ADVERTISING OBLIGATIONS FOR REAL ESTATE FIRMS AND AGENTS UNDER FAIR HOUSING LAW
The basic obligations to be followed by every Real Estate Firm and Agent are three-fold:
Ø screen real estate advertising for discriminatory content
Ø develop and enforce a nondiscrimination policy in the area of real estate advertising
Ø train and inform agents and employees
A Real Estate Firm has an obligation to insure that Agent advertising does not involve the selective use of particular media catering to limited groups, or other, similar selective advertising strategies.
Every Real Estate Firm and Agent involved in advertising should have a working knowledge of the requirements of the applicable laws, and be sensitive to other legal issues that may arise concerning real estate advertising.
Screening of Advertising
Real Estate Firms and Agents should engage in a pre-publication review of real estate ads including at least the following checks:
(1) screen ads for the use of discriminatory words, phrases, symbols, directions, or other verbal cues;
(2) screen ads for the composition of human models depicted in ad campaigns and for any other visual cues; and
(3) screen ads for the use of the appropriate Equal Housing Opportunity logotype or statement. Examples of the type of advertisements which may be discriminatory and should not be published or disseminated are discussed in detail below.
Real Estate Firms, Agents and others engaged in the real estate business must remember that the Fair Housing Act broadly applies to any "notice, statement or advertisement." Be sure to screen for discriminatory content not only your newspaper ads, but also any other materials you distribute or display. This includes flyers, brochures, deeds, applications, signs, banners, posters, billboards, and informational materials of any type, including MLS listings and other electronic messages. Your review should also include any advertising you do in non-print media, such as television or radio ads, sales videos, audiovisual displays, signs in sales offices, and so on. Each of these could be considered a "notice, statement or advertisement" with respect to a dwelling, and none may be discriminatory.
Adoption of a Fair Housing Advertising Policy.
Real Estate Firms should have a Fair Housing Advertising Policy that provides clear guidelines for Agents and employees to follow. It should inform them that your firm is aware of its obligations under Fair Housing Law, and intends to comply with those obligations. The Policy should also provide for meaningful enforcement mechanisms. It should make clear that your firm will not do business with anyone who is engaging in discrimination, and should make clear to Agents and employees that compliance with the Policy is a term and condition of affiliation and employment.
Real Estate Firms and Agents need to be aware that ensuring compliance with Fair Housing Law is an active, ongoing process. Simply adopting a Fair Housing Policy on paper and passing it out will not insulate a Firm or Agent from liability if steps have not be taken to apply and enforce that policy in practice. A Real Estate Firm which simply gives a copy of a Fair Housing Policy to Agents and employees and does not make enforcement of that policy a part of the Agent's and employees' job responsibilities, runs the risk of lawsuits. Enforcing a fair housing policy requires dedication and vigilance. Agents and employees need to understand the very serious consequences of discriminatory advertising, and to appreciate that compliance with the Firm's Fair Housing Advertising Policy is in the interest of the firm's business.
Training and Notification.
Real Estate Firms must also ensure that Agents and employees receive appropriate training, and that customers and clients are informed of the Firm's F housing Policy. HUD regulation [24 C.F.R.§ 109.30(d)] specifically provide that the Firm should:
(1) Provide a printed copy of the Firm's nondiscrimination policy to each Agent and employee.
(2) Post a copy of the Firm's nondiscrimination policy in a conspicuous location for customer and client visitors to view.
Selective Placement of Advertising.
Firms and Agents need to be sensitive to the placement and targeting of their overall advertising program. The HUD regulations caution against the selective use of media catering to particular protected classes, the selective use of advertising directed at limited geographic locations, the selective use of Equal Housing Logos, and the selective use of human model advertising.
This is essentially a common sense test. Usually working on a fixed budget, Firms and Agents must necessarily target their advertising to where it will bring in the most customers. In developing this targeting, however, it is important to be sensitive to whether your advertising is or could be perceived as directed at or against a particular racial, ethnic, or other group. If this is the case [ for example, a planned promotional mailing to go out only to neighborhoods which are predominately white ] it is important to devote part of your advertising budget to complementary attempts to reach other racial groups.
The law applies to: Classified Ads, Display Ads, Inserts, any other type of real estate or rental advertising, and the selective placing of advertisements. It applies to any type of advertising or written material: MLS listings, Brochures, Direct Mailing, Radio or television ads, Videos, Posters, Signs, Billboards, and other Documents.
WHAT ADVERTISING DISCRIMINATION LAWS PROHIBIT
Classes Protected by the Advertising Discrimination Laws
Federal Law : Race, Color, Religion, Sex, Handicap, Familial Status, National Origin
Tennessee Law: Race, Color, Creed, Religion, Sex, Age, Handicap, Familial Status, National Origin
These laws apply to any type of Real Estate or Rental Advertising: Classified Ads, Display Ads, Inserts, MLS listings, Brochures, Direct Mailing, Radio Ads, Television Ads, Videos, Posters, Signs, Billboards and the Selective Placement of Advertisements.
Words Descriptive of the Dwelling, Landlord, and Tenants:
In general, advertisements which use explicit words which refer to protected classes under the law in connection with describing the dwelling, landlord, tenants, or neighborhood will be found to violate the law. Examples of such usage would include:
ü White home
ü Colored home
ü Jewish home
ü Hispanic residence
ü Adult building
ü Singles complex
ü Christian landlord
ü Gay landlord
ü Mixed neighborhood
ü Latino neighborhood
ü Male tenants
ü Female tenants
Words Descriptive of a Protected Class:
Advertisements which use words descriptive of a protected class should raise a red flag, and call for further review for the legality of the advertisement. Examples of such language would be:
ü American Indian
ü Mexican American
ü Puerto Rican
ü Mentally ill
ü Physically fit
ü Mature persons
ü Empty nesters
Source of Income:
The HUD regulations emphasize that real estate advertising should also avoid certain "catch words," words and phrases that are frequently used in a discriminatory context. Examples would be:
ü Board approval
ü Membership approval
Symbols or Logotypes:
HUD emphasizes that real estate advertising should also avoid using symbols or logotypes which imply or suggest race, color, religion, sex, handicap, familial status, or national origin. Some examples would be:
ü Christian cross
ü Jewish star
ü Male or female symbol
ü National flag
HUD cautions as well against advertising which uses words or phrases used regionally or locally which imply or suggest race, color, religion, sex, handicap, familial status, or national origin.
Directions to real estate for sale or rental (use of maps or written instructions) that may imply a discriminatory preference, limitation, or discrimination. Examples would be directions which refer to landmarks which have racial or ethnic significance, such as directions relying on:
ü Existing black development (signal to blacks)
ü Existing development known for exclusion of minorities (signal to whites)
ü Neighborhood known for racial make-up
ü Neighborhood known for national origin of inhabitants
Area or Location Description:
HUD also cautions against advertising which refers to facilities which cater to a particular racial, national origin, or religious group, such as:
ü Country clubs
ü Private school designations
ü Names of facilities used by exclusively one sex
References To Protected Class Which May Be Permissible:
The exceptions in which preferential advertising is permitted are limited. Those exceptions include the following situations:
ü Advertisements for Roommates. Advertisements for roommates may specify gender, but only in two cases:
1. If the accommodation involves shared living space, or
2. If the housing is a dormitory in an educational institution.
Keep in mind: Advertisements for apartments or housing not involving shared living space may not specify gender. Where living space is shared, only the gender of a roommate may be specified, and the ad may not specify race, religion, or any other protected class.
ü Handicapped Access.
Advertisers may include information in their real estate advertising about the availability of handicapped accessible housing. For example, advertisers may promote such features as:
1. Availability of handicapped accessible units
2. Exception from a no-pets policy for guide dogs
ü Housing For Older Persons.
Advertising for housing intended and operated for occupancy by older persons which meets the federal law qualifications for "housing for older persons" may make reference to age. Such advertising may permissibly use such phrases as:
1. Housing for older persons
2. Senior Complex.
However, such advertising is permissible only if the housing advertised meets the legal requirements. The legal rules in this area are complicated, and real estate firms working in this area may wish to seek legal advice.
ü Affirmative Advertising Efforts.
Advertisers may make reference to protected classes, including race, in advertising which is either:
1. Part of an affirmative marketing program to attract persons to dwellings who would not ordinarily be expected to apply to the housing, or
2. Undertaken to remedy the effects of prior real estate advertising or marketing discrimination
ü Religious Groups.
A limited exception allows religious groups or organizations to advertise:
1. Housing they operate on a noncommercial basis
2. Can state a preference for or limitation to members of their religion
3. If the religious group does not discriminate on the basis of race, color or national origin. However, such an advertisement may not state any preference other than a preference for members of the religion (e.g., one based on race, gender, or other protected class).
ü Private Clubs. A limited exception allows private clubs to advertise:
1. Housing it operates or owns incident to its primary purpose 2. Can state a preference for or limitation to members of the club 3. If the club is not in fact open to the public
Use of Photos and Drawings
The Fair Housing Act's prohibition against advertising that "indicates any preference, limitation or discrimination" has been interpreted to apply to the use of human models in advertising. Pictorial ad campaigns may not include only or mostly models of a particular race, gender, or other protected class.
You should review the advertising campaign for each development separately. You should be sensitive to advertising campaigns such as those which depict:
1. All or predominately models of a single race, gender or ethnic group 2. No families or children 3. Particular racial groups in service roles (maid, doorman, servant, etc.) 4. Particular racial groups in the background or obscured locations 5. Any symbol or photo with strong racial, religious, or ethnic associations 6. Minorities who are not residents of the complex
Advertising campaigns depicting predominately one racial group are particularly vulnerable to legal challenge if one or more of the following factors are present:
1. The complex is located in a neighborhood which is predominately white or known historically as being racially exclusive and the models are white
2. The complex is located in a neighborhood known to be a black or minority area and the advertising depicts minority-race models
3. The campaign includes a number of different ads, none or few of which include models of other races
4. The ads fail to contain Equal Housing Opportunity statements or logos, or logos which are not readily visible
5. The campaign runs over a long period of time, or involves ads published on many occasions
6. The ad campaign involves group shots or photos or drawings depicting many people, all or almost all of whom are from one racial group
7. The campaign involves full-page or color ads which are visually prominent.
Remember that real estate advertising may be illegal not only if it includes predominately white models, but also if it includes predominately minority models, particularly if the advertising involves complexes in neighborhoods or suburbs known to be welcoming to minorities.
The basic test is: Would the ordinary reader construe the advertising as sending a message of preference for or against a particular class of homeseekers?
Eight Real-Life Fair Housing Violations
1. Refusing to sell or rent a property or discouraging a potential buyer or tenant because of a person's protected class status.
How this might be communicated in real life: "This two-bedroom condominium is just too small for you and your three children, plus there's no playground nearby."
2. Using different provisions in leases or sale contracts, such as those relating to rental charges, security deposits, lease terms, down payment, and closing requirements because of a person's protected class status.
How this might be communicated in real life: "Because you only moved to this country from Japan a little while ago, the sellers may be uneasy about your ability to secure a mortgage. I suggest you make a larger earnest money deposit to help convince them of your interest and ability to close."
3. Urging residents to sell or rent their properties, often at bargain prices, by suggesting that members of a protected class are likely to move into the area and have a negative impact on property values. This violation is called blockbusting.
How this might be communicated in real life: "You know, the people that live in this neighborhood aren't the same the Polish immigrants who lived here when you bought this house 30 years ago. It's just not safe for you to walk around alone any more. Maybe you should consider selling now while you can still get a good price for your house."
4. Restricting a person's choices to perpetuate segregated housing patterns based on membership in a protected class--taking African-American families, for example, only to predominantly African-American neighborhoods.
How this might be communicated in real life: "I know how important it is for you to find a church congregation you can belong to. Let me show you two houses near the African-American Baptist Church on Second. I think that church would suit you."
5. Providing false information on the availability of a property for sale or rental based on a person's protected class status—even if that information is based on the owner's desires.
How this might be communicated in real life: "There's no point in your showing the Smith's house to that Hispanic couple; the Smiths will never sell to them."
6. Refusing to provide information on the availability of loans or other financial assistance or providing information that is inaccurate or different because of a person's membership in a protected class.
How this might be communicated in real life: "Mr. Hernandez, I think you best bet is to go to a mortgage broker for a loan. It'll be more expensive, but they're more likely to accept your application."
7. Using an appraisal that improperly takes into consideration the protected classes in estimating property value.
How this might be communicated in real life: "See if you can get the value of the property as high as you can. She's an old lady, and this house is her only asset, so I want to get her a really good price."
8. Relying on illegal covenants or provisions that preclude the sale or rental of a dwelling to a person because of membership in a protected class.
How this might be communicated in real life: "I'd love to show you the house in this development, but the restriction covenants wouldn't allow you to build the entry ramp you need for your wheelchair."
You never know when your fair housing practices are being tested. Testers from government or private groups can pose as home seekers, and their evidence is fully admissible in court.
The courts have determined that a violation of the Fair Housing Act may be proven even if there was no intent to discriminate, if there is evidence of a discriminatory effect.
FAIR HOUSING ADVERTISING GUIDELINE
According to the federal fair housing law, advertising for the sale or rental of property mav not state a preference for any person or an intention to exclude an), person because of the person's race, color, religion, sex. handicap, familia status, or national origin.
The prohibition of discriminatory intent applies to the use of media, such as newspapers, radio, television, or billboards, and any written material produced in connection with the sale or rental of a dwelling, such as application forms, brochures, flyers, signs, posters, or banners.
To Comply With Fair Housing Law, Avoid:
Ø Using words or phrases describing the dwelling, landlord. or tenants. Examples are: white private home, colored home, Jewish home, Hispanic residence, adult building, or other words indicative of race, color, religion, sex, handicap, farnilial status, or national origin.
Ø Conveying preference to one group over another or exclusion due to race, color, religion, sex, handicap, farnilial status (children under 18) or national origin.
Ø Using catchwords, such as restricted, exclusive, private, integrated, traditional, board approval, membership approval.
Ø Using symbols or logos that imply or suggest discrimination because of race, color, religion, sex, handicap, familial status (children under 18), or national origin.
Ø Writing out directions to the property that refer to well-known racial, ethnic, or religious landmarks or to any other major landmark that could signal a preference for a specific type of person.
Ø Targeting advertisements to one particular segment of the community.
Ø Using only adult or white models over a significant period of time.
Ø Using prohibited words or phrases with respect to handicapped persons or families with children. including:
· crippled deaf
· adult building
· restricted community
· mentally ill
· mature persons
Ø Advertising in:
· a strategically limited geographic area
· particular editions of newspapers to reach a particular segment of the community
· only small papers that cater to particular ethnic or religious groups rather than general circulation papers
· only selected sales offices
The Fair Housing Act Permits:
Ø Indicating that rental property is:
· accessible to handicapped individuals
· intended for and operated as housing for older persons
· Indicating age restriction for occupancy as long as children are not excluded.
· Using the equal housing opportunity logotype, statement, or slogan in all advertising.
· Using human models who:
o Represent all races and age segments of the population in the area, including families with children and people with disabilities.
o Vary periodically so that diverse groups in your community are featured -- majority and minority in the metropolitan area, both sexes, families with children (when appropriate).
o Portray persons in an equal social setting.
o Indicate to the general public that housing is available to all persons, regardless of status.
o Localize your efforts to abide by the law by knowing the guidelines in the area where promotional materials are seen.
o Learn about each publication's guidelines or criteria before placing an advertisement.
Questions to Evaluate Your Advertisements and Promotional Material
Ø What is your message really saying?
Ø Does the ad exclude any potential prospects or groups?
Ø Does the ad describe the services of the firm and not the target market?
Ø What steps can the firm take to assure that it can truly provide the services promoted in the ad?
FAIR HOUSING LAW AND ADVERTISING
While HUD regulations do not require that all advertising of residential real estate for sale, rent, or financing include an equal housing opportunity logo, statement, or slogan, HUD may view their inclusion as evidence of compliance with the Act's prohibitions against discriminatory advertising. HUD regulations do require the prominent display, in the locations listed below, of
HUD's fair housing posters, which are available from HUD area offices and which contain a fair housing slogan and logo:
• At brokerage offices or any other places of business where covered dwellings are
offered for sale or rent; and
• At dwellings under new construction, beginning with the commencement of
construction and maintained throughout construction and until such dwellings are
sold or rented.
Title VIII prohibits the use of advertising that indicates a preference for or against prospective buyers or tenants of a particular race, religion, sex, color, national origin, handicap, or familial status. Following are advertising guidelines issued by HUD regarding acceptable/unacceptable advertising phrases:
Advertising Guidelines for Acceptable/Unacceptable Phrases
Race, Color, and National Origin
• Unacceptable: Wording that describes the housing, the current or potential residents,
and neighbors or neighborhood in racial or ethnic terms (e.g., white family homes,
• Acceptable: Racially neutral terms (e.g., master bed- room, rare find, desirable
• Unacceptable: Ads with blatant phrases (e.g., no Jews, Christian home)
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)
• Acceptable: Secular terms such as Merry Christmas, Happy Easter, or images
of Santa Claus, an Easter Bunny, or a St. Valentine's Day graphic
• Unacceptable: Ads that indicate a gender preference (e.g., males/females only apply)
• Acceptable: Commonly used physical descriptions of housing units which are not
terms (e.g., mother-in-law's suite, bachelor apartment)
• Unacceptable: Ads that disallow handicap accessories (e.g., no wheelchairs)
• Acceptable: Phrases which describe a property's fea- tures, services, facilities, or
neighborhood (e.g., great view, fourth-floor walk-up, walk-in closets, jogging trails,
walking distance to bus stop)
• Unacceptable: Ads that limit the umber or ages of children allowed or express a
preference for adults, couples, or singles (see "Older Persons' Exemption" later in
• Acceptable: Descriptions of properties, their services, facilities (or lack thereof),
their neighborhood (e.g., two-bedroom, cozy family room, no bicycles allowed,
As a rule of thumb, ads should focus on property descriptions, rather than on the potential buyer. Stating that a property is near jogging trail (focusing on location) is much more acceptable than saying that it's great for joggers (focusing on potential buyer).
Using advertising media in selective publications can also lead to discriminatory results and may violate the Fair Housing Act. For example, problems may arise when an advertisement is placed in particular geographic or zoned editions of major metropolitan newspapers or in smaller newspapers that reach a particular segment of the community. Use consistent language about the properties and communities when advertising in several small news- papers that reach different audiences.
REALTOR® Fair Housing Declaration
I agree to:
· Provide equal professional service without regard to the race, color, religion, sex, handicap, familial status, or national origin of any prospective client, customer, or of the residents of any community.
· Keep informed about fair housing law and practices, improving my clients' and customers' opportunities and my business.
· Develop advertising that indicates that everyone is welcome and no one is excluded;, expanding my client's and customer's opportunities to see, buy, or lease property.
· Inform my clients and customers about their rights and responsibilities under the fair housing laws by providing brochures and other information.
· Document my efforts to provide professional service, which will assist me in becoming a more responsive and successful REALTOR®$.
· Refuse to tolerate non-compliance.
· Learn about those who are different from me, and celebrate those differences.
· Take a positive approach to fair housing practices and aspire to follow the spirit as well as the letter of the law.
· Develop and implement fair housing practices for my firm to carry out the spirit of this declaration.