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What to Look Out For, What to Avoid
At the International Builders’ Show in Orlando, Ross explained how builders, in general, fell into 13 common fair housing traps and what they could do to avoid these traps. These traps include:
- Not Knowing All the Protected Categories
Ross said most housing professionals know enough not to discriminate on the basis of race, religion or national origin but may not be fully aware of other protected categories including age, disability or familial status. In addition, certain states and municipalities may have additional protected categories — i.e., marital status, sexual orientation, etc. ― that builders need to be aware of.
According to Ross, casual, well-meaning comments made by company representatives that have caused problems include phrases like, “This building is primarily for younger people,” or, “We can’t really accommodate a disabled person” or, “This really isn’t a building for children.”
To avoid that trap, he said companies should train their representatives to make sure they are knowledgeable about all the protected categories and to respond to customers’ questions accordingly.
- Failing to Comply With Accessibility Requirements
Failure to comply with accessibility requirements are “slam dunk losers for defendants,” Ross said, while adding that many architects, builders and developers still are unfamiliar with all the statutory accessibility requirements. With failure to comply, he said, ignorance is not a defense and the solution meted out could be very costly for the builder or developer.
As an example, he said one multifamily builder of four-unit low-rise buildings incurred huge expenses after installing elevators that did not meet accessibility requirements. The elevators could not accommodate wheelchairs, so the builder had to rip out the elevators in all the completed units (about half the proposed community at the time) and replace them with larger elevators that cut into space in all the existing units’ dining rooms and living rooms.
Ross acknowledged that accessibility issues are often technical and complex and include elevator door widths, floor level, access to switches, landscaping, maneuverability in kitchens and bathrooms and more. He recommended that builders and developers use architects and attorneys with specialized expertise in accessibility or, at the least, have them review all plans before beginning a project.
- Absence of a Diverse Workforce
While a company may be open and sensitive to fair housing issues, if its workforce is not diverse, a member of a protected group may feel uncomfortable and may feel like they're “sticking out,” Ross said.
“If all the salespeople and employees are of the same type, you are sending an exclusionary message,” he said. “Nothing diffuses potential discrimination claims like having visible, diverse company representatives.”
- Failing to Seek a Diverse Clientele
When a fair housing claim is made, Ross said it was helpful for a defendant to show not only that he did not discriminate, but that he affirmatively attempted to reach out to minority groups.
He said companies should not only advertise in specific publications or neighborhoods where they believe they will find a majority of their prospective buyers. He said they also should advertise in publications that serve diverse communities.
- Lack of Uniform Written Policies and Procedures
One of the easiest ways to prove a fair housing discrimination case is to show that a person in a protected category was treated differently than someone else, Ross said. One way to disprove such an allegation is to have and follow uniform written policies and procedures.
“It only takes a little bit of digging to find alleged evidence of discrimination,” Ross said. “Have basic policies and procedures in place so everyone knows, and you can demonstrate, how things are to be handled.”
Ross said one developer had initiated a practice of not accepting low-ball offers but ran into trouble when a minority home seeker was told he was not allowed to make such an offer. It was the developer’s policy, but the policy wasn’t formalized or written down, so he was forced to defend a fair housing claim.
“Uniform procedures can make the difference between winning and losing,” Ross said.
- Confusing Business Practices
Ross said that real estate personnel who make the home buying experience simple and easy tend to have fewer fair housing problems than companies with arbitrary, cumbersome and confusing practices. “Incomprehensible forms and unnecessary complexity seem to invite problems, particularly involving protected group status,” Ross said.
As an example, Ross told of a developer who put a minority home seeker on his new community’s waiting list early in the development phase. As popularity for his project increased, the developer decided to sell it only to “friends and family,” which included home owners of his other projects.
The change in business practice was legitimate, Ross said, however the developer neglected to tell the minority home seeker of this change in policy and the developer continued telling the home seeker that he was on the waiting list every time the home seeker inquired about the project. The developer got into trouble because the home seeker knew people after him were able to buy homes while he was still on the waiting list.
- Inattentive, Insensitive Customer Service
Poor customer service is one of the biggest fair housing traps that builders and real estate personnel can fall into, according to Ross. Poor customer service is “about treating people without respect.”
Ross said people believe they aren’t treated with respect when their telephone calls are not returned, meetings are not set, they are shuttled between personnel, the time isn’t taken to discuss individual needs and when their personal information is discussed in open areas.
One developer provoked a disability claim after selling a unit that required stairway access to an elderly couple clearly unable to navigate the stairs, he said. A similar problem can occur when a home seeker is told to “look around and see if you like anything.”
This can provoke a claim, Ross said, because the home seeker believes the salesperson is too lazy or too disinterested to spend the time with the home seeker to determine his real needs.
Home seekers do not like to feel handled or pushed, and this feeling can provoke fair housing claims when a company representative makes assumptions about what type of property or its location is of interest to a home seeker and then steers the home seeker in that direction. When the assumptions are wrong, it may appear that the home seeker’s choices were limited.
Ross also warned of going too far in the opposite direction and providing the home seeker with an “unmanageable amount of information.” He said a typical case arises when a home seeker is given dozens and dozens of listings of available homes. Instead of choice, the home seeker believes he is getting the “brush off.”
Ross said the solution to both situations is to ask prospective home seekers about their interests and then to make sure they receive a manageable number of options that is consistent with those interests.
- Improperly Answering the Question, “Are There Any (Fill in the Blank) Living Here?”
Simply put, Ross said company representatives who provide racial or ethnic information about residents or the community are asking for trouble. The only safe answer to this question from a home seeker is, “I am not allowed to provide that information.”
He also suggested responding with, “Why do you ask?” Such a question often deters home seekers who are asking the question for improper purposes, he said.
Ross said there are a growing number of fair housing claims arising from company representatives being over friendly or helpful with a potential buyer. The problem occurs, he said, when the representative assumes or determines what types of buyers are most interested in the community and then offers a comment such as, “I am not sure you would be comfortable living here” to someone who doesn’t fit that determination.
Ross said that the solution is to train company representatives to describe the product that is being sold and not the customers who might be interested in it.
- Permitting Jokes and Slurs
Ross said that there is no such thing as “off the record” in fair housing. He said there was no room for “private” jokes or inappropriate comments about protected groups. A fair housing claim that has no legitimate basis “takes on a whole new look when it is discovered that jokes were made,” he said.
“Real estate businesses that have anything other than zero tolerance for this type of activity are asking for trouble,” Ross said.
- Failing to Provide Fair Housing Training
Fair housing training can help defuse or eliminate potential situations and mitigate claimant judgments, Ross said.
Professional fair housing training usually addresses a myriad of situations and how they should be handled. The training usually emphasizes what to say and do and how what you say and do can create or terminate a fair housing problem, Ross said.
He added that a trained workforce is less likely to get sued, while an untrained workforce is an open invitation to liability.
- Failing to Support Fair Housing
Ross said fair housing organizations and their supporters generally see two types of real estate businesses when they are out in the community — those that “get it” and those that don’t. Those that “don’t” are more likely to get sued.
Ross suggested that builders that “get it” should have specific written fair housing policy prominently displayed. This includes displaying HUD posters, using the fair housing logo, following equal service procedures and appointing a fair housing officer to coordinate and address fair housing issues.
“The more a company does this, the less likely it will end up in troubling litigation,” Ross said.
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