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(FHA Admendment Acts of 1988 part 2)

The protections afforded against discrimination on the basis of familial status shall apply to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18 years.

(l) "Conciliation" means the attempted resolution of issues raised by a complaint, or by the investigation of such complaint, through informal negotiations involving the aggrieved person, the respondent, and the Secretary.

(m) "Conciliation agreement" means a written agreement setting forth the resolution of the issues in conciliation.

(n) "Respondent" means--

(1) the person or other entity accused in a complaint of an unfair housing practice; and

(2) any other person or entity identified in the course of investigation and notified as required with respect to respondents so identified under section 810(a) [42 USCS 3610(a)].

(o) "Prevailing party" has the same meaning as such term has in section 722 of the Revised Statutes of the United States (42 U.S.C. 1988).

HISTORY: (Apr. 11, 1968, P.L. 90-284, Title VIII, 802, 82 Stat. 81; Nov. 6, 1978, P.L. 95-598, Title III, 331, 92 Stat. 2679.)

(As amended Sept. 13, 1988, P.L. 100-430, 5, 102 Stat. 1619.)

HISTORY; ANCILLARY LAWS AND DIRECTIVES

REFERENCES IN TEXT:

"This title", referred to in this section, is Title VIII of Act Apr. 11, 1968, P.L. 90-284, 82 Stat. 81, and appears generally as 42 USCS 3601 et seq. For full classification of this Title, consult USCS Tables volumes.

AMENDMENTS:

1978. Act Nov. 6, 1978 (effective Oct. 1, 1979, as provided by 402(a) of this Act, which appears as an Effective date note proceeding 11 USCS 101), in subsec. (d), substituted "cases under title 11 of the United States Code" for "bankruptcy".

1988. Act Sept. 13, 1988 (effective on the 180th day beginning after enactment, as provided by 13(a) of such Act, which appears as 42 USCS 3601 note), in subsec. (f), substituted "806, or 818" for "or 806"; and added subsecs. (h)-(o).

OTHER PROVISIONS:

Federally protected activities; penalties. For the provision that penalties for violations respecting federally protected activities are not applicable to and do not affect activities under 42 USCS 3601 et seq., see 101(b) of Act Apr. 11, 1968, P.L. 90-284, Title I, 82 Stat. 75, which appears as 18 USCS 245 note.

Handicap definitions not applicable to transvestites. Act Sept. 13, 1988, P.L. 100-430, 6(b)(3), 102 Stat. 1622, effective on the 180th day beginning after enactment, as provided by 13(a) of such Act, which appears as 42 USCS 3601 note, provides: "For the purposes of this Act as well as chapter 16 of title 29 of the United States Code [29 USCS 701 et seq.], neither the term 'individual with handicaps' nor the term 'handicap' shall apply to an individual solely because that individual is a transvestite.".

NOTES:

CODE OF FEDERAL REGULATIONS

Nondiscrimination in federally assisted programs, 10 CFR Part 1040.

Organization and operation of Federal credit unions, 12 CFR Part 701.

RESEARCH GUIDE

FEDERAL PROCEDURE L ED:

6 Fed Proc L Ed, Civil Rights 11:212, 357-359, 363, 501.

AM JUR PROOF OF FACTS:

Racial Discrimination in Sale of Real Estate, 14 Am Jur Proof of Facts 2d, p. 511.

Racial Discrimination in Rental or Leasing of Real Property, 15 Am Jur Proof of Facts 2d, p. 525.

FORMS:

10A Federal Procedural Forms L Ed, Housing and Urban Development 39:3.

11 Federal Procedural Forms L Ed, Housing and Urban Development 39:3.

AMERICANS WITH DISABILITIES:

1 Am Disab, Programs, Services and Accommodations 2:2.

1 Am Disab, Programs, Services and Accommodations 1:207, 222; 2:2, 6.5, 140.

4 Am Disab, Housing 14:1, 3, 4, 5, 8, 11--13, 15, 58, 61, 164, 165, 184, 207; 15:21--23, 26, 34.

ANNOTATIONS:

Prohibition, under state civil rights laws, of racial discrimination in rental of privately owned residential property. 96 ALR3d 497.

INTERPRETIVE NOTES AND DECISIONS

1. "Dwelling"

2. "Person"

3. "Residence"

4. "Familial status"

5. "Handicap"

1. "Dwelling"

Summer bungalows that could be occupied for up to 5 months per year were dwellings within meaning of 42 USCS 3602, where nearly all of annual members of non-profit organization which owned bungalows returned to bungalows summer after summer; annual members were not mere transients, and there was no indication by Congress that 3602 exempted seasonal dwellings, and to recognize such distinction would permit residents in private development of summer homes to lawfully exclude Blacks from owning, renting, or occupying homes. United States v Columbus Country Club (1990, CA3 Pa) 915 F2d 877.

Nursing home was "dwelling" within meaning of 42 USCS 3602. Hovsons, Inc. v Township of Brick (1996, CA3 NJ) 89 F3d 1096.

By definition of "dwelling" as used in 42 USCS 3602, county's discriminatory housing practices are violations of 42 USCS 3604 only if directed toward particular projects or proposed developments. Planning for People Coalition v County of Du Page (1976, ND Ill) 70 FRD 38.

"Dwelling" as defined in 42 USCS 3602(b) does not include motel, which is commercial public accomodation not occupied, designed or intended for occupancy as residence. Patel v Holley House Motels (1979, SD Ala) 483 F Supp 374.

In action by migrant farm workers against corporations that provide housing to seasonal workers, alleging discrimination on basis of familial status, Fair Housing Act (FHA) applies, where housing provided was temporary, because FHA applies to temporary labor camp since camp serves as dwelling of employees for duration of their employment, and is therefore "dwelling" as defined in 42 USCS 3602(b). Hernandez v Ever Fresh Co. (1996, DC Or) 923 F Supp 1305.

"Dwelling", as defined in 42 USCS 3602(b), encompasses mobile home site. United States v Grooms (1972, MD Fla) 348 F Supp 1130.

Petitioner protesting suspension of his real estate license did not violate 42 USCS 3604 by refusing to show advertised property to black couple where, though racial motivation for refusal was apparent, property was acreage, there was no evidence that petitioner intended to market it for home sites, and property thus was not "dwelling" within meaning of 42 USCS 3602 and 3604. Ryan v Brown (1976, Fla App D2) 326 So 2d 70.

2. "Person"

"Person" as defined in 42 USCS 3602(d) includes municipal corporation. Bellwood v Gladstone Realtors (1978, CA7 Ill) 569 F2d 1013 affd, in part 441 US 91, 60 L Ed 2d 66, 99 S Ct 1601.

Persons who rented house with option to buy after seller repudiated contract with original buyers because they were black were aggrieved persons under 42 USCS 3602, entitled to damages as having been injured by discriminatory housing practice, where they were forced to hire lawyer to defend themselves, they suffered economic loss because they were forced to repack and relocate, and they suffered embarrassment, humiliation, and emotional distress as consequence of seller's actions. Secretary, United States Dept. of Housing & Urban Dev. on behalf of Herron v Blackwell (1990, CA11) 908 F2d 864.

3. "Residence"

Since term "residence" is not specifically defined in 42 USCS 3601 et seq., this term must be accorded its ordinary meaning, which is temporary or permanent dwelling place, abode or habitation to which one intends to return as distinguished from place of temporary sojourn or transient visit. United States v Hughes Memorial Home (1975, WD Va) 396 F Supp 544.

4. "Familial status"

Under 42 USCS 3607(b)(1), landlords may legitimately refuse, pursuant to local zoning restrictions on maximum occupancy, to allow large families to live in small quarters, notwithstanding FHA provision (42 USCS 3602(k)) making it illegal to discriminate in housing against families with children under the age of 18. City of Edmonds v Oxford House (1995, US) 131 L Ed 2d 801, 115 S Ct 1776, 9 ADD 402, 95 CDOS 3577, 95 Daily Journal DAR 6197, 9 FLW Fed S 10.

Allegation that tenants were evicted from their apartment because of their attempt to qualify as foster parents and their intent to bring foster child into apartment was sufficient to give tenants standing as persons injured by discriminatory housing practice under 42 USCS 3602, even though tenants were not yet in process of obtaining legal custody of child at time of eviction, where landlord's actions were discriminatory in that they expressed preference for tenants on basis of familial status in violation of 3604(c), and landlord retaliated against tenants when they attempted to have discriminatory policy changed. Gorski v Troy (1991, CA7 Ill) 929 F2d 1183.

Tenants lack standing to challenge their eviction under 42 USCS 3602(k), where complaint alleges eviction is due to tenants' intent to house foster children but tenants, who are licensed to be foster parents, are not in process of securing legal custody of foster children to live with them, because tenants have not attained "familial status." Gorski v Troy (1989, ND Ill) 714 F Supp 367.

5. "Handicap"

Former substance abusers involved in counseling and therapy with drug and alcohol abuse program were handicapped within meaning of 42 USCS 3602(h)(1)-(3), for purposes of action under FHA claiming that apartment complex manager's refusal to rent apartment units to former addicts involved in drug and alcohol abuse recovery program constituted illegal discrimination against handicapped individuals. United States v Southern Management Corp. (1992, CA4 Va) 955 F2d 914.

UNITED STATES CODE SERVICE

Copyright 1998, LEXIS Law Publishing, a division of Reed Elsevier Inc.

All rights reserved.

*** THIS SECTION IS CURRENT THROUGH 105-153, APPROVED 12/17/97 ***

TITLE 42. THE PUBLIC HEALTH AND WELFARE

CHAPTER 45. FAIR HOUSING

GENERALLY

42 USCS 3603 (1997)

3603. Effective dates of certain prohibitions

(a) Application to certain described dwellings. Subject to the provisions of subsection (b) and section 807 [42 USCS 3607], the prohibitions against discrimination in the sale or rental of housing set forth in section 804 [42 USCS 3604] shall apply:

(1) Upon enactment of this title [enacted April 11, 1968], to--

(A) dwellings owned or operated by the Federal Government;

(B) dwellings provided in whole or in part with the aid of loans, advances, grants, or contributions made by the Federal Government, under agreements entered into after November 20, 1962, unless payment due thereon has been made in full prior to the date of enactment of this title [enacted April 11, 1968];

(C) dwellings provided in whole or in part by loans insured, guaranteed, or otherwise secured by the credit of the Federal Government, under agreements entered into after November 20, 1962, unless payment thereon has been made in full prior to the date of enactment of this title [enacted April 11, 1968]: Provided, That nothing contained in subparagraphs (B) and (C) of this subsection shall be applicable to dwellings solely by virtue of the fact that they are subject to mortgages held by an FDIC or FSLIC institution; and

(D) dwellings provided by the development or the redevelopment of real property purchased, rented, or otherwise obtained from a State or local public agency receiving Federal financial assistance for slum clearance or urban renewal with respect to such real property under loan or grant contracts entered into after November 20, 1962.

(2) After December 31, 1968, to all dwellings covered by paragraph (1) and to all other dwellings except as exempted by subsection (b).

(b) Exemptions. Nothing in section 804 [42 USCS 3604] (other than subsection (c)) shall apply to--

(1) any single-family house sold or rented by an owner: Provided, That such private individual owner does not own more than three such single-family houses at any one time: Provided further, That in the case of the sale of any such single-family house by a private individual owner not residing in such house at the time of such sale or who was not the most recent resident of such house prior to such sale, the exemption granted by this subsection shall apply only with respect to one such sale within any twenty-four month period: Provided further, That such bona fide private individual owner does not own any interest in, nor is there owned or reserved on his behalf, under any express or voluntary agreement, title to or any right to all or a portion of the proceeds from the sale or rental of, more than three such single-family houses at any one time: Provided further, That after December 31, 1969, the sale or rental of any such single-family house shall be excepted from the application of this title only if such house is sold or rented (A) without the use in any manner of the sales or rental facilities or the sales or rental services of any real estate broker, agent, or salesman, or of such facilities or services of any person in the business of selling or renting dwellings, or of any employee or agent of any such broker, agent, salesman, or person and (B) without the publication, posting or mailing, after notice, of any advertisement or written notice in violation of section 804(c) of this title [42 USCS 3604(c)]; but nothing in this proviso shall prohibit the use of attorneys, escrow agents, abstractors, title companies, and other such professional assistance as necessary to perfect or transfer the title, or

(2) rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more than four families living independently of each other, if the owner actually maintains and occupies one of such living quarters as his residence.

(c) Business of selling or renting dwellings defined. For the purposes of subsection (b), a person shall be deemed to be in the business of selling or renting dwellings if--

(1) he has, within the preceding twelve months, participated as principal in three or more transactions involving the sale or rental of any dwelling or any interest therein, or

(2) he has, within the preceding twelve months, participated as agent, other than in the sale of his own personal residence in providing sales or rental facilities or sales or rental services in two or more transactions involving the sale or rental of any dwelling or any interest therein, or

(3) he is the owner of any dwelling designed or intended for occupancy by, or occupied by, five or more families.

HISTORY: (Apr. 11, 1968, P.L. 90-284, Title VIII, 803, 82 Stat. 82.)

HISTORY; ANCILLARY LAWS AND DIRECTIVES

REFERENCES IN TEXT:

"This title", referred to in this section, is Title VIII of Act Apr. 11, 1968, P.L. 90-284, 82 Stat. 81, and appears generally as 42 USCS 3601 et seq. For full classification of this Title, consult USCS Tables volumes.

OTHER PROVISIONS:

Federally protected activities; penalties. For the provision that penalties for violations respecting federally protected activities are not applicable to and do not affect activities under 42 USCS 3601 et seq., see 101(b) of Act Apr. 11, 1968, P.L. 90-284, Title I, 82 Stat. 75, which appears as 18 USCS 245 note.

NOTES:

CODE OF FEDERAL REGULATIONS

Nondiscrimination in federally assisted programs, 10 CFR Part 1040.

Organization and operation of Federal credit unions, 12 CFR Part 701.

CROSS REFERENCES

This section is referred to in 42 USCS 3604, 3605, 3612, 3617.

RESEARCH GUIDE

FEDERAL PROCEDURE L ED:

6 Fed Proc L Ed, Civil Rights 11:212, 357, 358, 360, 501.

AM JUR PROOF OF FACTS:

Racial Discrimination in Sale of Real Estate, 14 Am Jur Proof of Facts 2d, p. 511.

Racial Discrimination in Rental or Leasing of Real Property, 15 Am Jur Proof of Facts 2d, p. 525.

FORMS:

10A Federal Procedural Forms L Ed, Housing and Urban Development 39:3.

11 Federal Procedural Forms L Ed, Housing and Urban Development 39:3.

AMERICANS WITH DISABILITIES:

1 Am Disab, Programs, Services and Accommodations 1:207, 222; 2:2, 6.5, 140.

4 Am Disab, Housing 14:1, 3, 27, 165, 207.

ANNOTATIONS:

Validity, construction, and application of 804(c) of Civil Rights Act of 1968 (Fair Housing Act) (42 USCS 3604(c)) prohibiting discriminatory notice, statement, or advertisement with respect to sale or rental of dwelling. 22 ALR Fed 359.

Amount of attorneys' compensation in matters involving real estate. 58 ALR3d 201.

Prohibition, under state civil rights laws, of racial discrimination in rental of privately owned residential property. 96 ALR3d 497.

LAW REVIEW ARTICLES:

Calhoun, The Thirteenth and Fourteenth Amendments: Constitutional Authority for Federal Legislation Against Private Sex Discrimination. 61 Minn L Rev 313.

INTERPRETIVE NOTES AND DECISIONS

42 USCS 3603(b)(2) exemption is inapplicable to claim based on section 1982 of Civil Rights Act of 1866 [42 USCS 1982] declaring that all United States citizens shall have same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property. Morris v Cizek (1974, CA7 Ill) 503 F2d 1303.

42 USCS 3603(b)(1) does not exempt rental of single-family houses from obligations of 42 USCS 3604(a) when services of real estate broker or any person in business of renting dwellings are involved in rental transaction. Singleton v Gendason (1976, CA9 Cal) 545 F2d 1224.

Tenants of dwelling could not claim single-family exemption protection afforded by 42 USCS 3603(b)(1) since that exemption was only available to owners; contention that rental organization was not real estate broker or organization in "business of renting dwellings" within meaning of 42 USCS 3603(b)(1) was without merit where such organization received notices of available housing from various landlords and compiled list which it then sold for fee to persons seeking housing. Singleton v Gendason (1976, CA9 Cal) 545 F2d 1224.

Alleged discriminatory refusal by owners to proceed with rental-sale agreement with organization which operated group homes for persons infected with HIV did not qualify for exemption under 42 USCS 3603(b)(1), where property owner held undisputed ownership interest in more than 3 single family houses. Hogar Agua y Vida en el Desierto v Suarez-Medina (1994, CA1 Puerto Rico) 36 F3d 177, 6 ADD 857.

Blockbusting representations are not exempt from discrimination strictures under 42 USCS 3603 (b)(1). United States v Mitchell (1971, ND Ga) 327 F Supp 476.

Exemptions in 42 USCS 3603(b)(2), which exclude coverage of quarters which contain less than 4 families, would require dismissal of action brought under Title VIII if building contained less than 4 units, but exemption does not apply to actions brought under 1982 as statutes are concurrent; victim of racial discrimination in rental of housing has claim under both 1982 and Title VIII. Johnson v Zeremba (1974, ND Ill) 381 F Supp 165.

Real estate agent cannot be held liable for violation of Fair Housing Act (42 USCS 3601 et seq.), even though her sale of home to neighbors prevented its use as group home for mentally retarded adults, because agent, although real estate professional, here acted in "nonprofessional" manner as individual homeowner and was exempt from discrimination prohibitions of 3604(f)(1) under 3603(b)(1). Michigan Protection & Advocacy Service, Inc. v Babin (1992, ED Mich) 799 F Supp 695.

Action under Fair Housing Act ("FHA", 42 USCS 3601 et seq.) by AIDS advocacy group is dismissed for lack of subject-matter jurisdiction, where owner reneged on agreement to rent house to group for use by HIV-positive persons, owner had lived in house, but moved to new house because of robbery in rental house, and owner also owned and rented another house and 2 apartments, because 42 USCS 3603(b)(1) exempts owners of 3 or fewer dwellings from FHA, and house from which owner fled should not count as "dwelling," because to impose FHA requirements on owner would be penalty for being victim of crime. Hogar Agua Y Vida En El Desierto v Suarez (1993, DC Puerto Rico) 829 F Supp 19, 3 ADD 687.

UNITED STATES CODE SERVICE

Copyright 1998, LEXIS Law Publishing, a division of Reed Elsevier Inc.

All rights reserved.

*** THIS SECTION IS CURRENT THROUGH 105-153, APPROVED 12/17/97 ***

TITLE 42. THE PUBLIC HEALTH AND WELFARE

CHAPTER 45. FAIR HOUSING

GENERALLY

42 USCS 3604 (1997)

3604. Discrimination in the sale or rental of housing and other prohibited practices.

As made applicable by section 803 [42 USCS 3603] and except as exempted by sections 803(b) and 807 [42 USCS 3603(b), 3607], it shall be unlawful--

(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.

(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.

(c) To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.

(d) To represent to any person because of race, color, religion, sex, handicap, familial status, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.

(e) For profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, sex, handicap, familial status, or national origin.

(f) (1) To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of--

(A) that buyer or renter,

(B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or

(C) any person associated with that buyer or renter.

(2) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of--

(A) that person; or

(B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or

(C) any person associated with that person.

(3) For purposes of this subsection, discrimination includes--

(A) a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises except that, in the case of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.[;]

(B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling; or

(C) in connection with the design and construction of covered multifamily dwellings for first occupancy after the date that is 30 months after the date of enactment of the Fair Housing Amendments Act of 1988 [enacted Sept. 13, 1988], a failure to design and construct those dwellings in such a manner that--

(i) the public use and common use portions of such dwellings are readily accessible to and usable by handicapped persons;

(ii) all the doors designed to allow passage into and within all premises within such dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs; and

(iii) all premises within such dwellings contain the following features of adaptive design:

(I) an accessible route into and through the dwelling;

(II) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations;

(III) reinforcements in bathroom walls to allow later installation of grab bars; and

(IV) usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space.

(4) Compliance with the appropriate requirements of the American National Standard for buildings and facilities providing accessibility and usability for physically handicapped people (commonly cited as "ANSI A117.1") suffices to satisfy the requirements of paragraph (3)(C)(iii).

(5) (A) If a State or unit of general local government has incorporated into its laws the requirements set forth in paragraph (3)(C), compliance with such laws shall be deemed to satisfy the requirements of that paragraph.

(B) A State or unit of general local government may review and approve newly constructed covered multifamily dwellings for the purpose of making determinations as to whether the design and construction requirements of paragraph (3)(C) are met.

(C) The Secretary shall encourage, but may not require, States and units of local government to include in their existing procedures for the review and approval of newly constructed covered multifamily dwellings, determinations as to whether the design and construction of such dwellings are consistent with paragraph (3)(C), and shall provide technical assistance to States and units of local government and other persons to implement the requirements of paragraph (3)(C).

(D) Nothing in this title shall be construed to require the Secretary to review or approve the plans, designs or construction of all covered multifamily dwellings, to determine whether the design and construction of such dwellings are consistent with the requirements of paragraph 3(C).

(6) (A) Nothing in paragraph (5) shall be construed to affect the authority and responsibility of the Secretary or a State or local public agency certified pursuant to section 810(f)(3) of this Act [42 USCS 3610(f)(3)] to receive and process complaints or otherwise engage in enforcement activities under this title.

(B) Determinations by a State or a unit of general local government under paragraphs (5)(A) and (B) shall not be conclusive in enforcement proceedings under this title.

(7) As used in this subsection, the term "covered multifamily dwellings" means--

(A) buildings consisting of 4 or more units if such buildings have one or more elevators; and

(B) ground floor units in other buildings consisting of 4 or more units.

(8) Nothing in this title shall be construed to invalidate or limit any law of a State or political subdivision of a State, or other jurisdiction in which this title shall be effective, that requires dwellings to be designed and constructed in a manner that affords handicapped persons greater access than is required by this title.

(9) Nothing in this subsection requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.

HISTORY: (Apr. 11, 1968, P.L. 90-284, Title VIII, 804, 82 Stat. 83; Aug. 22, 1974, P.L. 93-383, Title VIII, 808(b)(1), 88 Stat. 729.)

(As amended Sept. 13, 1988, P.L. 100-430, 6(a)-(b)(2), (e), 15, 102 Stat. 1622, 1623, 1636.)

HISTORY; ANCILLARY LAWS AND DIRECTIVES

References in text:

"This title", referred to in this section, is Title VIII of Act Apr. 11, 1968, P.L. 90-284, 82 Stat. 81, which is popularly known as the Fair Housing Act, and appears generally as 42 USCS 3601 et seq. For full classification of this Title, consult USCS Tables volumes.

Explanatory notes:

The bracketed semicolon is inserted at the conclusion of subsec. (f)(3)(A) as the punctuation probably intended by Congress.

Amendments:

1974. Act Aug. 22, 1974, in subsecs. (a)-(e), inserted ", sex".

1988. Act Sept. 13, 1988 (effective on the 180th day beginning after enactment, as provided by 13(a) of such Act, which appears as 42 USCS 3601 note), in subsecs. (a) and (b), inserted "familial status,"; in subsecs. (d)-(e), inserted "handicap, familial status,"; added subsec. (f), and, in para. (3)(A) of such subsec., substituted "except that, in the case of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted." for the concluding semicolon [see the Explanatory note to this section].

Other provisions:

Federally protected activities; penalties. For the provision that penalties for violations respecting federally protected activities are not applicable to and do not affect activities under 42 USCS 3601 et seq., see 101(b) of Act Apr. 11, 1968, P.L. 90-284, Title I, 82 Stat. 75, which appears as 18 USCS 245 note.

NOTES:

CODE OF FEDERAL REGULATIONS

Nondiscrimination in federally assisted programs, 10 CFR Part 1040.

Organization and operation of Federal credit unions, 12 CFR Part 701.

CROSS REFERENCES

This section is referred to in 42 USCS 3602, 3603, 3612, 3617.

RESEARCH GUIDE

Federal Procedure L Ed:

Fed Proc, L Ed 11:65, 11:263, 11:266, 11:276, 11:280.

6 Fed Proc L Ed, Civil Rights 11:82, 106, 212, 220, 221, 223, 357, 358, 360, 483, 485, 486, 501, 502.

Am Jur:

15 Am Jur 2d, Civil Rights 249, 250, 251, 481, 489, 496.

83 Am Jur 2d, Zoning and Planning 239.

Am Jur Proof of Facts:

Racial Discrimination in Sale of Real Estate, 14 Am Jur Proof of Facts 2d, p. 511.

Racial Discrimination in Rental or Leasing of Real Property, 15 Am Jur Proof of Facts 2d, p. 525.

Forms:

10A Federal Procedural Forms L Ed, Highways and Bridges 38:60.

10A Federal Procedural Forms L Ed, Housing and Urban Development 39:2, 3, 31, 36-39, 51, 52-56.

11 Federal Procedural Forms L Ed, Housing and Urban Development 39:3, 39:8, 39:31, 39:35-39:38, 39:51-39:53.

1A Am Jur Legal Forms 2d, Advertising 12:2.

13A Am Jur Pl & Pr Forms (Rev), Housing Laws and Urban Redevelopment, Forms 43, 46.

Americans with Disabilities:

1 Am Disab, Programs, Services and Accommodations 1:207, 222; 2:2, 6.5, 140.

4 Am Disab, Housing 14:1, 3, 4, 9-12, 15, 17-19, 21, 23, 24-28, 34, 35, 36, 39, 42-46, 51-53, 55-59, 91, 94, 164, 164.5, 165, 177, 181, 182, 184, 187, 188.5, 190, 193.5, 194-196, 198, 201-204, 206, 207; 15:21, 26, 27, 34.

Annotations:

Racial discrimination involving recreational facilities. 29 L Ed 2d 1028.

Applicability to advertisements of First Amendment's guarantee of free speech and press--Federal cases. 37 L Ed 2d 1124.

What constitutes "pattern or practice" of racial discrimination in sale or rental of housing within meaning of provision of Fair Housing Act of 1968 (42 USCS 3613) authorizing attorney general to bring civil action for preventive relief against such conduct. 13 ALR Fed 285.

Validity, construction, and application of 804(c) of Civil Rights Act of 1968 (Fair Housing Act) (42 USCS 3604(c)) prohibiting discriminatory notice, statement, or advertisement with respect to sale or rental of dwelling. 22 ALR Fed 359.

What constitutes reverse or majority discrimination on basis of sex or race violative of Federal Constitution or statutes. 26 ALR Fed 13.

"Redlining," consisting of denial of home loans or insurance coverage in certain neighborhoods, as discrimination in violation of 804 and 805 of Fair Housing Act (42 USCS 3604, 3605). 73 ALR Fed 899.

Refusal to rent based on sex or familial status as violation of Fair Housing Act (Civil Rights Act of 1968, 801 (42 USCS 3604)). 115 ALR Fed 467.

Validity, Construction, and Application of 804(c) of Civil Rights Act of 1968 (Fair Housing Act) (42 USCS 3604(c)) Prohibiting Discriminatory Notice, Statement, or Advertisement With Respect to Sale or Rental of Dwelling. 142 ALR Fed 1.

What constitutes illegal discrimination under state statutory prohibition against discrimination in housing accommodations on account of marital status. 33 ALR4th 964.

Validity and construction of anti-blockbusting regulations designed to prevent brokers from inducing sales of realty because of actual or rumored entry of racial growth into neighborhood. 34 ALR3d 1432.

Prohibition, under state civil rights laws, of racial discrimination in rental of privately owned residential property. 96 ALR3d 497.

Law Review Articles:

Mental Health Law Project, Mental Disability Law: 1988. Clearinghouse Rev 966, January, 1989.

Business Necessity in Title VIII: Importing an Employment Discrimination Doctrine into the Fair Housing Act. 54 Fordham L Rev 563, March, 1986.

Advertising for the "Discriminating" Landlord: The Media and Fair Housing Legislation. (1973) 58 Iowa L Rev 638.

The Fair Housing Act: newspaper liability for discriminatory advertisements. 37 Loy L Rev 981 (Winter 1992).

Fair Housing Act-Ragin v. New York Times [923 F.2d 995]: is it time to end the use of models in housing advertisements? 22 Mem St U L Rev 401 (Winter 1992).

Calhoun, The Thirteenth and Fourteenth Amendments: Constitutional Authority for Federal Legislation Against Private Sex Discrimination. 61 Minn L Rev 313.

A Last Stand on Arlington Heights: Title VIII and the Requirement of Discriminatory Intent. 53 New York University L Rev 150 April, 1978.

McGee, Illusion and Contradiction in the Quest for a Desegregated Metropolis. 1976 U Ill L F 948.

Discrimination in the Sale of Private Property. (1968) 23 U Miami L Rev 225.

Non-discrimination in the Sale or Rental of Real Property. (1969) 22 Vanderbilt L Rev 455.

Prohibition of Private Discrimination in the Rental or Sale of Real Property. (1970) 7 Wake Forest L Rev 88.

Ellickson, Suburban Growth Controls: An Economic and Legal Analysis. 86 Yale L J 385.

INTERPRETIVE NOTES AND DECISIONS

I. IN GENERAL

1. Generally

2. Purpose

3. Constitutionality

4. Construction

5. Application

6. "Dwelling"

6.5. Reasonable accomodation

7. Use of "checkers"

II. PARTICULAR PRACTICES AS DISCRIMINATORY

8. Generally

9. Refusals to sell

10. Refusals to rent

11. --Public housing projects

12. Refusals to show

13. Preferential advertising

14. "Blockbusting"

15. "Steering"

16. Zoning and land use ordinances

17. Miscellaneous practices

III. PRACTICE AND PROCEDURE

18. Generally

19. Sufficiency of complaint

20. Standing

20.5. Class action

21. Burden of proof

22. Evidence

23. Vicarious liability

24. Relief

25. Moot questions

26. Limitations

I. IN GENERAL

1. Generally

City ordinance, which prohibits display of "For Sale," "Sold," or similar signs on premises located in residential areas of city is not contrary to policies and provisions of Fair Housing Act, but entirely consistent with such policies; ordinance represents effort to accomplish same end to which "blockbusting" federal statute is directed. Barrick Realty, Inc. v Gary (1974, CA7 Ind) 491 F2d 161.

42 USCS 3604(c) prohibits recorder of deeds from accepting for filing instruments which contain racially restrictive covenants. Mayers v Ridley (1972) 151 App DC 45, 465 F2d 630.

Discrimination on basis of occupation is no basis for redress under 42 USCS 3604. Lee v Minnock (1976, WD Pa) 417 F Supp 436, affd without op (CA3 Pa) 556 F2d 567.

Contention by municipality that racial discrimination is permissible " secondary" motivation for city's actions, if there were other legitimate bases for actions, is inconsistent with provisions of 42 USCS 3604. United States v Parma (1980, ND Ohio) 494 F Supp 1049, app dismd without op (CA6 Ohio) 633 F2d 218 and later op (ND Ohio) 504 F Supp 913, affd in part and revd in part on other grounds (CA6 Ohio) 661 F2d 562, reh den (CA6) 669 F2d 1100 and cert den (US) 72 L Ed 2d 441, 102 S Ct 1972, reh den (US) 73 L Ed 2d 1309, 102 S Ct 2308.

There is no federally protected right under 42 USCS 3604 to housing in particular community.. Schmidt v Boston Housing Authority (1981, DC Mass) 505 F Supp 988.

2. Purpose

Purpose of 42 USCS 3604(e) is to prevent persons from preying upon fears of property owners in racially transitional areas and from inducing panic selling which results in community instability. Zuch v Hussey (1973, ED Mich) 366 F Supp 553.

Purpose of Fair Housing Act (42 USCS 3601 et seq.) is to provide remedy against individuals who are guilty of unlawful discrimination in rental or sale of housing and is not directed at those who merely are responsible for putting violator in position in which he can act improperly. Hollins v Kraas (1973, ND Ill) 369 F Supp 1355.

3. Constitutionality

Since court gives great deference to congressional determination that 42 USCS 3604 will effectuate purpose of Thirteenth Amendment by aiding in elimination of "badges and incidents of slavery in the United States", 3604 is within congressional power under Thirteenth Amendment; 3604 is aimed only at commercial activity and commercial speech made to gain profit from racial representation and is not unconstitutional prior restraint on free speech. United States v Bob Lawrence Realty, Inc. (1973, CA5 Ga) 474 F2d 115, cert den 414 US 826, 38 L Ed 2d 59, 94 S Ct 131, reh den 414 US 1087, 38 L Ed 2d 494, 94 S Ct 610.

42 USCS 3604 was not void for vagueness as applied to claim by black home purchasers that by publishing real estate advertisements featuring thousands of human models of whom virtually none were black, newspaper published real estate ads that indicated preference based on race, where ordinary reader standard provided adequate notice of prohibited conduct. Ragin v New York Times Co. (1991, CA2 NY) 923 F2d 995, 18 Media L R 1666.

Fair housing provisions are sustainable under Thi

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