Fair Housing – NO NO WORDS/PHRASES
Question: I am an Oregon real estate broker. I read a recent article about a Florida real estate broker who was sued because of remarks in an MLS listing which violated the Fair Housing Act (FHA), and it wasn’t even the broker’s listing! Do I have the same exposure? Can I be sued for simply republishing the remarks of a listing broker on my own website or blog? What steps can I take to prevent this from happening to me or my company?
Answer: The facts of the lawsuit you mention are somewhat unique and convoluted, but there are certainly some lessons which can be learned from what happened to that Florida broker. Most importantly, all brokers should know that they must be aware of the terms of the FHA when preparing listing remarks for the sale or lease of a residential property, and avoid including any descriptions of the property which could be construed as a violation of the FHA’s anti-discriminatory provisions, which outlaw discrimination on the basis of seven criteria, which include race, color, religion, national origin, sex, familial status and handicap status. If a plaintiff is successful on an FHA claim against a broker, the judgment could include not only actual damages, but punitive damages and the attorney fees and costs incurred by the plaintiff, so it can be a costly error.
Familial status, which is intended to prevent discrimination by housing providers against families with children, was the basis for the lawsuit you referred to in your question. The offending listing remark read as follows (ignoring the typos): “Adult only community no children under 16.”
While there is an explicit exemption for housing for older persons (so that the choices available to older persons are not unfairly limited), the provisions are quite specific and involve a number of specific conditions. The identified listing remark clearly did not meet these conditions, but as an aside, it turns out that the residential community in question had many years earlier withdrawn all conditions as to occupancy, at least as it related to familial status. Unfortunately, this didn’t stop the lawsuit from being filed, and defense costs being incurred.
It should also be noted that Oregon’s Fair Housing Law (ORS 659A.421) essentially tracks the FHA, and provides that a violation is an unlawful practice, which exposes the broker to not only actual damages, but statutory damages and the plaintiff’s attorney fees and costs. In addition, one of the elements of Oregon’s law specifically bars a real estate licensee from taking or retaining a listing “… with an understanding that a purchaser may be discriminated against with respect to the sale, rental or lease thereof because of race, color, religion, sex, sexual orientation, national origin, marital status, familial status or source of income” ORS 659A.421(4). Language requiring that the seller not discriminate is also included in the standard form of MLSCO listing agreement – see Paragraph 11.
What can be done to at least minimize the exposure to the type of lawsuit which that Florida broker faced?
Be aware of the FHA and Oregon anti-discriminatory provisions when preparing the remarks for every listing agreement. Run the language by the designated principal broker, and if any concern at all, run it by legal counsel for you or your company before publishing the remarks in MLS. While not legally controlling, an association on the East Coast recently published an advertising word/phrase list for compliance with the FHA, putting descriptive words and terms into categories of Acceptable, Caution, and Unacceptable. See a suggested Fair Housing Advertising Word/Phrase List the list here – Fair Housing Advertising Word/Phrase List.
2. IDENTIFICATION OF AUTHORSHIP.
Be sure that the original publisher of the listing (the listing brokerage firm), is clearly identified in connection with the remarks published at your own company’s website. This may not be much of an issue in connection with the re-publication on a broker’s website of another brokers’ listing (as the language appears at the bottom of each listing as to who has the listing), but it may become more of an issue if there is any publication of a listing on, for example, a broker’s own blog, and there is nothing to disclose who is the original author of those remarks.
In the case of the Florida broker, it was not clear as to whether it was the broker’s listing or not, and in the complaint, it was alleged it was the broker’s listing. It turns out the plaintiff was mistaken, and the listing belonged to another broker (albeit, at the same brokerage company!). Therefore, be sure in any advertising which includes remarks about a residential property for sale or lease to identify that it is not your listing, that you are not the author of the remarks, and are merely republishing what was reported to you by the listing broker.
The importance of the identification of the original author of the listing remarks is that there is a defense, based upon the federal Communications Decency Act (42 USC 230(c)(1)), as to any claims based upon content which was not authored by the party publishing the content. In other words, if content comes from another party, such as a listing broker, and through the IDX feeds, is made accessible over your own website to the general public, the mere act of re-publication should not be a basis for liability. This has, for example, protected Craigslist from legal liability for discriminatory advertisements posted on Craigslist by a third party.
3. WHEN IN DOUBT: DON’T PUBLISH.
A corollary to the above two points is that when in doubt about whether a particular term or phrase is in violation of the FHA of Oregon law, just don’t do it. Don’t publish the potentially offensive remarks. If you do get into a situation where a client/property owner requires that the listing remarks include language which gives you pause, ask for an opinion letter from the legal counsel for that client/property owner that such listing remarks are not in violation of the FHA or Oregon law (for example, remarks that a property is intended for, and is solely occupied by, persons 62 years of age or older may fall within the exception to familial status, and be acceptable, but this will also depend upon whether in fact that property (generally some form of planned elder community), follows those rules. The burden is on the defendants – (that would include you), to establish that the property is entitled to the senior housing exception. You may also want to consider obtaining an agreement for indemnification from the client/property owner.
4. CONFIRM THERE IS INSURANCE COVERAGE.
Check with your brokerage company, and make sure that in the Errors & Omissions insurance policy, there is coverage for claims such as those made for violations of the FHA and Oregon law, which is a separate form of coverage referred to as coverage for a “discrimination claim.”
“Discrimination claim” coverage may have different deductible amounts, different maximum coverage amounts, and so on, so you should make sure to get the specifics of any such coverage from your brokerage company.
Whether you can successfully defend a claim for a violation of the FHA or Oregon law, that is not the point – even if covered by E&O insurance, there is always going to be deductible. Be aware of the FHA and Oregon’s Fair Housing Law, and take steps to minimize your getting named as a defendant in a lawsuit in the first place.