

With religion, you obviously can’t advertise “No Christians,” but you also can’t say “In a Jewish neighborhood” because it might give the impression that you are showing preference to Jewish buyers or tenants. You also have to avoid religious landmarks, such as “Turn right at St. Anne’s Catholic Church,” and religious symbols, like a cross, in your ads.

The Fair Housing Act defines “sex” in terms of gender, not sexual orientation, so you can’t specify “Women only,” in your ad unless the tenants share a bathroom and other common areas. (If you are looking for a roommate you may of course also express a preference.) And, even though national laws don’t mention sexual orientation, state and local housing laws might. Hancock advises simply avoiding phrases like “gay-friendly” or “open community” because you’re still sending a specific message. 

With “handicap,” you obviously can’t say, “No wheelchairs,” but you also have to be careful about using phrases like, “Great for the active resident.” Instead, describe the property and its features (i.e., “Near hiking trails”), not the person you feel should live there, suggests attorney Nadeen Green.

“Familial status” is the classification that tends to give people the most trouble today. You can’t put limits on the number or ages of children or state a preference for adults, couples, or singles. However, you can limit the number of people living at a property, within reason, if you are renting it out. (For example, tem people can’t reasonably live in a one-bedroom, 400 square-foot residence.)

Also, remember that images can send messages too. If you are going to use photographs to help market your property, make sure they reasonably represent the metropolitan area (not just the neighborhood).

Be Careful What You Say

Whether you have a real estate agent representing you or not, you will likely, at some point, come in contact with the buyer or prospective tenant. It’s important to note that you can also violate the Fair Housing Act by what you say to the person.

The same rules basically apply. You can’t say things like, “I don’t think you’d really like it here,” or “I’m not sure this home will work for you.” Similarly, if you are renting a property out, avoid telling an applicant with a young child about the previous tenant who was single and how the property was ideal for him and his situation. This can be considered “steering” the prospective buyer or renter – something that is definitely frowned upon.

In fact, avoid the phrase “ideal for” altogether. It opens the door to language that will almost certainly violate the Fair Housing Act. Whether you are marketing your property on the Internet or interacting with the buyer or prospective tenant, stick to specifics about the property and its features and avoid any reference to the person you feel will be a good fit in the community, neighborhood, or house.

You also have to be careful of the language you use on rental applications. In general, you can’t ask a question, in person or on a rental application, about whether someone who will be living at the property has a disability.

Be Careful What You Show

If you are showing a property yourself, you have to be careful about what you show and what you don’t show. This especially comes into play with buyers or prospective tenants with disabilities. You have to mention all available units even if a unit is on the second floor and you feel it will be impossible for that person to get to the unit. Give him the option, and let him make the determination just as you would for anyone else.

But, this isn’t limited to people who have a disability. The Fair Housing Act requires you to show your upscale rental property to the family with young children; you can’t just “forget” to let them know it’s available because you are concerned the toddlers will cause damages. Similarly, you have to show the retired couple in their 80s a home in the neighborhood with active young professionals. It’s up to them to determine whether they’re a fit for the neighborhood or not.

Avoid Violations Entirely

The easiest way to avoid violating Fair Housing laws is to hire a real estate agent. An experienced agent will know all applicable federal, state, and local laws. He or she will craft your marketing materials so they don’t use discriminating or preferential language that could get you in trouble.

And, while you do have to pay for the services of a real estate agent, it’s money well spent to avoid making a mistake that could ultimately cost you big time.